Cannabis Law Prof Blog

Editor: Franklin G. Snyder
Texas A&M University
School of Law

Monday, June 20, 2016

Maryland's Harris Sponsoring MMJ Research Legislation

AThe White House doesn't have much interest in medical marijuana legalization, but support is now coming from a surprising Congressional source.  Rep. Andy Harris (R-Md.), a physician who strongly opposed D.C.'s legalization last year, is now leading efforts to ease restrictions that prohibit research on marijuana's medicinal benefits.  From the Baltimore Sun:

 

Harris, a Johns Hopkins-trained anesthesiologist who hangs a white lab coat in his waiting room on Capitol Hill, has been working for roughly a year to build a bipartisan coalition of lawmakers who want to ease restrictions on marijuana for the purpose of studying its effect on debilitating diseases.

 

Harris and other lawmakers intend to introduce legislation this week to create a less cumbersome process for marijuana researchers seeking Department of Justice approval to work with the drug.

 

Among other changes, the measure would require federal regulators to approve or deny research applications within two months.

 

. . .

 

“Part of my frustration in the entire debate around legalizing medical marijuana is that there really isn’t good scientific evidence about what it’s good for and what it’s not good for,” Harris, who still practices medicine, told The Baltimore Sun. “We really don’t have good data supporting widespread use.”

 

That position is uncontroversial — even some proponents of looser marijuana laws have lamented a lack of peer-reviewed research. The American Medical Association calls for “further adequate and well-controlled studies” in the opening lines of its formal policy on medical marijuana.

 

There is anecdotal evidence that the drug has helped patients who are suffering from seizures, Parkinson’s and other complex conditions. But Harris and others say states are making decisions about which types of disease can be treated with marijuana without a clear sense of the drug’s efficacy.

 

In that sense, both supporters of expanding the use of medical marijuana and opponents can find reasons to back the legislation. Both sides agree that one of the reasons there is so little data is because it’s been difficult for researchers to get their hands on the drug.

June 20, 2016 in Drug Policy, Federal Regulation, Legislation, Medical Marijuana, News, Politics, Research | Permalink | Comments (0)

Friday, June 17, 2016

New York MMJ Still Going Nowhere

New YorkIF YOU LOOK AT one of those national marijuana legalization maps, New York shows up the same color as California.  But while the latter actually has a medical marijuana program, the former still manages to make sure that as few people as possible get access.  From Doug Berman at MLP&R:  New Drug Policy Alliance report highlights problems with access and data in New York medical marijuana program.

It's hard to say whether this is part of some plan to derail the MMJ program or simply an example  of New York's generally nightmarish business regulatory.  Of course, it could be both.

 

June 17, 2016 in Medical Marijuana, News, State Regulation | Permalink | Comments (0)

Tuesday, January 19, 2016

Doug Berman on the Situation in Ohio

Ohio FlagOhio voters knocked out a crony capitalist legalization bill last fall.  So what's happening these days in the Buckeye State?  Over at Marijuana Law, Policy & Reform, Professor Doug Berman offers his thoughts.  The whole piece is worth reading, but here's his summary:

    I am encouraged (though not especially surprised) not only that (1) Ohio's elected officials now understand that they cannot and should no longer ignore the significant interest in marijuana reform amoung the citizenry, but also that (2) some state leaders are trying to co-opt into the effort persons who previously raised tens of millions of dollars to support reform in 2015. Thoughtout the 2015 reform effort in Ohio, I had an inkling that, even if the ResponsibleOhio's full legalization efforts went very badly (and it did), the conversations engendered and the monies raised through the reform effort would garner significant attention from significant public officials.

The good news seems to be that medical marijuana is moving forward in the Republican-dominated legislature.  The bad news is that recreational marijuana might not get off the launching pad this year.

January 19, 2016 in Decriminalization, Drug Policy, Medical Marijuana, News, Recreational Marijuana, State Regulation | Permalink | Comments (0)

Seattle MMJ Dispensaries: Move or Risk State Shutdown

1Medical marijuana businesses that have been open for years in Seattle are now, as the result of recent legislation, facing a grim choice.  The state liquor and cannabis board says there are too many applications for cannabis facilities in the city, so existing businesses have been given only 14 days to decide whether to (a) move out of the city, or (b) sign a document recognizing that they may not get licenses and releasing the state from liability.  Seattle's KING-TV is reporting the story:

    The CPC in Georgetown has served thousands of patients since 2010. It works with hospitals, specializing in hard-to-find treatments for chronic disease, cancer, seizures and PTSD.

