Governor?s Marijuana Advisory Commission
Executive Order 15-17 (September 7, 2017)

DECEMBER 18, 2018

REPORT AND RECOMMENDATIONS
TO THE GOVERNOR

I. INTRODUCTION

By Executive Order 15-17 dated September 7, 2017, (the Appendix A to this
report) Governor Phil Scott established the Governor?s Marijuana Advisory Commission in
recognition of the fact that Vermont must adopt a cautious, data-driven and balanced approach to
decisions about cannabis legalization. As the Commission noted in its January 15, 2018 Report,
?[s]uch an approach will take into consideration the realities of current consumption levels,
legalization in neighboring jurisdictions, and the practical implications of the risk of harm to
Vermont?s youth, impaired driving and other social and economic consequences of drug use and
addiction, particularly in the context of the State?s opioid crisis.? Over the course of the last 15
months, the Commission?s Subcommittees have examined the best available data, studies and
other information and have developed recommendations on how the State should address the
questions raised by the increased availability of cannabis that are very likely to result from
legalized retail sales of cannabis for adult use.1

The touchstone of the Commission?s charge and analysis is the premise that even
accepting as a given the existing, now?legal recreational use of cannabis as an individual choice,
sanctioning this choice by licensing retail sales in our communities and thus placing the state?s
broader approval on it - cannot be permitted to adversely impact public health or safety,
especially roadway safety and children?s health. At the same time, the work of the Commission
proceeded with the recognition that despite past attempts to prohibit its distribution and use,
cannabis is widely available and consumed in Vermont already. Thus, while retail sales would
inevitably have effects on usage rates and frequency among all demographic groups, many of the
issues that must be addressed as a consequence of cannabis production and use would exist
regardless of whether adult consumption is legally permitted.

Section (3) of the E0 lays out the elements of the research, study and report the
Commission is to complete by December 15, 2018. The Commission believes it is important to
frame this report in a manner that will promote clarity around the Commission?s mandate and
approach. The Commission understands that it is being asked, not to make a recommendation,
yes or no, on whether Vermont ought to legalize retail sales of various forms of cannabis to be

 

The commission is familiar with the view that legalized retail sales will not increase the amount of cannabis
consumed in Vermont; this was the gist of some testimony at the public listening sessions. The Commission does
not think it wise to assume that this will be the case, for purposes of planning for potential impacts.

sold at state-licensed stores, and to regulate and tax those sales (and to regulate commercial
cannabis cultivation, distribution, and processing). Rather, the Commission sees its focus under
the E0 as this: if the state were to make that choice through the legislative process, what would
be the best way for Vermont to implement that change, in terms of timing; setting the effective
date(s) to achieve certain threshold improvements in programs for highway safety, education,
prevention, and tax and regulation readiness; assuring that the concerns of towns and cities are
addressed; and identifying funding sources for the costs of implementation that will be incurred
prior to the receipt of tax revenue from sales, and on the state and local costs of implementation.

As noted above, the Subcommittees have been engaged in this work over the last 15
months, meeting as such and through various working groups, all as shown on the Commission?s
website where agendas, minutes and relevant
documents are posted. The Subcommittees have held numerous meetings and heard from many
experts in the ?elds of health, safety, law enforcement, government and regulation. The
Subcommittees have studied other states that have legalized and taxed retail sales of cannabis to
learn from their experiences and better inform what Vermont could and should do. The
Commission also held ?ve public comment meetings around the state over the last three weeks,
in Rutland, Williston, St. ohnsbury, Bennington, and Hartford. At these, the Commission took
comments, recommendations, concerns and re?ections, and engaged in questions and answer
exchanges. At these meetings, Vermonters raised diverse and sometimes con?icting concerns
and proposals.

The Commission commends the diligent work of the Subcommittees; they have identi?ed
the critical issues, risks and choices involved in establishing state regulatory and tax structures
and programs should the state choose to legalize retail sales of cannabis. The Commission
generally agrees with the approach, analysis and ?ndings of the Subcommittees? respective draft
?nal reports, although not in each and every detail. The Commission has revised the draft
Subcommittee reports to align with the Commission?s conclusions, and those revised drafts form
the substance of the Commission?s ?nal report. Those three ?nal reports and recommendations
are attached as Exhibits B, and D.

