In 1794, the Commander-in-Chief himself, President George Washington, “organized a militia force of 12,950 men and led them towards Western Pennsylvania” to put down an insurrection aimed at the new federal liquor tax. Our population in 1800 was 5,308,483 – so about one of every 4,115 Americans was in that militia. Today, with 331 million Americans, that 12,950 number corresponds to over 800,000 defenders against insurrection.Continue reading “Quantifying anti-insurrection efforts”
A recent post here critiqued a recent Virginia marijuana legalization report for downplaying the possibility of state retail sales, pointing out that subnational governments, like Louisiana’s are already “active participants” in American marijuana sales, and saying that while there are good arguments against government marijuana sales (and for them), federal illegality is an argument that can be handled. https://www.huffpost.com/entry/marijuana-under-president_b_8207864
And my post indicated that I couldn’t find Appendix J. I wrote Virginia folks associated with the report, and got not only a link to Appendix J, but a thoughtful and reasoned response on government sales. After pasting that response from Virginia, I’ll paste my reply, but first, here is what I received from Virginia:
Good morning – Appendix J is available in a separate set of online appendices, which you can find on this landing page:
Our cautionary note on state involvement is because it would be unprecedented for a state to become an active market participant in a commercial, recreational market. No other state has attempted this so it’s not clear what (if anything) the federal response might be. The feds could take no action or view it as a bridge to far. It’s also unclear if the state might be successfully sued by its neighbors. Early on when Colorado legalized, it was sued by two of its neighbors on the grounds that Colorado marijuana was harming their communities and stressing their police focres. In this case, CO was just acting as a regulator; it was not a market participant. The Supreme Court declined to hear the case, which provides some reassurance that a state can regulate marijuana without being sued. However, if a state becomes an active market participant, then there is a different case to be made. It’s not clear how that would play out in court.
It sounds like Louisiana has some limited involvement in the med market, and has not gotten in trouble for it. However, it does sound like they are running some sort of calculated risk. I don’t know all the particulars of LA’s arrangement, but from what you’ve said it sounds like they play a limited role as a middleman between the private producers contracted by the universities and the private, licensed pharmacies that sell to consumers. That limited involvement in medical marijuana is much different from the level of risk we considered when looking at state involvement in a rec market.
I would except LA would be running a much greater risk if it either expanded its role or started being involved in a rec market. Rec markets involve much greater volumes of marijuana than medical. Some of that marijuana will inevitably start being illegally exported across state lines, which then gives both the feds and neighboring states a reason to care about it and make a stink.
I would add that my team are not lawyers ourselves, buy we have consulted with several lawyers on this question. The general consensus, which I hope comes across in our report, is there is a risk to state participation but the ultimate outcome is unknown. Something could happen to a state that becomes involved in the rec market as a distributor or retailer, or nothing could happen.
Happy to talk more if you would like.
Here’s my reply:
Thank you for your reply. I quibble with some of the work in your report, but applaud the effort as a whole. You seem to have spotted the issues; how to weigh pros and cons is not something that can be proven right or wrong.
While I’ve written about state sales and federal illegality, they are not the issue I find most interesting. The choice of an ad valorem tax is where I would start, echoing concerns from think tanks, both left (ITEP research indicates that taxes based on weight will be more sustainable over time because prices are widely expected to fall as the cannabis industry matures) and right(“Taxing based on prices means there is a taxable event with a transaction, allowing for simple valuation. Yet, while it may be simpler to levy the tax based on price, it does not necessarily offer an equitable solution.” – Tax Foundation). But that’s for another day.
But for the issue of state retailing, here are some reactions to Appendix J:
“In Canada, the Ontario state government attempted to establish its own retail stores but gave up after a year, largely because of logistical challenges.”
My understanding is instead that Ford’s party won the election and made an ideological choice. That said, the roll out in come provinces has been tricky.