    "We were always going to do this stuff anyways," founder Jeremy Kaufman said while pointing to new security cameras.

    Kaufman is making a lot of changes to his building, adding new security cameras, constructing new walls, removing doorways, and clearing out his basement filled with cannabis plants. It's all part of applying for a new marijuana retail license, required by legislation that's combining medical and recreational pot under one regulatory system.

    The original deadline gave shop owners until this summer to comply with license application requirements.

    "We were supposed to have until July 1, 2016," Kaufman said. "Then this letter came out last week. It's like, 'Get licensed within 14-days or get out of Seattle. And you're just like Ok..."

    Kaufman and other Seattle dispensaries got a notice from the Liquor and Cannabis Board last week. It says there are too many applicants in Seattle and not enough available licenses. It gives shop owners 14-days to choose an address outside of Seattle, or sign a form acknowledging the risk of remaining in Seattle and losing their business.

    "It's beyond frustrating. It's absolutely beyoind frustrating," Maryam Mirnateghi said.

    Mirnateghi's invested more than a million dollars in her new location, outfitting it with 37 security cameras, all without any guarantee. She's refusing to sign the notice, which forces dispensary owners to assume full liability.

    "To ask my to sign away my rights or lose my application? That's extortion," she said.

    Mayor Murray recently sent a letter to the LCB, asking for a delay on the marijuana retail store cap, writing that "it unfairly disadvantages long-time good actors".

    "I've been open for 6-years," Kaufman said. "I pay taxes. I have employees who bought houses and have kids here."

    Kaufman's now forced with making 6-months of business decisions in 10 days, aware the treatment that he credits with saving his life is now at risk for thousands more.

    "That's it? I'm a patient. I built this place - we built this place - for people like me," he said. "I'm absolutely terrified."

January 19, 2016 in Medical Marijuana, Recreational Marijuana, State Regulation | Permalink | Comments (0)

Friday, January 15, 2016

"PTSD-afflicted veteran deprived of his 5 children over medical marijuana use"

AaThis kind of stuff is really, really sad.  From the Denver Post:

    Raymond Schwab, an honorably discharged veteran, moved to Colorado last year to get treated for post-traumatic stress and chronic pain with medical marijuana.

    He didn't expect Kansas would take his children in return.

    . . .

    He and his wife, Amelia, say Kansas took the five youngest of their six children into custody last April, and they've only seen them three times since.

    . . .

    "I don't think what we're doing is illegal, immoral or wrong," Amelia said.

From the article, it appears that Kansas didn't take the children because of the marijuana use -- they were taken into custody after a grandmother reported them as abandoned.  There were also allegations of abuse of the children, which were investigated for several months before being dropped.  After the children were taken into custody, Mr. Schwab moved to Colorado and began using medical marijuana there.  He now wants custody of the minor children again.

The problem now is that Mr. Schwab is admittedly engaging in conduct that both Kansas and the United States consider both dangerous and criminal, and so the question for Kansas officials is whether to release the kids under those circumstances.  The state has said they'll release them when Mr. Schwab demonstrates that he is drug-free for four months, but Mr. Schwab is afraid his condition will worsen without cannabis.

The right result in this case appears to be for Kansas to allow the family to be reunited and to let the Colorado child protection authorities take over the matter.  But one can sympathize with the Kanas authorities as well -- if they really believe that cannabis poses a danger to young children, they would consider themselves irresponsible to release them into that situation.  In other words, they may be wrong, but they're probably not evil.

We'll see more of these situations so long as the Administration and Congress make no attempt to fix the problem.

 

January 15, 2016 in Medical Marijuana, News | Permalink | Comments (1)

Sunday, January 10, 2016

New York MMJ Rollout is Slow. Really, Really Slow.

ABack in the 1820s it took can-do New Yorkers only 8 years to dig the Erie Canal.  That was an immense 363-mile waterway from Albany to Buffalo, dug with shovels, fitted with 36 ship locks, that tied the Great Lakes to the Atlantic Ocean and ensured that New York would become the commercial capital of the young nation.

