Brach Eichler LLC: New Jersey Considers Ending Cannabis Prohibition


Authored By Charles Gormally, Co-Chair of the Cannabis Law Practice at Brach Eichler LLC, Roseland, NJ

Charles Gormally

The accelerated pace of changes to cannabis prohibition at the state and national levels makes it reasonable to conclude that, no matter where you live in the United States, we are clearly in the midst of a bone fide transition toward a robust legal embrace with the plant that has always been with us but never fully accepted. Thirty-three states have abandoned outright prohibition and adopted either medical use or adult use regimes. The November 2020 elections present another opportunity for four additional states—Arizona, New Jersey, South Dakota and Montana— to join the 11 others that have already created adult use cannabis businesses in their states. Mississippi voters will consider proposals to allow cannabis for medical consumption. This multi-decade process is quickening despite the fairly immutable position of the federal government that established cannabis prohibition in the first instance.

In order to explore why this is happening, we determined to evaluate, in real time, what motivates voters —either in favor or oppose–who consider the issue. New Jersey’s public question, which will appear on the ballot this November, presented us with a unique opportunity to gauge voter sentiment through targeted polling leading up to election day, and explore what particular facets of the cannabis issue influence their decision making.

The Brach Eichler Cannabis Survey polled 500 likely voters, mirroring the demographics of the entire state population. It commenced in July and for each month leading to election day. The survey probed voter attitudes on non-cannabis related issues so that we could learn about how the cannabis issues are decided, for instance by voters who prioritize economic issues over national security or immigration. We also captured age, sex, race, political affiliation, and presidential preference of the participants. Once the participant prioritized their non-cannabis attitudes, we then explored what cannabis related attitudes influence those in favor and those opposed. These “pro-cannabis motivators” included: reduction of black market sales; increasing jobs and economic growth with a new industry; increased tax revenue; making safer cannabis available; saving law enforcement expenditures; and the opinion that cannabis is safer than alcohol. The “anti-cannabis motivators” included: it should remain illegal; cannabis use is immoral; more children will use it because of greater access; promise of increased tax revenue will not occur; cannabis is more dangerous than alcohol; and cannabis use is a gateway to more dangerous drugs.

Our goal was to find out what drives a voter to support or oppose legalization at the ballot box, and we learned a lot. Overall the support for legalization has approached and remains at about 70% of those likely to vote in the three cycles of polling completed to date. As for those opposed to legalization, about 40% cited their concern that impaired driving would increase; and about 30% cited their concern for increased use by minors. Those in favor of legalization prioritized the reduction of black market distribution, economic growth and increased tax revenue. Most likely voters supported a streamlined approach to expungement criminal records caused by cannabis arrests regardless of the level of the cannabis offense.

Opposing change was centered around concern for the negative impact of the change, while proponents of change focused on positive outcomes from change. Interestingly opponents seemed to ignore that even without legalization impaired driving occurs and minors have access to cannabis through illegal sources. Proponents ignored data suggesting that legalization does not reduce black market distribution (especially while it is still illegal on the federal level). By calibrating for a respondent’s age/race/political affiliation, we are able to silo these responses and attitudes as they are affected by their non-cannabis beliefs.   We also directly polled on the issue of taxation of cannabis. Contrary to the belief that everyone loves low taxes, more than 55% of those polled believed that cannabis should be taxed at a higher than the normal sales tax of 6.625% and that the revenue should be targeted to enhanced drug and addiction education efforts.

What does it all mean for the transition to legalization? First, we will see these attitudes change as election day nears. Serious lobbying expenditures of the VOTE YES/VOTE NO interest groups, multi-state cannabis operators, law enforcement, and political parties is just now underway. Our future polling will gauge whether they have any influence on voter attitude. While it appears that the public question has not been a focus of great public attention yet, as the election approaches, we anticipate that will change and both interest and attitudinal adjustments will peak. Unexpected occurrences also change attitudes. Our most recent survey reported that 21% of respondents said the Covid-19 pandemic had influenced their views on the issue and more than half of them became more in favor of legalization as a result.

New Jersey stands in a unique position in the cannabis transition. As the first state in the New York/Pennsylvania/New Jersey metropolitan area of nearly 20 million residents to consider creating an adult use cannabis market (they all have medical markets), all eyes will be on this election. The economic stakes are massive since access to this highly mobile and concentrated population is of great value to cannabis operators. Will resident attitudes in New York or Pennsylvania point them in a different direction? While the answer to that would only be speculation, they will be heavily influenced by how New Jersey embraces or rejects the public question, and unlikely to watch idly if New Jersey opens up the regional marketplace.

Charles Gormally is the Co-Chair of the Cannabis Practice at Brach Eichler LLC. The Roseland, NJ-based law firm is a recognized thought leader in cannabis law, and was one of the first New Jersey law firms to form a dedicated cannabis law practice committed to providing advice and counsel to businesses and individuals seeking to understand the complex laws surrounding cannabis.  

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