“While the U.S. Department of Justice has tolerated states that regulate commercial marijuana (and hence enforce restrictions on the substance), it is unclear how the department would respond to a state taking on an expanded role and actually distributing and selling marijuana. Virginia could also face legal challenges from residents and neighbor states if it implements a government control model.”
Who can predict what will happen? But the first concern seems remote in a Biden Administration. And like Colorado’s neighbors, Texas didn’t get very far suing other states recently, this time to change their 2020 election results – a different case, and there were two dissents, but still. This seems like excess of caution.
“The government control model would also take much longer to implement than a fully private approach because the state would have to establish its own operations before the commercial market could open. State government usually moves at a slower pace than the private sector, so it would likely take longer to establish operations. The state would be further slowed by the sheer volume of additional work required.” And it would cost more up front.
Good points, but your private roll-out is looking at two years. Newly licensed growers won’t have material ready to sell for a while. I look at China, which can make things happen fast. The process of licensing will drag on and on, I think – if you can’t prevent appeals, state stores could actually be a shortcut.
In one approach, “the state would need to lease or purchase hundreds of properties” and incur other upfront expenses.”
But you note that government sales, in the long run, can be the most profitable.
Can’t you issue a bond? It’s an investment that would take care of the upfront costs and prove lucrative in the long run.
In another approach, “[t]he state could try to contract out retail, but this would likely be too time consuming and costly.”
Not understanding why. Picking retail licensees might be time consuming and costly, too.
Look, these are all judgment calls involving balancing. The marijuana community is suspicious of government, and would resist state sales. Marijuana sellers don’t want to let government take business, and they are the ones making campaign contributions these days, so even if you were less skeptical of state stores, the Legislature might get its own ideas.
It’s more useful to think about that ad valorem tax base than about this issue of government sales.
Meanwhile, are you all not members of the multi-state group? https://www.cann-ra.org
Again, thanks for your thoughtful reply – and congratulations on your good work.
With highest regards,
The Center for New Revenue is delighted to announce that Dale Gieringer, Ph.D., long-time head of California NORML and a veteran cannabis policy scholar, has agreed to join its Board of Advisors.
I first became familiar with Dale’s work at the beginning of my work in marijuana tax policy. My first marijuana article, in State Tax Notes in 2011, cited his 1994 ‘Economics of Cannabis Legalization.’’ So he’s been at it a lot longer than I have, and longer than just about everyone else these days. When I went to California as part of the Newsom Blue Ribbon Commission studying legalization, I asked the late Mark Kleiman, a preeminent public policy scholar, whom I should listen to. Dale’s name was at the top of Mark’s list. I thought it would be.
Here’s a bio:
Dr. Dale Gieringer received his Ph.D at Stanford on the topic of DEA drug regulation. He is the author of articles on marijuana and driving safety, drug testing, marijuana health mythology, the economics of marijuana legalization, and DEA “drug enforcement abuse.” He is a co-author of Marijuana Medical Handbook: Practical Guide to Therapeutic Uses of Marijuana.
Dr. Gieringer has been the state coordinator of California NORML since 1987. He is also director of the California Drug Policy Forum (DPFCA) and treasurer of the Oakland Civil Liberties Alliance.
Dr. Gieringer has published research on medical marijuana usage, marijuana smoke harm reduction, potency testing, marijuana and driving safety, and drug urinalysis. He has testified before the legislature and in court on issues concerning personal use of marijuana. He was one of the original co-authors of California’s medical marijuana initiative, Prop. 215, and the proponent of Oakland’s Measure Z cannabis initiative in 2004.
In 2010, Dale was named High Times Freedom Fighter of the Year and in 2011 he received a Drug Policy Alliance Robert Randall Award for Citizen Action.
Dale and I don’t agree about everything, but that’s what a Board of Advisors is for. I will appreciate my friend’s counsel.
Pat Oglesby, Founder, Center for New Revenue, January 2, 2021
Time magazine has a person of the year; the Center for New Revenue is inaugurating a tax of the year. For 2020, it’s New Jersey’s new marijuana tax, which goes up as prices go down, stabilizing after-tax prices – a good idea, because pre-tax prices vary widely in the early years of legalization, and the legal market gets a tax break as bootleggers get marginalized during the roll-out of product in the early days of low supply and high demand .