II. EXECUTIVE SUMMARY

Since the Commission?s revised versions of the three Subcommittee reports and
recommendations cover a lot of ground and detail (particularly the Taxation and Regulation one),
the Commission presents the following summary of the adopted recommendations.

- Summary of Recommendations for Prevention and Education

1. Establish a Substance Misuse Prevention Fund. The Agency of Human Services should
be directed to establish and oversee the use of dedicated funds to be generated by taxes levied on
cannabis activities to implement comprehensive substance misuse prevention strategies
throughout the state.

2. A Substance Misuse Advisory Committee (SMAC) should be established underneath the
Commissioner of Health to provide the State with speci?c advice on the use of the funds.

3. The State should establish six Regional Prevention Networks (RPN). These networks
will be responsible for developing capacity, support and oversight of existing infrastructure, and
ensuring utilization of proven population health models. Speci?cally, communities will apply the
Strategic Prevention Framework to identify risk and protective factors. The Regional Network
would: fund prevention programs (such as afterschool programming, youth leadership and
community coalitions), serve as a policy institute, produce data and reports for needs
assessments and program evaluation, develop regional strategic plans, and engage youth and
young adults in prevention activities.

4. The State should establish and manage a Substance Misuse Advisory Committee
(SMAC) by establishing? a committee to manage an investment funding model for sustaining
substance use primary and secondary prevention efforts.

5. The State should run sustained evaluation and quality improvement on all Substance
Misuse Prevention Fund (SMPF) activities to ensure SMPF funds are used appropriately.

6. The State should research, develop, implement, and evaluate statewide media and
communication strategies with topics to include: increasing awareness and understanding of
cannabis legislation; perceived harm of cannabis use; health effects on youth and young adults;
and cannabis use during pregnancy. Development of each communication strategy should
include formative research with the intended audience, message and creative concept
development and testing, strategic implementation, and evaluation of audience reach and
engagement based on identi?ed metrics.

7. The State should fund one full-time position at the Health Department to oversee the
Substance Misuse Prevention Fund (SMPF), staff the Substance Misuse Advisory Committee,
run technical assistance to the Regional Prevention Networks and manage evaluation efforts to
ensure the SMPF dollars are well spent.

8. The State should initiate a program of school-based prevention by funding at least one
full-time substance use prevention professional for each 250 student cases to provide prevention
and education services to all students and organize and implement peer leadership groups. These
professionals will provide intervention, screening and referral services for those students who are
identi?ed as having substance abuse problems. Additionally, they will educate and train the
school and community in the areas of substance misuse, interpersonal skills, and group and stress
management.

9. The State should immediately fund at least one longitudinal study at an academic
institution to determine the impact of cannabis use on the health of Vermonters. The
Commission recommends $1 million annually for a minimum of 15 years.

10. The State should ensure that all critical staff are hired, all regulations and rules are in
place, and all testing infrastructure is built and functioning before allowing for the licensing of
production, distribution or retail of cannabis products

11. If edible or infused products are permitted for sale in Vermont, no products that would be
appealing to children should be permitted, and standardized packaging and labeling requirements
should be implemented to ensure safety and disclose the potency of any product through
mandatory batch testing.

12. Cannabis use should be prohibited in public places.

13. Prohibitions on smoking should be extended to vaping and Vermont?s smoke-free laws
should be amended to speci?cally include cannabis products.

14. Access to cannabis should be limited by:

a. Limiting outlet density controlling the number of stores that can sell the substance
within a certain area.

b. Limiting the type of outlet that can sell cannabis, which can decrease initiation and
youth use. If youth have access to cannabis or exposure to cannabis advertising in the retail
outlets they ?equent, they are more likely to begin use.

c. Limiting the times of day that cannabis can be sold.

