Dave Silberman: The Best Cannabis Vermont has to offer New Hampshire.
The sound of thunderous applause you are hearing from our neighbor on the western border of New Hampshire is coming from the hundreds of Vermonters who are taking advantage of the new retail cannabis law going into effect in October at the same time New Hampshire fails to pass any retail legislation.
Attorney Dave Silberman has been working hard on Vermont legislation and has been an integral part of the process. As HB629 and HB1598 go down in flames in the New Hampshire State Legislature, Vermont is hard at work getting their retail outlets up and running for sales. The Green Mountain State’s motto is Freedom and Unity. True to the motto, the new laws are anti-corporate, pro-small craft growers, addressing the wrongs of prohibition, and willing to make a change for the people of the state.
The warrior, Vermonters have had on their side, is Silberman. A funny, thoughtful and passionate crusader for Vermonters who works to help the poor, standing against the greedy rich and running for the office of High Bailiff that pays nothing but gives him a platform to make a difference. I got to know Dave Silberman during a zoom meeting last week.
Help New Hampshire residents understand the laws of Vermont and how they are impacting our folks in New Hampshire as we struggle with this topic.
"It's stunning to me that New Hampshire is so far behind the rest of New England in its cannabis laws. Here we are in the year 2022 and the live free or die state is the only one in New England that has not legalized cannabis. It is mind blowing. It's really unfortunate for New Hampshire residents but fortunately you have at least decriminalized. You can come to Vermont when we open up our stores in a few months and shop and go back home and not have to worry about being arrested. That's good for my clients who plan to set up stores near the border."
"In Vermont, since 2018 it has been legal to possess up to an ounce of cannabis and to grow your own plants for personal use. Our law allows you to grow two mature plants, meaning, two plants that are flowering, at any one time as well as three immature plants. In conversations I've had with various law enforcement officers nobody is really counting plants. Since 2018 when legalization went into effect, most law enforcement agencies have just stopped bothering people who are growing their own cannabis. Even some people who are growing cannabis for other people. I've heard stories of police officers coming to a residence where there is clearly a small scale commercial grow going on and suggesting to the person they might want to put a better lock on their door."
Are they growing inside and outside?
"Some people are growing outside. I spoke to a local police chief near me who told me recently he came to a house where a lot of cannabis was being grown outdoors. It was on an unrelated complaint. He suggested to the person that maybe he could build a slightly taller fence so all of these plants were not visible from the road. It's just a matter that there are actual crimes out there that police should be focusing on. When we legalized home grow, we sent a very strong signal to our law enforcement apparatus that this is not a priority for us. Since then, in 2020 Vermont passed a tax and regulate law which is still in the implementation process and currently the Cannabis Control Board which has been formed is taking applications now for growers for cultivation licenses and for testing lab licenses. In a couple of months, it will start taking applications for product manufacturers which is anything from an extractor to a baker. In September, they'll start taking applications for retailers. If all goes well we'll have retail stores open on October 1st. "
You've allowed individuals to grow up to six cannabis plants.
"You can grow your own. You can give to your neighbors. Some folks are experiencing a glut. I was talking with a friend who grew last summer, and he couldn't even give away all that he grew. He ended up throwing a lot into a compost heap."
How much were they growing?
"He had several plants. He's a gardener. He probably grew four or five years’ worth for his own needs. When you grow outdoors and you're good at it, you get a big Christmas tree looking thing and you can get a pound or more off of a plant."
How do you preserve it for the winter?
"A lot of people will make butter and freeze it. You can infuse coconut oil. You can make salves with recipes out there using a slow cooker. Salves are fantastic products. It's amazing. You can get a THC or a THC-CBD topical application and you can add botanicals so it smells nice. Cocoa butter makes it feel nice on your skin. It provides tremendous anti-inflammatory pain relief without any psycho-active impact. You don't get high from it, just pain relief. Older folks have discovered this and have been using it for their milder arthritis pain."
What do you think of where New Hampshire is without any retail legislation?
