Cannabis News

There is one cannabis question that is regularly searched across a variety of Internet platforms: How many states have legalized adult recreational use of cannabis as of today? As a cannabis law professor and a legal analyst for emerging cannabis businesses, I often am asked that very question. My response is always the same, no matter the date or the year: “It depends on how legalization is defined.”

State-based cannabis legalization can happen in two ways.

One way is evidenced by those states which permit voters to place topics on the ballot for a vote. The other way is through the legislature, when a state’s assembly writes and passes legalization legislation which is ultimately signed off by that state’s chief executive.

When defined like that, Connecticut became the 19^th U.S. state to legalize adult recreational use when, on June 22, 2021, Connecticut governor Ned Lamont signed into law a bill passed by the Connecticut legislature.

This does not mean, however, that Connecticut’s already existing medical cannabis program morphed or expanded into an adult recreational system overnight. Rather, by the terms of the 184 pages of legislative analysis for the law entitled “AN ACT CONCERNING RESPONSIBLE AND EQUITABLE REGULATION OF ADULT-USE CANNABIS,” as of July 1, 2021, possession of small amounts of cannabis would be decriminalized. Also placed in motion, and announced by Connecticut’s administration, regulated adult recreational sales by dispensaries would begin the following year. Connecticut’s new law also has social justice and equity components to include an automatic expungement of drug conviction provision which will commence in the near future.

Six weeks before Connecticut, New Mexico legalized adult recreational use on April 12, when New Mexico’s governor Michelle Lujan Grisham signed into law previously passed recreational legislation. New Mexico’s legislation authorized adult-use retail sales to begin no later than April 1, 2022.

New Mexico’s recreational cannabis legalization occurred five days after Virginia’s successful adoption of adult recreational legalization legislation. Under a law specific to Virginia, when the Virginia legislature adopted their governor’s revisions to their previously passed adult recreational cannabis legislation on April 7, the state effectively “legalized” adult recreational cannabis. Virginia’s governor’s revisions to the legislation also advanced the date when adult-use would begin in the state from January 2024 to July 2021.

Virginia’s legalization was preceded by New York (adult-use state number 16) which legalized on March 31, 2021, when New York’s governor Andrew Cuomo signed legislation (submitted to him by the New York legislature) legalizing adult recreational use.

The South Dakota Issue

But these numbers will fall like dominos and change with those passed this year each reverting back one number depending on what happens in the highest court of South Dakota. That state was one of five that had cannabis initiatives on the ballot in the November 2020 election (the others were Arizona, Mississippi, Montana, and New Jersey).

Every cannabis ballot measure in those states prevailed with gusto. Voters overwhelmingly supported legalizing adult recreational usage in Arizona, New Jersey, and Montana; medical cannabis usage in Mississippi; and both medical and adult recreational use in South Dakota.

But, once the voters made their wishes known, in two of the states, South Dakota and Mississippi, there was a backlash by government officials and the courts.

Some of South Dakota’s elected representatives (including that state’s governor) started a campaign to undermine the will of the voters and invalidate both the medical and adult recreational initiatives passed by a significant majority of South Dakota’s voters. The same thing played out in Mississippi where government officials challenged, in court, the enactment and enforcement of that state’s voters’ legalization plans.

Initially, South Dakota’s governor attempted to block the implementation of the medical program, Measure 26, approved by two-thirds of South Dakota voters. Gov. Kristi Noem issued a statement against cannabis legalization of either sort in South Dakota, asserting that legalization was “the wrong choice” for South Dakota.

But given factors like the brevity of South Dakota’s legislative session, the medical cannabis initiative stuck, and it looks as if medical cannabis in South Dakota will make its debut by year’s end. However, South Dakota officials were more successful in halting adult recreational use.

On February 8, 2021, a South Dakota state court judge ruled against the voters and invalidated South Dakota voters’ passage of an adult recreational cannabis ballot initiative. Recreational legalization proponents appealed the decision to the South Dakota Supreme Court. The highest state court in South Dakota heard oral arguments (for and against) on April 28, 2021.

The parties’ presentations and the justices’ commentary did not give a clear indication of what the high court decision will be. As of publication time, it is not clear how the South Dakota justices will decide.

So, how many states have legalized adult-use cannabis?

Adult Recreational Cannabis Order-of Legalization* in the U.S.

1. Colorado (2012)
2. Washington (2012)
3. Alaska (2014)
4. Oregon (2014)
5. California (2016)
6. Maine (2016)
7. Massachusetts (2016)
8. Nevada (2016)
9. Vermont (2018)
10. Michigan (2018)
11. Illinois (2019)
12. New Jersey (2020)
13. Montana (2020)
14. Arizona (2020)
15. South Dakota (2020)
16. New York (March 31, 2021)
17. Virginia (April 7, 2021)
18. New Mexico (April 12, 2021)
19. Connecticut (June 22, 2021)

_{*Note: Legalization is defined here as happening the day the voters succeed with a majority of votes on an adult recreational legalization ballot initiative, or the day the legislation passes in a state’s legislature or assembly and/or is signed by or adopted (if the time has expired for an executive veto) by a state’s governor. This list of states includes South Dakota, where the issue of adult legalization is being litigated and a decision is expected soon by the South Dakota Supreme Court.}

Under the definition of legalization in this article, since South Dakota’s adult recreational program is on appeal but voters in South Dakota approved the initiative, it is more than appropriate that South Dakota remains (precariously) on our voters-have-legalized-adult-rec list.

The “how many states have legalized adult recreational use” question will be decided by the five justices who comprise the South Dakota Supreme Court. It is expected to happen soon as their summer break ends with the beginning of the South Dakota Supreme Court’s September term. If that court tosses the recreational use legalization measure, and South Dakota comes off the adult recreational legalization list, Connecticut will no longer be the 19^th adult-use state, it will become the 18^th. New Mexico then would follow suit and revert to number 17, Virginia to number 16, and New York to number 15.

