 Good morning. You are with the Vermont House Government Operations Committee. We are gathered here this morning before we go to the floor in order to consider amendments to S25 and act relating to miscellaneous cannabis regulation procedures. We have a Ways and Means amendment that will be going up early today, but I don't see the reporter from Ways and Means here yet. So I'm going to invite Representative Gannon to just share with the committee the sort of technical amendment and the origin of that that we are going to present here hopefully as a friendly amendment in committee. Thank you, Madam Chair. So the amendment that I'm proposing only amends a single section of S25, which is section 17, which deals with the Vermont Criminal Justice Council and A-Ride training. So I'm really proposed taking out a report that would have required the Vermont Criminal Justice Council to come back to us with the amount of funds it would be needed to require all law enforcement officers to receive A-Ride training on December 31, 2021, because I was working with the council and thought that we could come up with a cost and some information on which officers still need a training. And just for background for everybody, any officer who is certified after 2015 is required to get A-Ride training and they get it 36 months after they finish in the police academy. So those folks are going to get the training no matter what. The question that came up was that their officers who are certified before that date and how fast they could be brought in. And that raised a couple of other questions, which is do all of those officers need to be received A-Ride training. And the council pushed back or suggested that there were certain officers who may have trouble meeting the prerequisites for A-Ride training. The example they gave were the investigators for the Office of Professional Regulation. Clearly, they do not do roadside stops at all and may not be able to pass the prerequisite for A-Ride training, which is the standardized field sobriety test. They have to show a competence in that. So the council and I were trying to work out which types of law enforcement officers might not be able to meet that requirement, but we were unable to. So what I propose in my amendment is that we go back to have the council report on the funding requirement and also make a recommendation as to which law enforcement officers, if any, should not be required to receive the A-Ride training because those officers do not make roadside stops, or those officers would not be proficient in the standardized fields sobriety test that is prerequisite of A-Ride training because of their law enforcement position or training. Questions from committee members? Representative Higley. Thank you, Madam Chair. Representative Gannon. So are you talking about the enforcement folks that OPR are considered law enforcement officers? Yes, they are. Wow. That's news to me. And I guess the other question I've got is, did you say 36 months after they complete training? They complete their level three certification. And the reason for that is they want to make sure that those officers have had experience with roadside stops, working with other officers who are either trained in A-Ride or in the DRE program so that they have some experience before they go through the A-Ride training. Okay, thanks. Any other questions from committee members? All right. Representative Anthony. Not a question, Madam Chair, but I was going to make a motion if it's appropriate. I think what I'd like to do is hear all of the amendments and then we can take votes on them after our two missing committee members are able to get here because they have a standing nine o'clock meeting so they won't be here for a few more minutes. But thank you. Hold that thought. All right. So since we have not seen Representative Beck yet, but that I expect we'll hear from him shortly, I think I would like to invite Representative Peterson to introduce the concepts around his amendment. Thank you, Chair, and thank you committee for taking your time today to listen to my amendment. This is the first for me as a new representative. My amendment is to section one of the bill. And if you want to read along with it, it's page 2602 of today's House calendar right at the top of the page. It's incredibly simple. Pretty much what it does is expand the opt-in for cannabis. Right now, the law reads that the opt-in is for retail and retail only. But I would like to, I would like to add cultivator wholesaler product manufacturer and test laboratories to that. And I'm being, I feel that cannabis is set apart from other things we grow. Okay. I think that the town should have local control. The town people should have local control of what a product like this growing in their town. We, the law states or the requirements state that a marijuana field will be enclosed, kept away from the public and and offense then and to me, as a taxpayer in a town, I would want to know whether that type of operation is in my town. So it's all about local control on this. I did some research about economic, I mean, environmental impact of growing marijuana, growing cannabis. I think above them beyond anything else is a smell. I don't know how many of you have been around a hemp field, but there's a distinct and pervasive skunk smell that, you know, many find very offensive. That smell is one environmental factor, but there's been a number of studies done. I did a fair amount of research. Energy consumption around indoor, indoor grows is very high water consumption. They say that a marijuana plant consumes six gallons of water a day. When you extrapolate that out over a field that's an awful lot of water, indoor grows experience air pollution to the point where workers safety is at risk. And probably the biggest thing I found in my research about the environmental impact is there's a lot of unknowns leaching into leaching into waterways impact on wildlife impact on soil. I don't think it doesn't sound like many people have done many studies on that. So there's a lot of unknowns. But, you know, I get back to the fact that cannabis is illegal federally. It's illegally grow federally 31 states presently offer licenses. But in the end, I think that town should should have an opt in for these types of operations. So that's why I'm proposing the amendment questions from committee members representative Hooper. Thank you for coming representative Peterson I you mentioned a couple times in your presentation about indoor grow. You hear me. Yes. I saw that lean in there. I'm hardy a little harder here and so I do lean in a little. So I'll read, I'll relate to you an interesting story from last term where when we were considering the pot bill we did a couple of tours of facilities and a person on the committee remarked when we were in the middle of one indoor grow facility which I was very impressed with that he didn't even know it was there and it was in his town and he happened to be the chief of police. So it's, it's interesting the juxtaposition of those experiences that you bring forward. And I just thought I had to relate that. Thanks. Well, thank you. Thank you. Thank you, Madam chair. And from where I'm sitting right now. I could probably take a baseball and, and throw it to the dairy farm down the road from me, and they're spreading manure today so I know which way the wind is blowing. And I hear your concerns about odors, but are we, are we going to start setting a precedent that agriculture is going to have to clean up the smells. Well, I representative I hear that concern and I know you live in Putney and I've been to Putney many times and know of another facility there that definitely has an order to no, but when it's pervasive all the time. It is one factor it's. I'm not saying that we shouldn't allow these grows but I think towns should be able to opt in now when we did the retail opt in this past year a number of towns agreed to, to allow retailers. Towns probably would wouldn't mind having to grow having a manufacturing facility it doesn't restrict that it just gives the gives the taxpayer, the voter, say and what, what type of facility like this could operate in their town. Thank you. And, and if you are referring to the, to the paper mill in Putney I would say that they have done a lot of work over the years