Details about the tax are here: https://newrevenue.org/2020/12/18/new-jerseys-ground-breaking-marijuana-tax/. An unfortunate detail is that the new law has not been signed yet.
When I was the only lawyer working on the RAND report on marijuana legalization for Vermont, my non-lawyer colleagues told me that state sales were unrealistic, since they would be federally illegal. A recent report out of Virginia echoed that notion. “If a state government became involved in marijuana distribution or retail, it would become an active participant in a federally illegal enterprise, instead of just acting as a regulator.” http://jlarc.virginia.gov/pdfs/reports/Rpt542-6.pdf
But subnational governments are already “active participants” in American marijuana sales.
The State of Louisiana is possessing medical marijuana for eventual sale. “As of July 29, 2019, the Louisiana Department of Agriculture and Forestry (LDAF) is in receipt of medical marijuana final product from Louisiana State University’s (LSU’s) sub-contractor GB Sciences of Louisiana, LLC (LSU-GBSL).” https://www.ldaf.state.la.us/medical-marijuana/
Here is some lore about what happened in Louisiana: The Legislature provided that LSU and state land-grant Southern U. would be the sole growers of medical cannabis. There were worries that LSU and Southern, as publicly funded institutions would be entering a legal gray area that could risk their federal research funding. https://www.nola.com/article_2f71f884-569e-552e-aa70-293fba75820a.html
Now, here they are as owners and possessors of the illegal drug. Those universities decided to contract out the actual growing to private parties, reportedly (I heard this 3d-hand) because federal agencies that fund the universities big time were uncomfortable with the universities growing directly themselves – though the universities “touch the plant” by having title to the marijuana and profiting from its sale. In any event, government marijuana sales in Louisiana are rolling merrily along.
Meanwhile, municipal government sales have been ongoing in Washington State since early 2015. The Washington municipality that led the way in federally illegal marijuana sales, North Bonneville, transferred its operations to a neighboring locality, Stevenson, WA. The retail store, advertised on twitter as “America’s 1st municipally owned pot shop,” https://twitter.com/420EvergreenDr, was reportedly expecting sales of over $1 million in 2019. I couldn’t find a website, but I called 509 427 4393, a number I found for 420 Evergreen, and spoke to a person identifying himself as Jason, who assured me that indeed the municipality of Stevenson owns it.
So about that Virginia report: I’m intrigued by this statement, in light of Louisiana’s state production monopoly of medical cannabis: “Unless marijuana is legalized federally, any state that attempts this approach takes on additional risks of federal intervention and new legal challenges from residents and neighboring states.” And this: “More information about government-controlled distribution and retail is included in Appendix J
There is no Appendix J. Maybe there’s a separate document hiding somewhere?
There are good arguments against government marijuana sales (and for them), but federal illegality is an argument that can be handled. https://www.huffpost.com/entry/marijuana-under-president_b_8207864
Cannabis revenue per capital in Washington for fiscal 2020 was $61.23: That’s $468,810,000 in revenue for a 2020 population of 7,656,200. https://dor.wa.gov/sites/default/files/legacy/docs/reports/2020/Tax_Statistics_2020/Table1.pdf; https://www.ofm.wa.gov/washington-data-research/statewide-data/washington-trends/population-changes/total-population-and-percent-change.
I once wondered “can any state get $43 per capita, like CO and WA?” https://newrevenue.org/2018/04/26/marijuana-revenue-can-any-state-get-43-per-capita-like-co-and-wa/. So yes. Now Washington may have more consumers than the average state, but that $61.23 ignores local taxation, possible federal taxation, potential greater tax burdens, and general revenue, like income and employment taxes.
Those new WA numbers may reflect a surge in demand during the pandemic, boosting both demand and prices (Washington taxes ad valorem).