To paraphrase British-born poet Elizabeth Barrett Browning, much of the answer to how we should count the number of legalized adult recreational cannabis states depends on the ways in which legalization is defined and what the state courts have to say about the voters’ wishes.

For now, our count is paused.

There is one cannabis question that is regularly searched across a variety of Internet platforms: How many states have legalized adult recreational use of cannabis as of today? As a cannabis law professor and a legal analyst for emerging cannabis businesses, I often am asked that very question. My response is always the same, no matter the date or the year: “It depends on how legalization is defined.”

State-based cannabis legalization can happen in two ways.

One way is evidenced by those states which permit voters to place topics on the ballot for a vote. The other way is through the legislature, when a state’s assembly writes and passes legalization legislation which is ultimately signed off by that state’s chief executive.

When defined like that, Connecticut became the 19^th U.S. state to legalize adult recreational use when, on June 22, 2021, Connecticut governor Ned Lamont signed into law a bill passed by the Connecticut legislature.

This does not mean, however, that Connecticut’s already existing medical cannabis program morphed or expanded into an adult recreational system overnight. Rather, by the terms of the 184 pages of legislative analysis for the law entitled “AN ACT CONCERNING RESPONSIBLE AND EQUITABLE REGULATION OF ADULT-USE CANNABIS,” as of July 1, 2021, possession of small amounts of cannabis would be decriminalized. Also placed in motion, and announced by Connecticut’s administration, regulated adult recreational sales by dispensaries would begin the following year. Connecticut’s new law also has social justice and equity components to include an automatic expungement of drug conviction provision which will commence in the near future.

Six weeks before Connecticut, New Mexico legalized adult recreational use on April 12, when New Mexico’s governor Michelle Lujan Grisham signed into law previously passed recreational legislation. New Mexico’s legislation authorized adult-use retail sales to begin no later than April 1, 2022.

New Mexico’s recreational cannabis legalization occurred five days after Virginia’s successful adoption of adult recreational legalization legislation. Under a law specific to Virginia, when the Virginia legislature adopted their governor’s revisions to their previously passed adult recreational cannabis legislation on April 7, the state effectively “legalized” adult recreational cannabis. Virginia’s governor’s revisions to the legislation also advanced the date when adult-use would begin in the state from January 2024 to July 2021.

Virginia’s legalization was preceded by New York (adult-use state number 16) which legalized on March 31, 2021, when New York’s governor Andrew Cuomo signed legislation (submitted to him by the New York legislature) legalizing adult recreational use.

The South Dakota Issue

But these numbers will fall like dominos and change with those passed this year each reverting back one number depending on what happens in the highest court of South Dakota. That state was one of five that had cannabis initiatives on the ballot in the November 2020 election (the others were Arizona, Mississippi, Montana, and New Jersey).

Every cannabis ballot measure in those states prevailed with gusto. Voters overwhelmingly supported legalizing adult recreational usage in Arizona, New Jersey, and Montana; medical cannabis usage in Mississippi; and both medical and adult recreational use in South Dakota.

But, once the voters made their wishes known, in two of the states, South Dakota and Mississippi, there was a backlash by government officials and the courts.

Some of South Dakota’s elected representatives (including that state’s governor) started a campaign to undermine the will of the voters and invalidate both the medical and adult recreational initiatives passed by a significant majority of South Dakota’s voters. The same thing played out in Mississippi where government officials challenged, in court, the enactment and enforcement of that state’s voters’ legalization plans.

Initially, South Dakota’s governor attempted to block the implementation of the medical program, Measure 26, approved by two-thirds of South Dakota voters. Gov. Kristi Noem issued a statement against cannabis legalization of either sort in South Dakota, asserting that legalization was “the wrong choice” for South Dakota.

But given factors like the brevity of South Dakota’s legislative session, the medical cannabis initiative stuck, and it looks as if medical cannabis in South Dakota will make its debut by year’s end. However, South Dakota officials were more successful in halting adult recreational use.

On February 8, 2021, a South Dakota state court judge ruled against the voters and invalidated South Dakota voters’ passage of an adult recreational cannabis ballot initiative. Recreational legalization proponents appealed the decision to the South Dakota Supreme Court. The highest state court in South Dakota heard oral arguments (for and against) on April 28, 2021.

The parties’ presentations and the justices’ commentary did not give a clear indication of what the high court decision will be. As of publication time, it is not clear how the South Dakota justices will decide.

So, how many states have legalized adult-use cannabis?

Adult Recreational Cannabis Order-of Legalization* in the U.S.

1. Colorado (2012)
2. Washington (2012)
3. Alaska (2014)
4. Oregon (2014)
5. California (2016)
6. Maine (2016)
7. Massachusetts (2016)
8. Nevada (2016)
9. Vermont (2018)
10. Michigan (2018)
11. Illinois (2019)
12. New Jersey (2020)
13. Montana (2020)
14. Arizona (2020)
15. South Dakota (2020)
16. New York (March 31, 2021)
17. Virginia (April 7, 2021)
18. New Mexico (April 12, 2021)
19. Connecticut (June 22, 2021)

_{*Note: Legalization is defined here as happening the day the voters succeed with a majority of votes on an adult recreational legalization ballot initiative, or the day the legislation passes in a state’s legislature or assembly and/or is signed by or adopted (if the time has expired for an executive veto) by a state’s governor. This list of states includes South Dakota, where the issue of adult legalization is being litigated and a decision is expected soon by the South Dakota Supreme Court.}

Under the definition of legalization in this article, since South Dakota’s adult recreational program is on appeal but voters in South Dakota approved the initiative, it is more than appropriate that South Dakota remains (precariously) on our voters-have-legalized-adult-rec list.