15. Taxing and a policy of maintaining minimum prices to reduce consumption are important
to limiting use and accessibility.

l6. Allow local control over outlet density and advertising to foster a culture of health in
communities.

17. Limit the age of legal purchase to 21 years old or older to decrease the number of motor
vehicle accidents, reduce initiation of use, and use of cannabis. In addition, the State should
implement prevention, regulation and enforcement strategies that greatly reduce access to and
use of carmabis for those age 25and younger. This is to protect children, youth and young adults
during the time in life of rapid brain development and academic involvement. The Commission
aCknowledges that political reality likely precludes consideration of an age limit above 21 years
of age for cannabis use but emphasizes the need for efforts to provide education and prevention
strategies particularly aimed at people under the age of 25 whose brains are still developing.

18. Child-resistant packaging should be mandated to prevent access by young children and
accidental ingestion.

19. Limiting advertising can reduce youth initiation and overall use. Prohibiting self-service
displays, intemet sales, free samples, mass media advertising and ?avored products should be a
part of any commercial cannabis regulation. Advertising restrictions should be implemented to
ensure that youth and young adults are not targeted by, or exposed to, cannabis advertising.
Advertising should be restricted from any area where youth could potentially be exposed.

20. Enforcing laws that restrict sale to those of legal age is an effective way to keep
substances out of the hands of youth and requires a strong enforcement effort.

21. Build driver testing in?'astructure and procedures necessary to conduct appropriate and
consistent testing for THC before cannabis is regulated.

22. Implement a public education strategy about the dangers of driving under the in?uence
of THC before cannabis is regulated and ensure that the education includes information on what

the legal limits mean in terms of use.

23. Expand screening in primary care practices for substance use disorders and mental
health problems and trauma in primary care.

24. Ensure medical providers receive the most recent information and training related to
screening for risk factors for substance misuse disorders g. non?nlladaptive stress response) as

well as Screening, Brief Intervention and Navigation to Services (SBINS). Work with local
teaching institutions to ensure that medical students, nursing students (and other allied health
professionals) receive the most recent information and training on the health impacts of cannabis.

- Summary of Recommendations on Roadway Safety

1. The Commission recommends the immediate adoption and implementation of a plan for
monitoring and reporting data related to cannabis use prior to any effective date for the
commercial availability of cannabis in Vermont. To this end the Commission recommends 1)
initiation of an intensive, long-tenn data-collection and research effort before any tax and
regulate law for cannabis goes into effect; and (2) enacting legislation to fund this data
collection, assigning to the Department of Public Safety?s Vermont Statistics Analysis Center the
task of collection, analysis, tracking, and reporting of data and research on any impacts. The
Commission the following non-exhaustive list of data-collection categories:

a. Cannabis?related crimes and quality-of-life complaints.

b. Cannabis arrests, including amounts

c. Cannabis-related traf?c accidents and impaired driving generally

(1. Rates of out-of-state diversion of Vermont products

e. Postal service use for cannabis transfer

f. Youth

2. The Commission recommends that Vermont work in coordination with other New
England states and Canadian provinces to pursue the determination of a scientifically defensible
regional impairment standard and that further study of THC levels as it relates to impairment
should be pursued.

3. At this time, the Commission does not recommend setting a per 36 level of THC presence
to establish impairment. This recommendation is based on the lack of accepted scienti?c
methods to link measurable THC levels to impairment. However, the Commission notes that per
se limits may nevertheless be adopted by policy makers for legitimate public policy reasons such
as deterrence.

4. The Commission recommendsno changes to Vermont?s impairment standards under its
impaired driving statute under a taxed?and-regulated cannabis system.

5. The full Commission recommends allowing for the collection for screening purposes of
oral ?uid ?om drivers when there is a reasonable belief the person is operating a motor vehicle
under the in?uence of a controlled substance, including cannabis. A majority of the Commission
is in favor of allowing the collection of an evidentiary oral ?uid sample in the same manner and
under the same legal standard an evidentiary sample of breath is collected in alcohol impaired
driving cases so that such samples can be sent to a forensic lab for testing. The majority believes
that the admission in a court case and use of such evidence should be determined through the
normal judicial process.

