Gifting Marijuana – Legal or Not? 

Most recently, lawmakers have been trying to crack down on the gifting of cannabis products. So far, they haven’t been successful in addressing the issue, though. Language that would have cracked down on marijuana as a gift was removed from a bill meant to provide some relief to medical marijuana patients.  Council Chairman Phil Mendelsen authored that measure. He pulled the language regarding marijuana gifting before sending it out to be voted on.  “The enforcement provision will not be in the bill,” he said the day before it was due to be signed. “I’m hard-pressed to believe that members would vote against enforcing the law with regard to illegal activity, but there have been some questions about it and I thought it was better to hold back on that so there could be more conversation.” His bill, the Medical Marijuana Patient Access Emergency Amendment Act of 2021 passed unanimously in D.C.’s City Council. It only lasts for 90 days, because it’s an emergency measure.  The Act serves as an amendment to the Legalization of Marijuana for Medical Treatment Initiative of 1999. It has two major changes: medical marijuana cards now have to be renewed only every two years, rather than annually; plus, medical marijuana patients can now carry 8 ounces of marijuana flower rather than 4.  It also extends the expiration date for medical marijuana licenses. “Patients and caregivers whose registrations cards have expired or will expire between March 1, 2020 and January 21, 2022 to continue purchasing, possessing, and administering cannabis until January 31, 2022, at which point the qualifying patient or caregiver will need to acquire a new registration card,” B24-0477 states.

A headshot of Council CHairman Phil Mendelson Source: @chmnmendelson
Council Chairman Mendelsen’s office says that during the pandemic, more than half of the District of Columbia’s medical marijuana patients’ cards expired and had not yet been renewed. A full 6,216 people in the U.S. capital have not yet re-registered for their medical marijuana cards, despite their licenses’ looming expiration date.  “Given the burdens associated with patient registration, and a thriving illegal cannabis market in the District, many of these patients may be driven to purchase illicit cannabis,” Chairman Mendelsen said in a memo.  The bill’s original language included a plan to increase enforcement of marijuana “gifting” that would result in fines of up to $30,000 for businesses caught in the act.  Those businesses have increased in number in recent years. They’re taking advantage of a loophole in D.C.’s marijuana laws that allows people to give each other small amounts of marijuana, as long as all those involved are of legal age to consume the product. The problem is, businesses have begun selling unrelated products like food or merchandise at a highly marked-up rate because the purchase comes with a “free gift” of marijuana. Those businesses, the Council Chairman feels, are stealing customers from business owners who operate within D.C.’s regulated market, paying for licensing fees and other hurdles that don’t burden the “gifting” businesses.  That isn’t quite the black market, because it’s only made possible due to Washington, D.C.’s own laws, but it certainly isn’t within the city’s normal legal scope. Thus, the practice is being referred to as the “grey market.”  The bill as it was originally written was intended to “authorize the revocation of licenses, sealing of premises, and fines for businesses purchasing, selling, or exchanging marijuana” illegally. He ultimately took the language attacking gifting from the bill the day before the vote, largely at the urging of those who are currently involved in the practice. Mendelsen says he has plans to revisit the gifting issue, despite his choice to delay the crack-down. “I think there needs to be a better understanding with regard to what we’re trying to do with enforcement,” explained Council Chair Mendelsen. “I can put it very simply: illegal pop-ups are illegal and we ought to enforce the law. That’s still possible, though the provisions I’m going to pull would have made that a little easier.”
A dealer trading a bag of gray market marijuana for cash Source: Shutterstock
Councilmember Janeese Lewis George supported the removal of that language from the emergency bill’s passing, asking for more public comment and the possibility of addressing the issue in a separate law instead. She declined to interview because of a busy schedule, but her team pointed The Stash to comments she made during a legislative meeting.  She thanked those present for “…rightly remov[ing] hurdles to medical marijuana to support both patient needs and the needs of our small business dispensaries.”  Councilmember George says she wants to use an upcoming public hearing to make sure the Council is taking in as much input as possible. She worries lumping regulation into an emergency measure would be a disservice to the community.  “This is not to say that change is not needed or that we should not get out ahead of market shifts that are needed when D.C. can legally sell and regulate recreational use of marijuana, but I think the process really matters here, especially given that the criminalization of marijuana has disproportionally harmed Black Americans nationwide. Now, we have the unique opportunity to use this product to empower Black Washingtonians.”  Council Chair Mendelsen’s team also told The Stash he was too busy to interview, but he said during a legislative press briefing,  “Some of the controversy is, we’ve gotten emails from businesses that say, ‘I’m Initiative 71 compliant and therefore this bill is unfair.’ What does that mean? So let’s take some time for members to be comfortable before we come back with that.”

So What Is Legal? 

To this day, laws around recreational use of marijuana in Washington, D.C. are fuzzy. Voters approved the Legalization of Possession of Minimal Amounts of Marijuana for Personal use Initiative in 2014. That law, Initiative 71, allows for the possession and gifting of up to 2 ounces of marijuana; it makes it legal to have up to six marijuana plants in one household; it legalizes use of marijuana on private property; and it legalizes possession of marijuana-related drug paraphernalia like bongs and rolling papers.  However, the United States Congress has the ability to block laws passed locally in the capital. A rider named after Republican Representative Andy Harris of Maryland kept the District from actually implementing the law. That was finally taken out of the Senate Bill passed in October 2021, so the District could begin making plans for taxes and regulations of adult-use marijuana.

Customers lineup outside a legal cannabis dispensary Source: Shutterstock
“What Congress has done is create a wild wild west where there is no ability to have meaningful, constructive regulation,” Council Chairman Mendelsen told the Washington Post.  Still, the fight isn’t over. The other problem is, it’s still illegal to sell recreational marijuana in Washington, D.C. New legislation will have to be written out to reach that point. There’s a bill in the works and a public hearing for it is scheduled for November 19th. That legislation, Councilmember George says, could include stipulations to address the grey market gifting problems.  As written, the Comprehensive Cannabis Legalization and Regulation Act of 2021 does not address gifting specifically. It includes the following provisions:

  • Automatic review and expungement of cannabis-related convictions that are no longer illegal if they’ve occurred within the past 180 days
  • Protects people on probation for being charged for cannabis possession
  • Specifies that 30% of revenue from cannabis sales will go to a Social Equity Fund to provide loans, grants, and other supports for social equity cannabis license applicants
  • Sets aside 50% or more of all available licenses for social equity applicants
  • Directs 50% of cannabis revenue to a Community Reinvestment Program Fund
  • Ensures people can not be denied public assistance because of use of marijuana
  • Creates family law protections

That law competes with one introduced by Mayor Muriel Bowser called the Safe Cannabis Sales Act of 2021. The Drug Policy Alliance is supporting Chairman Mendelsen’s Regulation Act instead, saying it’s more robust. “Prohibition’s harms have been devastating to low-income and Black communities in the District. Attempts to rectify this harm must be as sweeping and impactful to directly impacted communities as that harm,” explained Queen Adesuyi, Policy Manager for the Drug Policy Alliance's Office of National Affairs. Federal law enforcement officers in Washington, D.C. still operate under federal law rather than local, and so those officers can arrest someone for possession or use of any amount of marijuana, no matter how small. 

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