Oregon Cannabis: State of the State (2023)

21 Dec Oregon Cannabis: State of the State (2023)

Welcome to the eighth annual “State of the State” post on Oregon cannabis. Last year was memorable for Oregon the industry, pockmarked by OLCC scandal, heavy regulatory swings, and even marquee litigation. We also saw the state’s first very-large-business failure, more trade association consolidation, and other altibajos as my mother-in-law might say. Let’s go!

Sales fell (again) along with licensee numbers (for the first time)

According to OLCC data, retail sales between January 1, 2023 and November 30, 2023 clocked in at $874 million. By my math, the state is on pace for roughly $953 million this year. That tally would be a 4.1% decrease from $994 million in 2022, which itself was the first calendar year cannabis sales contracted in Oregon. Someone with better credentials than me could ascertain whether this year’s drop is due to pricing decreases, volume decreases, or both, alongside whatever other factors (like population shrinkage). Overall, a 4.1% decline isn’t great news for industry, but it’s not terrible.

Nearly half, or 48.7%, of retail sales are “useable marijuana” (dried leaves and flower). The concentrates/extracts category sits at 24.7%; edibles/tinctures are 13.7%; inhalable products with “non-cannabis additives” are 7%; “other” is 5.2%; and industrial hemp products bring up the rear at 0.7%. This follows a years-long trend of usable marijuana sales decreasing per capita in favor of other categories. Like last year, my impression is that near-term growth may be limited to select SKUs and product categories.

In addition to decreased volume, prices remain low; but not as bad as last year. At this time in 2022, wholesale useable marijuana had been sitting at $600/lb for months, bottoming out at $550/lb for December. For the most recent three months of 2023, we’ve hovered at a respectable $745/lb. That said, the full effects of the Croptober harvest haven’t rippled through the system. This year’s harvest came in at an unwelcome 15% higher than 2022.

To the plus, we have slightly fewer licensees vying for market share than a year ago today. It’s not a big drop, but this was the first year I saw license numbers fall since the 2016 roll-out of the adult use program. Despite the number of “pending” license applications below, you can expect the number to flatline or fall a bit again next year. Yes, the HB 4016 licensing moratorium sunsets on March 31, 2024, but I’m guessing our legislators will pass an extension bill early in the 2024 session. Let’s see.

Industry is in the doldrums, with one spectacular flameout

Last year at this time, I wrote that “quite a few businesses are struggling and others have failed.” Same deal today. All throughout the year, we helped people sell (and try to sell) businesses we had helped them buy just a couple of years ago. It feels like the largest number of “business sales” are little asset purchase agreements for naked licenses. We’ve also helped quite a few clients throw in the towel, and our litigation team continues to assist in a series of disputes related to business dysfunction—for those who can actually afford to litigate.

Nothing better exemplified the weak state of the Oregon market than the Chalice receivership sale (see: Chalice Receivership Update: Weak Market, Insiders Pounce). Interest was scant, offers were few, and ultimately 20+ businesses sold for a mere $3 million. Last year at this time, I observed that Chalice was one of the largest operators in Oregon, trailing only Nectar Markets. Today, in one of the biggest Oregon cannabis stories of 2023, the Canadian heavy has gone belly up, to the detriment of stiffed creditors and hapless employees.

Tough year for OLCC

If one state agency should be happy to leave 2023 behind, it’s got to be OLCC. I explained in an earlier post that OLCC and the cannabis industry were “at a nadir with two-bit scandals” this spring. Stellar investigative reporting around OLCC’s handling of the La Mota chain caused the Oregon Secretary of State to resign, but also lead to some unfortunate, reactionary rules for the cannabis industry (more on that below). Separately, the OLCC’s Executive Director resigned as well, in the context of separate misconduct.

Most recently, the Commission got some good news in that the former Secretary of State’s cannabis program audit will stand, albeit with a disclaimer, turning the page on a difficult chapter for pretty much everyone and giving the Commission room to maneuver. As an aside, one former OLCC official commented that the audit “reads like a Leafly blog”, due to its general and specific recommendations to loosen regulatory strictures. Industry favored those findings obviously, and it’s a shame the process was tarred.

In my view, however, a key issue with OLCC remains unaddressed, and that is the Commission’s disparate treatment of large and small cannabis companies (see: The Real OLCC Scandal is that There are Two Sets of Rules). OLCC has allowed the largest Oregon cannabis retailers to coast after citing them for significant and repeated violations– including allegations of cannabis diversion. Small businesses get their tickets punched for less. In all, I see scant rhyme or reason to OLCC’s erratic enforcement efforts.

