You Say Yes, I Say No: What the Recent State Cannabis Elections Say About the Future of Adult-Use Programs
Lost for many in the avalanche of news about the midterms, voters in five states went to the polls last month to vote on proposals allowing adult-use (often referred to as “recreational”) cannabis.
Let’s not bury the lede: two states (Maryland and Missouri) voted to allow adult-use cannabis, and three others (Arkansas and the Dakotas) voted down the proposals.
What, if anything, do the results of these five state elections tell us about the future of adult-use cannabis in other states in the future?
In some ways, we were surprised that the majority of the proposals failed.
In every state where adult-use cannabis was on the midterm ballot, cannabis was already legal for medical use. Some of these medical-use programs were older and more established than others. But, without speculating too much, we’ll go ahead and tell you what this means for each state.
First, the Maryland initiative builds from the state’s eight-year-old medical-use and seven-year-old decriminalization programs. Once in effect, the amendment generally legalizes adult-use and possession of cannabis for anyone in Maryland age 21 or older. The amendment will allow adults over 21 to grow up to two cannabis plants at home and possess up to 1.5 ounces of flower. It also requires the legislature to pass laws governing all future regulation of adult-use cannabis, which includes everything from flower cultivation and retail sales to cannabis taxes and licenses. To date, the legislature has not released a draft of any future cannabis laws.
The amendment — which passed with about 66% of voters in favor and 33% against — adds Article XX to the Maryland Constitution. The new amendment will go into effect on July 1, 2023.
Second, and unlike Maryland, Missouri has only had medical-use cannabis for a few years. The new initiative legalizes adult use and possession of up to 3 ounces of flower. It applies a 6% tax rate to all non-medical sales. The amendment also creates a microbusiness program and expungement and vacated sentence programs. And at least 144 new licenses will be issued under the amendment.
Missouri’s initiative passed by a much slimmer margin than Maryland’s (53% in favor). The amendment goes into effect on December 8 of this year, but Missourians cannot buy adult-use cannabis products until February 6, 2023.
And now, the rest of the story.
Given existing medical cannabis growers and sellers licenses to grow and sell adult-use, non-medical cannabis
Authorized 12 additional cultivation licenses and 40 dispensary licenses for adult use of cannabis
Eliminated the existing sales tax on medical cannabis
Created sales tax on adult-use cannabis
Eliminated a cap on how much THC can be in medical cannabis-infused drinks and food portions
Denied legislators authority to change the amendment without a popular vote
Changed rules for businesses licensed to grow and sell cannabis in Arkansas
The road to the ballot was not smooth for Issue 4. Initially, the Arkansas State Board of Election Commissioners and Secretary of State refused to certify the ballot title and popular names for the 2022 midterms. After an expedited Supreme Court ruling, the Board of Election Commissioners’ decision was overturned, paving the way for the measure to reach the ballot. The effort was for naught; the initiative failed with 56% of voters against the amendment. The next vote on adult-use cannabis is likely to hit the ballot in 2024, according to backers of the 2022 initiative.
South Dakota’s Measure 27 sought to allow adults over 21 to possess and use up to 1 ounce of cannabis for personal use. The measure also would have allowed adults to grow up to six plants and share that cannabis with others if there wasn’t a retail cannabis store in their county or municipality. The measure would have provided regulations for a retail market as well.
The measure failed with almost 53% against. This was the closest race among the three failed states. Another measure on adult-use cannabis will likely be present on 2024 South Dakota ballots.
The North Dakota proposal sought to legalize production, processing, sale, possession, use, and home cultivation of cannabis for individuals age 21 and older. If passed, it would have added a new chapter to the North Dakota Century Code and created a state entity to regulate cannabis (N.D. Cent. Code § 19-24.2). The new statute would have regulated all facets of the cannabis retail market, as well as individual possession, use, and cultivation.
The measure failed — with 55% of voters against Initiated Statutory Measure No. 2. This is the second time an adult-use cannabis initiative has failed in North Dakota; the first was in 2018. Although another adult-use cannabis proposal could reach the 2024 ballot in North Dakota, there is no preliminary indication whether it will.
At first glance, it may appear odd that a majority of the proposals for adult-use cannabis failed when there appeared to be nearly universal momentum towards liberalizing cannabis policy throughout the states. If anything, these results may serve as a helpful reminder to many of us in the cannabis industry that nonmedical cannabis is still a controversial topic among many voters. It may be significant that in all three states where the initiatives failed, the medical-use cannabis programs are still fairly young. Unlike some western states where medical-use cannabis has been legal for over two decades, the Arkansas and Dakotas programs are at most four years old.
Many voters, it seems, still see a distinct difference between cannabis for medical purposes and general adult use. The losses in Arkansas and the Dakotas are very likely not the end of adult-use cannabis expansion (in those states or elsewhere). More time and familiarity with medical-use programs will likely sway enough voters to pass adult-use cannabis programs in those states. And Missouri may be an outlier: a red state with a very young medical-use cannabis program where adult-use cannabis passed on the first try.
Just because a few initiatives failed this year does not mean we should be ready to say goodbye to expanded adult-use cannabis. Who knows, by 2024 we may be saying hello to federally legal cannabis.