The “how many states have legalized adult recreational use” question will be decided by the five justices who comprise the South Dakota Supreme Court. It is expected to happen soon as their summer break ends with the beginning of the South Dakota Supreme Court’s September term. If that court tosses the recreational use legalization measure, and South Dakota comes off the adult recreational legalization list, Connecticut will no longer be the 19^th adult-use state, it will become the 18^th. New Mexico then would follow suit and revert to number 17, Virginia to number 16, and New York to number 15.

To paraphrase British-born poet Elizabeth Barrett Browning, much of the answer to how we should count the number of legalized adult recreational cannabis states depends on the ways in which legalization is defined and what the state courts have to say about the voters’ wishes.

For now, our count is paused.

There is one cannabis question that is regularly searched across a variety of Internet platforms: How many states have legalized adult recreational use of cannabis as of today? As a cannabis law professor and a legal analyst for emerging cannabis businesses, I often am asked that very question. My response is always the same, no matter the date or the year: “It depends on how legalization is defined.”

State-based cannabis legalization can happen in two ways.

One way is evidenced by those states which permit voters to place topics on the ballot for a vote. The other way is through the legislature, when a state’s assembly writes and passes legalization legislation which is ultimately signed off by that state’s chief executive.

When defined like that, Connecticut became the 19^th U.S. state to legalize adult recreational use when, on June 22, 2021, Connecticut governor Ned Lamont signed into law a bill passed by the Connecticut legislature.

This does not mean, however, that Connecticut’s already existing medical cannabis program morphed or expanded into an adult recreational system overnight. Rather, by the terms of the 184 pages of legislative analysis for the law entitled “AN ACT CONCERNING RESPONSIBLE AND EQUITABLE REGULATION OF ADULT-USE CANNABIS,” as of July 1, 2021, possession of small amounts of cannabis would be decriminalized. Also placed in motion, and announced by Connecticut’s administration, regulated adult recreational sales by dispensaries would begin the following year. Connecticut’s new law also has social justice and equity components to include an automatic expungement of drug conviction provision which will commence in the near future.

Six weeks before Connecticut, New Mexico legalized adult recreational use on April 12, when New Mexico’s governor Michelle Lujan Grisham signed into law previously passed recreational legislation. New Mexico’s legislation authorized adult-use retail sales to begin no later than April 1, 2022.

New Mexico’s recreational cannabis legalization occurred five days after Virginia’s successful adoption of adult recreational legalization legislation. Under a law specific to Virginia, when the Virginia legislature adopted their governor’s revisions to their previously passed adult recreational cannabis legislation on April 7, the state effectively “legalized” adult recreational cannabis. Virginia’s governor’s revisions to the legislation also advanced the date when adult-use would begin in the state from January 2024 to July 2021.

Virginia’s legalization was preceded by New York (adult-use state number 16) which legalized on March 31, 2021, when New York’s governor Andrew Cuomo signed legislation (submitted to him by the New York legislature) legalizing adult recreational use.

The South Dakota Issue

But these numbers will fall like dominos and change with those passed this year each reverting back one number depending on what happens in the highest court of South Dakota. That state was one of five that had cannabis initiatives on the ballot in the November 2020 election (the others were Arizona, Mississippi, Montana, and New Jersey).

Every cannabis ballot measure in those states prevailed with gusto. Voters overwhelmingly supported legalizing adult recreational usage in Arizona, New Jersey, and Montana; medical cannabis usage in Mississippi; and both medical and adult recreational use in South Dakota.

But, once the voters made their wishes known, in two of the states, South Dakota and Mississippi, there was a backlash by government officials and the courts.

Some of South Dakota’s elected representatives (including that state’s governor) started a campaign to undermine the will of the voters and invalidate both the medical and adult recreational initiatives passed by a significant majority of South Dakota’s voters. The same thing played out in Mississippi where government officials challenged, in court, the enactment and enforcement of that state’s voters’ legalization plans.

Initially, South Dakota’s governor attempted to block the implementation of the medical program, Measure 26, approved by two-thirds of South Dakota voters. Gov. Kristi Noem issued a statement against cannabis legalization of either sort in South Dakota, asserting that legalization was “the wrong choice” for South Dakota.

But given factors like the brevity of South Dakota’s legislative session, the medical cannabis initiative stuck, and it looks as if medical cannabis in South Dakota will make its debut by year’s end. However, South Dakota officials were more successful in halting adult recreational use.

On February 8, 2021, a South Dakota state court judge ruled against the voters and invalidated South Dakota voters’ passage of an adult recreational cannabis ballot initiative. Recreational legalization proponents appealed the decision to the South Dakota Supreme Court. The highest state court in South Dakota heard oral arguments (for and against) on April 28, 2021.

The parties’ presentations and the justices’ commentary did not give a clear indication of what the high court decision will be. As of publication time, it is not clear how the South Dakota justices will decide.

So, how many states have legalized adult-use cannabis?

Adult Recreational Cannabis Order-of Legalization* in the U.S.

1. Colorado (2012)
2. Washington (2012)
3. Alaska (2014)
4. Oregon (2014)
5. California (2016)
6. Maine (2016)
7. Massachusetts (2016)
8. Nevada (2016)
9. Vermont (2018)
10. Michigan (2018)
11. Illinois (2019)
12. New Jersey (2020)
13. Montana (2020)
14. Arizona (2020)
15. South Dakota (2020)
16. New York (March 31, 2021)
17. Virginia (April 7, 2021)
18. New Mexico (April 12, 2021)
19. Connecticut (June 22, 2021)

_{*Note: Legalization is defined here as happening the day the voters succeed with a majority of votes on an adult recreational legalization ballot initiative, or the day the legislation passes in a state’s legislature or assembly and/or is signed by or adopted (if the time has expired for an executive veto) by a state’s governor. This list of states includes South Dakota, where the issue of adult legalization is being litigated and a decision is expected soon by the South Dakota Supreme Court.}

Under the definition of legalization in this article, since South Dakota’s adult recreational program is on appeal but voters in South Dakota approved the initiative, it is more than appropriate that South Dakota remains (precariously) on our voters-have-legalized-adult-rec list.

