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Regional News

Pohnpei Legislature holding public hearings on bill to legalize marijuana despite FSM law prohibition

POHNPEI — The Pohnpei State Legislature is currently reviewing a bill (135-16) written in 2016 to regulate and tax marijuana production and use in Pohnpei. The Committee for Health and Social Services is currently conducting public hearings on the merits of the bill.

Floor Leader Senator McGarry Miguel withdrew the old bill that had previously been assigned to the Justice and Governmental Operations and Education Committees and re-assigned it to the Committee for Health and Social Services.  “The intent is to legalize it for medicine purposes only,” Senator Miguel wrote in response to our questions.  “I am not interested in legalizing marijuana at this point on recreational purposes.”

“Yes, we will start with the medical purpose first and if we can control the problems and have solutions of concerns raised by many, and changes can be made in the future for legalizing recreational usage...” he wrote, and trailed off.

The bill will require major gutting in committee and substantial amendments before it hits the floor for possible approval if medicinal purposes for marijuana usage were the intent.

“In the interest of respecting and enhancing individual freedoms, the Pohnpei Legislature finds that, within limits, the personal use of marijuana should be legal for person 21 years of age or older,” the bill as submitted begins.

“That part (the recreational part) will be deleted after the committee finish(es) its research in the public hearings. All we need to focus on now is to legalize for medical purposes only. Amendments will be made in the bill and place restriction process of medical usage, licensing, penalties and enforcement,” Miguel wrote.

It will require many amendments to meet the stated intention of the Senator who re-introduced the bill for consideration.

The proposed bill sets up mechanisms and regulations for “legitimate, taxpaying business people, and not criminal actors” to legally sell marijuana, and for people 21 and over to legally purchase and consume it in Pohnpei.

“Marijuana sold by regulated businesses will be labeled and subject to additional regulations to ensure that health and safety standards are put into effect and that consumers are informed and protected,” it says.

“Marijuana sold by regulated businesses will be labeled and subject to additional regulations to ensure that health and safety standards are put into effect and that consumers are informed and protected,” it says.

The proposed bill not only would legalize authorized marijuana cultivation, both public and private, marijuana stores, product manufacturing facilities, and testing facilities, it also defines classes of licenses, fees and appeal processes for denial of licenses for each of them as well as the fines for operating without a license.  It defines the places where marijuana could be legally used; restrictions that are similar to the restrictions for tobacco use.  It legalizes the paraphernalia used to consume marijuana.  It instructs the Director of the Department of Public Safety to set up enforcement regulations and establishes how long after the bill is passed into law, assuming that happens, that the Director has to establish the regulations.  It establishes excise taxes based on weight of marijuana distribution and sales tax for first sale retailers of the product.  It sets up penalties for under-aged buyers who use falsified identifications to purchase the product.  It even designates the Pohnpei Scholarship Fund as the recipient of fees, fines and forfeitures.

“Nothing in this chapter proposes or intends to require any individual or entity to engage in any conduct that violates national law, or exempts any individual or entity from any requirement of national law, or poses any obstacle to national enforcement of national law", the proposed Pohnpei bill says.  However, the proposed bill does not seem to specify what a licensee or user is to do if the FSM National Government decides to prosecute under the currently existing FSM law.

Title 11 of the FSM code defines crimes and punishments.  Chapter 11 of that title which it says can be cited as the "Trust Territory Controlled Substances Act" lists marijuana as an illegal controlled substance, the possession and distribution of which is punishable under national law.  The Trust Territory law is still on the books and has been prosecuted by the FSM many times since the FSM became a sovereign nation.

On the Legal Information System of the FSM there are a significant number of cases that show that the FSM has previously rigorously prosecuted for marijuana related violations of law.  Some of those cases are cited as annotations under the search and seizure provisions of the Constitution.

“In the interest of the economic development of this State,” the proposed bill says, “the Governor of the State, in consultation of the Director of the Department of Public Safety and with the Private Sector, shall, to the extent practical, initiate and implement coordination efforts with relevant officials of the FSM National Government to promote the exportation of quality marijuana products cultivated and produced in the state of Pohnpei to legal destinations abroad.”

Nine U.S. states have legalized the recreational use of marijuana, and 29 states have some form of legalized marijuana for medical use.  Guam, a U.S. territory, has legalized the recreational use of marijuana while the Commonwealth of the Northern Mariana Islands, another U.S. territory, has legalized medicinal and recreational use of marijuana.

Still, marijuana is listed as a Schedule I drug under U.S. federal law, the law on which the FSM code is based. Those states and Guam are marginally protected by two memos regarding prosecutorial priorities. Neither of the memos are U.S. law and don’t constitute legal protection against prosecution of people in the states where marijuana has been legalized on whatever basis.

The first memo was issued by U.S. Deputy Attorney General David Ogden in 2009 regarding legalized marijuana for medical use.  It specified factors that would invite federal prosecution such as sales to minors, violence, and unlawful use of firearms associated with medical marijuana sales.

U.S. Deputy Attorney General James Cole issued another memo in 2013 covering both medical and recreational marijuana. His guidelines for states less likely to trigger federal prosecution include similar guidelines to the Ogden memo but include other guidelines regulations that allow the diversion of marijuana to states that have not legalized its use, and the use or possession of marijuana on federal property.

Those memos are not binding on the US government.  They are not law and another administration could decide to change its mind and decide to prosecute all cases of marijuana use and distribution.

The FSM has no such memos or other concessions in place.

The bill under consideration by the legislative committee lifts the entire list of banned Schedule 1 controlled substances from the FSM Code, except that when Marijuana is listed, the bill proposes to add the words, “provided that with respect to marijuana, the provisions of this chapter of the Code shall only apply to persons under the age of 21 years…,” along with other provisions.

The added wording seems to attempt to amend the FSM code at a state level.

The committee hearing with National Government officials will take place after press time.