The election of Donald Trump and his nomination of marijuana-hating senator Jeff Sessions as attorney general has raised concern among members of the cannabis community about a crackdown on pot laws in states such as Colorado.
Such worries aren't without merit. University of Denver law professor Sam Kamin recently outlined three ways Donald Trump could shut down state-legal marijuana, and NORML executive director Erik Altieri told us that "we need to make sure we're ready to stand up and fight should that time come."
Like Altieri, Aaron Smith, co-founder and executive director of the National Cannabis Industry Association, among the oldest and largest marijuana business organizations, stresses the importance of lobbying Congress to hold the line against a pot-biz crackdown. But in a wide-ranging interview on view below, he describes himself as cautiously optimistic that the worst-case scenario won't come to pass.
Continue to learn about the rise of the NCIA and Smith's take on marijuana in the age of Trump.
Westword: Tell me about the genesis of your organization.
Aaron Smith: The National Cannabis Industry Association started in late 2010. We just reached our sixth anniversary. Steve Fox and I founded the organization. We previously worked at the Marijuana Policy Project, so we'd been working on these issues for a long time. Around 2010 is when we saw dispensaries and other ancillary businesses not just in California, but also in Colorado really starting to professionalize. We saw more serious investors getting into the space and, really significantly, for-profit medical dispensaries opening up in Colorado. Colorado was on its way to regulating those dispensaries at that time. Prior to that, almost all of the medical marijuana commerce was in California, and it was all nonprofit.
We just saw there was a need for that business sector to be represented in Washington, D.C., just like every other business is. So we launched NCIA.
How has the organization's footprint grown since then?
When we launched, we had about thirty members, and we grew into the 100-150 range and kind of hovered there until the passage of Amendment 64 in Colorado and I-502 in Washington [in November 2012]. At that point, membership really started exploding. That's when people got really serious about the industry and the opportunities. We now sit at over a thousand businesses — just under 1,100. Those businesses range from cultivators to dispensaries, but also all of the ancillary businesses that you can imagine that serve the cannabis industry.
When we started, it was really kind of the first green rush. After Obama got inaugurated, we started seeing growth in Colorado, and that led to Washington and other states outside of California, where I came from. But then there was a real chilling effect. In the early Obama years, there were Department of Justice actions against businesses in Colorado and in California. They weren't the militarized raids we saw during the Bush years, but they were civil asset forfeiture threats for dispensaries that were operating within 1,000 feet of schools. It was a lot easier for the DOJ to write letters and pay for a stamp to threaten these legitimate businesses than it was to conduct armed raids. So that really created a chilling effect on the industry, and frankly made growth at NCIA very difficult. It was a really challenging couple of years until we got past November 2012.
What effect was there from the Cole memo, which said that the Department of Justice wouldn't focus enforcement actions on marijuana businesses that were operating in accordance with state laws?
That was huge for the industry. The industry now is where it's at today because of the Cole and Ogden memos issued by the DOJ. It had the effect of stabilizing the market for those who were operating in compliance with state laws. But it also had the effect of encouraging the legislature in California, specifically, to regulate the largest medical marijuana market in the world. That had gone unregulated for almost twenty years. So now we have regulations on the books that haven't been entirely implemented yet for their medical marijuana program, which will soon flip to an adult-use program. And that's because, I think, the DOJ made it clear they would defer to states that had robust regulatory programs in place. And almost all of them did except California at that time. So we're happy to see that California, being the elephant in the room, moved forward with medical marijuana regulations.
In regard to the incoming administration, Donald Trump has offered some seemingly contradictory statements about marijuana, as he has on many topics. On the one hand, he's said positive things about medical marijuana, but he's also said negative things about Colorado's recreational marijuana market. He's also said he would take a hands-off approach in states that had legalized marijuana — but then he nominated Jeff Sessions, a hardcore marijuana prohibitionist, to become attorney general. How do these factors impact your level of concern moving forward?
I know there's a lot of uncertainty in the industry right now given the upset in the presidential election. But one thing that's really clear is that this year also marked the biggest mandate for marijuana at the state level that we've ever seen. We saw deep-red states like North Dakota and Arkansas passing medical marijuana by wide margins. Florida approved a medical marijuana program by 71 percent of the vote. And then, of course, there were four more states that voted to regulate the entire market.
