Editor’s note: This commentary is by state Rep. Anne B. Donahue, who represents Berlin and Northfield in the Vermont House and is vice chair of the House Health Care Committee.
We politicians like to claim all sorts of achievements as though we single-handedly brought about the outcome. The reality is that our contributions may be significant but are usually more discrete. They are about successfully collaborating with others to improve a proposal; contributions to committee work that brings insight and helps achieve consensus to move a good bill forward; or even informal conversations to gain support for an initiative. It is fair to claim some credit for the outcomes that result, but it is as contributors towards them, not with sole ownership.
Given that, it was a real blow for me this past week when a significant change to a bill I had successfully initiated reached the 99-yard line … and was then intercepted and went up in smoke. It was a part of the tax-and-regulate marijuana bill. I was on the fence about the issue for quite a while. Promoting something that we know is unhealthy – regardless of the dispute about the degree of risks involved – seemed like a poor idea.
However, we have already made it legal to use. It just isn’t legal to buy or sell. That means we continue to ignore the black market (like the one that exploded during Prohibition) and leave folks to illegally purchase their legal substance without having any knowledge of its potency or assurances of purity. In addition, all of the profits are going to the illegal sellers, instead of gaining tax benefits as we do from other unhealthy substances, like tobacco. The Senate has been pushing for this for a while and the House has resisted. This session, the House Government Operations Committee took a much deeper dive to explore whether it would be possible to gain the benefits of a tax-and-regulate market without enhancing risks to the public good.
As I read through their work product I was impressed. Regulation was tight. Everything from mandatory health warnings; sales only in specified outlets; communities having to vote affirmatively before an outlet could open in their town; maximum limits on the potency of the THC; bans on flavoring or other enhancements more enticing to kids; barriers against big companies coming into the market, to name a few.
Protections were strong. The revenue from taxes won’t all go to the general fund. A significant amount will go directly into prevention efforts for kids – measures that we know can be successful based on the strides that have been made for tobacco use. Traffic safety was addressed, both with the increase in police drug-impairment recognition experts (able to be funded, thanks to the new revenues) and the authority to use saliva testing (with the rights protection of a warrant requirement.)
This is the kind of intervention we call, “harm reduction.” The harm exists and isn’t going away. But we can reduce the harm.
But then I got to the section on the regulation of advertising: things like restrictions against advertising that targeted children, and the requirements for health warnings.
WAIT! Hold on! Advertising?
VTDigger is underwritten by:
There is only one purpose of advertising, and that is to market a product, meaning, specifically, to increase sales. To get more people to buy a product.
The concept of a harm reduction bill goes out the window if, instead of solely focusing on reducing some of the negative effects of the existing (black) market among those who are already choosing to use marijuana, we are also actually promoting the expansion of use among those who are not current users. This bill was never intended to be about expanding a marijuana market to increase the use of marijuana. Proponents have repeatedly said that it was only about existing use. Obviously, there is already a risk of expanded use purely through establishing a legal market. Allowing advertising, however, causes us to be very directly involved in affirmative efforts to entice more people to use marijuana.
I went back to the Government Operations Committee, and found out that they agreed, but believed that they could not, constitutionally, place a total ban on advertising. Commercial free speech can be restricted some, but there are limitations. That was counter-intuitive. We are talking about a substance that remains illegal under federal law. And tobacco – which is legal – is banned from advertising on the federal level.
I dug into the legal research itself and I consulted with the Legislature’s legal counsel. It turned out that the answer is pretty much a complete unknown. Having a legal market anywhere is fairly new, so there are only two court cases in other states that have looked at the issue of advertising bans. One of them said to those objecting to the ban, in essence, “You’ve got to be kidding. It’s an illegal substance under federal law. Of course, advertising can be banned.” The other said, “Not so fast. You, the state, have chosen to make it legal under state law. You have to show you meet the usual ‘commercial speech’ standard which is that the scope of the limitation must be justified by public protection needs, and you haven’t made that case adequately yet.”
So, the real answer was, maybe, or maybe not. Clearly, however, it was reasonable to make an attempt at a full ban and defend it in court if challenged. (As far as I’m concerned, even contemplation of a challenge says something about the motives of would-be distributors.) It would not be the first time we took a stand as a Legislature to challenge the claims of the commercial speech argument when we thought it was the right thing. We did it for Big Pharma “data mining” and for campaign finance reform and for GMO labelling.
So, I had an amendment drafted that carefully built the case under commercial speech standards as to why a complete ban was necessary. I presented my arguments and amendment to the Government Operations Committee. They listened, and voted to support it, unanimously. I presented it on the House floor. It was adopted unanimously. I even received notes of gratitude from other members for having introduced it. It became a part of the House version of the bill, and I voted in support of that bill.
I had made it to the 70-yard line, at least.
It was, however, one of many parts of the bill that were very different from the Senate version. When that happens, a bill goes to a conference committee – three members from the House and three from the Senate – to try to reach a compromise. I was watching closely as they bargained back-and-forth. The House conferees had the advertising ban high on their priority list. The Senate was resisting.
A week ago, as the two sides got down to the last three or four issues that divided them, the Senate made a written offer that included agreeing to the advertising ban as one of its trade-offs for concessions on the House side. They expressly said that it wasn’t a big issue for them; they objected solely because they felt the courts would overturn it.
My hopes soared. The advertising ban had reached the 99-yard line.
One of the concessions, however, was not acceptable to the House conferees. They made a counter-offer that made concessions to other Senate requests. The Senate rejected that, and made a new offer that withdrew their agreement to an advertising ban.
When the dust cleared, the final compromise stripped any advertising restrictions out of the bill – even ads targeted at children – and instead agreed that the newly to-be-formed Cannabis Control Board would develop a proposal for advertising restrictions that would be brought to the Legislature for consideration next year. If the Legislature does not act, all bets are off. It’s open season for advertising. And since that is the default position — failure of the Legislature to act precludes any ban – those who seek strong advertising restrictions will have no leverage at all in negotiating for them.
I would have been proud to be the one who got an advertising ban into the bill. But the loss is more than personal. I think it is a loss to the public good of Vermonters. And I could not support a bill that creates a tax-and-regulate marijuana market without banning advertising. I think advertising is the line in the sand between a harm reduction bill and a marijuana marketing bill.
I think my plea on the floor to reject the compromise did help turn a few votes. The final House vote was 92-56. That was enough to pass but it’s not enough of a margin to overturn a veto. So, the governor may have the last word.