With a U.S. population of 332.6 million in 2020, that per capita $61.23 would work out to a total excise tax of $20.4 billion.
The MORE Act marijuana legalization bill revenue estimate says the bill would increase federal revenue “by creating business income, compliance, and occupational taxes.” Congressional Budget Office, Cost Estimate, H.R. 3884, the MORE Act of 2020, as passed by the House of Representatives on December 4, 2020, Estimated Budgetary Effects, https://www.cbo.gov/system/files/2020-12/hr3884.pdf.
I don’t understand. Are there “compliance taxes”? Or does that mean compliance with income and occupational taxes (and so on)? (“Creating” seems an odd verb, too; I think of creating taxes as the legislative function of enacting them.)
And are there numbers showing the revenue effect of the elimination of 280E – “allowing certain deductions for business expenses associated with trafficking controlled substances”?
I wrote CBO to wonder about all this, and will post any reply
In February, the Center for New Revenue announced a publicity stunt: “What will Colorado’s Average Market Rate for flower be as of January 1, 2021? It’s $1,316 [per pound at wholesale] today. Best guess wins $100. Enter at CO2021@newrevenue.org.”
Colorado’s AMR is out – and the “retail bud rate” is $1,721 per pound – way higher than a year ago. The pandemic may have boosted demand and prices.
The winner of the contest is Scott Atkinson, owner of retail locations in Tacoma, Seattle, and Clarkston, Washington. He said this: “Please keep the $100 or use it for the next contest – I appreciate that you are driving a conversation and would love to see more participation.” I appreciate that gesture, but I need to keep my commitment somehow, so we agreed to donate the cash to NORML.
With $1 tip:
With craft brewers across the country and liquor interests in Mitch McConnell’s Kentucky cheering and campaign-contributing, Congress just voted to keep alcohol taxes low and unindexed. Low alcohol taxes cost revenue, and hurt public health. But special interests, now euphemized as “stakeholders,” call the shots in our government. So alcohol taxes are too low.
In 2009, I took up marijuana tax policy, because I figured that legalization without taxation was implausible – and that legalization was going to happen.
Out of the corner of my eye during that marijuana work I noticed that alcohol was undertaxed in America. Today’s non-indexed tax of $13.50 per proof gallon has far from kept up with inflation. Since the early 1990s, that nominal rate has lost about 60 percent of its real impact.
Working on RAND’s Insights for Vermont let me know that I’m not the only one thinking that “the total social cost associated with alcohol abuse is very much larger than all costs and outcomes related directly to marijuana use.” And exposed me to the idea that “even a 10-percent reduction in alcohol abuse accompanying the doubling in marijuana use could be a net win for society.”
I got out of the international tax business long ago on the theory that multinationals called the shots politically, and would continue to dodge taxes, as indeed they have. Monied interests, from liquor to high-tech companies, don’t pay tax. So we are borrowing what we need. Lots of experts say decifits don’t matter. Fingers crossed!
The tax rules in New Jersey’s new marijuana legalization law are the first of their kind. In addition to a retail ad valorem tax approved by the voters, the New Jersey law sets a rate schedule for a specific weight-based tax, with the tax rate going up as the retail price goes down:
(a) up to $10 per ounce, as established by the commission, if the average retail price of an ounce of usable cannabis was $350 or more;
(b) up to $30 per ounce, . . . if the average retail price of an ounce of usable cannabis was less than $350 but at least $250;
(c) up to $40 per ounce, . . . if the average retail price of an ounce of usable cannabis was less than $250 but at least $200;
(d) up to $60 per ounce, . . . if the average retail price of an ounce of usable cannabis was less than $250.
That approach has several advantages. First, it keeps after-tax prices steadier than any other approach enacted so far. That’s a major advance – leaving Canada, which up to now was considered here to have the state of the art cannabis tax scheme, stuck with a weight-based tax whose rate does not vary so nimbly.
Second, its “up to” language allows for lower rates for trim and less valuable products.