With any luck, the rollout of New York's extremely modest medical marijuana program will take less time than that.  But given the events of this week, it's possible I'm wrong about that.  Here's a cringe-inducing story about the official non-opening of two Syracuse locations which were slated to open this week.  This is my favorite part :

Even if the two dispensaries here did open today, it's unlikely they would have many customers. That's because the drug will only be available to patients with 10 serious conditions such as cancer, multiple sclerosis and HIV/AIDs.  And patients cannot get the drug unless they are approved by a doctor registered with the state. The health department says about 150 doctors statewide have registered with the medical marijuana program, but it has not released their names.

Read the italicized part.  Really?  I mean, seriously, really?  After 18 months, a state with 20 million people and a $1 trillion economy has managed to authorize 150 doctors -- and you can't get their names without a FOIA request?

The CEO of one of the new dispensaries is putting a game face on.  "If there is a registered patient in Syracuse," she said, "we will be ready to serve them.

Sorry, I'm making fun of this because otherwise I'd be throwing stuff at the office wall.

 

January 10, 2016 in Business, Medical Marijuana, State Regulation | Permalink | Comments (0)

Saturday, January 9, 2016

Kashruth Council: Medical Marijuana Need Not Be Kosher

AaCanada's largest kosher-certification organization has turned down a request for certify medical marijuana because doctor-prescribed medicine doesn't need to be kosher in the first place.  See this story from Canadian Press:

    The Kashruth Council of Canada met Thursday to discuss an application from MedReleaf, a licensed producer of medical pot. The meeting followed news in the U.S. that a New York company would soon offer certified kosher medical cannabis products.

    But after "a lot of interplay and exchange," the Kashruth council decided the Jewish faith doesn't require sick people to consume kosher medicine, said managing director Richard Rabkin.
    "Something that is medicine, that's prescribed from your doctor, that you need to take for your health, that doesn't need kosher certification," he said by phone after the meeting.

    "We don't really want to get into the business of providing kosher certification for something that is doctor-prescribed. We're not going to go down that path."

    Kosher foods are those that conform to Jewish law, with strict guidelines on the types of foods that can be consumed and how they are prepared.

    Rabkin said there's a principle in Judaism that the preservation of human life overrides other religious concerns. If one must consume something non-kosher to survive — or, in the case of medical marijuana, to relieve pain or seizures — one can and should do so.

    He acknowledged that some medical cannabis users might prefer to consume kosher pot, but he said a conversation with a rabbi should alleviate their concerns.

    . . .

    In fact, not all kosher certification agencies agree with Kashruth on medical marijuana.

    Kosher Check, a global kosher certification agency headquartered in British Columbia, debated the issue two years ago and decided in favour of certifying edible medical pot products.

    Rabbi Mendy Feigelstock said while preservation of life does come before all else in Judaism, his organization decided it would be helpful to offer a kosher choice for those who want it.

    He said dried marijuana that is smoked is automatically considered kosher since it is a plant. However, edible products including oils, capsules, brownies and cookies would need to be certified.

    "There are people who are suffering and unfortunately sometimes the only medication left for them is marijuana, which could ease their symptoms, and to force a person to smoke it seems silly," he said.

January 9, 2016 in Edibles, Medical Marijuana | Permalink | Comments (0)

Thursday, January 7, 2016

New York Has First MMJ Dispensary; Patients Still to Come

AThe first medical marijuana dispensary in New York opened, as promised, with a ribbon-cutting this morning.  The Gothamist web site has the story, and a very nice photo essay on what the place looks like.  Check it out.

    New York City's first medical marijuana dispensary opened in Manhattan today at 212 East 14th Street, though it's unclear when it will actually start serving patients, as none had an appointment today. Thus far there are 150 doctors registered to provide patient certification in the state's medical marijuana program, and 51 patients have been certified, according to the Department of Health. There's no word yet on how many of those doctors or patients are in the New York City area.

    A registry ID card is required to get past the entryway of Columbia Care, located just off Union Square, and spokespersons at the opening this morning could not speak to whether any patients have successfully made appointments.

    The dispensary is cash-only and does not take insurance, as no plan currently covers medical marijuana. According to Columbia Care reps, patients will pay between $100-$300 in cash each time they pick up a new monthly prescription of tinctures, oil for vaporizing, or capsules. Smokable and edible forms of marijuana are prohibited under New York's law.

