By: Irina Dashevsky, Esq. & David Standa, Esq .
It’s now been two days after the 2022 midterm election, and some of the biggest issues on the ballots are still too close to call—for example, will the Democrats hold on to the Senate? There are, however, five election results that are definitive, and they are a mixed bag for cannabis advocates. The upshot is Missouri and Maryland became the 20th and 21st states (we will leave the debate about which was 20th, and which was 21st, to the advocates that worked so hard to get the initiatives passed) to legalize recreational cannabis through constitutional amendments. Voters in Maryland overwhelmingly approved a constitutional amendment that creates a right to possess and use recreational cannabis and directs the legislature to enact laws governing its sale, while Missouri voters eked out enough votes to pass a constitutional amendment to expand the state’s medical cannabis program into the retail sector.
In total, there were five states – South Dakota, North Dakota, Arkansas, Missouri, and Maryland – with recreational cannabis on the ballot, and while two of those states passed their ballot initiatives to legalize recreational cannabis, three fell short. Nevertheless, this is likely an interlude for South Dakota, North Dakota and Arkansas (all of which have legalized medical marijuana, but do not have particularly robust medical markets) rather than the end of the story.
For Maryland and Missouri, now the hard part begins. As we have seen in nearly every state that has legalized recreational cannabis within the last five years, legalizing it and implementing rules and regulations for a functioning adult-use market are two very different things. Virtually every state that has rolled out a recreational market has faced some form of litigation over the implementation and license roll out. Indeed, both Maryland and Missouri battled litigation over their medical program. The likelihood and length of the litigation only increases if it is a competitive or limited license market, both of which are on the medical side. In other words, litigation seems likely for Missouri and Maryland. Litigation is not, however, inevitable. There are things these states could do, and lessons they could learn from other states that have gone through this process before them, which would decrease the likelihood of litigation. However, that was also said about Connecticut, Ohio, and New York, who all started licensing processes in the last 18 months and every one of those states has either endured litigation, is in the middle of litigation, or has all but guaranteed litigation based on the decisions they made. We hope the fate will be different in Missouri and Maryland, but we won’t be holding our breaths.
While we did not see the “green wave” that many were hoping for in this election cycle, this is by no means the end of the industry’s push toward legalization from sea to shining sea. There are already referendum efforts underway in Florida, Nebraska, Wyoming, Ohio, and Oklahoma that could land the legalization question on ballots in 2023 or 2024. There are also the states that can proceed to legalize via legislation, arguable a cleaner and more comprehensive approach. We will be watching all of those efforts closely, so be sure to check out our blog frequently for updates on legalization efforts and everything else impacting the cannabis industry.
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