The “how many states have legalized adult recreational use” question will be decided by the five justices who comprise the South Dakota Supreme Court. It is expected to happen soon as their summer break ends with the beginning of the South Dakota Supreme Court’s September term. If that court tosses the recreational use legalization measure, and South Dakota comes off the adult recreational legalization list, Connecticut will no longer be the 19^th adult-use state, it will become the 18^th. New Mexico then would follow suit and revert to number 17, Virginia to number 16, and New York to number 15.

To paraphrase British-born poet Elizabeth Barrett Browning, much of the answer to how we should count the number of legalized adult recreational cannabis states depends on the ways in which legalization is defined and what the state courts have to say about the voters’ wishes.

For now, our count is paused.

There is one cannabis question that is regularly searched across a variety of Internet platforms: How many states have legalized adult recreational use of cannabis as of today? As a cannabis law professor and a legal analyst for emerging cannabis businesses, I often am asked that very question. My response is always the same, no matter the date or the year: “It depends on how legalization is defined.”

State-based cannabis legalization can happen in two ways.

One way is evidenced by those states which permit voters to place topics on the ballot for a vote. The other way is through the legislature, when a state’s assembly writes and passes legalization legislation which is ultimately signed off by that state’s chief executive.

When defined like that, Connecticut became the 19^th U.S. state to legalize adult recreational use when, on June 22, 2021, Connecticut governor Ned Lamont signed into law a bill passed by the Connecticut legislature.

This does not mean, however, that Connecticut’s already existing medical cannabis program morphed or expanded into an adult recreational system overnight. Rather, by the terms of the 184 pages of legislative analysis for the law entitled “AN ACT CONCERNING RESPONSIBLE AND EQUITABLE REGULATION OF ADULT-USE CANNABIS,” as of July 1, 2021, possession of small amounts of cannabis would be decriminalized. Also placed in motion, and announced by Connecticut’s administration, regulated adult recreational sales by dispensaries would begin the following year. Connecticut’s new law also has social justice and equity components to include an automatic expungement of drug conviction provision which will commence in the near future.

Six weeks before Connecticut, New Mexico legalized adult recreational use on April 12, when New Mexico’s governor Michelle Lujan Grisham signed into law previously passed recreational legislation. New Mexico’s legislation authorized adult-use retail sales to begin no later than April 1, 2022.

New Mexico’s recreational cannabis legalization occurred five days after Virginia’s successful adoption of adult recreational legalization legislation. Under a law specific to Virginia, when the Virginia legislature adopted their governor’s revisions to their previously passed adult recreational cannabis legislation on April 7, the state effectively “legalized” adult recreational cannabis. Virginia’s governor’s revisions to the legislation also advanced the date when adult-use would begin in the state from January 2024 to July 2021.

Virginia’s legalization was preceded by New York (adult-use state number 16) which legalized on March 31, 2021, when New York’s governor Andrew Cuomo signed legislation (submitted to him by the New York legislature) legalizing adult recreational use.

The South Dakota Issue

But these numbers will fall like dominos and change with those passed this year each reverting back one number depending on what happens in the highest court of South Dakota. That state was one of five that had cannabis initiatives on the ballot in the November 2020 election (the others were Arizona, Mississippi, Montana, and New Jersey).

Every cannabis ballot measure in those states prevailed with gusto. Voters overwhelmingly supported legalizing adult recreational usage in Arizona, New Jersey, and Montana; medical cannabis usage in Mississippi; and both medical and adult recreational use in South Dakota.

But, once the voters made their wishes known, in two of the states, South Dakota and Mississippi, there was a backlash by government officials and the courts.

Some of South Dakota’s elected representatives (including that state’s governor) started a campaign to undermine the will of the voters and invalidate both the medical and adult recreational initiatives passed by a significant majority of South Dakota’s voters. The same thing played out in Mississippi where government officials challenged, in court, the enactment and enforcement of that state’s voters’ legalization plans.

Initially, South Dakota’s governor attempted to block the implementation of the medical program, Measure 26, approved by two-thirds of South Dakota voters. Gov. Kristi Noem issued a statement against cannabis legalization of either sort in South Dakota, asserting that legalization was “the wrong choice” for South Dakota.

But given factors like the brevity of South Dakota’s legislative session, the medical cannabis initiative stuck, and it looks as if medical cannabis in South Dakota will make its debut by year’s end. However, South Dakota officials were more successful in halting adult recreational use.

On February 8, 2021, a South Dakota state court judge ruled against the voters and invalidated South Dakota voters’ passage of an adult recreational cannabis ballot initiative. Recreational legalization proponents appealed the decision to the South Dakota Supreme Court. The highest state court in South Dakota heard oral arguments (for and against) on April 28, 2021.

The parties’ presentations and the justices’ commentary did not give a clear indication of what the high court decision will be. As of publication time, it is not clear how the South Dakota justices will decide.

So, how many states have legalized adult-use cannabis?

Adult Recreational Cannabis Order-of Legalization* in the U.S.