    Manhattan Borough President Gale Brewer, who attended the dispensary's ribbon cutting, said she hopes the state's dispensaries will eventually take insurance:

    “I’ve known many people who have been ill with HIV/AIDS, and over the years, they have — illegally at the time — have used marijuana that they purchased illegally. It solved their pain problems. I saw it with my own eyes, with very, very close friends.  We all look forward to having more dispensaries in the state, and insurance, because people have to pay now. But this is a very good beginning."

    There are security cameras in nearly every corner of the dispensary, as well as outside. The exterior security cameras are equipped with image-recognition and loudspeaker capabilities, meaning they can identify when someone standing outside the storefront is not an employee and ask them to stop loitering.

    But conducting any sort of heist would be quite a feat: Columbia Care is comprised of a series of rooms, each of which requires the presentation of a registry ID card to enter, and the THC products are locked up in staff-only restricted areas (and were not on view during the opening today).

    The dispensary is by appointment only, but will likely not be able to announce when it serves its first patient, due to privacy concerns. Columbia Care is currently the only medical marijuana dispensary in the city, but more are expected to open in Queens and the Bronx.

January 7, 2016 in Business, Medical Marijuana, News | Permalink | Comments (0)

Details of Proposed Georgia MMJ Bill Announced

A A Georgia legislator has announced details of a new bill he plans to introduce Monday, when the new legislative session starts.  State Representative Allen Peake (R-Macon) made the announcement on an Atlanta television station.

    On Monday, Peake will begin to introduce new legislation that builds on House Bill 1 which passed in 2015. "We're treating it like medicine which is the way it ought to be treated," said Peake. The representative is pushing for more patients to have access to medical cannabis, and to allow for highly regulated medical marijuana to be grown in the state.

    Currently only eight diseases and illnesses are on the list of approved conditions to qualify for medical cannabis in Georgia.

    In the new legislation, Peake aims to add Alzheimer's, Epidermolysis Bullosa, Aids, Tourette's syndrome, and intractable pain. Intractable pain will be the most controversial because it will allow the greatest number of patients to have access to cannabis.

    Currently, there are 465 patients on the medical marijuana registry in Georgia.

    As part of the legislation, Peake is also pushing for a limited number of licensed growers to provide the state's patients with medical cannabis. Peake foresees anywhere from two to six licenses being issued depending on a number of qualifying factors.

    According to the bill, marijuana would be grown and dispensed to patients in the same location to attempt to keep the product from ending up in the wrong hands."We'll have a seed to sale tracking system too on any plant from the moment it's put in the ground to the moment when it's dispensed, law enforcement will be able to track that product," said Peake.

    Dosage and actual administration will be controlled by an on-site pharmacist.

    Currently, patients in Georgia on the approved medical marijuana registry have to buy their cannabis oil in other states where in state cultivation is legal.

    The medical cannabis currently allowed in Georgia can only be of the low THC variety. Peake would like to strip away the THC limits and allow doctors and pharmacists to prescribe medicine based on need.The bill would also allow patients to administer the product through vaporization."This is the logical next step for our citizens. We brought our medical refugees home let's keep them here and let's keep providing an option for hurting citizens as well too," added Peake.

 

 

January 7, 2016 in Legislation, Medical Marijuana, News, State Regulation | Permalink | Comments (0)

Wednesday, January 6, 2016

Marijuana and the Rise of "Executive Federalism"

AOne of the legacies of the Obama Administration is likely to be the degree to which Congress gets increasingly excluded from national policy making. The marijuana legalization situation is an obvious example, where a statute overwhelmingly passed by Congress has been seriously undercut by Administration policy makers without any serious attempt to get the law amended.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2687205

In a forthcoming paper in the Virginia Law Review, Executive Federalism Comes to America, author Jessica Bulman-Pozen (Columbia Law) uses the Administration’s changes in federal marijuana policy as an example of a broader trend that involves a wide range of fields, including health care, environmental law, and education. According to Bulman-Pozen, presidents today find it more difficult to get Congress to enact legislation that they favor, and thus have an irresistible urge to bypass legislation in favor of executive action in cooperation with like-minded states. "[I]ntead of Congress shaping national policy and state-federal relations," she writes, "state and federal executives craft national policy, looking to state sources of authority." In the field of marijuana, for example:

Without an amendment of federal law, then, executive federalism has transformed national drug policy. States have taken the initiative, by adopting new state laws and establishing novel regulatory apparatuses, but negotiations between state and federal officials over the enforcement of state and federal law have ultimately determined the contours of today’s drug law. Such executive federalism has allowed for differences among the states even in the context of the federal Controlled Substances Act: as a matter of federal as well as state law, marijuana today is effectively legal for recreational purposes in four states, legal for medicinal purposes in nineteen additional states, and illegal in the remaining states.

