Washington’s first cannabis laws, prohibiting and criminalizing cannabis possession with penalties up to ten years in prison for possession, were established in 1923. As cannabis use became more widespread in the 1960s, however, the state legislature loosened its cannabis laws, dictating that possession of less than 40 grams of the plant would be charged as a misdemeanor.
Though recreational use of cannabis remained illegal, as early as 1979, Washington courts began recognizing that medical exceptions may be permitted to justify possession and use of the plant. In State v. Diana, 24 Wn. App. 908, 604 P.2d 1312 (Wash. Ct. App. 1979), the Washington Court of Appeals held that an individual suffering from multiple sclerosis, who was arrested for possession of cannabis, should be given the opportunity to establish that the use of cannabis was medically necessary and, therefore, legally justifiable.
Despite the supportive ruling in State v. Diana, it was not until 1998 and passage of Initiative 692 (“I-692”) by a 59% to 41% margin, that the prescription, cultivation, and use of medical cannabis was legalized. I-692, also known as the Medical Use of Marijuana Act, created an affirmative defense to violating state cannabis prohibition laws for individual use and possession of cannabis for medicinal purposes. Fourteen years later, in 2012, Washington became the first state (alongside Colorado) to legalize recreational use of cannabis, by passing Initiative 502 (“I-502”).
Sale & Taxation of Cannabis
Licensing, Locations, and Taxation
The production, processing, and sale of cannabis within Washington is regulated by the Liquor and Cannabis Board (the “LCB”), which offers the following four principal cannabis licenses: (1) marijuana producer license; (2) marijuana processor license; (3) marijuana retailer license; and (4) marijuana research license. A marijuana producer license is required to produce cannabis for wholesale to cannabis processors and other cannabis producers. A producer license is also needed to produce immature cannabis plants, clones, and seeds to sell to medical cannabis cooperatives and certain qualifying medical cannabis patients. The license allows a business to produce, possess, deliver, distribute, and sell cannabis. Additional administrative rules for producers can be found in the Washington Administrative Code (“WAC”) 314-55-075.
A marijuana processor license is required to process, package, and label cannabis concentrates, usable cannabis, and cannabis-infused products for sale at wholesale to cannabis processors and cannabis retailers. The license allows a business to process, package, possess, deliver, distribute, and sell cannabis and cannabis products. Additional administrative rules for processors can be found in WAC 314-55-077.
A marijuana retailer license is required to sell cannabis products at retail in retail stores. The license allows a business to possess, deliver directly to customers in a store, distribute, and sell cannabis products. Additional administrative rules for retailers can be found in WAC 314-55-079.
Research licenses allow a licensee to produce, process, and possess cannabis for: (1) testing chemical potency and composition levels; (2) conducting clinical investigations of cannabis-derived drug products; (3) conducting research on the efficacy and safety of administering cannabis as part of medical treatment; and (4) conducting genomic or agricultural research. More information on these licenses can be found in the Revised Code of Washington (“RCW”) chapter 69.50.331 and RCW 69.50.372.
While cannabis is legal for medical and recreational uses in Washington, the availability of cannabis retailers is dependent on local zoning ordinances. Many cities have adopted zoning laws to expressly allow cannabis stores, while other cities have enacted outright bans on cannabis retailers or require retailers to comply with “federal and all other applicable laws,” effectively banning such retailers from selling cannabis products within the municipality.
Where local zoning allows for cannabis retail, acceptable locations for such stores are generally highly regulated with laws prohibiting stores within certain distances of certain public spaces such as schools or parks. Similarly, both state and local laws heavily regulate what content may appear on public advertising for cannabis retail stores. More detail on cannabis retail advertising may be found in RCW 69.50.369.
Washington was established on lands belonging to American Indians and many tribal lands and reservations, containing their own unique laws, extend throughout the state. The State legislature permits Washington’s Governor to enter into agreements concerning marijuana with these federally recognized tribes. Tribes must provide consent to the LCB before the LCB is allowed to issue any cannabis licenses within individual tribal lands.
An example of a tribal cannabis compact may be found at: https://lcb. wa.gov/publications/Marijuana/Compact-9-14-15.pdf.
Cannabis is highly taxed in Washington, with retail cannabis products subject to a 37% excise tax. However, sales and use tax exemptions are provided for qualifying patients or their designated providers, so long as they possess a medical authorization card (further discussed in Section III).
Jurisdictions that do not ban the siting of cannabis businesses are eligible to receive a portion of the funds generated by the state retail marijuana excise tax. In 2019, state sales of cannabis totaled over $1 billion, producing an excise tax revenue of nearly $390 million.
Washington State initially legalized the medicinal use of cannabis in 1998, with passage of I-692, the Medical Use of Marijuana Act (the “Act”). Under I-692, qualified individuals who use and possess cannabis for personal medical purposes can assert an affirmative defense to violating state laws regarding cannabis, within the confines of the Act.
Qualifications for Medicinal Cannabis Use
Under RCW 69.51A.010, to qualify for medical use of cannabis, an individual must be: (1) a patient of a health care professional; (2) diagnosed by that health care professional as having a terminal or debilitating medical condition; (3) a resident of the State of Washington at the time of such diagnosis; (4) advised by that health professional about the risks and benefits of the medical use of cannabis; (5) advised by that health care professional that the individual may benefit from the medical use of cannabis; (6)(a) have authorization from such individual’s health care professional; or (b) have entered into the medical marijuana authorization database and been provided a recognition card; and (7) be otherwise in compliance with the terms and conditions of state law.