and the, the sulfur rotten egg smell that used to be pervasive in the village sometimes is pretty rare if ever and I can't remember it happening in the last few years so I want to give them credit. Well, taking care. I would give them a lot of credit, because when I was there years ago working with the phone company it was, it was quite different representative cannon. Thank you representative Peterson for for bringing this amendment to us. You know, one of the priorities in Act 164 was to reduce the illicit market in cannabis, and part of that effort was to bring small illicit cultivators into the regulated market. My concern with your amendment is that those cultivators are already out there in towns and cities around Vermont. My concern was to prohibit cultivation. Then those growers would remain in the illicit market and negatively impact our ability to move those growers into the legal market and provide a regulated product that's tested. How do you address that. If they're growing now, you're saying they're growing now. Yes, illegally. I mean, if you're, if you're illegal and what you do, then I, I don't have an answer for that illegal is illegal, I guess, I mean, if if if you're operating illegally in a town and the town votes to not allow a grow. I guess you're illegal, and you should stop. Well, it's unlikely they will, they'll probably continue to grow. And that's that's my concern is that our goal is to try to bring those small illegal cultivators into the regulated market, and by allowing towns to prohibit them from getting into the market. It will really harm our ability to reduce the legal market. Well, I hear your concern. I, I, I don't have a great answer for that. I don't know how much of that goes on. But if you're growing illegally, it's illegal. That's all that's that my simple mind. I mean, that's that's the way I look at it. Thank you. Any other questions for representative Peterson. All right. Welcome representative back. Thank you for being here. We are running through each of the amendments that are being proposed to S 25. And so you are here on behalf of the ways and means committee and I wanted to give you a few moments to talk consensually about what your amendment does and then if you'd like to we can ask legislative council to go through the the text of it if it's if you would like that. Sure, let me just go into it here in the calendar just so I can speak to the. Okay, so the basically in a nutshell what we've done here, what ways and means did is we took all of the fee work that was proposed. And we've, we've put that to the cannabis control board to make recommendations to the legislature to house ways and means. I think the date was it is October 1. And the only fee we really took the only fee we took action on was the integrated license, which in the, what we received was 3% of gross sales. The maximum contribution of 50,000 per integrated license, and instead put in just a one time contribution of $50,000 per integrated license. Our logic there was that anybody that would be applying for this integrated license is somebody that is well capitalized. And we should just cut the chase and just make that a $50,000 fee. And that is really the, the gist of the house ways and meaning we ways and means amendment. Any questions for representative back. All right, Mr. Vice Chair you spend some time. Oh, and we have legislative council and Michelle child's thank you. I didn't mean to interrupt but I did just want to mention there was one other small amendment which was elimination of the advertising review fee. I'm sorry and representative back might have mentioned that and I might have missed it. Yeah, thank you Michelle I did not mention that specifically but yeah we basically all fees including the advertising fee to wait for recommendations from the cannabis control group in October. Actually, on the advertising review you took out the ability for them to establish one so they won't be reporting on the advertising review fees so those are those are totally out of the bill. Okay, I think you're right. You're right. Yep. That is something that I would love to understand a little bit more of. And I don't know representative back if you were part of deliberations in committee that that led to that or representative again and if you were there when, when the group was discussing that I would love to understand why. Why that fee was eliminated altogether because one of the one of the aspects of the advertising restrictions that we felt we should put on cannabis establishments was that that the cannabis control board would have the ability to review advertising to to ensure that it complies with our restrictions and, and in order to compensate for that we allowed the cannabis control board to set an advertising fee so I'm just curious what the rationale was for eliminating that. I, I'm probably not the best person to speak on that I'm not sure representative again and recalls that conversation or not. I'm going to go ahead, representative the other. So, Madam chair, this, the elimination of the advertising fees was an amendment proposed by representative cornizer. And I believe her her logic was that she felt that it was an additional fee that could make it. That could add up over time because her concern was that every time you changed one word in say an internet ad or some other ad it would be an additional cost to cannabis establishments. And she thought that that burden would be too high. Thank you. Representative Higley. Thank you representative back what was the committee vote on that amendment. Thank you. All right, any other questions from committee members with respect to the ways and means amendment. We understand it conceptually do committee members want to go go through the language of the ways and means amendment together here, or have you all been looking at it while I've been watching committee discussion representative Hooper. I concur that, you know, part of the way that we're seeking to fund the commission is through fees for their activities so cutting that advertising fee although the logic of incremental changes is probably valid I would think they would be able to set a pricing structure that might reflect the time that they invest in what they're doing for each individual person but I specifically want to hear about how the flat fee. The budget of $50,000 would impact small boutique type growers and marketers as opposed to the 3% if that was considered and if it's of any concern. Thank you. Yeah, I can speak to that. Thank you. In our conversation, we don't believe that a small or a boutique would be even be seeking an integrated license to be a grower a cultivator a processor and a retailer the only people that would really be pursuing these types of licenses would be would be big operators people that are that are capitalized far beyond what a little boutique seller or grower would would be thinking of doing. I think it really started as a boutique ice cream maker so that's sort of the root of my question representative again and did you want to respond to that. Yes, I just want to remind members that in Act 164 only the existing medical dispensaries are allowed to apply for integrated licenses. Most of them are significant operations that there was testimony and House ways and means about that that question as representative Beck mentioned was raised. But those are the only applicants for the integrated licenses so there won't be boutique entities applying for an integrated license. Thank you john representative Anthony. Thank you. Thank you madam chair, I would really regret completely removing the advertising fee I'm sure that some language could be crafted so that, in essence, it would be perhaps a one time when the license is issued and or an annual review or something like that rather than worrying over the change in a preposition triggering another fee. I must be a way to wordsmith that. Thank you representative Shannon. I think another thought that representative cornheiser had with respect to this elimination of the advertising fee is that those fees could be could be baked into the existing licensing fees. And so that well we might lose an advertising fee per se, the consideration of the cost of reviewing advertising could be taken into consideration, establishing the various licensing fees. Any other questions