It ought to be clear to the Trump administration that even with a conservative tide sweeping the country on election day, marijuana is still more popular than the president-elect or most elected officials. Both Mr. Trump and Mr. Sessions have routinely said they support states' rights on a number of issues, and it's our job to hold them to their word. And it's also our job to make it very, very clear that in states with some form of legal marijuana — and 60 percent of Americans live in those states — those laws don't change, regardless of what the DOJ does. The only thing that DOJ actions against the industry would accomplish would be moving the supply side of the marijuana market back into the hands of illegal drug cartels and the criminal market and out of the hands of the legal, responsible businesses that exist today. Marijuana would still be legal for adults to grow and possess in Colorado and seven other states under any circumstances. There's no way they can undo that short of coming out with new ballot measures, which we would see as being dead on arrival. So basically, it's their responsibility to ensure that the states can continue to develop and implement their successful regulatory model for the supply side of the cannabis equation.
Is that the kind of story your lobbyists are telling in Washington, D.C.? And are you finding that there's a receptive audience for that story among legislators?
Absolutely. That's a story we're telling every day. We have our full-time D.C. staff and our three retained government-relations firms working with Republicans and Democrats on the Hill to make sure that message is heard loud and clear. And I expect to hear even more statements of support from members of Congress leading up to the Sessions nomination hearing. Again, right now 60 percent of the country live in a state with some form of legal marijuana, and 20 percent live in a state that has adult-use cannabis that's legal. And those numbers track congressional representation. Now, most members of Congress represent one of these states, and it's in their interest to uphold the will of the voters even if they're not particularly supportive of the issue personally. It's their job to represent their constituents.
Look at a senator like Cory Gardner in Colorado. He opposed Amendment 64 when it was on the ballot, but since then, he's acknowledged that it was approved and there are issues that need to be resolved, like the banking issue that's been chasing our industry and that has been manufactured by federal banking regulations. He's a co-sponsor of the Senate bill that would resolve that. I think in the coming weeks and months ahead, we're going to see a lot more Cory Gardners come out and support a rational, reality-based approach to marijuana. Because, again, the facts on the ground are that the voters wanted it to be legal, the voters registered their will at the ballot box — and that can't be reversed without federal action.
It sounds as if you believe there's not only a good chance to hold your ground on this issue, but you believe there's a viable possibility of actually advancing it. Is that right?
Absolutely. We've never been better positioned in Congress in terms of members representing states with legal programs on the books. And the last time the Department of Justice was cracking down on businesses, there were no state regulations in most places. Colorado had barely passed its legislation regulating medical marijuana, and California had nothing. Now fast-forward, and we have robust regulatory schemes and tax-revenue streams that are funding schools in Colorado and other important programs across the country in different states. So an attack on those issues now is actually an attack on the state itself. We've never been in a stronger position.
What is the level of concern you're hearing from your members? Do they fear they'll receive one of those business-shutdown letters you mentioned? Or are they bullish about the future?
There's a mix of cautious optimism and fear — and I land on the cautious-optimism side. But one thing's clear: Now, more than ever, the cannabis industry needs to be unified and investing in federal lobbying efforts. This moment is really why NCIA exists, why we founded the organization six years ago. It's to make sure that when there is a threat to the industry at the national level, we can rise to the occasion. Our members are making that possible now, and it's time to gear that work up even more in the months ahead.
Has the cannabis industry gotten to the point in terms of its power that if politicians decide to vote against state-legal marijuana, there's a price to pay? That they will be punished at the ballot box?
Yeah. Look at Florida, where we had 71 percent support. Hardly any official gets elected with 71 percent of the vote, and certainly not president-elect Trump. Politically, it makes absolutely no sense to go after such a popular policy. Adult-use marijuana now enjoys well over 50 percent of the vote, and in some polls over 60 percent of the vote in some parts of the country, and across every demographic.
Congress always takes several years to catch up with voter opinion. But we've really reached a point where cannabis regulation is the future, and the days of fighting that are numbered because of simple math.
Donald Trump's background is as a businessman. Do you feel that could be a positive in terms of his administration's policies? Do you think he'd recognize that it would simply be bad business to crack down on a thriving industry?
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I certainly hope so. The cannabis industry has not only reduced the profits going to criminal drug cartels, but it's replaced that with thousands of jobs and millions in revenue — and it's become a pretty entrenched part of the economy in places like Colorado, Washington and California. It would be baffling to see somebody who did run on a platform of supporting small businesses to roll that back.
I just really want to impress on the industry that the time is now to stand up. If there are folks in the industry who've kept their heads down and let others carry the weight of their interests in Washington, D.C., or across the country, it's time to step up and join forces with others with similar business interests. We hope to see further involvement with NCIA and also further political involvement in general as we move into this new era.