Legal Insights

High Times in the Land of Lincoln: Recreational Marijuana Is Coming

Written by David B. Montgomery

The recent election of J.B. Pritzker (D) as Illinois governor has shattered the “grass” ceiling. Throughout his campaign, the governor-elect made clear that he wants marijuana decriminalized. Days after the election, Pritzker stated that he would begin work immediately on decriminalizing the possession and use of certain amounts of marijuana. While many rejoice at Pritzker’s stance on cannabis, some have sincere concerns.

How did we get to this point?

Attitudes about marijuana use have shifted dramatically in the last few years. Recent polls suggest that most Americans (as high as 60%) favor the legalization and regulation of marijuana.

Perhaps the genesis for this shift in opinion was the acceptance by many state lawmakers of marijuana as an effective treatment for several medical conditions. Several states, including Illinois, passed laws allowing persons with certain medical conditions to get medical authorization to use marijuana to treat their symptoms. Illinois also allows the cultivation of industrial hemp, and a move exists in the federal level to do the same.

Another source for the changing views on marijuana use is perhaps what many perceive as the failure of the war on drugs, or at least the war against marijuana. Enforcement of laws that criminalize marijuana costs states almost $3.7 billion per year. According to the ACLU, marijuana arrests account for over half the drug arrests in America, with most of these arrests being for possession. According to marijuana legalization advocates, decriminalizing weed will allow law enforcement to concentrate on crimes that hurt real victims.  Further, marijuana

Illinois has already shown a distaste for enforcing its marijuana laws.  Some may be unaware that in 2016, Illinois decriminalized the possession of 10 grams or less of marijuana.  If a person is caught with less than 10 grams, s/he may have to pay a civil fine but will not face any criminal consequences.

The main arguments for decriminalizing marijuana include:

  • Save Money. As discussed above, enforcement of marijuana crimes is expensive (and somewhat ineffective). According to a study by the Project for Middle Class Renewal, Illinois taxpayers could save $18.4 million in incarceration costs through decriminalization. Millions of dollars could be put to more productive use.
  • Reduce Violence. By legalizing and regulating marijuana, the theory is that demand for pot obtained through the illicit market will decrease, and the violence associated with illegal operations will decrease dramatically. Further, decriminalizing marijuana will allow law enforcement to focus on crimes against victims.
  • Consumer Safety. The demand for weed exists, and laws have not curbed that demand. By regulating the production and sale of marijuana, testing it for potency and contaminants, proponents argue that consumers will not ingest weed laced with other dangerous drugs or chemicals.  Further, proper labeling will allow consumers to know information such as the strength of the marijuana and whether it contains any allergens. Marijuana has lower rates of addiction than alcohol or cigarettes. Finally, marijuana does not cause fatal overdoses, unlike legal and prescription drugs that kill tens of thousands of people each year.
  • Job Growth. By treating weed as a cash crop, new businesses will form, and jobs will be created in the legal economy. Recent studies by the Illinois Economic Policy Institute and the Project for Middle Class Renewal at the University of Illinois estimate that legalization will create approximately 24,000 jobs, plus tax revenue of $525 million annually.
  • Tax Revenue. Sales tax on pot will be a boon for the local economies. A special tax on pot can be used to fund education, social services or whatever local government decides. New employees of marijuana retail establishments will generate payroll taxes.

Those against legalization of marijuana also have compelling arguments:

  • Legalizing recreational marijuana will create further racial disparities. In Illinois, most medical marijuana companies are owned by wealth white men. Legalization will lead to white marijuana entrepreneurs selling weed to minority communities and increasing drug abuse rates.
  • It is difficult to test drivers for marijuana impairment. This will lead to traffic injuries/fatalities.
  • Is this a slippery slope? Will legalizing weed lead to the legalization of what we now consider more dangerous drugs?
  • Will legalization send the wrong message, especially to youth, that substance abuse is acceptable?  Will it increase teen usage?
  • If the predominant method of marijuana ingestion is through smoking it, will this lead to more health problems?
  • Will employers be able to effectively enforce their drug-free workplaces?
  • Will the increased use of marijuana lead to more societal ills such has homelessness?
  • Will making pot more accessible lead to more misuse?
  • Will law enforcement officers be able to effectively enforce changing laws regarding marijuana possession and use?