with respect to the ways and means amendments representative Leclerc. Good morning and I'm sorry I arrived a little bit late so I'm, I guess this is geared towards our resident cannabis expert here. I'm just curious about the change in timelines as far as the, the fee structure reporting. Based on what we heard from the chair of the Cannabis control board are. Are they still going to be able to have the information they need when they need it to do what they need to do. The testimony. I shouldn't say testimony. I mean, the discussion in house ways and means the chair. Well she had not yet asked the speaker to do this was willing to have house ways and means come in early before the session started to start reviewing these fees. So that they would be able to take action early in the next session with respect to them. I mean, we, there is a tight timeline, there has always been a tight timeline, even under Act 164. So it is challenging, but I think ways and means was confident that they could get this done if representative Beck has anything to add. I don't have anything to add to that yeah that is the chair some has she has some inform this inform the speaker that that she would like to have meetings in the fall. Based on these fees that are recommended by the Cannabis control board, so that when we arrive in early January that we're we're ready to act quickly. I would like to say that that's a little discomforting that we're depending, depending on a committee to come in and out of session to meet specifically around this one issue but. Okay, long as the commitments there. All right, any other questions with respect to the ways and means amendment. All right. Representative Donahue. Morning. Thank you for your time this morning. Those who were here last year. You might recall that we had a conversation around the fact that our public policy in this legislation was sort of targeted I think at two main areas one was to bring people out of the black market. And we not eliminate it but reduce the black market and have a regulated listed market, and also safety for users, folks are using cannabis, but they don't know the potency they don't know the purity or quality. And so, introducing a regulated market made sense. And for some people making money was a goal I don't think it was a primary goal, but certainly one of our public policy goals was not to encourage use not to have people who didn't use before or increase consumption in in various ways. And this committee at the time, ended up, I believe it was a unanimous vote supporting an amendment I offered at that time to ban all advertising as being contrary to those public policy goals and the house adopted that amendment. Again, I believe unanimously, and unfortunately, it was lost as I think one of the very final pieces in the negotiations with the Senate. And I know that that one of their big concerns was the concern about its constitutionality as a total ban. Certainly the law is very mixed on that or there's a very incomplete record because there haven't been that many legal markets so the question of whether you can ban advertising if it's federally illegal versus if the state has made it legal, then it fits within the standards for bans on free speech to be closely tied to goals and in this case, it was focused on use by children. But that's, that's the background between to returning this year to suggest not a total ban, but to suggest narrowly and solely that we don't want to see advertising used for the purpose of encouraging consumption. While leaving it completely open for what the majority of advertising is for, and that is promoting one's own one's own market one's own sales so advertising that we have the best quality. We have the best prices we have a sale this week. You know, any of those things that are promoting one's own the benefits of shopping or buying versus directly encouraging consumption, which is not a goal of the legislation and So I think that's that's what I'm focusing on with the help of legislative council was able to do some refining to help draw that line and of course I don't need to tell you but it's it's the rulemaking process that will work that through in more detail. But what it does is, is it changes the the ban on advertising that promotes over consumption, which probably be a kind of tough thing anyway in in rulemaking to sort out what what that meant but, but it changes that to banning encouraging consumption. And to make it consistent with the definition of advertising, it clarifies that inducing sales which is permitted is inducing sales for that licensee so come by at my place if you're buying because here are the here are the reasons that I can meet your needs the best. So, so that's the basics. Obviously it was a was a big disappointment to me when when the Senate wouldn't back off or actually I watched the back and forth and at one point it was on their list of things they were willing to concede and then it got pulled We also lost something that was in existing law in terms of the health department warnings that were eradicated even for existing cannabis for symptom release in the final version. I think this is a much narrower much more focused way of addressing our public policy goals in permitting advertising, but carving out that encouragement of consumption from what is permitted advertising. Questions from committee members for representative Donahue representative Anthony. Thank you madam chair representative Donahue. Have you considered trying to not only limit the focus of the advertising to the retail shock come by mine as you as you intimate it, but also reaching through the supply chain and and somehow accomplishing your original by preventing advertisement by any but the retail establishment that did you, did you consider that possibility or, or is it just axiomatic that it's the retailer that you're worried about promotion of indulgence. Well, my understanding is this section of the, of the bill of law is about any kind of advertising that that anyone is doing so it addresses equally if the advertising encourages consumption at any of those levels in including the retail establishment. If it's something other than promoting that establishments benefits in the in the market benefits to the to the consumer to to go to. Right, any other questions from committee members. I have to say the thing that really caught my eye and what was seeing this the encourages consumption, replaces the existing language which says promotes over consumption. And when I saw that I sort of thought. Hello, a bar. Hello a bar can can we go to in terms of policy on on this being sort of as core harm reduction approach of what we want. We want users to be safe. We want the market. We want the black market to be discouraged. But we're not trying to encourage. More use we're not trying to encourage this as a as a good product. You know we think of similar similar products, tobacco, alcohol, similar products where their concerns, and those likewise are not things that we have advertising that would encourage more use. We have with us David sure from the Attorney General's office and thank you David for joining us this morning. Some of the conversations around advertising restrictions have have really been prompted by, by the Attorney General's concern about a total ban on advertising and so I wanted to welcome you to share your thoughts on where this language fits in with the advertising restrictions that that that your office express support for being the the original house government operations restrictions so welcome and thank you for being with us. I want to share and thank you for having me this morning I haven't had a huge amount of time to review but I will give you some remarks just on the again approaching this from litigation potential litigation standpoint. Before and as represented down here correctly notes there are there is some split authority out there as to whether or not standard First Amendment principles will apply. But as I testified before we do think there's a reasonable likelihood that it will, and it's our view that we should craft restrictions that are likely to withstand that scrutiny for a number of reasons that we spoke about before, including if you end up striking down too many restrictions Vermont could be and or if the court ends up striking down