"I thought when we passed our law in 2018 that New Hampshire would follow suit. Vermont at that point was the first state to pass legalization through its legislature. We did it in this real libertarian way. There was no new government entity created to regulate at the time. There was no taxation involved. It was just letting people grow a plant or two in their garden in the summer. I was surprised and disappointed that New Hampshire didn't see that as a model to follow. What's up New Hampshire? We built our model on what they did in Washington DC. The reason DC did a grow your-own-and-share is that Congress banned it from legalizing sales. We chose to do home grow first because we thought it was really important to do. We in the legalization community in Vermont felt home grow was critically important for Vermont. It's part of our cannabis cultural legacy. Folks have been growing pot in the Green Mountains for decades. It seemed wrong to legalize commercial sales but still put people in jail for growing their own plant in their garden. I thought it would be attractive for New Hampshire. I think you guys are not as Libertarian as you claim to be and you're just conservative."
Why are you so involved in cannabis?
In 2015, I saw there was renewed legislative effort to legalize in Vermont. I read the proposed legislation through the lens of a corporate lawyer. I've been practicing law for a little over 20 years now. I've worked for private and public companies. Using that lens, I looked at what they proposed and thought this is really crappy. I reached out to my local state representative here in Middlebury and we had coffee and she gave me some tips about who's who, who's involved and who to talk to. She gave me one very important tip. It was show up. Show up when they're having a hearing. Show up. So, I did. I showed up to a Senate government operations committee hearing in the fall of 2015 and they were discussing the proposal and they were really eager to get public feedback and I gave them some. They thought it was helpful and we started some conversations and those conversations evolved. I just kept showing up and they kept listening to what I had to say and slowly but surely we started kind of shaping the legislation to be a little more sensible. It was a nice feeling to show up somewhere and have people ask you your thoughts, consider your input, and go with it. We worked on it for many years. We started in 2015 and in 2016 the Vermont Senate actually passed a tax and regulate bill that went down in flames in the House. We passed the Senate by a narrow vote of seventeen to twelve. Then we got shot down in the House, 27 to 118.”
I want to ask about the following laws: Act 86, Act 164 and S.54.
S.54 is Act 164. S.54 was the bill number when it was in the legislature, and it was passed and then it became Act 164 which is Vermont’s tax and regulate law. It has since been amended a couple times. There will be another round of technical amendments this year. Act 86 was the home grow law in 2018.”
Is that the one you’re living under now?
“That’s the one that legalized possession and growing your own.”
What does Act 164 accomplish?
“It became law in 2020 creating the Cannabis Control Board and set out the structure of the regulated market, the types of licenses, and the timeline for licensing.
These are the businesses that approach you and want to put their businesses on the New Hampshire border.
“You'll see stores in communities like Brattleboro and White River Junction in early October. That's when New Hampshirites will be able to go in and buy the best Vermont has to offer.”
What kind of a lawyer were you before becoming involved in cannabis?
“I worked for a big law firm in New York right out of law school. I represented mostly technology companies, medical devices and then I got a job working in-house for a financial services company. I left that job in 2020 and started my own practice focusing primarily on Vermont cannabis law. I helped shape Vermont’s laws. I don't think there's a lot of people in the state who know this law better than me and so it seemed like a natural fit to help entrepreneurs comply and thrive under it.”
“It’s been very rewarding working with a wide variety of folks. We have some legacy growers as clients. We have folks who have been in jail for cannabis in the past and we’re helping them get a license and make a go of this kind of new world. I have folks in it who are sort of investors as clients as well. We run the whole gamut.”
What is your opinion on cannabis?
“I think cannabis is a really fascinating substance and folks in general have too narrow of view of what it is and what it does. I certainly have many years of experience with cannabis. These days I am keenly interested in exploring the various non-psychoactive uses of cannabis. I am fascinated in how we can use this plant to help people.”
Have you looked at Maine and what they're doing with caregivers?
“I keep hearing about Maine from folks who want to be in the cannabis business but don't want to be regulated particularly much. People see that as a model for the truly free market of cannabis. I'm not sure it works. I don't know having an under-regulated system benefits consumers and are going to be able to get the kind of consumer protections they deserve in a product that is sold in a store. You go to a store and buy something you expect to be safe, and you expect to not be contaminated. You expect it to be what the label says it is. And I don't know that Maine has been delivering that.”