1. Colorado (2012)
2. Washington (2012)
3. Alaska (2014)
4. Oregon (2014)
5. California (2016)
6. Maine (2016)
7. Massachusetts (2016)
8. Nevada (2016)
9. Vermont (2018)
10. Michigan (2018)
11. Illinois (2019)
12. New Jersey (2020)
13. Montana (2020)
14. Arizona (2020)
15. South Dakota (2020)
16. New York (March 31, 2021)
17. Virginia (April 7, 2021)
18. New Mexico (April 12, 2021)
19. Connecticut (June 22, 2021)

_{*Note: Legalization is defined here as happening the day the voters succeed with a majority of votes on an adult recreational legalization ballot initiative, or the day the legislation passes in a state’s legislature or assembly and/or is signed by or adopted (if the time has expired for an executive veto) by a state’s governor. This list of states includes South Dakota, where the issue of adult legalization is being litigated and a decision is expected soon by the South Dakota Supreme Court.}

Under the definition of legalization in this article, since South Dakota’s adult recreational program is on appeal but voters in South Dakota approved the initiative, it is more than appropriate that South Dakota remains (precariously) on our voters-have-legalized-adult-rec list.

The “how many states have legalized adult recreational use” question will be decided by the five justices who comprise the South Dakota Supreme Court. It is expected to happen soon as their summer break ends with the beginning of the South Dakota Supreme Court’s September term. If that court tosses the recreational use legalization measure, and South Dakota comes off the adult recreational legalization list, Connecticut will no longer be the 19^th adult-use state, it will become the 18^th. New Mexico then would follow suit and revert to number 17, Virginia to number 16, and New York to number 15.

To paraphrase British-born poet Elizabeth Barrett Browning, much of the answer to how we should count the number of legalized adult recreational cannabis states depends on the ways in which legalization is defined and what the state courts have to say about the voters’ wishes.

For now, our count is paused.

There is one cannabis question that is regularly searched across a variety of Internet platforms: How many states have legalized adult recreational use of cannabis as of today? As a cannabis law professor and a legal analyst for emerging cannabis businesses, I often am asked that very question. My response is always the same, no matter the date or the year: “It depends on how legalization is defined.”

State-based cannabis legalization can happen in two ways.

One way is evidenced by those states which permit voters to place topics on the ballot for a vote. The other way is through the legislature, when a state’s assembly writes and passes legalization legislation which is ultimately signed off by that state’s chief executive.

When defined like that, Connecticut became the 19^th U.S. state to legalize adult recreational use when, on June 22, 2021, Connecticut governor Ned Lamont signed into law a bill passed by the Connecticut legislature.

This does not mean, however, that Connecticut’s already existing medical cannabis program morphed or expanded into an adult recreational system overnight. Rather, by the terms of the 184 pages of legislative analysis for the law entitled “AN ACT CONCERNING RESPONSIBLE AND EQUITABLE REGULATION OF ADULT-USE CANNABIS,” as of July 1, 2021, possession of small amounts of cannabis would be decriminalized. Also placed in motion, and announced by Connecticut’s administration, regulated adult recreational sales by dispensaries would begin the following year. Connecticut’s new law also has social justice and equity components to include an automatic expungement of drug conviction provision which will commence in the near future.

Six weeks before Connecticut, New Mexico legalized adult recreational use on April 12, when New Mexico’s governor Michelle Lujan Grisham signed into law previously passed recreational legislation. New Mexico’s legislation authorized adult-use retail sales to begin no later than April 1, 2022.

New Mexico’s recreational cannabis legalization occurred five days after Virginia’s successful adoption of adult recreational legalization legislation. Under a law specific to Virginia, when the Virginia legislature adopted their governor’s revisions to their previously passed adult recreational cannabis legislation on April 7, the state effectively “legalized” adult recreational cannabis. Virginia’s governor’s revisions to the legislation also advanced the date when adult-use would begin in the state from January 2024 to July 2021.

Virginia’s legalization was preceded by New York (adult-use state number 16) which legalized on March 31, 2021, when New York’s governor Andrew Cuomo signed legislation (submitted to him by the New York legislature) legalizing adult recreational use.

The South Dakota Issue

But these numbers will fall like dominos and change with those passed this year each reverting back one number depending on what happens in the highest court of South Dakota. That state was one of five that had cannabis initiatives on the ballot in the November 2020 election (the others were Arizona, Mississippi, Montana, and New Jersey).

Every cannabis ballot measure in those states prevailed with gusto. Voters overwhelmingly supported legalizing adult recreational usage in Arizona, New Jersey, and Montana; medical cannabis usage in Mississippi; and both medical and adult recreational use in South Dakota.

But, once the voters made their wishes known, in two of the states, South Dakota and Mississippi, there was a backlash by government officials and the courts.

Some of South Dakota’s elected representatives (including that state’s governor) started a campaign to undermine the will of the voters and invalidate both the medical and adult recreational initiatives passed by a significant majority of South Dakota’s voters. The same thing played out in Mississippi where government officials challenged, in court, the enactment and enforcement of that state’s voters’ legalization plans.

Initially, South Dakota’s governor attempted to block the implementation of the medical program, Measure 26, approved by two-thirds of South Dakota voters. Gov. Kristi Noem issued a statement against cannabis legalization of either sort in South Dakota, asserting that legalization was “the wrong choice” for South Dakota.

But given factors like the brevity of South Dakota’s legislative session, the medical cannabis initiative stuck, and it looks as if medical cannabis in South Dakota will make its debut by year’s end. However, South Dakota officials were more successful in halting adult recreational use.

On February 8, 2021, a South Dakota state court judge ruled against the voters and invalidated South Dakota voters’ passage of an adult recreational cannabis ballot initiative. Recreational legalization proponents appealed the decision to the South Dakota Supreme Court. The highest state court in South Dakota heard oral arguments (for and against) on April 28, 2021.

The parties’ presentations and the justices’ commentary did not give a clear indication of what the high court decision will be. As of publication time, it is not clear how the South Dakota justices will decide.

So, how many states have legalized adult-use cannabis?

Adult Recreational Cannabis Order-of Legalization* in the U.S.