a restriction. Vermont could be left in a worse place than having some restrictions that remain in other words if there's if there's not, if there are no limitations left for the board to have restrictions in accordance with, then it's not a great situation and it really opens the door. So, it's our view that we should be trying to craft. Or I should say that it is we are the safest position litigation wise to try to craft restrictions that are likely to withstand First Amendment scrutiny and as we discussed before that does happen under the central Hudson test and I'll say one other thing about that scrutiny you know of course we're dealing with very limited precedent with respect to whether or not central Hudson applies and again central Hudson is the court case that dictates how courts look at the regulation of commercial law and I would also say that even though we have limited case law that's directly on point we do have some other case law that talks about how courts look at advertising that's happening in two different jurisdictions and so for example something that's lawful in one jurisdiction, somebody who's based there's offering for sale something that is or for purchase something that's lawful in one jurisdiction is allowed under Supreme Court precedent to advertise those things in other jurisdictions where it may be unlawful, as long as where the speech is taking for I should say as long as where the commercial enterprise is taking place is lawful. The court has held that central Hudson applies. And so that's not directly analogous because we're not talking about two different jurisdictions here we're talking about federal and state which are kind of coexisting jurisdiction so I don't want to overstate our alliance on that but I do think it's an indicator that you know state courts and potentially federal courts as well could end up deciding that central Hudson test applies and again the more recent precedent that directly is on point did choose to apply the central Hudson test. So moving head to that test and sort of trying to do a quick analysis here of reviewing whether or not this is likely to withstand it. You know we look at those three, the three remaining prongs we just discussed the first prong regarding lawful activity and again we acknowledge that that's a bit of a what we're not entirely sure but we think there's a reasonable likelihood that it will apply. You know, does this advance a governmental in a substantial governmental interest. We have understood the policy interest that's being advanced here to be with respect to health and safety, and especially, and especially powerful governmental interest with respect to young people consumption by young people. We look into whether the regulation directly advances that governmental interest. And finally we look at whether the regulation is not more expensive than extensive than is necessary to serve that interest. When we look at this amendment, certainly I think that the first two of those three prongs are met we are you know it's certainly a very dramatic limitation on any advertising that encourages consumption. I'll talk more in a minute about what that might mean in reality but I just speaking generally right now I don't think we need to go into this for the discussion on these first two prongs. Certainly you know it would advance the government we are going to assume that a court will find I think it is we are on safe ground asserting that a court is likely to find that the governmental interest is substantial here as we already talked about. And of course a dramatic limitation on advertising does advance that governmental interest. But it's the final prong where we often run into trouble on a lot of these potential regulations this is the most sensitive one the most difficult one to meet and the one that Washington State failed at, when Washington State was deciding whether some of their regulations were overly extensive. And that is whether the regulations more extensive than is necessary to meet the governmental interest. And I think here, it's our, it would be our view that this is likely to be struck down under prong for of the central Hudson test. Essentially what we're saying here is that is not that these things are tailored to, it's no longer that these things are tailored to the public health interests that we're most concerned about and I'm talking here about the amendment and third amendments and representative Donahue's amendment proposal for I'll talk about those first then return to the first one. You know so speaking about replacing the subdivision to with encourages consumption. You know I think that as as the bills originally drafted as we talked about those current restrictions are more directly and more tightly related to issues of health and issues of youthful consumption and again over consumption which is clearly a health issue. But when we go into talking about consumption generally, I think a court is likely to say that hey, all sales are about consumption ultimately and to try that that's what you're doing when you're advertising this product you're advertising it for consumption. And the state of Vermont has already said, you know before the passage of this law that can sound that possession and consumption are lawful activities, they do criminalize it and then made it legal. And now we are saying that the sale itself is also legal under this statute. So I think a ban on or a prohibition on any advertisement that encourages consumption at all. Will likely be viewed by a court as saying well that's just a ban on any advertising. And I don't know how a court could. And I think a court would say I don't know how we can draw the line between advertising that encourages consumption and advertising that encourages just the sale or something like that. I think that would require some sort of belief that the sales are not related to consumption but I think that would be like saying well a motorcycle store saying that there's a sale on motorcycles this week is assuming that you're going to buy the motorcycle without driving it. I just don't think that that's a leap that the courts are going to take. And so we, we do think that encourages consumption well, any advertising for the product is inevitably encouraging consumption and so essentially that this is, you know there's, that's the point of the sale. And so essentially this is going to be a, it's going to prevent. I think all advertising and I think it will likely be struck down under prong for the central Hudson test is doing more than is necessary to advance the governmental interest again the state of Vermont has decided that possession and consumption are allowable. Representative Donahue's interest in this is laudable in terms of not expanding activity unnecessarily, but I think that the policy decisions already been made by the state that we are going to make this lawful and we are going to make the sale legal. I think that the policy decision has been made. I think we are now creating a regulation that is more extensive and that a court would likely find under prom for a central Hudson is more extensive than is necessary to advance the governmental interest because it does more than just focus on health and, you know the particular concerns around health and youthful consumption and now just says well all consumption essentially were disfavoring and that is beyond the governmental interest because Vermont started to decided that it doesn't have a governmental interest in prohibiting consumption. So prohibiting advertising that promotes consumption I think is beyond the governmental interest so I think this would be likely we it's our view that this would be likely to fail court scrutiny under central Hudson. The state of Vermont, or I should say really the board at that point would be left with very little in terms of guidance about what it could or could not regulate it would be left with the guidance around not advertising products that are likely to be to be viewed. The audience is likely to be more than 15% of people under 21, and then it would have a couple of, you know, points around warnings and so forth, but otherwise it would have to approve, you know wouldn't have any limitations on what it could approve if it did if the court strikes it down and then people start advertising around things that do