Black Market Elimination Fail: Draft Pot Rules Call for Ban on Hash and Hash Oil

I just puffed my last bit of hash oil, which is, coincidentally, a supply I won't be able to replenish at a legal pot store if the Washington State Liquor Control Board has its way. This morning the liquor board posted these draft rules for implementing Initiative 502, the cannabis legalization initiative passed by voters last fall. And the big shocker: The draft rules call for a ban on retail sales of hash, hash oil, and other concentrates.

This means that legal tokers will still need to obtain their hash on the black market or, if they prefer a gray market, obtain a medical cannabis authorization, usually for $75-200. The liquor board's reasoning for the ban is contained in draft WAC 314-55-079:

Marijuana extracts, such as hash, hash oil, shatter, and wax can be infused in products sold in a marijuana retail store, but RCW 69.50.354 does not allow the sale of extracts that are not infused in products. A marijuana extract does not meet the definition of a marijuana-infused product per RCW 69.50.101.

"That's a terrible decision," says dispensary operator Eugene, who preferred we not publish his last name or business name for fear of receiving a DEA letter. "We are kinda known for our bubble hash around here." Eugene tells me that hash is "decent part of our business," with 20-40 percent of customers interested in concentrates at some point.

As we've written about before, where hash oil falls under I-502 definitions is a subject of debate. It seems clear that hash oil is "marijuana" but retailers can't sell "marijuana," only "useable marijuana" and "marijuana-infused products." An infused product is legally defined as follows:

"Marijuana-infused products" means products that contain marijuana or marijuana extracts and are intended for human use. The term "marijuana-infused products" does not include useable marijuana.

The question seems to distill down to this: Although hash oil is clearly an extract of marijuana, does hash oil "contain" marijuana? I believe hash oil contains marijuana, and (hopefully small) quantities of impurities—e.g. a bit the butane it was extracted in. So hash oil is an infused product, and it can be sold at retail.

But I don't really care to argue semantics. The simple fact is that the people of Washington voted to end prohibition, a monumental mandate, and in its place the liquor board proposes a lighter form of prohibition, one where we can't obtain cannabis-containing extracts. The anti-I-502 crowd kept calling it "a new approach to prohibition," and it seems like the state lately keeps giving them fuel to stoke their told-you-so fires.

It's similar to how the legislature is now attempting to force medical cannabis into the I-502 process, raising the ire of activists who warned of the very same thing. Like the IRS focusing on Tea Party nonprofits, which makes the Tea Party hardliners sound less crazy when squawking about about government conspiracies, our state government is making the concerns of anti-legalization potheads sound more and more reasonable.

"I don't think recreational [cannabis] is going to be what people expect," says dispensary operator Eugene. "For many people in Seattle who've been connoisseurs, it's going to be tough for them to go to recreational stores."

Good job, liquor board, for failing to tackle the black market by narrowly interpreting the word "contain." I guess I'll continue to get my hash on the black market.