1. Colorado (2012)
2. Washington (2012)
3. Alaska (2014)
4. Oregon (2014)
5. California (2016)
6. Maine (2016)
7. Massachusetts (2016)
8. Nevada (2016)
9. Vermont (2018)
10. Michigan (2018)
11. Illinois (2019)
12. New Jersey (2020)
13. Montana (2020)
14. Arizona (2020)
15. South Dakota (2020)
16. New York (March 31, 2021)
17. Virginia (April 7, 2021)
18. New Mexico (April 12, 2021)
19. Connecticut (June 22, 2021)

_{*Note: Legalization is defined here as happening the day the voters succeed with a majority of votes on an adult recreational legalization ballot initiative, or the day the legislation passes in a state’s legislature or assembly and/or is signed by or adopted (if the time has expired for an executive veto) by a state’s governor. This list of states includes South Dakota, where the issue of adult legalization is being litigated and a decision is expected soon by the South Dakota Supreme Court.}

Under the definition of legalization in this article, since South Dakota’s adult recreational program is on appeal but voters in South Dakota approved the initiative, it is more than appropriate that South Dakota remains (precariously) on our voters-have-legalized-adult-rec list.

The “how many states have legalized adult recreational use” question will be decided by the five justices who comprise the South Dakota Supreme Court. It is expected to happen soon as their summer break ends with the beginning of the South Dakota Supreme Court’s September term. If that court tosses the recreational use legalization measure, and South Dakota comes off the adult recreational legalization list, Connecticut will no longer be the 19^th adult-use state, it will become the 18^th. New Mexico then would follow suit and revert to number 17, Virginia to number 16, and New York to number 15.

To paraphrase British-born poet Elizabeth Barrett Browning, much of the answer to how we should count the number of legalized adult recreational cannabis states depends on the ways in which legalization is defined and what the state courts have to say about the voters’ wishes.

For now, our count is paused.

Idaho cannabis advocates are working to place medical and decriminalization measures on the 2022 ballot in what Russ Belville, spokesperson for the Idaho Citizens Coalition for Cannabis, calls “the most hostile state” toward policy reform.

Belville’s organization is in the process of collecting the 64,946 signatures required to place the Personal Adult Marijuana Decriminalization Act of 2022 (PAMDA) on Idaho’s 2022 ballot. The initiative aims to end arrests for the personal possession of 3 ounces of cannabis or less in private by adults 21 and older.

PAMDA would not create a commercial adult-use cannabis industry in the state and maintains the criminality of cannabis possession, use and sales in public, as well as all cannabis cultivation and driving under the influence.

The Idaho Citizens Coalition for Cannabis has partnered with Kind Idaho, which is also working to collect 64,946 signatures to place the Idaho Medical Marijuana Act for 2022 (IMMA) on next year’s ballot.

IMMA would legalize the possession of up to 4 ounces of cannabis for medical purposes, as well as the home cultivation of up to six plants for patients with a “hardship waiver.” The measure would also create a system of dispensaries to sell medical cannabis to qualified patients.

Belville and other advocates operated under the Idaho Cannabis Coalition in the past to place a medical cannabis legalization measure that was identical to IMMA on Idaho’s 2020 ballot, but their efforts stalled last year due to the COVID-19 pandemic.

“We collected about 40,000 signatures, and then the coronavirus came, and we had lockdowns and couldn’t collect any more, and we lost our request to be able to continue with electronic signature gathering,” Belville told Cannabis Business Times and Cannabis Dispensary.

Now, the organizers behind IMMA and PAMDA have until May 1, 2022, to gather enough signatures to get their measures before voters in the November election.

‘The Most Anti-Marijuana Legislature in America’

Idaho is the only U.S. state that has not enacted regulations on the use of cannabis for any purpose, including the use of hemp-derived CBD.

“In 2013, we had the Legislature pass a resolution that says marijuana should never be legalized in the state for any purpose,” Belville said. “They’ve put it on paper that they’re the most anti-marijuana legislature in America.”

This opposition is also reflected in the state’s law enforcement. In early 2019, Idaho State Police arrested Denis Palamarchuk outside Boise. They charged him with felony drug trafficking after a traffic stop revealed he was carrying 6,700 lbs. of cannabis plant material. Palamarchuk claimed he was transporting hemp from one licensed company to another, and after serving jail time, he settled his case with the Ada County Prosecutor’s Office in September 2019 by pleading guilty to misdemeanors.

At the time, Idaho law prohibited any biomass that contained even trace amounts of THC, but this policy shifted in late 2019 when Gov. Brad Little issued an executive order that temporarily legalized the interstate transportation of hemp until the Legislature enacts a more permanent solution.

Belville said the campaigns behind IMMA and PAMDA are up against not only this kind of opposition from lawmakers and law enforcement, but also a handful of challenging state regulations regarding initiative petitions.

For example, during the 2020 legislative session, lawmakers added a single-subject rule to the initiative process, the likes of which caused the Nebraska Supreme Court to strike down a medical cannabis legalization measure in that state last year.

The Legislature also approved a process that allows people to take their names off an initiative after signing a petition by submitting a written request to the county clerk.

Belville said lawmakers continued tweaking the initiative process during this year’s session.

“We submitted [IMMA] in February,” he said. “The Legislature gets into session late March/early April, and they begin an assault on our ability to put any marijuana initiative on the ballot.”

The first move in this assault was the Legislature’s proposed constitutional amendment to put Idaho’s drug scheduling into the state constitution.

“The reason they wanted to do that is because in Idaho, we can only do statutory initiatives,” Belville said. “The people cannot propose constitutional amendments. So, if the drug schedules are all in the constitution, that would make it impossible to ever run a marijuana initiative or a legalization initiative for even things like medicinal psilocybin or other drugs.”

Lawmakers had the two-thirds support needed in the Senate to place the proposed constitutional amendment on the ballot but failed to garner the necessary votes in the House.

A second iteration of a constitutional ban on cannabis also stalled in the House this year.

