Ask a Pot Lawyer

My neighborhood cannabis club is closing. All the lounges are closing! What’s going on?

NEW RULES. Until recently, the law was hazy. Measure 91 did not ban cannabis lounges and neither did HB 3400, the omnibus law that legalized marijuana in Oregon. For its part, the Oregon Liquor Control Commission did not seem to mind the lounges either. For a minute there, it was generally understood that pot lounges were okay under the new recreational pot regime.

Before the legislature finalized the recreational program, however, it also amended the Oregon Indoor Clean Air Act (ICAA) (AKA the Smokefree Workplace Law). The goal of that statute is to “protect nearly every Oregonian from the health risks of secondhand smoke.” Under rules promulgated by the Oregon Health Authority (OHA), effective January 1, 2016, this includes pot smoke.

Note that the new rules do not just target weed. Your neighborhood vape lounge will be shuttered as well. As a general proposition, public areas and workplaces must be uniformly free of “inhalant delivery systems.” Those are defined as “devices that can be used to deliver nicotine, cannabinoids, or other substances.” Because the state considers workplaces to include locales staffed by employees as well as volunteers, even co-op type lounges are not exempt.

Interestingly, the amended ICAA still contains its “smoke shop certification” program, whereby smoke shops may apply to allow on-site consumption. However, this program does not apply to the “smoking, aerosolizing, or vaporizing of inhalants that are not tobacco products in smoke shops.” So, unlike cigarette shops and cigar bars, cannabis lounges apparently have no shot.

It seems senseless that the ICAA allows for limited consumption of tobacco products indoors, but not marijuana, and that the state is attempting to protect adults who wish to work in pot lounges from the pot smoke in said pot lounges. Before people get too excited about these things, it is worth noting that the certified (tobacco) smoke shops must be primarily engaged in the sale of goods for use off premises, seat no more than four, serve neither food nor beverages, and prohibit social gaming. But still.

OHA is the same agency that oversees medical marijuana in Oregon, and the rules do contain an exception for healthcare facilities to allow inhalant delivery systems on site for medical marijuana patients. That is probably not so encouraging, but it is the sole weed-friendly carve-out in the new rules.

The ban on weed lounges is consistent with what has happened in Washington and Colorado—and with the general, decades-long squeeze on public smoking in American life. In Oregon, these rules are going to create roadblocks for low-income marijuana users, like those who live in smoke-free public housing, as well as high-income people, like tourists who visit the state and cannot smoke in their hotels. In a great example of the law of unintended consequences, however, at least the edibles market should benefit.