6. The Commission believes that the current level of Drug Recognition Experts is
suf?cient. However, if some form of commercial cannabis legalization in Vermont should
occur, the number of available DREs would need to be closely monitored and evaluated to
ensure resource capacity continues to be met across the state.

7. The Commission ?nds that the current and expected capacity of the Vermont Forensics
Laboratory is suf?cient for current needs. In the event a commercial cannabis market is created
in Vermont, the VF will need to be closely monitored and evaluated to ensure capacity keeps
pace with demand.

8. The Commission recommends continued monitoring of developments in search and
seizure law in Vermont and elsewhere, especially given the dif?cult and often unanswered
questions for law enforcement during roadside stops.

- Summary of Recommendations on Taxation and Regulation

If adult sales of cannabis for recreational use are legalized in Vermont, the Commission
recommends creating a regulatory structure that allows private industry to develop a viable,
controlled market, designed to not encourage use, to generate revenues adequate to cover all
costs projected to be needed for education and prevention, roadway safety, regulation and
enforcement, while the State retains the crucial roles of gatekeeper and enforcer. To accomplish
this, the Commission makes the following recommendations as more .fully discussed in the
Report of the Taxation and Regulation Subcommittee as adopted by the Commission.

1. A new regulatory structure should primarily be funded by taxing retail sales of
recreational cannabis and charging fees to cannabis establishments for licensing and other
necessary regulation.

2. The Commission recommends creating a tax structure that will, at a minimum, maintain a
revenue-neutral balance sheet for the State. Retail sales of cannabis should be subject to a new
20% excise tax and the existing 6% sales tax as well as any applicable local option tax.

3. The Commission recommends following current law for the allocation of State sales tax
and local option sales tax revenues.

4. Regarding the new excise tax revenues, the Commission recommends allocating a portion
to every municipality in the State, regardless of whether they have opted out of allowing
cannabis establishments to operate in their jurisdiction. The Commission recommends that 5% of
all excise tax revenue be distributed amongst all Vermont towns, and an additional 10% of all
excise tax revenue be distributed amongst Vermont towns with retail cannabis establishments.

5. Excise tax revenues should be allocated to fund the administrative and programmatic
needs of the State agencies that would regulate cannabis establishments and respond to the
impacts of cannabis use and sales. Regulatory agencies should also be able to fund their day-to-
day cannabis-related operations through fees charged to all cannabis establishments for license
applications and renewals.

6. The Commission recommends creating ?ve license categories: Cultivator, Processer,
Retailer, Transporter, and Testing.

7. Cultivator licenses should be structured on a tier basis according to plant canopy size,
with the smallest tier being issued at the discretion of a cannabis Board of Control. At the start
of legalized sales, only the smallest tier of cultivation licenses would be available, so as to
encourage small, local farmers to enter the market. Issuance of medium- and large-tier cultivator
licenses would be phased-in over time.

8. The basic structure, and a maximum fee per tier should be prescribed by statute, but the
licensing authorities and the Board of Control should make ?nal decisions about fee amounts and

the number of licenses.

9. License applicants should meet requirements such as background checks. Background
checks for recreational licenses should mirror the requirements for medical licensees.

10. Vermont residency is not recommended as a requirement, although in rating and
awarding cultivator license applications, preference should be given to Vermont residents.

11. Licensees should only be able to hold one license per category to avoid market
domination.

12. Only licensed retailers should be permitted to sell to consumers.

13. Wholesale transactions should only be permitted between licensees, so that products can

be tracked ?om seed to sale to prevent diversion and tax evasion, and to ensure quality control
for consumers.

14. The Commission recommends enacting strong protections for consumers that include
restricting the allowable fOrms of consumption, requiring clear labeling and packaging, limiting

dosage and potency per serving, and prohibiting certain types of advertising (see speci?c
recommendations below).

15. Measures to prevent products that are enticing and accessible to children ?'om entering
the stream of commerce should be implemented.

