Back in April, I posted my second law review article on marijuana regulation, "Marijuana Agriculture Law," forthcoming in the Florida Law Review. I also previewed a section of the article that addressed the novel concept of applying appellations (or designations or origin) to the marijuana industry. The thoughtful editors at the Harvard Law and Policy Review enjoyed the article, and I agreed to expand my research on marijuana appellations into an article for their forthcoming issue on the war on drugs.
The article, "Marijuana Appellations: The Case for Cannabicultural Designations of Origin," is now available for download. The introduction is provided below:
When California Governor Jerry Brown signed the Medical Marijuana Regulation and Safety Act (MMRSA) into law in October of 2015, the bill was hailed as the first step towards putting into place a regulatory framework for marijuana agriculture. Although the state had legalized medical marijuana in 1996, there had been little to no effort to regulate the industry in any way, particularly its many farmers. The MMRSA was a step in the right direction in many ways, not least of which was to prepare for the prospect of full-blown recreational use legalization in 2016. The MMRSA comprehensively tasked state agencies with creating regulatory frameworks for a number of key issues facing the marijuana industry, including licensing, product tracking, labeling, pesticide use, and environmental impacts.
Buried deep in the text of the MMRSA is a provision that would allow the newly-established Bureau of Medical Marijuana Regulation to profoundly shape the nature and direction of the marijuana industry: “the bureau may establish appellations of origin for marijuana grown in California.” Even if the bureau does not establish marijuana appellations, the MMRSA prohibits the use of California county names in the marketing, labelling, or sale of marijuana products unless the marijuana was grown in that county.
An appellation is a certified designation of origin that may also require that certain quality or stylistic standards be met. Appellations are most commonly associated with the wine industry, but they can be applied to any agricultural product in which the geographic origin carries importance. The MMRSA provision, although seemingly innocuous, may have far-ranging effects on the marijuana industry in the United States. As the most populous state in the Union and most prolific marijuana producer, California’s approach to marijuana agriculture regulation is likely to dictate, or at least influence, how, where, and by whom marijuana is grown. Already there is evidence in California that grassroots efforts are underway to establish local designations of origin for marijuana agriculture.
If the marijuana industry (or even California) were to adopt the appellation model, it would throw cold water on prevailing assumptions that marijuana will become an agricultural commodity in a post-prohibition world. The demise of the small-scale marijuana farmer is a common narrative of marijuana legalization discourse. States across the country are legalizing the medicinal or recreational use of marijuana, and with rapid legalization is sure to come an increase in demand. According to this narrative, it is inevitable that the marijuana industry will consolidate into a handful of agricultural conglomerates producing vast quantities of indistinct marijuana. As it becomes an agricultural commodity the market will be flooded with cheap marijuana, driving down prices and driving out small-scale farmers.
The narrative is compelling, but misguided. This Article argues that commoditization and consolidation of the marijuana industry is not inevitable (or even likely), and that marijuana appellations, or American Cannabicultural Areas (ACAs), offer a more promising alternative. The early history of marijuana legalization suggests that the potential for marijuana farming to remain a small-scale vocation is strong. To begin with, the market is already dominated by small-scale farms – there are an estimated 50,000 marijuana farms in California alone. While legalization will no doubt disrupt the industry and create new market participants, it is unlikely that these farms will submit to the ‘Big Marijuana’ narrative. On the contrary, many of the earliest states to legalize marijuana cultivation have placed severe restrictions on cultivation areas. In addition, the market for marijuana products is subdivided into an incredible number of marijuana strains, each of which produce their own effects and flavor profile. As the industry continues to create unique and differentiated strains, it will be difficult to envision marijuana as an agricultural commodity.
Some regions are already experimenting with marijuana appellations, and while challenges to widespread adoption are significant, a marijuana appellation model has promise. On the other hand, there may be a role for large-scale cultivation and distribution of hemp, a derivative of cannabis plants that is used for industrial products instead of direct human consumption. Whether or not this duality becomes the norm, commoditization and consolidation is not inevitable. Marijuana appellations have a bright future, and represent a more local and sustainable agricultural model for the marijuana industry.
Access the full article here.