While these attempts to block cannabis-related ballot initiatives failed, the Legislature did manage to pass S.B. 1110 during its last legislative session, which changes the signature-gathering requirements to get a measure before voters.

Under the state’s previous law, which went into effect in 2013, campaigns had to collect signatures from 6% of the registered voters in 18 of Idaho’s 35 legislative districts. Now, under S.B. 1110, campaigns must gather signatures from 6% of registered voters in all 35 districts to qualify their initiatives for the ballot.

IMMA was submitted before S.B. 1110 went into law, so Kind Idaho can still qualify the initiative with signatures from 18 of the state’s districts.

PAMDA, however, was submitted after the passage of S.B. 1110, and so the Idaho Citizens Coalition for Cannabis must gather signatures from all 35 districts.

“Most observers say [this] is probably impossible to pull off without a serious, serious infusion of money,” Belville said. “Reclaim Idaho, [the campaign behind a ballot initiative for Medicaid expansion,] had sued over S.B. 1110, and the Idaho Supreme Court has already heard those lawsuits, and we’re still just waiting for a decision. Should the decision go in Reclaim’s favor, and the law returns with the 18-district threshold, then we’ll be moving forward with our PAMDA initiative. If it doesn’t go in our favor and we’re stuck with 35 districts, we’ll probably fold the PAMDA initiative and put all our efforts into the IMMA medical initiative.”

Another bill, S.B. 1150, also threatened to wreak havoc on the campaigns’ signature-gathering efforts but was ultimately vetoed by the governor.

S.B. 1150 sought to prohibit campaigns from gathering signatures for an initiative outside of the state of Idaho, which Belville suspects stems from Idahoans crossing the border into Ontario, Ore., where they can legally purchase cannabis now that Ontario has overturned a ban on adult-use sales.

RELATED: The Border-Town Effect: Dispensaries Boom on State Line

“[Lawmakers] wanted to stop medical marijuana petitioners from setting up at those dispensaries right across the border and collecting signatures from the hundreds of Idahoans who go there every day,” Belville said, adding that the governor vetoed the bill out of concern for the state’s soldiers and missionaries who are stationed outside of Idaho and therefore would be unable to sign initiative petitions under the new law.

“Idaho is the most hostile state to any sort of marijuana reform, at least as evidenced by the Legislature,” Belville said. “I’d spent 14 years in Portland, Ore., … [working] for Oregon NORML, so I’ve been used to doing marijuana policy in state legislatures, but Idaho is a whole different world. It’s hard to even get volunteers to show up for events because of the fear of being known to support this issue.”

The Fight for Change

Despite the fierce opposition to cannabis policy reform, Kind Idaho is leading the all-volunteer signature- gathering effort, with continued support from the Idaho Citizens Coalition for Cannabis, to bring their initiatives before voters.

The Idaho Citizens Coalition for Cannabis has a merchandise shop on its website to raise funds for the cause and will host fundraising events this fall.

“We’re hoping to collect enough signatures to attract the national funders,” Belville said. “We also feel that if the Reclaim Idaho suit fails, there might be a silver lining in that, where we can turn to the national fundraisers and say, ‘Hey, this is your last chance. There won’t be another 18-district chance, so this is your last chance.’”

Although the Idaho Citizens Coalition for Cannabis has not yet polled on its decriminalization measure, Belville is optimistic that it could pass in a narrow majority should it make it to the ballot, and he said the medical cannabis legalization measure is a “slam dunk.”

“We polled on this one consistently, and our polls show that about three-quarters of Idahoans polled support our medical marijuana initiative specifically, and that polling support also includes over 60% among Republicans, people over 65 and members of the Mormon Church. Literally, the only demographic in Idaho that opposes medical marijuana is in the statehouse.”

A new state regime for legal cannabis brings with it a new group of investigators and enforcers. New licensees may face state officials who are still learning and interpreting the regulations, have an abundance of investigatory resources with very few targets, and an eagerness to demonstrate they can effectively police the industry. As a result, a new licensee can face repeated audits and inspections until eventually it hits a tripwire that leads to a full-blown investigation.

A state investigation can involve document requests, employee interviews, product testing, and, in the event of a negative finding, lead to a possible suspension of product shipments or license revocation. Depending on the allegations, companies must also stay attentive to federal criminal exposure if information is shared with the Drug Enforcement Agency (DEA).

This explainer unpacks how to protect your company and navigate an investigation to a favorable (and profitable) long-term outcome.

The Legal Gray Area of the Initial Grow

Between the time a state votes to legalize and the time consumers can buy the product off a shelf, a lot has to happen, resulting in a year or more of lag time between “legalization” and “open for business.”

What happens in between?

A state commission is established, along with a licensing and regulatory framework. The state determines the number of licensees it will allow and the process for selecting them. Litigation challenges follow from those who were denied a license. And ultimately, the licensees build out and prepare to open.

As the cultivators prepare to launch operations, the first tripwire is immediately evident: Where will the cannabis come from? The initial crop of plants or seeds will likely come from outside the state. But moving cannabis across state lines is not an act that a state can readily authorize under its regulatory regime. There may instead be informal discussions between new licensees and those on the state commission about how such situations are to be handled. That might seem like an acceptable short-term solution; however, in the event of a subsequent investigation of the company, employees can be asked about how those initial plants or seeds were obtained, and they answer those questions at the risk of being accused of interstate transport of a controlled substance.

Guidance in that initial stage should therefore be well documented and provided to regulators in the event of a subsequent investigation. Additionally, counsel should speak to the questioners in advance of any interviews and make clear that even if the company is cooperating, it will not—and cannot be expected to—answer questions that could implicate federal criminal issues.

How Can You Protect Against or Prepare for a State Investigation?

The best protective measure a company can take is to conduct its own internal investigation or, at a minimum, a compliance review.