16. To centralize the administration of a new regulatory structure for recreational cannabis,
and potentially for medical cannabis as well, the Commission recommends creating a new Board
of Control. The Board would regulate a marketplace run by private industry. The Commission
recommends that Vermont adopt a model of commercial cultivation, production, testing and

sales overseen by a Cannabis Board of Control as the most ef?cacious approach to regulating
cannabis similar to the state?s current approach to alcohol regulation with the important
difference that the state would not at any point in the stream of cormnerce become a bailee of any
cannabis product.

17. The Board of Control should have specified administrative and quasi-judicial powers in
relation to licensing and enforcement. The Commission recommends embedding the Board

within the Department of Liquor and Lottery

18. The Cannabis Board of Control should include relevant stakeholders and regulators in
addition to DLL personnel. The agencies charged with regulating aspects of cannabis and its
impacts should be statutorily named members either of the Board or its subcommittees with the
primary authority to adopt rules on licensing requirements. Public members and members with
industry expertise should also be involved in the Board in an advisory capacity. Board members
should be prohibited from maintaining any ?nancial interest in the cannabis industry.

19. Important powers and responsibilities of the Cannabis Board of Control would include:

a. The authority to act like the Liquor Control Board?s listing committee to determine
which new products are allowed into the market and which should be removed.

b. Rulemaking authority to set the standards for products that contain THC from a quality
control and consumer protection standpoint.

c. Determining and monitoring a grading system like maple syrup products could be
adopted.

d. Set rules for testing standards in consultation with the appropriate state agencies.

e. Set and control the number of licenses issued with the authority to adjust that number
in the future to respond to supply and demand in the market

f. The power to suspend and/or revoke licenses for violations

g. The authority to set appropriate fees for license applications and renewals.

h. The authority to promulgate and enforce security and monitoring protocols.

i. In the event that edibles are authorized for sale, the Board should be given rulemaking
authority to set standards for products containing THC under a listing committee process.

20. Creation of a commercial cannabis market should include an express grant of legislative
authority from the General Assembly to municipalities, so that municipalities may regulate
cannabis activities at the local level, including granting authority to towns to enact local zoning

rules, bylaws, and ordinances that regulate the time, place, and manner of cannabis activities
within town boundaries.

21. The Commission recommends authorizing municipalities to elect a choice of allowing
commercial cannabis establishments to operate in their jurisdiction by providing either an opt-out
or opt-in procedure that municipalities can implement.

22. A change to statute is recommended to exclude recreational cannabis products from the
sales tax exemption for food or food ingredients and, if edibles or infused products are permitted
for sale in Vermont, that the 9% Meals tax not be applied to these products.

23. The Commission recommends that a Vermont business tax deduction be enacted
providing that for the purpose of calculating Vermont net income, a licensed cannabis business
shall be allowed any federal income tax deduction that is disallowed by Section 280B.

24. Funding. In order to meet the goal of eliminating any impact of the creation of a
commercial cannabis market on the State?s budget, the Commission recommends adopting a
combination of approaches to meet the challenges of funding a new regulatory structure. The
Commission considered a variety of options offered by the Subcommittee to mitigate the
challenge of funding start-up costs, including:

a. Impose higher licensing fees for initial retail applications, then lower fees for annual
licensing renewal. Require application fees to be paid upfront before retail sales begin. This
proposal would create a time lag between when the administrative agency would receive fees and
when the retailer would start selling to consumers.

b. Stagger the number of licenses issued over the ?rst three ?scal years so that the
administrative workload could be balanced with the hiring of new staff.

c. Create a one-time excise tax on the ?rst sale by cultivators with an automatic sunset
before retail sales begin. This would allow tax revenues to be collected before retail sales begin.

d. Devise a retail license auctioning system so that a limited number of retail licenses
may be sold to the highest bidders.

e. Require licensees to provide upfront capital to the pay for the regulatory system,
structuring the payments like a loan to the State that accrues interest.

f. Create a captive pool or marketplace where businesses buy and trade operating
shares, similar a carbon emissions trading model (cannabis market trading).

g. Create a fund like that in S.24lof2016 that could be drawn ?om early in the year,
then is required to be balanced out by the end of the ?scal year (like the Clean Water Fund).

h. Utilize existing medical cannabis program dispensaries to provide an early source of
tax revenue by authorizing them to begin retail sales of cannabis under the current medical
program requirements (allowing for an expansion of current restrictions on plants for this
purpose), with a grace period to, come into compliance with the new recreational program laws
when they come into effect.