depict people under 21 well it may not be able to be seen by a percentage of people under 21 but you still have advertising out there that that has that in there it could promote over consumption and so forth so I think Vermont is potentially in a worse place at least for a time until the legislature can come back and cure it. So, we do think that this puts us, you know the state of Vermont in a tough litigation position, we do think it's not likely to withstand scrutiny under central Hudson, and that would be our sort of legal take on on a likely litigation on this but with all due respect to Representative Donahue's efforts here. And we understand where she's coming from, but that's our sort of take on where the court is likely to end up and we do think it leaves the board and ultimately the state of Vermont and a could leave the board in the state of Vermont and a less advantageous position with respect to protecting health and safety. Thank you representative Anthony. Thank you very much Madam Chair and thank you for your presentation. I want to go back to a question I asked and and representative Donahue observe that the advertising section is quiet in terms of who has what standard to comply in terms of the supply chain from the market to the retailer. And I guess I want to first make an observation with which I think you agree. Part of the legislation is as much focused as you intimated on the kind of quality control that is to say consumer would then know what they're getting as much in the black market, because we have the insistence that the product be tested we have a laboratory requirement etc etc, where I'm going with this is to ask you if your conclusion and your analysis would be the same. In respect to advertising, if we were talking about growers versus retailers, and back to my supply chain query about whether or not courts would distinguish between somebody who's simply growing and selling to myriad distributors, etc, versus the usual tobacco problem which is it's the retailer, who's the public face if you will have that commodity. Do you have a sense as to whether the analysis changed or your conclusion changes. If we shift up the supply change from retailers back towards the origin of the crop. Thanks. Interesting question representative and my initial my without having thought about that a lot specifically I do I don't think it would change I think that let's assume that there's a grower out there who is very proud of their product they think that they are growing a better product than anybody else and it's available in many retail stores around the state. They can certainly advertise their particular product and say, you know, available at a fine cannabis retailer near you. And I do think that that would be an advertisement under the definitions that we have here, because it's calculated to induce sales of the product. It's going to be subject to the same regulation, as I understand it in the, as it's been laid out in this statute. My question is, would it be subject to the same court test equals scrutiny retailer versus bro. Okay, I believe yes I believe that would be commercial speech and subject to the same. To the same test. Representative Claire has a question. Thank you madam chair. Good morning David. A question I have would be, because this is still considered illegal at the federal level. Are the same standards, would the same standards be held to this as they would if you had some other commodity that was legal regardless of state. So, whatever. Does that change things at all. Could it change things at all. Yeah, that's an important question and we think this is likely to be and again this is, we have to make some assessments here. I think it's likely to be an honor off switch. In other words, I think that either a court will decide that either central house and all the federal precedent around and nationwide precedent around commercial speech, and the regulation commercial speech will apply, or a court could decide that it doesn't apply in which case the state has a free hand to regulate in whatever way it sees fit. I would be surprised, I think we would all be surprised if a court said well we're going to take a separate of that, and try to thread the needle and some new invent a new way. That's certainly possible, but I that hasn't happened yet. In the cases where this has been decided and I think that would that would be such a difficult task for a court. My guess is that they are much more likely to treat this as an honor off switch either the stand the standard commercial speech principles apply or they don't. So, follow up question Madam Chair. So, with that in mind, does it matter as to which court venue something like this would be heard in. In other words, state court versus a federal court and if we were talking about different venues would different standards be applied for the first amendment or one standard. Right in terms of the basic First Amendment principles, I think, either you know whether it's state or federal, they will apply the same. Well they will apply the same decision making rubric around, you know whether the First Amendment applies and then go through the test in the same way so they're not going to apply different principles is, is there a chance that they would question differently is one venue more likely to find it that First Amendment principles apply the other is not. I think that's possible but that's very very speculative of me to try to make a guess about which venue is going to be more friendly to Vermont's regulatory scheme, but in terms of the basic set of principles, that's going to be applied the same way in both courts with respect to First Amendment analysis. Right committee any other questions for assistant attorney general sure representative Donahue. Thank you. With with equal equal due respect for the assistant attorney general I would like to just respond to a few things. First of all just as an aside. This is not the same as the initial as the house, the house position it is more lenient in at least some ways. So, but but in terms of the core issue which is likely litigation. I jotted down one of the things that he said was the safest position. So one of the questions I would raise for the committee is. Is the safest position from a litigation point of view. The, the goal that you want or is it what's best for Vermonters as the goal that you want, and the health and safety aspect and the choice to create a legalized market. The choice to make it a legal market, rather than just small amounts of private use was very deliberately focused on both the black market and the safety of and quality of what somebody was buying. It was not a public policy decision that that is a general statement it's it's a good or healthy thing. We were not setting out as a public policy that we want to see more people using or more or more access in general we wanted access to be safe we wanted the black market to be cut back. So, so I think that that affects the reason. The policy choice to allow sales in contrast to just small personal growing and therefore it is not more than necessary to support the key public policy health and safety goals. Obviously that's a court that will determine that but again I think that in terms of what's the best way to support our choice in passing this litigation our rationale. In terms of protecting Vermonters. And I do recognize that drawing that line between encouraging increase consumption which is really the focus and maybe adding the word increased as opposed to encouraging consumption would help clarify it. I realize it's a difficult line. Obviously, promoting the benefits of one's own retail establishment or one's own quality of product is challenging to draw a perfect line between that specific goal and consumption because obviously you are in your increasing consumption of people come to your store. I think that's where legislative council came to suggesting talking about for a particular licensee. So, calculated to induced sales for a particular licensee is permitted. And that's the kind of advertising. And that's trying to help draw that line but ultimately it's going to be the rulemaking process that's going to have to to spell that out. I mean I think drawing the line and articulating what constitutes over consumption. Is that based on what's over consumption