Third, its “up to” language allows for a commission to avoid discontinuities, that is, crazy cliffs or notches with wildly different tax rates when average prices move just above or below a threshold amount. It’s rare for a Legislature to delegate taxing authority with so much discretion: That “up to” language could allow the commission to fail to collect the maximum tax allowable for any reason. But there’s this “catch-up” provision that puts pressure on the commission to collect all it can: The commission is to recommend how to spend revenues collected, or “if the commission has not imposed or adjusted the excise fee in the current fiscal year, then appropriations to be made from the General Fund in an amount equal to the revenues that would have been collected had it imposed or adjusted the fee.”
The new weight-based tax is labeled a “Social Equity Excise Fee,” and all its proceeds are dedicated to social equity purposes.
And by the way, the weight-based tax comes in only after a nine-month tax holiday, when only a one-third of one percent ad valorem producer tax, allows producers to get up and running with a negligible tax. That’s another nod to how marijuana markets get going slowly as they battle illegal sellers.
Medical marijuana is exempt from the tax, but most U.S. states give it some tax break (Canada doesn’t).
https://www.njleg.state.nj.us/2020/Bills/A0500/21_R2.PDF, starting at page 162.
Republicans in the South Carolina Legislature are pushing medical marijuana with a 6 percent retail tax, exempt from sales tax and all other taxes. That’s how SC treats non-Rx drugs. SC’s sales tax rate is 6 percent, so that’s a wash. North Carolina has no meaningful GOP medical marijuana support that I know of.
Who gets licenses is not clear; maybe the issue is punted. But the House version allows sales of licenses after two years.
States with marijuana markets were collecting about $43 per man, woman, and child in marijuana excise taxes a couple of years ago. https://newrevenue.org/2018/04/26/marijuana-revenue-can-any-state-get-43-per-capita-like-co-and-wa/. Since then, that number has gone up.
The comparable number for the federal MORE Act, legalizing marijuana,is $2.15.
is CBO says the federal MORE Act, legalizing marijuana, would reduce the budget deficit by $1.258 billion in its most productive year, fiscal 2030. Total tax increases amount to $2.256 billion (an ad valorem excise tax would collect $.762 billion; other revenues not from marijuana excises – from income taxes, FICA, and the like, would go up $1.494 billion). Spending, mainly on marijuana-related trust funds, would go up by $.998 billion.
So with a projected U.S. population of 355,100,000 in 2030, the gross tax increases are $6.35 per capita, and the deficit help is $3.54 per capita. The excise tax is $2.15.
Are there reiiable state revenue numbers for the increase in revenues not frommarijuana excise taxes?
Earlier today, I wondered if the budget estimate for the MORE Act reflected enough savings. Center for New Revenue Board Member Doug Berman, Professor at the Ohio State University Law School, explained on Twitter how the estimate could be right. https://twitter.com/SLandP/status/1335609314862657536
“Cost per inmate is often quoted much higher when total Bureau of Prison costs are divided by total number of inmates, but the “real” cost of one more or one less inmate is lower because removing, say, 50 inmates will not justify shutting a facility and reducing staff.
“Federal inmate population has dropped 60,000+ over last 8 years, and yet BOP budget has stayed stable … which means cost per prisoner calculation for whole system has increased and shows how reduction in prisoners does not perfectly convert to immediate cost savings.”
And my friend Dr. Keith Humphreys of Stanford tweeted, “Given the strength of correctional unions, it’s not clear that releasing 10,000 inmates would either.” https://twitter.com/KeithNHumphreys/status/1335639798845898753
I figured the average cost of housing an inmate would approximate the marginal cost of freeing one. But that figuring was not thought through.