How does Vermont plan on dealing with national chains?
“I'm really proud of the work that I did on this issue in particular. Vermont has what's called the one license rule and that one license rule means that anyone can come to Vermont, and they can open up a store or they can open up a grow operation, but they can only have one. You can have one store, one farm, one testing lab, one manufacturing facility and you can vertically integrate so you can be a seed to sale operation where you grow the plant, and you package it, and you extract it, and you sell your own products at your store.”
“I think that's good for business. It's good for consumers. We don't require vertical integration. We don't allow horizontal integration. We don’t allow anyone to have a monopoly on any aspect of the market. I just don't see the big out-of-state operators coming here because of that. I'm really confident that we are going to have a cannabis industry that is dominated by local operators not far away operators.”
In August 2020, you had a VTDigger commentary titled, “Dave Silberman: Regulating cannabis, the Vermont way.” Here we are in May of 2022. I wanted to take a look back at some of the things you said and see how they stand up nearly two years later. You wrote: S.54 is the most anti-corporate, anti-big business legalization bill that any state has ever considered. Do you still believe that?
“Yes, absolutely. Title 7 of the Vermont statutes, section 904a creates a subclass of cultivator licenses called small cultivators. If you are growing a canopy of 1000 square feet or less, you are prioritized for license review. Those license applications opened April 1, giving them a month head start over larger cultivators. Those folks have been granted dozens of regulatory exemptions and waivers from the control board. To survive in this highly regulated landscape, this provision was written with the existing small growers in mind, folks who have been growing a small batch out of their homes and gardens for years. We wanted to make it easy for them to transition from the unregulated market to the regulated market, so these regulatory waivers are for them.”
“There's a subsection (d) of 904a that I call the instapot provision because it allows a small grower to sell cannabis to medical dispensaries the day they get licensed. So, we're just going to close our eyes and not ask, hey you were licensed this morning, how is it that this afternoon you sold 50 pounds to a cannabis dispensary. Instapot.
“We’ve had 118 applications submitted for the small cultivator licenses as of April 29. The application window opened April 1. My sense of the market, talking with other lawyers in this industry, tells me that there is probably another hundred or so applications yet to be submitted. I think we’ll have close to a couple of hundred small cultivators.”
Those are ones who are going to be along the NH state line. They're going to want New Hampshire not to get into the business.
“I think my clients on the east side of the greens are perfectly fine with New Hampshire taking its time.”
Let’s continue with our look back at your comments from 2020. You wrote: S.54 takes proactive steps to address the wrongs of prohibition, the burdens of which have disproportionately been shouldered by minorities and the poor.
“At the same time Act 164 went into effect a companion piece of legislation was passed to automatically expunge all prior cannabis misdemeanor convictions. There are tens of thousands of convictions in Vermont for cannabis possession. Automatic expungement. You don’t even have to apply. We're really good at saddling people with lifelong criminal records and we did pretty darn good at making sure those lifelong collateral consequences of conviction are not saddling people forever.”
Final questions, what is a high bailiff and why did you want to be one?
“The high bailiff is the one person elected in every county in Vermont with the authority to arrest the sheriff. This used to be important until the 1950s when Vermont created the state police force, and the high bailiff became less important. But we have this office and it's in the state constitution. For the last seventy years it's turned into almost the sheriff-in-waiting kind of position. In 2020, I started thinking about running for this office that has largely theoretical power.”
“What I bring is a loudmouth and a focus on reforming our criminal legal system. I've been using the platform this office provides to talk with folks in my community about how we need to change our criminal legal system, how we need accountability for the police, how we need to ensure that police misconduct does not go unpunished. How we need to decriminalize all drug possession and stop treating mental health and substance use disorders as crimes. How we need to stop criminalizing poverty and start helping people and how we need to expand access to expungement. It’s given me this platform to talk about really important issues. I've enjoyed kind of shining a spotlight on these things I think it's a great office with zero pay that hasn’t even given me a badge.”