Marijuana legalization is sweeping the nation. Recreational marijuana use is legal in eight states. Medical marijuana use is legal in thirteen states. Only three states maintain an absolute criminal prohibition on marijuana use. Many of these legalization initiatives propose to regulate marijuana in a manner similar to alcohol, and many titles are variations of the “Regulate Marijuana Like Alcohol Act.” For political and public health reasons the analogy makes sense, but it also reveals a regulatory blind spot. States may be using alcohol as a model for regulating the distribution, retail, and consumption of marijuana, but marijuana is much more than a retail product. It is also an agricultural product, and by some measures, the largest cash crop in the United States. Since marijuana prohibition laws were passed long before any cultivation regulations, states now face an unprecedented challenge: to regulate, for the first time ever, one of the country’s largest agricultural industries.
Major regulatory challenges lie ahead, and how states respond to those challenges will shape the course of the marijuana industry. At present, there is a lack of understanding of the regulatory challenges marijuana agriculture presents and the options states have to address them. This Article identifies those challenges and the regulatory approaches most capable of addressing them. The study begins by describing the existing state of marijuana agriculture regulations. States are likely to find that the marijuana industry’s unique characteristics justify a tailored regulatory approach; relying on existing agricultural policies may be ineffectual or lead to perverse outcomes. Next, the study explores fundamental questions about the “marijuana fragmentation spectrum.” Will the industry come to be dominated by agricultural conglomerates mass-producing a marijuana commodity, as many have feared? Or will governments and the industry adopt the appellation model favored by the wine industry to protect local farmers and differentiate between products? The study also analyzes the major environmental impacts of marijuana agriculture, including regulations that address water allocation, water quality, energy, organic certification, and crop insurance. Finally, the study addresses power distribution trade-offs within marijuana agriculture regulation frameworks, including local vs. state, and consolidated vs. fragmented, regulatory authority dilemmas. The findings suggest that responsible and sustainable marijuana agriculture can be fostered at the state level, but only if regulations are responsive to the unique and unprecedented challenges that marijuana agriculture presents.