Currently, the District of Columbia and 10 states—Alaska, California, Colorado, Maine, Massachusetts, Michigan1, Nevada, Oregon, Vermont and Washington— have adopted laws permitting the recreational use of marijuana. In all states but Vermont, states legalized recreational use of marijuana through ballot referenda. And don’t forget that the country of Canada recently legalized marijuana (O, Cannabis!).  Illinois, like Vermont before it, will likely pass legislation to legalize the recreational use of marijuana. As discussed above, the governor-elect favors decriminalization, and a Democratic majority in both state houses makes passage of a marijuana legalization bill likely. In fact, in March 2017, State Senator Heather Steans (D-7th Dist.) and State Representative Kelly Cassidy (D-Chi.) (New Dealers?) introduced bills to legalize the sale and use of cannabis to adults. The bills are pending. The earliest a recreational marijuana law can be passed in Illinois is probably late 2019 or early 2020.

1. There are no licensed dispensaries yet in Michigan for recreational marijuana. However, because of the new law, someone possessing medical marijuana could probably legally share his/her supply with others over 21 years of age.

And did you know that marijuana is now legal in Canada? The entire county. A movement is afoot to make marijuana legal in Mexico, too.

It should be noted that while several states have opted to legalize recreational marijuana use, marijuana use is illegal at the federal level. Under the Controlled Substance Act, marijuana is categorized as a Schedule 1 drug. Schedule 1 drugs, which include heroin and LSD, are deemed to have no valid medical uses and a high potential for abuse.  Thus, under federal law, marijuana remains illegal.2

What will weed consumption look like in the Land of Lincoln? Governor-elect Pritzker has provided some clues about what marijuana legalization will look like in Illinois. We know that he wants legislation to accomplish the following goals:

  • Raise tax revenue.
  • Review and commute sentences of those incarcerated for marijuana offenses.
  • Reduce opioid overdoses.
  • Invest in black and brown communities.
  • Allow recreational use through the sale of marijuana by carefully licensed businesses.

As stated above, Illinois is not the first state to the pot party (that honor goes to Colorado in 2014), so the rules surrounding possession and use of cannabis will probably be borrowed from other states. And as previously mentioned, bills have already been introduced in both state houses to legalize the adult use of cannabis. Given these clues, below are my views on how the potential decriminalization of weed will play in Illinois:

Who will be able to purchase/consume marijuana?

Similar to alcohol, one will have to be 21 years of age to purchase and consume marijuana. This is the age requirement in other states that have approved marijuana for recreational use and this is the age proposed in the pending legislation. For a consumer to prove s/he is at least 21 years of age, s/he may present a government issued ID (e.g., driver’s license, passport). It does not appear that one will not need to register with the state in order to purchase marijuana.

2. It should be noted, however, that just this summer the federal government approved an anti-seizure medication that contains cannabis-derived cannabidiol, or CBD, which many claim has calming or healing effects.

Where will one purchase marijuana?

The governor-elect has stated that businesses licensed by the state will sell marijuana. In the pending legislation, these places of business are referred to as “retail cannabis stores.” While not specifically addressed in the pending legislation, retail cannabis stores will probably be stand-alone establishments rather than an existing retailer adding marijuana to its product offerings. People under 21 will not be allowed anywhere near where marijuana is sold. Buying marijuana from an unlicensed business will be illegal.

Who will be able to get a business license to sell marijuana?

With the opening of a new market with High Demand, savvy business people are going to want to get in on this Budding Industry.  Obviously, one will not be able to get a license to sell if he/she is not over 21 and does not pass a rigorous background check. Both the governor-elect and lieutenant governor-elect have indicated that some licenses should be granted to residents of historically disadvantaged communities. Those wishing to operate a retail cannabis store will need to file an application with the state (probably the Department of Public Health), similar to an application filed by those seeking to operate medical cannabis dispensaries. There is no word on whether existing medical cannabis dispensaries will get preference in obtaining licenses. Illinois medical cannabis companies are working to expand, however, due to the likelihood of legalized marijuana in Illinois.