If the company begins an internal investigation and takes corrective action before the regulators even detect an issue, it will be in a position to argue against any penalty. And even if the investigation begins after the regulators suspect an issue, the company can inform the regulators that it will cooperate, is conducting its own internal investigation, and will provide the regulators with a list of findings and compliance improvements made. Such a proactive approach can avoid disruption of the company’s license status. In all cases, the goal is to build credibility with the regulators and ensure them that the company can and will police itself and promptly take any necessary remedial actions.

So it begins with policing your own company by reviewing the key components for compliance. How do you do that?

Three key steps are to (1) vet the employee backgrounds and their relationships with each other, (2) review the quality control processes, and (3) review the security processes. Reviewing these three areas and fixing any identified issues can protect the company against three of the most damaging issues for a new cultivator: a rogue employee or whistleblower, a suspension of its product, and a diversion/black market investigation.

The Employees

The types of employees working in a cannabis company are changing quickly, but they can be a uniquely challenging group if they come from the illicit or grey market. Previously, many new cultivators sought a head grower—typically one of the key roles in the organization—with a decade or more of experience. But of course anyone with a decade or more of experience will draw at least some of that experience from an illegal market and may have a more dismissive attitude toward compliance. Given that the head grower is typically one of the highest paid employees, other more compliance-minded employees, who might also feel underpaid or undervalued relative to the head grower, might become resentful and become whistleblowers. And given that new cultivators often lack internal whistleblower policies and reporting mechanisms, whistleblowers are more likely to report directly to the state regulator and immediately trigger an investigation.

You should therefore review not only your company’s initial screening process for hires but also the training materials, rate of turnover, and compliance or other disciplinary write-ups on the employees. This will give you a picture of any existing personnel tensions and the scope of the compliance officer’s authority. Keep in mind that inspectors will often ask for compliance reports, so if the compliance officer is writing a series of reports that no one acts upon, the company is doing little more than building a record against itself.

At the same time, this is not to suggest that write-ups should not happen. Lack of write-ups could suggest to investigators that there is no compliance program at all, thereby making the company’s license suspension or revocation more likely. But if the company hangs onto problem employees, and ends up in an investigation, it will likely end up answering for why those employees are still around and who favored retaining them. Further, the problem employees, as well as their enablers, could face individual liability and suspension.

The solution is to ensure that the compliance officer has sufficient authority within the company and that disciplinary consequences follow compliance violations.

If the company ends up getting investigated, the compliance officer’s role and authority will be carefully evaluated as an indicator of whether the problems are isolated or systemic. Although the company can argue that isolated issues can and will be corrected, systemic issues resulting from a complete breakdown of the compliance function will place a company’s license in jeopardy.

Quality Control Processes

Another allegation that can trigger immediate investigation is a finding or suggestion that the cannabis product is contaminated by an unapproved product, such as a pesticide. The company should therefore review the processes it has in place to ensure that only approved products are applied, and that only approved employees can apply them.

Relatedly, operators should review the logs recording the application of pesticides or other crop protection agents or nutrients. In a pesticide investigation, these will be among the first documents requested. If the review turns up inadequate processes or logs, implement a two-witness logging system and clear written guidance for what can be applied to plants and to ensure that no one can apply unauthorized pesticides after hours.

Security Processes

Besides pesticide use, another recurring issue in investigations and enforcement, and a far more serious one, is diversion. A company that adequately protects against diversion should regularly review both its seed-to-sale tracking system and its security system. The company must be able to demonstrate that every plant is on camera and in the seed-to-sale system, and that every person or package is searched.

During an audit, a regulator expects to be able to select a plant on the company’s system, see where it is in the facility, and go to that room and find the plant. This seed-to-sale software must be up to date (capturing all plants in the facility), and employees must be properly trained on it. Similarly, every employee must be searched coming into the facility and coming out of a greenhouse. Every plant must be within view of a camera. Any exceptions to these rules will raise suspicions of diversion and prompt further investigation.

Why Are Investigations So Perilous?

Any regulatory investigation is potentially devastating for at least three reasons.

First, there is always a risk that the investigation will lead into areas of federal concern. Any finding that presents as a red flag for potential diversion of product to the black market could bring federal scrutiny. Security failures, plant tracking failures, plants growing in an area where the cameras fail to reach, all could raise questions about diversion and end up triggering a federal criminal investigation.

Second, there is always a risk that a hold will be placed on the product pending the investigation. If the investigation concerns pesticides or other contamination, the state could issue a hold without warning on the basis of a possible harm to public health. A single-product company with a perishable product that is sitting on the shelf indefinitely can suffer devastating financial harm. Even if the suspension is later lifted and the company is cleared of the allegations, the company might have difficulty rebounding financially.

Third, an investigation under a new state regime will obviously lack the protocols and policies that guide a U.S. Department of Justice investigation. In a federal investigation, for instance, there are policies governing filing suit or bringing charges against a company, giving credit to a company that cooperates with an investigation, and deciding how to resolve an investigation. An investigation by a new state cannabis commission may have none of these things, so counsel needs to have a frank conversation with the investigators early on to set expectations about how the investigation will proceed, how cooperation will be treated, and what questioning will be off limits. Ultimately, however, counsel can use the absence of policies and protocols to propose a more creative, favorable resolution, especially if the company has been proactive in its own investigation and already implemented compliance improvements.

Final Thoughts

If despite the company’s best efforts, an aggressive investigation hits, don’t go it alone. Seek a qualified and experienced counsel to help you navigate the process and advocate for you. Your initial steps in responding to an investigation are critical, can affect your credibility with the investigators, and shape the outcome. Being proactive and having a credible actor on your side is key. But if you do your own review and investigation, maintain cooperative dialogue with the investigators, shut down any potential areas of federal criminal interest, and promptly remedy any issues that are identified, you can steer the company to a favorable and profitable outcome.