New rules, highlighted by tax compliance (forever) and aspergillus testing (for a minute)

The Oregon regulatory landscape is ever changing. We had new rules to kick off the year, followed by new laws passed in Salem. Rulemaking commenced throughout the fall per usual. The biggest change, however, was the advent of “emergency” (and now permanent) tax compliance rules that arose from the La Mota scandal referenced above. All retailers and their “applicant” owners (but not producers or processors or wholesalers) are now required to certify tax compliance with OLCC via the Oregon Department of Revenue, to renew or transfer a marijuana license. Here in the office, we’ve seen the rules impact quite a few renewals and sales already.

Another huge story in Oregon cannabis for 2023 involves a rule that came and went, regarding aspergillus testing. In March, the Oregon Health Authority (OHA) promulgated a rule that required marijuana testing for certain microbiological contaminants, including aspergillus. The Cannabis Industry Alliance (CIAO) and others filed a motion for emergency relief. These parties won a temporary “stay of enforcement” of the rule, pending completion of judicial review. Rather than defend the rule at a subsequent hearing, OHA withdrew it. And doesn’t appear to want a second bite at the apple.

This is a great result for our cannabis producer clients, at least in the short term. I admittedly did not think they could win. Whether it’s a good long-term play remains to be seen. Oregon producers have long pushed for cannabis export rights— which conceivably could happen sooner rather than later if federal law changes. (See: Audit: Marijuana-rich Oregon must prep for US legalization.) This is salient due to the fact that most states require aspergillus testing for cannabis. It’s hard to imagine a scenario where those states agree to accept Oregon cannabis “contaminated” with aspergillus.

Trade organizations merged

Finally, we have just one major trade organization in Oregon cannabis. Prior to October, the Oregon Cannabis Association (OCA) and the Cannabis Industry Alliance of Oregon existed side by side (quite a few others have come and gone over the years). Now, it’s all CIAO. Judging by all the emails I’m getting, the big-tent outfit is energized.

The first big task for CIAO should arise in the 2024 legislative session. I submit that the Oregon legislature seems less keen on dealing with cannabis issues over the past couple of sessions, than it has been historically. Given collateral damage to OCA from the La Mota scandal and all of the oxygen being taken up by Measure 110 scrutiny, CIAO will have its work cut out come February.

Hollowed out hemp

Oregon has only issued 187 hemp grower licenses as of December 7. This is a noteworthy drop from 294 licenses in 2022, to say nothing of the 1,961 licenses issued in the heyday of 2019. In spite of it all, Oregon is still a hemp leader on the national stage, somehow, per the 2023 National Hemp Report.

Last year I wrote:

the continued downward trend can’t last forever. Congress is scheduled to renew the Farm Bill in 2023. Changes on the table include everything from raising the “hemp threshold” from 0.3% THC to 1.0% THC, to addressing regulation of intoxicating cannabinoids derived from hemp. Another big driver will be the continued adoption of hemp-based textiles and building materials. Even though Oregon hemp has slowed dramatically, expect the state to remain at the fore if and when the trend reverses.

All of that is probably still true, except that Congress missed its deadline and we may not see a renewal of the Farm Bill until late in 2024. In the meantime, I and many others have been asking, “What Happed to Hemp”?

Odds and ends

We’ve seen some noteworthy activity around the edges, locally, which I’d be remiss to leave off:

• Longtime cannabis champion, Earl Blumenauer, announced his coming retirement as an Oregon congressional representative. We’re going to miss him.
• Scotts closed four cannabis supply warehouses in and around the Portland metro.
• Curaleaf gave up on Oregon (and Colorado and California).
• The dormant commerce clause lawsuit filed by our colleague Andrew DeWeese inched slowly forward, with a hearing now set for January 2024. Good luck Andrew!
• Left Coast Financial Solutions, a shady money-services startup serving the industry, had its license suspended by the State Division of Financial Regulation.
• Oregon’s cannabis sales tax revenues dropped in conjunction with falling sales, and continued diverting in part to deficient Measure 110 programs.

Oregon cannabis: that’s a wrap

Let me know in the comments if you think I missed anything worth mentioning, or shoot me an email. There is always something. In the meantime, here’s hoping for better times for Oregon cannabis in 2024.

For previous posts in this series, check out the following: