Initiative 502 and Conflicting State and Federal Law


On November 6, 2012, Washington State voters passed Initiative 502, the short description of which reads, “This measure would license and regulate marijuana production, distribution, and possession for persons over twenty-one; remove state-law criminal and civil penalties for activities that it authorizes; tax marijuana sales; and earmark marijuana-related revenues.” The act completely decriminalizes marijuana possession for those over twenty-one, and creates a system of legal production and distribution of small amounts of marijuana, which is regulated by the Liquor Control Board. This initiative, and a similar one passed in Colorado, authorizes the creation of a regulatory scheme for legal recreational marijuana use for the first time in the United States, demonstrating a possible shift in public attitudes toward drugs.

Initiative 502 may legalize marijuana on the state level, but marijuana production, distribution, and possession are still illegal on the federal level. The United States is a party to two international treaties requiring this criminalization, the Single Convention on Narcotic Drugs and the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,5 and has its own federal penal law, the Controlled Substances Act, that implements these treaties domestically.

Initiative 502 has three main goals: to establish a licensing system for marijuana production and distribution administered by the Liquor Control Board; to amend existing state criminal law to decriminalize marijuana production, distribution, and possession under certain circumstances; and to amend driving while intoxicated statutes to treat blood-THC content similar to blood-alcohol content.

Part II describes Initiative 502, how it is different from the current medical marijuana framework in Washington, and then examines the conflicting federal and international law. Part III looks at the legal implications of the conflicting state and federal law under United States law and international law. Part IV examines the normative and practical impacts of the conflicting laws on the citizens of Washington, the federal government, and the international community. Part V concludes by discussing options for federal response to Initiative 502 and the consequences of each possible reaction.

Under Initiative 502, the Washington State Liquor Control Board (LCB) administers three types of licenses: a producer’s license, a processor’s license, and a retailer’s license. The initial license for each type will cost two hundred and fifty dollars, and then one thousand dollars to renew the licenses every year. Each license is specific to a person and a location of operation and may not be transferred. The producer and processor may not have any financial interest in the retailer. Applicants for these licenses may be investigated by the LCB, which may include site visits and an FBI fingerprint search. Based on these investigations, the LCB may deny, suspend, or revoke one of these licenses “and all protections of the licensee from criminal or civil sanctions under state law.” In addition, all those involved in managing a marijuana-related business must be license holders and all of the employees must be at least twenty-one years of age. The LCB may provide for the seizure of marijuana grown or distributed out of compliance with their regulations.

Read More

Nathaniel Counts, Initiative 502 and Conflicting State and Federal Law, 49 Gonz. L. Rev. 187 (2014).

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