What combination of the options above are appropriate will require a better de?nition of
the parameters and nature of the cannabis market that will ultimately be authorized in Vermont.
The budgetary impacts on state agencies and departments not mention in this Report or in the

Subcommittee reports should be examined as well. This includes the 14 State?s Attorneys
of?ces, which will bear the cost of prosecuting any increase in cannabis-related crime.

25. The Commission recommends the state expressly prohibit gifting or discounting of
cannabis while charging for accessories, merchandise, delivery, or other goods or services. This
prohibition should apply to the gifting of materials used for home extraction.

26. The Commission recommends against allowing home delivery of recreational cannabis.

27. A monitoring system allowing all cannabis to be tracked ?om its seed state until it is sold
should be implemented prior to any retail sales.

28. The Commission recommends prohibiting the consumption of cannabis products on any
licensee?s premises and does not recommend creating social club in the initial stages of a
recreational cannabis market.

29. All license types should be speci?c to the person identi?ed on the license and be non-
transferrable.

30. The Commission recommends that no mobile sales such as at farmers? markets or via
food trucks should be permitted.

31. The Commission recommends that advertising for cannabis goods and services be strictly
limited in at least the following ways:

a. Advertisements may not use images of minors, cartoon characters, tOys or items that
are typically marketed to those under 21, candy-shaped edibles, etc.

b. Advertisements may not display consumption, encourage use because of intoxicating
effects, or encourage excessive or rapid consumption.

c. Advertisements may not promote illegal activity such as transporting over state lines.

(1. Advertisements may not assert that cannabis is safe because it is regulated and tested,
because it has therapeutic or curative effects, or make claims to being ?organic,? unless the
plants used are produced, processed and certi?ed according to national organic standards

e. Cannabis establishments may not advertise their products via ?yers, television, radio,
billboards, print or internet unless the licensee can show that no more than 30% of the audience
is reasonably expected to be under 21.

32. If edibles containing cannabis are permitted for sale in Vermont, at least the following
should apply:
a. All packaging for products be child resistant and be in line with federal regulations for
such packaging;

b. All labels should also include warnings of the products, especially edibles. These
labels should be conspicuous and unobstructed and be in line with restrictions regarding
advertising;

0. A universal THC symbol to alert consumers that the product contains cannabis;

d. Vermont should consider adopting requirements imposed by other states that permit a
market for edibles such as Washington;

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e. There should be limitations on potency and dosages of cannabis and cannabis products
meant for edible consumption. The Commission recommends that products be not more potent
than 10 milligrams of active THC per serving and that there be a maximum of 10 servings or 100
milligrams of THC per package (but these limitations should not apply to cannabis permitted for
medical use);

f. The sale of cannabis mixed with products containing caffeine, nicotine, tobacco, or
alcohol should be prohibited; and

g. A listing committee similar to the Board of Liquor and Lottery, established in 7 V.S.A.
2 should be created to ensure that cannabis products are suited for the market through a vetting
process.

33. In order to protect consumers and verify cannabinoid label guarantees and quality control
of cannabis products available on a recreational market there should be standardized testing
through laboratories that are certi?ed by the Agency of Agriculture, Food and Markets (AAF M).

34. The creation of a recreational market will impact Vermont?s current medical cannabis
program. To ensure that cannabis products remain a viable and affordable option for medical
patients and ensure the program?s continued viability, the requirements imposed on dispensaries
will need to be made consistent with the recreational structure where appropriate, and under
certain circumstances, the requirements should be customized to accommodate the medical
program?s particular aims. To achieve these ends, updates will need to be made to 18 V.S.A. ch.
86 in its entirety, including the restriction on the number of plants a dispensary may possess
relative to registered patients.