for an individual. Or for the population as a whole. I think that's a challenge to and that's why it's part of the rulemaking process to identify exactly what that would mean in terms of advertising. So, likewise, talking about encouraging an increase in consumption. There have to be the fine tuning and the effort to avoid a sustainable legal challenge would end up having to be in the in the rulemaking process, but this sets the intended parameters of of how one addresses advertising and avoiding that increase use representative Ganon. First of all, thank you representative Donahue for presenting this man amendment I think it's a very thoughtful amendment. And so, I guess I'm posing the question you sort of raised, or at least I thought you raised in your, your statement about if we did change this to encourage increased consumption. And I believe that this and attorney general believe that that might change the results under the central hunts, how to test, and then have another follow up question. These are you know I'm answering on the spot here. In terms of hadn't considered this under the central hoods and consider this language under the central Hudson test. And if we think our way through it again I think that there is a couple issues here and representative Donahue I think spoke to both of them one is sure there's always going to be some challenge around how you apply these things in practical cases. And that will be true of the current regulation to, but Senate but then there's also additionally and I think it's somewhat different actually and they overlap but it's somewhat different there's also the question of whether or not the restriction can be tied tightly enough to the public policy interest at stake. So for example, the way the language is currently drafted it says promote over can you know promote over consumption I think that that is reason there's an argument to be made that that's reasonably related to a public health concern, and we are worried about encourages consumption because that's that's legal now and that would that would be something that you're saying well, there's a policy where we're, we made this policy and now we're also trying to sort of counteract it at the same time and I think that a court would find that tension to effectively be in violation of the prong for around is it tied to, you know is it is not over is it not overly extensive. So that is my winding way of getting to your suggestion there around the increased consumption. And I, again, I think that that would be that I do think is a tying together of the two problems here which is that how would a court decide what increased consumption is who for you know is it a singular question. Is it overconsumption is it increased consumption by one person is it overconsumption by the pot or sorry increased consumption by the population in general. And how is that measurable and how would the board apply that in a way that isn't arbitrary. And I think that you would likely end up at you know any advertising that tries to increase sales for an establishment. Is all is potentially not increasing consumption right because it could just be shifting sales from an illegal market to a legal market. Or it could be, you know, say it's selling to people who have moved to Vermont and used elsewhere so any of the advertising could be seen to be not in violation of that. Any of the advertising could be seen to be in violation of it because it could be increasing sales to some but to the same user is now using more or to the the existing population that's using more. And I think because it becomes essentially sort of impossible to apply and it and it could be applied in a way that again, essentially prevents almost all advertising from going forward. I do think again you remain in greater danger under the central Hudson prong for then you do under the current menu where pieces of those may be challenging to apply in practicality but I do think that they have a tighter relationship to the public health concerns. Again Vermont has decided that consumption in general is not a sufficient public health concern to ban the consumption of it. But they have they are still saying that we are worried about some of the more narrow issues around over consumption and so forth. And it's also possible that increasing consumption by an individual from a tiny bit to a little bit, actually is not a public health concern and now I'm outside of my sort of public health expertise. But I think a court might find that that's the case so I think that even that is still your painting with a very broad brush one that could be seen to have to have actually know that it could range all the way from having no practical enforcement effect to having a complete sort of blanket inability to advertise and so I think that that again it runs into danger on its face of just being overruled by central Hudson we do think that the menu is a safer way and and I should say this is from the standpoint of leaving Vermont with the ability to have rational regulations in place that are related to public safety and that's what I mean by when I say safe. It's a litigation standpoint safe I understand represented by he was making a point about public safety and how public health and safety as well. And that's sort of where we still fall back on the menu of options is a safer little stance litigation wise, these broad brush applications are more likely to run into trouble, especially because they could be applied very very broadly. Okay, thank you for the ability of a licensee to know exactly how that's going to play out. I'm going to put you on the spot again David, and I don't even know if this would be acceptable to represent I've done at you. However, what what if we change the language from encourages consumption to shows consumption. Show so you couldn't see somebody smoking, you know, you know, cannabis or, you know, or using or using edibles. There that could not appear in the advertisement. Would that change your analysis at all. Again I think that runs into a similar issue and I. I mean, could showing you know maybe right now showing consumption is something that's depending on how it's done could particularly appeal to youth right so some of these ideas could be captured some of these problems could be captured under current proposed regulations. Let's put that aside. I mean I think that again we're running into this challenge where a court is likely to say hey you the state of Vermont said that consumption is legal, you certainly do have policy interests and preventing bad health outcomes, but the solution itself you decided is not a sufficiently dangerous thing that it needs to be completely illegal. And so I think that I'm not, I think that you still are going to run into over, you know, overly extensive regulation problems with respect to the prong for analysis. Okay, thank you. We are due in the floor at some point soon. So are there any other questions, either for the proposer of the amendment or for from the Attorney General's perspective on the Donahue amendment. All right. Representative Donahue briefly final comments here. Yes, I just want to. I understand that consumption is is legal. Or as was just said consumption is not completely illegal, but I don't think that that means that the state believes that health and safety is not at risk through consumption as with other other substances that are regulated. I think there, I think the state is saying it's at health and safety is at risk for any user. It's just that it's, we don't want to make it completely legal we want to make it legal because of the benefits of the harm reduction of illicit sales and therefore safety in the product. So, so I really think the tie is there if you were talking only about children, you wouldn't have the tie. I also think as I mentioned before I think promotes overconsumption is even a lot vaguer, particularly I encourages increased consumption is probably a more accurate way of my of describing my intent so that would make sense that's what I meant by encouraging increased consumption but what I think the vagueness issue is is worse with with overconsumption. So, I guess really that's just my final comment I would really urge the committee to consider it as a as a balancing that does not completely banned advertising at all. I think the