For many of us, the scent of marijuana triggers pleasant memories of live music. While It’s anybody’s guess when pot was first smoked at a music festival concert, it was certainly before Woodstock. Indeed, the history of music and pot are inextricably linked. The great jazz musicians not only smoked, but celebrated weed in their music. “Muggles,” which is Jazz era slang for marijuana, was also the name of Louis Armstrong’s 1928 standard. Even a white band leader like Benny Goodman was a fan of weed and composed a catchy tune called “Sweet Marihuana Brown.”
Today, imagine sparking up at your favorite festival while listening to the hottest band and…it’s legal. Currently, 8 states – Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon and Washington – have passed legislation legalizing the recreational use of marijuana. Legal and other impediments to enjoying cannabis at music festivals, however, still remain.
The laws and complex regulations, including permitting requirements, governing cannabis’ recreational and medical use are far from uniform and in various stages of development. Moreover, even the term “recreational,” as it applies to outdoor events in many jurisdictions, may be more ostensible than real.
For example, in 2012, Washington voters passed I-502, an initiative legalizing the recreational use of marijuana. In 2014, Washington’s Hempfest, which describes itself as a “protestival,” advocating for the decriminalization of marijuana, put up 21-and-over “marijuana gardens.” A year later, however, “omnibus legislation” in the state criminalized such public smoking of marijuana, prompting Hempfest to abandon its gardens.
In 2016, California, voters, passed “Proposition 64, which “legalizes” the recreational use of marijuana and includes a provision allowing businesses to offer “pot bars.” However, according to Jackie Subeck, CEO of Hey Jackpot, a cannabis marketing and branding firm, “state licensing won’t take place until 2018; so for now, festivals and other events, who would like to have cannabis products and consumption at their event, will have to continue to rely on existing medical laws and regulations in California under [the much earlier enacted medical marijuana] Prop. 215.”
That’s precisely the direction that Emerald Cup, – a gathering for cannabis enthusiasts featuring live music – took. While Emerald Cup is open to all adults over the age of 18, the outdoor “medicating section,” offers marijuana only to California medical marijuana patients.
For festival-goers, who want to smoke, and festival organizers, who want to let them, the biggest uncertainty remains the federal government. Under the legal principle of federal supremacy, federal law trumps state laws regulating marijuana. Currently, however, the feds do not recognize the recreational use of marijuana and have determined that it has “no currently accepted medical use in treatment.” Accordingly, and notwithstanding the progress towards its decriminalization at the state level, marijuana remains a prohibited “Schedule I” substance under the federal Controlled Substances Act. The penalties for violations of that Act include substantial fines and even imprisonment.
To be sure, the newly elected President voiced his support for medical marijuana use while on the campaign trail and the federal government has in recent years adopted a largely “hands off approach,” ceding regulation of pot to the individual states. Still, Jeff Sessions, Attorney General is viewed as a pot enforcement “wild card.” In the past, Sessions called marijuana law reform “a tragic mistake.” He also and infamously quipped that he, “thought the KKK were OK until” [he] found out that they smoked marijuana.”
Because the federal government considers the sale/use of marijuana (whether medicinal or recreational) already illegal, Sessions could, with a mere stroke of his pen, reverse the Justice Department’s policy of tolerating more-lenient, state regulation of marijuana, replacing it with a reign of enforcement terror.
Additionally, according to attorney Christian Seberberg of Vicente Sederberg, LLC, a firm focused on medical and recreational marijuana law, the RAVE ACT, the Controlled Substances Act and RICO could also be used as a way to shut down not only a marijuana lounge at a music festival but the festival itself.
During his confirmation hearing, however, Sessions stance against marijuana reform seemed to soften. When his fellow senators asked him if he would enforce the federal marijuana laws he was equivocal stating first that he would “use good judgment” and later asserting that “it is not the Attorney General’s job to decide which laws to enforce.”
For now anyway, the momentum is certainly on the side of marijuana law reformers, including those who are fighting for the right to toke up at music festivals. And there is good reason to believe that they will prevail. Elizabeth Hogan, Vice President of Willie’s Reserve, (Country legend Willie’s Nelson’s celebrated marijuana brand) observes, “If you’ve been to a festival, you know these [festival] organizers are pros at leading mass coordination. This type of cooperation between venues, guests, sponsors and permitting offices is exactly what is needed to break new ground. From that perspective, festivals in recreational states offer an ideal way to demonstrate how to treat cannabis like alcohol – include it as a welcomed, well-regulated, enhancement to the experience.”
How will this be accomplished? Gradually, according to Elise McRoberts, San Francisco entrepreneur and cannabis expert. "I think it's still too soon to say for sure. Each state is very different, but one thing is certain across the board in every state: you cannot purchase cannabis and alcohol in the same place and most states don't allow consumption of both alcohol and cannabis in the same space, so I predict some battles at major events around sponsorship. I think we're a few years out from mainstream events adding a cannabis track to their festival.” But she is optimistic about the future. “I'm certain we'll see more of this type of informal sponsorship, as well as cannabis private parties and cannabis add on experiences around established events until legislators set clearer regulations.”
Ultimately, the law surrounding cannabis at festivals is still unsettled. Many producers will therefore be reluctant to risk losing lucrative alcohol sponsorships and alcohol sale profits for speculative cannabis deals that could antagonize local, state and federal agencies. And it is a real possibility that alcohol companies will shy away from deals that feature prominent cannabis sponsors.
Giving away samples is easier under the law (at least in California) than selling cannabis at 21+ festival gardens, and as with alcohol, the money generated by the sponsorships can be in the hundreds of thousands, so there is definitely growing interest from the event community. Those dipping their toes into the waters of incorporating cannabis will be the test cases for what will be the new norm... eventually.
Laurie Kirby co-produces (with Stuart MacNaught) annual professional conferences, tradeshows and networking events for music, film, and food + beverage festival organizers in Santa Barbara, California and NYC. See FestForums.com for more information.