UNC Law Professor Emeritus Bill Turnier points out that the Federal Register indicates that “the fee to cover the average cost of incarceration for Federal inmates was $34,704.12 ($94.82 per day) in FY 2016 and $36,299.25 ($99.45 per day) in FY 2017.” https://www.federalregister.gov/documents/2018/04/30/2018-09062/annual-determination-of-average-cost-of-incarceration
The official budget estimate for the MORE Act (posted here yesterday projects) savings from less incarceration: “reducing both the number of inmates in federal facilities and the aggregate time they serve would result in net savings of about $1 billion over the 2021-2030 period.” “CBO estimates that H.R. 3884 would reduce time served by 73,000 person-years, among existing and future inmates.” Calculating, that’s a cost of about $13,700 per person year.
So the actual savings using the Federal Register numbers would seem to be nearly three times the $1 billion stated. Usually, CBO is pretty thorough about this kind of budget estimate, so Professor Turnier and I are curious here.
The last few posts here have been about the MORE Act, legalizing marijuana, and taxes. Here and below are official budget numbers for the MORE Act, which passed the House yesterday: https://www.cbo.gov/system/files/2020-12/hr3884.pdf.
A quick tax, taxes first:
“CBO and the staff of the Joint Committee on Taxation estimate that H.R. 3884 would increase revenues, on net, by about $13.7 billion over the 2021-2030 period by creating business income, compliance, and occupational taxes; those increases would be partially offset by allowing certain deductions for business expenses associated with trafficking controlled substances.”
That $13.7 billion comes from two sources: an ad valorem excise tax, picking up $5.677 billion, and general revenues like income taxes that come from opening up the marijuana market to legality and the light of day, and picking up $8.013 billion. The latter number would be greater if 280E, disallowing those business expense deduction, were in place. A 2017 estimate of 280E repeal was that it lost $5 billion over 10 years – for a 10-year period when legalization was less widespread. https://newrevenue.org/2018/12/17/official-280e-revenue-cost-5-billion-over-10-years/. That number should be higher than $5 billion now. Keeping 280E (or reinstituting it) and foregoing the excise tax might yield more revenue.
The bill would reduce the deficit by about $ 1 billion over 5 years, and by about $7 billion over 10 years. Most of that impact comes from the $8 billion in “other” taxes like post-280E income taxes; the excise taxes are spent, via trust fund operations.
Other budget impacts include savings from less incarceration: “reducing both the number of inmates in federal facilities and the aggregate time they serve would result in net savings of about $1 billion over the 2021-2030 period.” “CBO estimates that H.R. 3884 would reduce time served by 73,000 person-years, among existing and future inmates.” Calculating, that’s a cost of about $13,700 per person year. I thought incarceration cost more than that. Anyway, prisoners aren’t eligible for federal programs; lessening the prison population and freeing folks up for programs is estimated to cost $636 over the period.
So the MORE Act legalizing marijuana just passed the House. It loses revenue, by eliminating the 280E tax on advertising and marketing (which are now non-deductible, but would become deductible under the Act). It gains revenue, by imposing a 5% (rising to 8% in year 5) ad valorem grower tax (converted to THC and product weight after year 5).
But what is the net revenue effect? Is the Act a net gainer or loser? I haven’t seen.
Update: Here are the numbers, issued December 4: https://newrevenue.org/2020/12/05/official-more-act-budget-numbers/
1. The tax rate now inches up over time, landing at 8 percent ad valorem in year 5. The tax then switches from ad valorem to weight and THC after year 5, but still works with an ANNUAL look-back to price. If you keep looking back, why bother switching? This switch mimics the old Blumenauer–Wyden bill switch to an annual lookback, which I thought so weird that I couldn’t believe the old bill did it, so I misread the old bill. Isn’t the main point of switching to weight and THC to keep the tax burden steady, rather than fluctuating with price?
2. 280E repeal effective date: Say date of enactment is July 1, and marijuana is descheduled then. Taxpayer is on a calendar year, or say a June 1 fiscal year. 280E is the law for part of the taxpayer’s tax year. What happens? There may be an easy answer.
3. The new ad valorem tax is effective “after 180 days after the date of the enactment of this Act.” Are no sales contemplated before those 180 days expire?