Measure 91 in a Nutshell
On November 4, 2014 the Oregon voters passed Measure 91 by a margin of 56% to 44%. The Act was entitled “Control, Regulation, and Taxation of Marijuana and Industrial Hemp Act.”
Measure 91 (M91) allows any individual over the age of 21 to grow, purchase, and possess marijuana in limited quantities. There is no residency requirement to purchase, possess, or use marijuana, nor are non-residents prohibited from owning and operating OLCC licensed marijuana businesses. Public consumption remains illegal, though the Oregon State legislature will be considering public consumption during the 2019 legislative session.
The OLCC is designated to oversee and regulate recreational cannabis businesses. The OLCC has the responsibility to issue and monitor six types of licenses. They also have the authority suspend or revoke these licenses for noncompliance with state law or OLCC rules.
Measure 91 establishes taxation rates based upon the sale volume of flowers, leaves, and plants. Subsequently, the taxation rate was changed to 17% for all sales, with an option for local city and county government to impose an additional 3%. Tax revenue from marijuana sales is distributed between the common school fund, mental health, alcoholism and drug services, cities and counties, law enforcement, and alcohol and drug prevention and treatment services.
Which Cities and Counties Prohibit Marijuana Sales?
The private sale of marijuana is illegal throughout the state, and 95 cities and counties that prohibit the sale of marijuana from licensed marijuana retailers. The full list can be found on the OLCC website at: https://www.oregon.gov/olcc/marijuana/Documents/Cities_Counties_RMJOptOut.pdf
A person must be 21 years old, with proper identification, or 18 years old with a medical marijuana program card to purchase, possess or consume marijuana in Oregon. An individual must also be 21 or older to enter into any licensed marijuana facility, with very limited exceptions. Proper identification includes a passport, driver’s license, military ID card, or any other state issued identification that includes a person’s name, picture, physical description, and date of birth.
How Much Marijuana Can You Buy in Oregon?
The following are amounts of recreational cannabis products that can be purchased by any person over 21 with proper identification in any single day. There is no Oregon residency requirement for cannabis sales, but all cannabis products sold in Oregon must be consumed in Oregon.
Purchase limits for recreational user:
- 1 ounce of flower
- 5 grams of concentrate or extracts
- 16 ounces of edibles in solid form
- 72 ounces of edibles in liquid form
- 10 cannabis seeds
- 4 immature plants
Purchase limits for OMMP cardholders:
- 24 ounces of usable marijuana (1 ounce from a recreational dispensary)
- 16 ounces of a medical cannabis product in solid form
- 72 ounces of medical cannabis product in liquid form
- 16 ounces of a cannabis concentrate (alone or contained in an inhalant delivery system)
- 50 cannabis seed
- 4 immature plants
* Medical patients have access to medical grade products if available.
Personal Growing Limits
Oregon is one of the few states that currently allows for personal cultivation of cannabis. A household can grow up to a total of 4 plants on their private property. The 4 plant limit is a household limit regardless of the number of adults living in the household. OMMP cardholders can have 6 mature plants, 12 immature plants 24 inches or taller. and 36 immature plants under 24 inches.
Plants can be grown inside or outside; if grown outside, the plants must be out of public view. Some cities or counties restrict the sale of recreational marijuana, but this restriction does not limit household growing. Homegrown cannabis is for personal consumption only and cannot be sold or given to someone in exchange for something of value.
The ability to grow your own marijuana is not absolute: If you are leasing your home, the landlord can restrict the property from being used in the cultivation cannabis. Federal law prohibits growing of marijuana within 1,000 feet of a school, even if it is on private property. While growing at home is legal, processing the plant into a concentrate without a state-compliant facility is illegal and could be dangerous.
Marijuana Use Restrictions
While it is legal to possess cannabis in almost any location in the state, the use/consumption of cannabis in Oregon is restricted to private property. Use includes smoking, vaping, eating, or drinking a cannabis product. Private property includes personal residences and may include temporary lodging such as hotels, provided that it is permitted by the property owner. However, public areas of a hotel or apartment complex include hallways, lobbies, or pools. There is no public consumption or consumption on property that is open to the public, such as such as streets, sidewalks, parks, bars or restaurants at the time of this publishing. It is being considered for the 2019 legislative session.
