Editorial: Legalize pot, but not via flawed Question 4

  • In this Oct. 4 photo, farm workers inside a drying barn take down newly harvested marijuana plants after a drying period, at Los Suenos Farms, America's largest legal open air marijuana farm, in Avondale, southern Colorado. Massachusetts voters Tuesday will consider Question 4, which would legalize recreational marijuana. The Gazette recommends a no vote. FILE PHOTO

Published: 11/5/2016 12:42:46 AM

Recreational use of marijuana by adults should be legal in Massachusetts, but the flawed Question 4 on Tuesday’s ballot is not the best way to achieve that goal. We recommend a no vote, and urge the Legislature to craft a better law in its upcoming session.

We expect Senate President Stanley Rosenberg of Amherst, who has expressed concerns about Question 4 but in October said he will vote for it, to play a key role in making that a legislative priority next year.

Question 4 would allow adults 21 and older to legally possess and use up to one ounce of marijuana beginning Dec. 15. The law would also permit growing up to 12 marijuana plants per household for personal use. However, selling pot for recreational use would not be legal until Jan. 1, 2018, creating a gray area for 12½ months that is just one of the troubling aspects of a ballot referendum that contains 12 sections and covers 11 pages, but too often lacks specifics.

The question fails to address limits on the potency of THC (the psychoactive chemical in marijuana), regulations covering the advertising and sale of potent edibles such as cookies and candies that would be attractive to children, and a standard for legally determining when someone is “driving while high.”

Massachusetts is one of five states where voters Tuesday will consider legalizing recreational pot. It already is legal in four states — Alaska, Colorado, Oregon and Washington — as well as the District of Columbia. Massachusetts in 2008 voted to decriminalize the personal use of one ounce or less, and four years later voters approved the medical use of marijuana.

Members of the Gazette’s editorial board were split on how best to proceed to achieve full legalization of pot, which all agree is inevitable. Some argued that approving Question 4 would force the Legislature to act, adopting the stance taken by Rosenberg last month when he announced his intention to vote for Question 4. “Then we will work to improve the law,” he said.

But other members contended that approving a referendum that needs immediate major surgery is not good public policy, and that the Legislature should be given a final opportunity to produce a law with the proper regulations and safeguards, before marijuana is legalized either by the Legislature or a popular referendum.

That recommendation is in line with the report issued in March by the Special Senate Committee on Marijuana, which was created by Rosenberg. While it did not take a stand on the ballot question, the report reviewed the impacts in other states that have legalized pot and assessed the public health, safety and financial implications for Massachusetts.

“In the final analysis, the Committee members believe strongly that it would be prudent for Massachusetts to take a cautious approach to considering marijuana legalization, and continue to learn from the experience of other states. … it will be critical for the Legislature to carefully consider how best to address the numerous policy issues outlined in this report in order to protect the health and safety of the residents of the Commonwealth.”

The report lists goals that should be a framework for the Legislature’s work over the next year. Among them are preventing marijuana use by youths under 21, minimizing misuse and addiction by adults, reducing the black market and criminal activity, and ensuring a “well-regulated marketplace that minimizes commercialization and avoids disparate impacts on vulnerable communities.”

The Senate committee also recognizes concerns raised by doctors and other health professionals that legalizing marijuana for adults will send a message to teens that its use is acceptable and safe, when, in fact, there is substantial evidence that the drug damages the developing brain. The committee’s report calls for education programs aimed at youths.

Rosenberg has identified three other major concerns, which are not adequately addressed by Question 4: regulation of edible products infused with marijuana, a reliable way of testing for impaired driving and a higher tax rate than the proposed 3.75 percent.

While pot brownies are the stereotype, many more foods can be prepared with marijuana as an ingredient. Of particular concern is the attractiveness of edibles to children who may not realize that they contain pot. And the potency level of THC in some edibles is much higher than the typical 18 percent found in marijuana plants.

The Massachusetts Health & Hospital Association cites among its reasons for opposing Question 4: “There is no limit on the potency of edibles and hospitals in states that have legalized marijuana have seen a marked increase in marijuana ingestion cases through emergency departments.”

Legalizing marijuana use also increases the likelihood that more people will drive while high. The Rocky Mountain High Intensity Drug Trafficking Area, a drug enforcement program, reported that marijuana‐related traffic deaths increased by 48 percent in the three years after Colorado legalized pot in 2012, compared to the three years before.

When a driver is suspected of being drunk, police can use a breath alcohol-testing device and compare the results against a state-mandated standard for impairment. But nothing like the Breathalyzer exists when it comes to testing a driver’s impairment from THC.

The Senate committee recommends that the state establish ” a legal limit for THC blood concentration” and “support efforts underway to develop new and reliable tests for marijuana intoxication that can function more like an alcohol Breathalyzer.” Absent that kind of reliable testing, law enforcement must develop field sobriety tests that would produce results that could be used as evidence in court.

Taxation and revenue also are among the critical issues resulting from legalized marijuana. Massachusetts should follow the lead of other states and be creative in how it uses tax revenue from marijuana sales. In Colorado, the first $40 million generated by a 15 percent excise tax goes to a school building fund. Colorado also imposes a 10 percent marijuana-specific sales tax.

In Washington, which has a 37 percent sales tax for marijuana transactions (in addition to a 6.5 percent general sales tax), some $21 million is spent on education, prevention and treatment programs.

The 3.75 percent excise tax proposed by Question 4 is way too low. The Senate committee recommends an excise tax imposed on growers of between 5 percent and 15 percent, a marijuana sales tax between 10 percent and 20 percent and a local option sales tax of up to 5 percent.

According to the Senate committee, that should produce enough revenue to pay not only for regulatory and enforcement costs, but also for education and prevention programs for adults and youths as well as marijuana substance abuse treatment.

The Special Senate Committee on Marijuana has done its work, producing a well-researched, even-handed analysis of the implications of fully legalizing pot. It makes sense now for the Legislature to put regulations and health safeguards in place and then open the door for recreational use of marijuana – rather than the other way around.

The Gazette recommends voting no on Question 4.




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