68 Pages Posted: 20 Apr 2016 Last revised: 2 Sep 2017
Date Written: April 18, 2016
Marijuana legalization is sweeping the nation. As many as thirty marijuana legalization initiatives may appear on election ballots in 2016, legalizing the recreational or medicinal use of marijuana in as many as 17 states and adding to the growing number of states that have already legalized marijuana. Many of these legalization initiatives propose to regulate marijuana in a manner similar to alcohol, and many titles are variations of “the regulate marijuana like alcohol act.” For political and public health reasons the analogy makes sense, but it also reveals a regulatory blind spot. States may be using alcohol as a model for regulating the distribution, retail, and consumption of marijuana, but marijuana is much more than a retail product. It is also an agricultural product, and by some measures, the largest cash crop in the United States. Since marijuana prohibition laws were passed long before any regulations for cultivation were developed, states are facing an unprecedented challenge: regulate, for the first time ever, one of the country’s largest agricultural industries.
There are major regulatory challenges ahead, and how states respond to those challenges will shape the course of the marijuana industry. At present there is a gap in understanding the regulatory challenges presented by marijuana agriculture, and the options states have to address them. This Article identifies those challenges and the regulatory approaches most capable of addressing them. The study begins by describing the existing state of marijuana agriculture regulations. States are likely to find that the marijuana industry’s unique characteristics justify a tailored regulatory approach; relying on existing agricultural policies may be ineffectual or lead to perverse outcomes. Next, fundamental questions about the “marijuana fragmentation spectrum” are explored. Will the industry come to be dominated by agricultural conglomerates mass-producing a marijuana commodity, as many have feared? Or will governments and the industry adopt the appellation model favored by the wine industry, to protect local farmers and differentiate between products? The major environmental impacts of marijuana agriculture are analyzed as well, including regulations that address water allocation, water quality, energy, organic certification, and crop insurance. Finally, the study addresses power distribution trade-offs within marijuana agriculture regulation frameworks, including local vs. state, and consolidated vs. fragmented, regulatory authority dilemmas. The findings suggest that responsible and sustainable marijuana agriculture can be fostered at the state level, but only if regulations are responsive to the unique and unprecedented challenges that marijuana agriculture presents.
Keywords: marijuana regulation, marijuana agriculture
Suggested Citation: Suggested Citation
Stoa, Ryan Boudin, Marijuana Agriculture Law: Regulation at the Root of an Industry (April 18, 2016). Florida Law Review, Volume 69, Issue 2, 2017; Florida International University Legal Studies Research Paper No. 16-08. Available at SSRN: https://ssrn.com/abstract=2766523