Under federal law, it is illegal to possess or consume cannabis and this restriction specifically applies to all federal property. This is an important restriction because the federal government owns more than 50% of the land in Oregon. Examples of federal property in Oregon include federal buildings, national parks, national forests, wildlife areas, and BLM lands.
It is legal to carry marijuana throughout the state, including in a vehicle or on public transportation, unless it otherwise precluded by such areas as federal land within the state. It is also perfectly legal to carry marijuana on a commercial airlines traveling between Klamath Falls and Portland. Transporting marijuana across state lines is illegal, even if you are transporting it to a state that has also legalized marijuana such as California or Washington. Just remember: Oregon marijuana must stay in Oregon.
Driving While High
Oregon has strict laws regarding driving under the influence of an intoxicant, DUII (Driving Under the Influence of Intoxicants, also known as a DUI). Oregon DUII laws are applied in the same manner with alcohol or marijuana–both are considered intoxicants. For a first offence DUII, a diversion program may be available if the offender was not involved in an accident. This program allows the offender to complete a substance abuse program and be on probation for a period of time. If he successfully completes the diversion program, the DUII charge is dropped and the person will not have a DUII conviction on their record. If it is a second offence, or the offender is not eligible for the diversion program, there is a mandatory minimum jail sentence of 2 days plus substantial fines and the offender must complete a substance abuse program. It is also illegal to consume marijuana in a vehicle even if you are not impaired, similar to open container laws.
Unlike alcohol, there is currently no breathalyzer test for marijuana, but police have drug recognition evaluators conduct tests to determine if a driver is impaired. If the tests suspect a driver is under the influence of marijuana, Oregon implied consent laws allow police to conduct breath, blood, or urine tests to obtain evidence of drug use.
If you choose to use marijuana, make sure to allow enough time for the effect to completely wear off before you drive.
Illegal Acts Related to Cannabis
While Oregon has legalized the recreational use of cannabis, there are limits to what is allowed. Below is a sample of what remains illegal in Oregon:
- Selling or providing cannabis to minors (anyone under the age of 21, or 18 with an OMMP card)
- Transporting cannabis across state lines, including to states where cannabis is legal
- Unlicensed growing, processing, transporting, or sales of cannabis
OLCC and the Marijuana Industry in Oregon
The OLCC oversees six license types; producer, processor, wholesaler, retailer, laboratory, and research licenses. Once products get into the OLCC system, they can only be transferred between OLCC licensed facilities, until they are sold to the end user by a retailer or destroyed, and must be recorded in the Cannabis Tracking System, METRC, which provides seed-to-sale tracking. OLCC rules limit how product can flow between license types and licensees.
The OLCC has regulatory authority of all aspects of the recreational cannabis market, including:
- Product Testing for contaminants, such as pesticides, solvents, and potency
- Packaging and Labeling
- Security systems
- Operational procedures
The OLCC provides strict regulatory oversight by means of scheduled visits, surprise inspections, and third-party complaints to trigger investigations. The OLCC has authority to issue violations with sanctions including fines, license suspension, or license revocation.
The Oregon Medicinal Marijuana Program (OMMP) is administered by the OHA. The OHA licenses and regulates medical cannabis growers, processors, and dispensaries. Cannabis grown or processed under the OMMP program can only be sold to OMMP patients. There are certain exceptions that allow growers and processors to sell products to a recreational licensed facility.
To become an OMMP patient, an individual must be at least 18 years old and have a qualifying condition and a recommendation for using medicinal marijuana from their attending physician. OMMP patients are issued medical cards that allow them to purchase cannabis from a medical marijuana dispensary. They can also purchase medical or recreational cannabis tax-free from a recreational cannabis retailer.
The OMMP program is currently in severe decline. In the past year, the number of medical patients has dropped approximately by half and there only 5 OMMP licensed dispensaries, down from about 400 at the peak of the medical program.
Industrial Hemp Regulations
Traditionally, industrial hemp was used for making rope, clothing, and sails for boats, among other products. Now hemp is primarily used to make cannabidiol (CBD) oils. Many people believe that CBD oil has substantial medical benefits such as pain management and reducing swelling. These properties have not been tested by the Food and Drug Administration and the FDA takes the position that no CBD is legal except for the pharmaceutical drug Epidiolex. The FDA has not conducted widespread enforcement action and most CBD products are sold in the market without substantial opposition or testing.