One development that should be noted is that big business is paying close attention to the march toward marijuana legalization. Players like Altria Group (owners of Philip Morris), Molson Coors and Heineken are exploring how they can profit from this trend.  In California, Lagunitas (a Heineken subsidiary) already sells sparking water infused with CBD and THC.

How much marijuana will one be able to purchase or possess?

In most states that have legalized recreational marijuana use, customers can purchase one ounce of cannabis “flower” at a time. The flower is the smokable, trichome-covered part of a female cannabis plant. Marijuana also comes in concentrate form, which is more potent. A concentrate is an extract, such as oils and tinctures.  People like ingestible oils because they can be used in edibles (e.g., “pot brownies”), providing users with a smoke-free alternative. Because concentrates are more potent than flowers, states limit the purchase of concentrates to less than one ounce. For example, in Washington State, while customers can purchase and possess up to one ounce of cannabis flower at time, the limit for concentrates is only seven grams.  For math challenged people like me, seven grams equals a quarter ounce. Cannabis is also available in liquid form, often referred to as tinctures. Tinctures are used in electronic vape pens or drops are placed under the tongue.  Also keep in mind that dispensaries sell edibles (food with ingestible oils baked in). In Washington State, customers can purchase and possess up to 16 ounces of edibles.

In the pending Illinois legislation, Illinois residents are allowed to possess the following amounts of cannabis at any one time:

  • 28 grams of cannabis, no more than 5 grams of which may be concentrated cannabis;
  • Five cannabis plants; and
  • Any additional cannabis produced by one of the resident’s cannabis plants.

Non-residents are limited to no more than 14 grams of cannabis, including up to two grams of concentrated cannabis.

Will there be packaging and labeling requirements for marijuana?

The likely packaging and labeling requirements will address the following concerns:

  • Protection from contamination
  • Child-resistant containers
  • Packaged in a way that is not attractive to minors
  • Resealable (unless a single use product)
  • Labels must clearly state the type of marijuana product contained therein
  • Labels must be securely affixed to packaging
  • Labels must contain a universal marijuana symbol (which, surprisingly, is not that universal)

California’s universal symbol:

  • Various information about the product (e.g., potency, allergens)
  • Labels may make no inappropriate statements (e.g., marijuana has curative effects, encouraging transportation across state lines, encouraging rapid consumption)

Where will one be able to consume marijuana?

In the privacy of the home. Smoking while driving will result in fines and possible suspension of driver’s license. While “cannabis clubs” or “pot cafes” (Starbuds?) sound attractive to many users, those are a long way off. It goes without saying that dispensaries will not be able to offer samples like Trader Joe’s. The proposed legislation contains a $100 maximum fine for public consumption.

How will one be able to transport marijuana?

One will not be able to transport marijuana across state lines. If travelling in a motor vehicle with an open container of marijuana, one will need to assure that the open container is not in the passenger section of the vehicle, not even a locked glove box.  It should be placed in the trunk.

Will I be able to send pot to sweet Aunt Gladys in Indiana?

No, but it may be her reason to visit you in Illinois.

What about keeping people from driving under the influence of marijuana? This may be one of the more difficult issues for the State. No widely-adopted method is available to law enforcement to determine if someone is too stoned to drive. If police pull over a driver on suspicion of driving under the influence and the driver fails a field sobriety test, s/he will be asked to take a breath test for alcohol. If the driver passes the breath test, police may force the driver to speak with a drug recognition expert and/or submit to a blood test. However, blood tests are not very good for determining if someone is driving high because marijuana remains in a person’s system long after the high wears off, and marijuana content in blood varies between individuals based on frequency of use, weight, fat content, etc. New methods are being developed to determine if someone is driving while stoned (e.g., mouth swabs) that will hopefully be available soon. 

How will weed be taxed?