35. Speci?c modi?cations to Vermont medical cannabis program that should be considered
include:

a. Amending the current dispensing limit of two ounces per 30-day period per registered
patient to align with Act 86 of 201 8;

b. Amending the cultivation and possession limits for patients to align with Act 86;

c. Removing the requirement that patients designate only one dispensary ?om which they
may make purchases, given that patients could buy from any retail establishment without
restriction.

d. Considering broadening the de?nition of medical conditions that can access the
medical program to allow more patients to register cannabis for relief.

36. All licensees should be required to attempt to obtain a depository account with a ?nancial
institution, and if unable to do so, to develop and implement a comprehensive cash management
and security plan.

37. To maintain adequate security and prevent diversion, the Commission recommends that
the statutory and regulatory requirements that are currently imposed on medical cannabis
dispensaries should apply to recreational cannabis licensees.

38. With respect to hemp:

a. The Commission recommends the state maintain the current hemp statute so that hemp
continues to be treated as an agricultural product under 6 V.S.A. 563.

ll

b. Any cannabis excise tax should only be imposed on cannabis, which is already de?ned
in statute in a way that excludes hemp, so that hemp would not be subject to the excise tax;

c. The Commission does not recommend any changes to this existing law regarding hemp
as AAF indicates that it will move towards a taxonomic determination of a Cannabis sativa L.
crop, to simplify identi?cation and verify the cultivated crop meet the de?nition of hemp at the
time of planting rather than testing at harvest.

Edibles; Opt-In versus Opt-Out; Oral Fluid Testing

With respect to two important issues, the Commission was evenly divided: 1) whether
edible or cannabis-infused products (?edibles?) should be sold in licensed retail stores for non-
medical purposes; and 2) Whether the Vermont model regarding towns and cities should be ?opt-
in? or ?opt?out.?

Edibles

The Education and Prevention Subcommittee, at page 8 of its report to the Commission,
makes the case that edibles should not be sold in the state. The Subcommittee?s main concern is
the health and wellbeing of children and youth, who could suffer serious illness or even death by
ingesting potent edibles. The Subcommittee stresses the need for labeling and marketing
restrictions on edibles if they were to be sold here. The Taxation and Regulation Subcommittee?s
report includes edibles in the array of products that would be sold by licensed stores, and its
excise and sales tax revenue projections includes edibles. The Commission discussed this issue at
its December 12, 2018 meeting, and no consensus was reached. Half the members present
support edible sales as part of the effort to regulate those sales and substantially diminish their
sales in the illicit market in Vermont. The other half support the theory that maintaining
prohibitions against cannabis in an edible form will do more to contribute to public health and
safety. Both the Prevention and Education and the Taxation and Regulation
Subcommittee referred the Commission to a recent report, Market Size and Demand for
Marijuana in Colorado, 2017 Market Update (available at

colorado) for recent ?gures concerning the prevalence of edibles in a relatively mature cannabis
market.

Opt-in Versus Opt-out Permission for Local Jurisdictions.

While the Commission supports local control on decisions about whether to allow
commercial cannabis operations within municipalities in Vermont, the Commission was unable
to come to consensus on whether this decision should be done by allowing jurisdictions to opt-
out of a statewide program or requiring them to opt-in.

Under an opt-in model, no commercial cannabis businesses could operate unless the host
town or city took a vote (through its legislative body) to accept such enterprises subject to local
planning and zoning ordinances. Under an opt-out model, these businesses could operate unless
the municipality voted to not accept them. If the opt-out model were selected, there would need
to be a period, e. g. 12 or 18 months, during which a municipality would be given the opportunity

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to hold such a vote. The Commission discussed both options on December 12, 2018 but was
unable to come to a consensus. Those in favor of an opt-out model argued that this would
provide consistency and predictability to businesses. Those in favor of an opt-in model argued
that this would provide more control to localities in managing cannabis operations in their
jurisdictions.