rulemaking process can ensure that because the intent of the legislature is clear that there is not a desire to ban all advertising. I would leave it at that I would because it came up about being the initial house position. I would really urge the committee and if you wanted it in in the form of another amendment for me to go back to the health warnings position that the house had you had originally that has been left out in this. And that was you asked for input from the health care committee. We requested that the warnings be done by the health department, not by the board in consultation. That's the same as you know it's the surgeon general on cigarettes it's not. You know a group that includes a sorted interest it's a health interest only. So I might as well throw that pitch in it, then we think about it because of the reference to this is the same as the prior house position. This has been our standard for labels on cannabis for symptom relief, and that was also removed I think unintentionally in the process of the conference committee back and forth. Representative unfair. Thank you madam chair I maybe to try to draw this to some sort of conclusion here I'm going to end up supporting this amendment for a couple reasons. One, I've always been a little troubled by the advertising component to this. The state was ever intended or for us to get into position of trying to promote or encourage increased use. So my feeling about advertising as always it needs to be somewhat limited to be more informative than it is to, I guess for the ultimate use to incur increased usage for one to. This is only a problem if it gets challenged. And it is my understanding like the tobacco industry and others, there's an agreement that you know what the lay of the land is the lay of the land here. And I'll remind the committee here that things like campaign finance. And if I remember correctly the GMO labeling are all things that you know we felt strongly about did get challenged came back and got addressed different ways. And it is my understanding that we've given the cannabis control board some latitude here to go through and address some of these issues as they kind of pop up and need to be dealt with. So I for one, and looking to support this amendment and encourage the rest of committee to do it as well. Well, while we're in the process of weighing in how we feel, because I think it will help us get to a conclusion on this. I want to say that I am uncomfortable with this language. You know, there are certainly are consumables out there that are unhealthy. There are, you know, bacon triple cheeseburger. There are retail products available that indeed are prohibited for youth youths, such as alcohol, and, and yet we don't see this kind of a restriction being placed on those commercial products or or speech around those commercial products and so I, I'm comfortable with this and. And I'm also cognizant of the time it is now 1015. Are there any other committee questions for either the sponsor of this amendment or the Attorney General's office before we go to a vote representative Hooper. Madam chair leave this to the last minute that I don't even know if I'm looking at the current copy of the bill but on 2592 there are seven sections to this advertising policy. If that still exists David it's your position that if we change one of them we might throw central Hudson into a mix where they all would vanish. Or the specific number two that we're talking about now. Well, representative, let me make sure I answer your question correctly so my understanding. Hang on one second. How about you and I can just talk. Yeah, sorry, I just wanted to before I answer your question I wanted to take another look at the precise language to make sure I answered your question correctly. But if it isn't going to change your vote, if it is going to be something that's essential to your vote I can take a minute and look at it carefully if it isn't then we can connect after. Can I add a clarification. If, if everything was thrown out the legislature could always go back and enact new legislation that would more comport with the parts that hadn't been challenged as Washington State could and was urged by the court to do so. Am I right about that that connects with the question being asked. Michelle Childs did you want to weigh in with some clarification here. I was just going to point David to it's an 864 978 and subsection be in the subdivisions one through seven that he's referencing so this being the only the change to be to. Yeah. That's right representative Hoover and my apologies if I was clear on that I think I was referencing some earlier arguments I'd made last time around the broader effect but yes that that would be the piece that would be. So we would not essentially be left threadbare in terms of regulating advertising we would only be eliminating the ability to say you can't do this particular thing. I believe that that. Yeah, I think what you're saying is correct. Yeah. Thank you. Again, my apology for asking that so late I asked Michelle in the chat representative of ski. Thanks. I just want to clarify that the current restrictions are sort of in line with alcohol and tobacco advertising restrictions yes, I am. That's a really big question because alcohol and tobacco advertising restrictions are huge and they also different sources of authority for them. So tobacco for example some of the restrictions come from the master settlement agreement the 90s which isn't something that the companies can appeal you know they've agreed to it they can't. They don't agree to it anymore so it's sort of outside of this first amendment framework and some of the alcohol restrictions I think have actually been basically a seeded to buy companies so I don't agree to buy companies or so anyway I think that it. I say all that by way of saying at the very sort of strict first amendment analysis that we've applied to this. I think it's very analogous to the tobacco and alcohol situation. So they're made they may be different important ways but that doesn't mean that the same legal analysis is applicable. Okay. Thank you. My other question is if we were to enact some form of this amendment would that make our advertising restrictions the strictest in the states that have legalized cannabis use and sales. And maybe you don't know the answer to that. I wouldn't feel comfortable answering unless I've done a very like clear full survey of the states that have a fully legalized market. Okay, thanks. Representative Higley. Thank you Madam Chair to move this along I'd like to make a motion that we approve this amendment with further amendment by adding the word increased so it would read encourages increased consumption. Let's understand what we're looking at here. I think it probably makes sense to do this in a two step fashion. I am willing to find that as friendly. If that helps. It does I'm just trying to figure out whether we should amend your amendment and then vote on whether to accept it as amended. I would be willing to met to amend my own proposal not. Okay, not require two steps. All right. So the question before the committee on a motion from rep Higley is is whether to amend the bill as offered by the member from Northfield and I appreciate the effort to, to thread the needle so to speak I, I will not be supporting this amendment I think I think that we have done some really hard work with respect to crafting advertising restrictions that, you know that that meet the standard and I'm not comfortable making this last minute amendment. Anyone else want to speak to this before we go to rep Colston for a roll call. Rep the house key. Thank you. I really want to say how much I appreciate this conversation and while I absolutely am in favor of really threading this needle I don't feel like I have the information that I need in this moment to make this this last minute change and so I'm very supportive and would love to keep having this conversation and really fine tuning this, but I just I feel like I have so many questions that are left unanswered to move forward at this point so I am in agreement with. Yeah, this is this was a this is a tough call for me. All right representative cannon. I really do appreciate the representative represent Donnie's amendment. However, I do think we should follow the guidance of the Attorney General's office with respect to this, especially given the short time we've had with it. We did spend a lot of time in the last biennium working on these advertising. And I do think they are some of the most restrictive in the country, especially our restriction that you know advertisements cannot be seen by no more than 15% of people under the age of 21. I think we did. And I also should note that you know the cannabis control board will have an opportunity to add a lot of flavor to these restrictions and prohibitions through rulemaking. It's an opportunity to review that rulemaking when it's done. Representative Hooper. Thank you madam chair I concur I last session was in the camp that said no advertising outside the building and you know it is late in the process. I have some degree of faith in the cannabis Commission, doing the right thing. If not we can come back and tighten things up at some point. I'll be just moving forward on this. Thanks. All right representative Colston take it away. I shall begin the roll call. Gannon. Gannon. No. Thank you. No. The Claire. Yes. Hooper. No. Colston. No. Anthony. No. Behovsky. No. Lefebvre. Yes. Higley. Yes. McCarthy. No. Coblin Hansis. No. The vote is three yes. Eight no. The amendment does not. Thank you. Thank you to the assistant attorney general for being with us on this this morning and thank you representative Donahue for your, for your time this morning. We have several other amendments we need to take care of. And so I'm going to go next to the Gannon amendment which is requiring the criminal justice council to bring back a timeline and the. To achieve our a ride objectives. I believe that representative Anthony made a motion on that. I did indeed. I moved that we find it favorable. Right representative Colston when you're ready. I shall begin the roll call. Gannon. Yes. Ricky. Yes. The Claire. Yes. Hooper. Yes. Colston. Yes. Anthony. Yes. Yosie. Yes. The Faye. Yes. Higley. Yes. McCarthy. Yes. Coblin Hansis. Yes. The vote is 1100. Find it favorable. Thank you. Next up we have the House Ways and Means amendment that was brought to us. It feels like a couple hours ago. But I think it was only one hour ago by representative Beck on behalf of the ways and means committee representative Anthony. I wonder madam chair if we can separate it. I anticipate my own view is that I agree with representative Beck and ways and means about the integrated license just say it's 50,000 and and not mess around with percentages. I do agree with that. I do agree with that. But I also agree with the sentiment I think events namely to roll in the advertising fee with the license fee with some sort of suitable language so that we but but again that that that bifurcates essentially the proposal from ways and means I'm not sure how to tidily do that but Anyway, that's where I am. Thanks. And I think it's worth. It's worth acknowledging that we'll need a little more guidance from the cannabis control board with respect to how much time and expenses involved on their behalf in terms of approving advertising. You know, it may very well be that the cannabis control board says, you know, the fairest way to do this is to have, you know, a fee schedule and this is what we think the fee schedule ought to be. I hate to set up a dynamic where we have a fight between committees on the floor of the house on this particularly since it is, it is very directly in the realm of the ways and means committee to, you know, to make changes to the bill with the fees so I think I would like us to acknowledge that we want to flag this and ask the question in January when we see a fee report. But I, I guess I might want to set up a dynamic where we accept half of their amendment and then spend some hours fighting about something that that isn't going to go into effect until the fees are adopted next January anyway. Thank you Madam Chair, I'm going to support this amendment but one of these kind of reluctantly I am disappointed that they made the changes that they made and that it's going to require them to come in off session to address these issues. The cannabis control board folks made it quite clear that they had timelines that they needed to adhere to. And I just don't agree with the process here but I am going to support it. Um, so a motion on the floor here to accept the ways and means amendment. I move to accept the house ways and means amendment. Thank you. And thank you to representative Anthony for flagging this and representative of player I share your, your reluctance and but I too will be supporting this amendment. Thank you. Thank you. Rep Colston when you're ready. I shall call the roll again. Yes. Ricky. Yes. Claire. Yes. Cooper. Yes. Colston. Yes. Anthony. Yes. Bioski. Yes. No. No. McCarthy. Yes. Yes. 920 we find it favorable. All right. Cruising into home here on the Peterson amendment. And I. I guess what I want to say about about my thoughts on this is that it was it was a very strong theme within the house government operations committee during the development of this bill. That given that cannabis is legal in Vermont. And given that we want a legal enterprise to be able to be set up and and encourage folks who may currently be in growing in an illicit market to enter the legal market that we wanted to make sure that the majority of the license types were not able to be restricted and creating a patchwork of commercial enterprise around the state. Because if I own some land in West Fairleigh and West Fairleigh was given the ability to to restrict my ability to use that land for a legal commercial enterprise. It sets up a lot of worries in my mind about how how effective we will be as a state at discouraging the illicit market and bringing folks into the regulated marketplace and and we made an exception with that for retail really because because retail could have a much greater impact on the on the traffic patterns in a community on on the number of people coming and going in a community and we felt that retail was was a slightly higher impact. And so that was part of the cannabis industry and we wanted communities to be able to to opt in or opt out on that and so I will not be sporting the Peterson amendment and so representative Anthony do you want to weigh in on that. Just a little bit further I just lowered my hand because you pretty much said it, I would point out that, with the exception of the retail license, virtually all the other iterations and supply chains are regional in nature and as soon as you start dismembering the regional, if you will fabric, you run into you raise all kinds of other unintended consequences so I support your position entirely thanks. Any other committee members representative LaFleur. Thank you. I unfortunately missed the better part of the presentation around this amendment which I do apologize for but as much as I do think it's a very worthy conversation and there are certainly some concerns out there. What's about this would be is what about the communities that have already gone ahead and had affirmative votes one way or the other. It's my last understanding that we're in the in the 20s now of communities have already acted on this and you know is very retroactive about this. And the other part of this is, I believe we had robust discussions around the fact that most of this would fall underneath local zoning anyway. And there is language in there to address some of those issues that maybe the local zoning won't as far as like size and screening and things like that. As much as I do appreciate it coming forward at this particular junction because we are so far down the road, I can't support it. All right, seeing no other hands representative Colston. I shall begin the world call. No. Ricky. No. The Claire. No. Cooper. No. Colston. No. Anthony. No. Behovsky. No. The fave. Yes. Higley. Yes. McCarthy. No. No. No. The vote is 290. We find the amendment unfavorable. I'd like to thank the committee for your consideration. Thank you very much for taking the time. Thank you for being with us this morning, representative Peterson. Thank you, let's counsel for, for hanging in and helping us understand a variety of amendments that have come before us this morning. And we will be dashing off to the floor at this point. So that is it for committee for this morning, and I'll see you all on the floor.