The author finds some merit in this approach, which she notes reflects the current approach used in the European Union, in which policy is set by negotiation among states rather than by an elected assembly. This has, she notes, the advantages of less transparency and more room to horse trade rather than attempt to reach "grand" solutions in Congress.

I suspect that the appeal of this approach will differ depending on how much one likes the current president's agenda -- President Obama's precedents could be a blueprint for later inhabitants of the White House.  Trump or Cruz, anyone?

 

January 6, 2016 in Drug Policy, Federal Regulation, Medical Marijuana, Recreational Marijuana, State Regulation | Permalink | Comments (0)

Tuesday, January 5, 2016

Medical Marijuana Hits Big Apple Thursday

It only took 18 months, but New York's first medical marijuana dispensary is slated to open Thursday.   That's according to an email sent out yesterday by a New York Health Department spokesman.

Columbia Care,  a big nationwide MMJ provider apparently plans to open its Union Square facility at 14th Street and Third Avenue in NYC.  From the company's web site:

Columbia Care Logo    “No joints, no cookies, no brownies — nothing of that sort,” said Ari Hoffnung of Vireo Health of New York.

    The marijuana will be distributed in the form of capsules, liquid cannabis, and vaporizers — using oil to replace rolled joints. That is the law, according to Hoffnung, whose company is preparing to open a business in Queens and in White Plains.

    “People are not going to be served by bud-tenders like in Denver, Colorado, but by licensed pharmacists,” Hoffnung said.

    The first business in the city to open would be here on 14th Street and Third Avenue just east of Union Square — possibly as early as Thursday. Its chief executive officer touted the benefits of the product.

    “Medical marijuana has been shown to be more effective treating a myriad of illnesses in comparison to standard pharmaceuticals,” said Nicholas Vita, CEO of Columbia Care.

    The development has caught the attention of people in the area.

    “Oh, we don’t need that,” one passerby said.

    “There’ll probably be lines around the block, don’t you think?” another said.

    Of the four medical marijuana businesses planned for New York City, two will be in Manhattan, one in Queens, and one in the Bronx.

    Under the New York State law, medical marijuana is to be used to treat 10 serious diseases – including, but not limited to, cancer, HIV/AIDS, Parkinson’s, epilepsy, and some spinal cord injuries.

    Interestingly, the business in Queens — owned and operated by Hoffnung’s Vireo Health, will be providing cannabis products that are kosher. They will be certified by the Orthodox Union and their rabbinic inspectors, Hoffnung said.

    “No gelatin. We only use natural oils like coconut oils,” Hoffnung said. “We are fully natural and kosher, and proud of it.”

January 5, 2016 in Medical Marijuana, News, State Regulation | Permalink | Comments (0)

Florida MMJ Licenses Raise "Serious Questions" of Improper Influence and Self-Dealing

 by John Montgomery

Last November, five Florida nurseries were selected to cultivate and distribute legal marijuana.  This allows the sale of the non-euphoric strains to treat patients with seizure disorders and cancer.  Sales of medical marijuana by these nurseries will begin around June of 2016.

Florida FlagThe five approved nurseries were selected based on their geographical location in the state: Costa Nursery Farms (Miami), Alpha Foliage (Homestead), Knox Nursery (Winter Garden), Hackney Nursery (Tallahassee), and Chestnut Hill Tree Farm (Alachua).

The favored nurseries were chosen from a pool of 28 applicants by a panel of three state reviewers, based on rules created by a panel that included five growers.  It turns out, however, that four of the growers who set the rules — Costa, Hackney, Chestnut Hill, and Knox — managed to get selected as winning applicants. 

And that's a problem.  Taylor Patrick Biehl, whose consulting firm represented three applicants, stated that the awards to the insider firms raise “serious questions about improper influence and self-dealing.” 