This will be a tricky issue. In addition to the typical sales taxes, state and local taxing authorities may be tempted to slap on taxes for various purposes.  In a non-binding referendum, an overwhelming majority of voters in Cook County voted favored a marijuana tax to benefit Chicago Public Schools and mental health services. In the proposed legislation, marijuana would be taxed at a rate of $50 per ounce wholesale, plus the state’s standard 6.25% sales tax. However, the government cannot get too greedy. A major reason for decriminalizing marijuana is to stop the illicit market in weed. If too many taxes are slapped on legal marijuana, people may prefer buying from illegal suppliers. Further, in states where recreational marijuana use has been legalized, the price of pot has plummeted. Thus, a tax on the amount of weed purchased, rather than the price of weed (i.e., traditional sales tax), may provide more stable income for the state.

Can people grow their own marijuana?

Many states allow individuals to grow small amounts of weed for their own use, not for sale. For example, in Colorado, residents over 21 may cultivate up to 12 marijuana plants, three of which can be in the flowering stage. Greater restrictions are placed on cultivation if children under 21 live in the residence. As mentioned above, the proposed Illinois legislation allows an individual to grow up to five plants, with no limitation on how many can be in the flowering stage. The proposed legislation also makes clear that if a person grows his own marijuana, the following restrictions must be honored:

  • It may not be grown in public view;
  • It must be secured from people under 21 years of age; and
  • It must be grown with the property owner’s consent.

Will landlords be able to ban marijuana in their rental units?

Maybe not. The proposed legislation states that property owners cannot prohibit tenants from the possession of marijuana or consumption of marijuana by non- smoked means unless (1) the tenant is not leasing the entire residential building; or (2) the residence is incidental to detention or the provision of medical, geriatric, educational, counseling, religious or similar service; (3) the residence is a transitional housing facility; or (4) failing to prohibit cannabis would violate federal law or cause the landlord lose a benefit under federal law.

Who will be responsible for administering Illinois’ marijuana program?

The Department of Public Health. The Department will issue rules on licensing cannabis establishments, transportation and storage requirements for cannabis shipped to retailers, prevention of underage purchases of cannabis, cannabis product manufacturer standards, labeling, restrictions on advertising, civil penalties, tax collection procedures, etc.

I’m an employer.  How is this going to affect me?

Section 75 of the proposed legislation states:

Nothing in this act is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of cannabis in the employer’s workplace of to affect the ability of employers to have policies restricting the use of cannabis by employees or discipline employees who are under the influence of cannabis in the employer’s workplace.

Therefore, employers still have leeway to maintain drugfree workplaces. Legislators may want to consider language contained in Michigan regulations that prohibits employee from filing claims against employers for wrongful discharge, discrimination or other causes of action based upon the employer prohibiting the employee from being high at work or from attempting to work while high.

Employers can still terminate employees for smoking pot.

Illinois employer may continue to enforce their drug-free workplace policies. Because the federal government still considers marijuana a Schedule 1 drug, employers in Illinois will be free to operate drug-free workplaces and fire employees for violating rules related to marijuana consumption. Employers that contract with the federal government will most likely prohibit marijuana use.

Employees cannot consume cannabis at work.

Because persons cannot consume pot in public, employees will not be able to consume pot at work.

Employers can still conduct pre-employment and random drug tests.

Unless prohibited by a collective bargaining agreement, Employers will most likely be able to maintain their current drug testing policies.  In fact, many employers are required to drug test under federal law (e.g., employers in transportation industry).

Employers can test employees for suspicion of being stoned.

While no accepted method of marijuana impairment has been developed due to THC stating in the bloodstream for an extended period, employers can train managers to train managers to spot signs of marijuana impairment (e.g., lethargy, bloodshot eyes, lack of focus, poor coordination).  Managers should document the employee’s behavior and still send the employee for testing. If the test comes back positive, it may be possible to discipline/terminate the employee for being under the influence.

Thank you for reading my attempt to preliminary delve in the “weeds” of this issue. Stay tuned.

This article should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and the reader is urged to consult a lawyer concerning his/her own situation and any specific legal questions he/she may have.