State Data Privacy & Security Law as a Tool for Protecting Legal Adult Use Cannabis Consumers and Industry Employees
By: Nicole Onderdonk
1. Introduction
The legalization of adult use cannabis[1] at the state level, its continued illegality at the federal level, and the patchwork of privacy regulations in the United States has generated interesting academic and practical questions around data privacy and security.[2] At risk are the consumers and employees participating in the legal recreational cannabis marketplace— particularly, their personal information.[3] For these individuals, the risks of unwanted disclosure of their personal information and the potential adverse consequences associated with their participation in the industry varies significantly depending on which state an individual is located in.[4] Further, while these are distinct risks, the unwanted disclosure of personal information held by cannabis market participants may significantly increase the degree and likelihood of an individual experiencing adverse employment-related consequences due to recreational cannabis use. Therefore, data privacy and security laws can and should be deployed by states as a tool to not only protect legal adult use cannabis consumers’ and employees’ personal information, but also their interests and rights more broadly related to their participation in the legal cannabis market.
Privacy law and cannabis law are both arenas where states are actively engaged in their roles in the federalist system as “laboratories of democracy.”[5] The various state-by-state approaches to protecting consumer and employee data privacy and legalizing recreational cannabis have taken various shapes and forms, akin to other areas of the law where there is an absence or silence at the federal level. This divergence may create problems and concerns,[6] but it also may reveal novel solutions. Regarding the personal data of recreational cannabis consumers and industry employees, the strongest solution that emerges from an analysis of the current state-by-state legal framework is a hybrid one—taking the most successful aspects from each state’s experimentation and deploying it to protect legal adult use cannabis market participants from collateral adverse consequences.