Industrial hemp is defined as the plant Cannabis Sativa with a THC level of less than 0.3%. Industrial hemp in Oregon is regulated by the Oregon Department of Agriculture (the ODA). The ODA issues two type of permits: 1) a grower permit and; 2) a handler permit. These permits are substantially easier and cheaper to obtain as compared to OLCC licenses, and there are much fewer restrictions. If the samples exceed the THC limit, the product must be destroyed. Similarly, processed hemp is required to be tested for THC levels prior to sale. Once the processed hemp is sold by a processor it is considered an agricultural commodity and is not further regulated by the ODA.
Because industrial hemp and marijuana are the same plant species, there is naturally confusion under federal law. In 2014, Congress passed the 2014 Farm Bill which included provisions for industrial hemp. The Farm Bill defines hemp in the same way as Oregon and allows states to grow industrial hemp for experimental purposes under supervision of a university or a state department of agriculture. Oregon’s industrial hemp program was created under the 2014 Farm Bill.
The Controlled Substances Act (CSA) does not differentiate industrial hemp from recreational cannabis, so hemp and marijuana are treated the same: both are illegal. The CSA does have an exemption for dried mature stalks and sterilized seeds, but there is no economically significant amount of CBD in these parts of the plant, so they are only good for rope and ship sails. This inconsistency in federal law creates confusion and potential problem for exporting CBD oil out of Oregon or the country. Congress recognizes this issue and the Senate’s version of the 2018 Farm Bill would fix the problem by legalizing industrial hemp. As of this writing, the House version of the bill does not include hemp legalization, but the hemp legalization portion of the Senate’s version, backed strongly by Mitch McConnell and other senate republicans, is widely expected to be passed in the final version of the bill. In addition, the omnibus spending bill they included a provision that prohibits the Department of Justice from using budgetary funds from prosecuting industrial hemp activities conducted in compliance with state industrial hemp pilot programs developed under the 2014 Farm Bill.
History of Cannabis In Oregon
Prior to 1935, marijuana was legal in Oregon. In 1935 Oregon adopted the Uniform State Narcotic Drug Act. This Act made the possession, production, and distribution of any narcotic a crime. The Uniform State Narcotic Drug Act is the precursor to the Controlled Substances Act.
In 1973, Oregon became the first US State to decriminalize small amounts of cannabis for personal use. It was still a crime possess over an ounce or to sell cannabis.
In 1998, Oregon approved marijuana for individuals for certain qualifying medical conditions. Medically qualified patients could possess up to three mature cannabis plants or could contract for someone to grow them on their behalf.
In 2005, Oregon created the current medical card program and allowed the patient to reimburse their growers for certain growing expenses. They also increased the allowable limit to 24 ounces of usable cannabis and six plants. In 2012, Oregon created a medical registry system which permitted medical marijuana dispensaries by state-issued license.
In 2014, Oregon became the third state to legalize the personal use of cannabis, under ballot measure 91. While it would take another few months for Oregon’s recreational marijuana program to fully take effect, under emergency legislation, medical dispensaries were permitted to sell medical cannabis to recreational customer beginning October 1, 2015.
In 2016, the Oregon Liquor Control Commission (the OLCC) began issuing licenses to recreational facilities. By January 2017, only OLCC licensed facilities could sell to the recreational market.
Marijuana Legal Status
While the majority of states have legalized medical or recreational use of cannabis, federal law criminalizes cannabis under the Controlled Substances Act. In 2014 the U.S. Department of Justice issued a series of memos written by then Deputy Attorney General James Cole. These memos (known as the First and Second Cole Memos) recognized the DOJ’s inability to prosecute all drug crimes, so they establish eight enforcement priorities. In the event that a state legal activity did not implicate one of the priorities, it would be unlikely that the DOJ would prosecute, however, the DOJ made no guarantees. In 2018, the U.S. Attorney General Jefferson Beauregard Sessions III rescinded the Cole Memos. The revocation was generally considered a repudiation of the cannabis industry. In practice, the revocation put the decision to prosecute state legal activities in the hands of the local U.S. Attorney in each respective region. The U.S. Attorney for the District of Oregon, Billy Williams, has publicly announced his priorities for prosecuting cannabis activities, and his priorities are very similar to the Cole Memo Priorities.