“Terminal or debilitating medical conditions” for which individuals may be prescribed medical cannabis are conditions severe enough to significantly interfere with the patient’s activities of daily living and ability to function, limited to a prescribed list that includes, but is not limited to: cancer, HIV, multiple sclerosis, epilepsy, Crohn’s disease, anorexia, PTSD and glaucoma. A full list of terminal or debilitating medical conditions may be found in RCW 69.51A.010(24).
Medical professionals who may authorize medicinal cannabis use include licensed: physicians and physician assistants; advanced registered nurse practitioners; osteopathic physicians and osteopathic physician assistants; and naturopathic physicians.
Age and Other Restrictions
While recreational use of cannabis is restricted to those age 21-years and older, Washington prescribes no minimum age for medicinal cannabis use. Patients under the age of 18 may be authorized for medicinal cannabis use if the minor’s parent or guardian participates and agrees to the course of treatment for the minor. In these cases, the parent or guardian must be the designated provider for the minor and have sole control over the minor’s marijuana. In addition, supplementary restrictions and requirements are placed on the minor’s health care provider who authorizes the minor’s cannabis. A full list of restrictions may be found in RCW 69.51A.220. Qualifying patients between the ages of 18 and 21 with registration cards may purchase medicinal cannabis for their personal medical use without supervision or age-specific restraints.
Individuals who are actively supervised for a criminal conviction by a corrections agency or department that has determined such individual should not have access to medicinal cannabis, are disallowed to obtain medicinal cannabis regardless of their underlying condition or treatment recommendation from a medical professional.
Authorization Database and Cannabis Limits
To qualify for, and obtain, medicinal cannabis, a patient must either have an authorization form from their health care professional or must be registered in the medical marijuana authorization database (the “Database”). Authorization forms require patient and health care professional information, an optional recommendation by the healthcare professional for the number of plants the patient is allowed to grow, the date of issuance and expiration, and notice about lack of arrest protection if the qualifying patient is not entered into the Database.
To enter into the Database, qualifying patients may present their authorization form to any marijuana retailer holding a medical marijuana endorsement. Upon entry into the Database, and payment of a $1 fee, the qualifying patient, or designated provider, will receive a recognition card. Recognition cards are valid for up to one year for patients age 18 years and older, and up to six months for patients under the age of 18 and their designated providers.
Entry into the Database allows for certain arrest and prosecution protections, for certain cannabis tax exemptions, and for authorized persons who dispense medical cannabis to access health care information on their patients. Additionally, those entered into the Database may grow up to 15 plants for their medical use and may possess three times the amount of cannabis permitted to recreational users. Qualified patients and designated providers who are not entered into the Database may still grow cannabis for their medical use; however, they are limited to four plants and six ounces of usable cannabis from those plants. They additionally do not receive the sales-tax relief available to patients and designated providers in the Database.
Qualifying patients and designated providers may also form cooperatives to share in the responsibilities of producing and processing cannabis. Cooperative locations must be approved by the LCB and such cooperatives are limited to a maximum of four members who must be at least 21 years of age and possess a valid recognition card. However, a designated provider for a minor may also join a cooperative. Each member of a cooperative must provide assistance in growing cannabis and each cooperative may grow the total number of plants authorized for each participant, up to a maximum of 60 plants. In addition, the cooperative may have on its premises as much usable cannabis as can be produced from the authorized number of plants, up to 72 ounces (4.5 lbs.). Cooperatives may not sell the cannabis they produce. Additional regulations concerning cooperatives may be found in RCW 69.51A.250.
No Employment Protections Washington State does not offer employment protections for medical cannabis users. Employers may fire employees for their cannabis use, even where such use is prescribed by a doctor and does not occur during work hours. Although the Americans with Disabilities Act generally requires employers to provide reasonable accommodations to employees with disabilities, its protections do not extend to federally illegal drugs, such as cannabis.
Adult Recreational Use
Cannabidol (“CBD”) is a type of cannabinoid that is believed to have potential health benefits and is the active ingredient in most regulated medical cannabis products. Today, CBD is most often found in lotions and oils, and sold without medical claims that would subject it to regulation by the FDA. Licensed marijuana producers and processors in Washington are unrestricted in their use of CBD products for the purpose of enhancing the CBD content of regulated cannabis products, provided such CBD products are lawfully produced by, or purchased from, an in-state producer or processor licensed by the LCB.
An LCB-licensed cannabis store may purchase CBD from outside of the LCB’s regulated cannabis system so long as the THC level in the CBD does not exceed three-tenths of one percent THC and the CBD product has been tested for contaminants and toxins by an accredited testing laboratory licensed by the LCB.
Following the 2018 Farm Bill which legalized the production of industrial hemp, Washington enacted RCW 15.140, which regulates hemp production in the state. “Industrial hemp” is defined as all parts and varieties of the genera Cannabis that contain a THC concentration of three-tenths of one percent or less by dry weight.
To grow hemp in Washington, individuals must obtain a license from the Washington State Department of Agriculture (“WSDA”). As of January 2021, annual licenses cost $1,200. However, individuals who have been convicted of a state or federal felony relating to a controlled substance within the past ten years are ineligible to obtain a license, with certain restrictions.
The WSDA has not established any minimum or maximum field size for hemp production; therefore, licensees may grow any amount of hemp they wish. In addition to complying with WSDA requirements, growers must also report their hemp crop acreage to the United States Department of Agriculture’s Farm Services Agency.