Accordingly, on these two issues, the Commission as a whole does not take a position
and directs the Governor to review and re?ect on the underlying Subcommittee reports and the
other materials and Minutes generated by them.

Oral Fluid Testing

The Commission reached consensus on adopting the recommendation of the Roadway
Safety Subcommittee that oral ?uid testing be used as part of the roadside screening process to
determine the presence of THC. The Roadway Safety Subcommittee also recommended the
authorization of an evidentiary oral ?uid test for potential use in court. While a majority of the
Commissioners agreed with this recommendation, a minority of them strongly disagreed (9-4).

The majority of the Commission recommends allowing the collection of an evidentiary
oral ?uid sample in the same manner and under the same legal standard an evidentiary sample of
breath is collected in alcohol impaired driving cases so that such samples can be sent to a
forensic lab for testing. The majority of the Commission believes that the admission in a court
case and use of such evidence should be determined through the normal judicial process.

Those opposing oral ?uid testing for evidentiary purposes argue that a positive THC test
does not establish impairment under current science (a premise accepted by all members of the
Commission), and that a jury would be unduly in?uenced by presentation of a test indicating a
certain level of THC to ?nd against a defendant. However, those in support of the evidentiary
collection of this data argue this evidence would only be presented after a court has decided in
favor of the reliability of the test and the relevancy of the proposed evidence, which would occur
after a full brie?ng of the issues and hearings.

Ultimately, it is expected the Vermont Supreme Court will likely have to decide this issue
of admissibility. The courts may ultimately agree that without a so?called presumptive level, the
test results should not be admitted. On the other hand, the courts may ?nd that a jury should be
allowed to consider the test evidence along with all the other evidence presented supporting the
charge of?cer observations of driving and motor skills, testimony of a DRE, etc.) and give
the test evidence such weight as the jury deems appropriate based on the court?s instructions and
the particular facts of the case.

CLOSING ACKNOWLEDGEMENTS

The Commission strove to prepare a thorough and useful report and recommendations for
the Governor and lawmakers to use when developing policy positions, and writing and assessing
legislative proposals, for a possible taxed and regulated retail-sales cannabis market in Vermont.
We hope that this puts the horse before the cart when compared to the states where voter

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referenda enacted state laws without the careful, detailed work the Commission believes it has
done and which thelegislative process will no doubt continue.

Not every Commission member endorsed each recommendation adopted by the
Commission, and the Commission process was open and encouraging of clearly articulated
diverse views. In two important areas the sale of edibles and the opt-in versus opt-out options
for municipalities, the Commission was unable to reach a consensus. Overall, however, the
Commission achieved a reasonable level of consensus.

The risk of omission counsels against acknowledging by name the many persons who
assisted the Commission and its Subcommittees over the past 15 months. The Co-Chairs do want
to underscore the strong leadership of the Subcommittee Chairs, and the diligence of those who
served on and staffed the Subcommittees? research, analysis and drafting. We also call out the
Legislative Joint Fiscal Of?ce for its assistance and expertise in reaching consensus revenue
projections. We thank those who hosted our meetings, especially the ?ve public listening
sessions and the Vermonters who testi?ed before (and submitted written proposals and concerns
to) the Commission and its Subcommittees.

December 18, 2018

Egan-$4 

Thomas A. Little, Co-Chair Jake Perkinson, Co-Chair

Tom Anderson, Commissioner of the Department of Public Safety

Senator Joe Benning

John Campbell, Executive Director of the States? Attorneys and Sheriffs
Representative Maxine Grad

Dr. Mark Levine, Commissioner of the Department of Health
Representative Ann Pugh

David Scherr, Assistant Attorney General - designee of the Attorney General
Kaj Samsom, Commissioner of the Department of Taxes

Michael Schirling, Secretary of the Agency of Commerce and Community Development
Senator Dick Sears

Anson Tebbetts, Secretary of the Agency of Agriculture, Food and Markets

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