He's right.  States need to go about regulating the cultivation of marijuana in an open and transparent manner that shows people that the process is fair and not tainted by self-dealing.  The situation in Florida is akin to the crony capitalism that Ohio voters rejected with its No vote to legalize marijuana.  The people, while supporting legalization, voted against the back room dealing and the greedy special interests who wanted to set up an insider marijuana oligarchy.  Florida should have taken note from the outcome in Ohio.  Florida's approach in picking winners and losers is pandering to the big corporate nurseries, and disregarding smaller, independent growers.

A better option would be for Florida to open its own marijuana nurseries, and cultivate the plant itself until the free market takes over the task.  This way the state, for the time being, can have total control of the medical marijuana production.  After the state has had adequate time to figure out and perfect the process of growing marijuana, distributing the product, and formulating policies regulating the growing of medical marijuana, then the free markets should take over.  This government-controlled to free market-controlled transition would be less corrupt than having the state pick and choose its economic winners and losers in a smoke filled room.

John Montgomery is a 3L at the Texas A&M School of Law in Fort Worth.

January 5, 2016 in Drug Policy, Medical Marijuana, State Regulation | Permalink | Comments (0)

Monday, January 4, 2016

Maryland City Takes Equity Stake in Cannabis Dispensary

Kayla Brown 2by Kayla Brown

An Arizona company in November won approval from a town in Maryland to open a cultivation in exchange for offering the city a 5% equity stake in the company.  Residents of Hancock, Maryland (pop. 1,545) were split between excitement over the increased funding and feeling bribed into gaining an advantage for one of the limited number of Maryland licenses.  Lawyers reviewed and addressed the legality of this type of agreement and city officials signed the agreement with Harvest, Inc., in early October.

The State of Maryland is offering 15 growing licenses to the entire state and over 400 applications have been received. The CEO and president Harvest, Steve White said the agreement with the town is not a bribe because it is the state and not the city that determines who gets the 15 growing licensees for all of Maryland. While the agreement with the town does not necessarily seal the deal, they will more than likely be granted a license based heavily on the agreement.

Because marijuana is still federally illegal, states like Colorado and Washington have had to be very careful with cities that do not want legalization in order to sidestep the preemption issue. To have a city that is not only willing, but also invested in a certain company obtaining a license illustrates to officials that there is one less city for them to worry about. It also starts a trend that gets cities on board one way or the other. Currently, Colorado applicants are restricted to a mere 33% of the state allowing operations in their city. In Washington there are zoning disputes left and right because the state law does not expressly prohibit cities from opting out of the state law, and thus cities are finding every way they can to keep these licensees out. If cities were able to bargain reasonably and not extort licensees I could imagine those currently suffering through zoning disputes would gladly offer up 5% equity in exchange for operating under the support of the City.

But how conscionable it is for cities to receive tax benefits from the State from sales generated by retail sales as well as a 5% equity on a cultivation company, just for the ability of the company to operate as normally as any other business would?  The facility White anticipates for his cultivation is gated and all operations take place inside of a large manufacturing plant. There is no eyesore, noise, or other operating conditions which would even merit an additional permit from the city, and yet the company still felt the need to ensure a harmonious relationship by way of a 5% equity. That is unsettling for owners of cannabis businesses, most of whom are mom and pop start-ups with limited start-up capital. The tax revenue generated by retail sales alone should be enough to encourage cities to be supportive, and welcoming to these new highly profitable businesses.

Kayla Brown is a 3L student at Texas A&M Law School and is the Executive Director of the Texas Cannabis Industry Association.

January 4, 2016 in Business, Local Regulation, Medical Marijuana, News | Permalink | Comments (0)

DOJ Still Prosecuting Over Medical Marijuana

Jacob SullumNo, the federal government did not legalize medical marijuana in recent omnibus budget bill.  The bill reiterated language from last year's omnibus bill, known as the Rohrabacher-Farr Amendment, which prohibits using federal funds to prevent a state from "implementing" its medical marijuana laws.  But while various news sites trumpeted this as effectively ending the federal ban on medical marijuana, Reason's Jacob Sullum, in a piece titled The Federal Ban on Medical Marijuana Was Not Lifted, argues that the ambiguous language in the Amendment isn't stopping the Justice Department from prosecutions.

The problem with the Amendment is its language.  The Justice Department interprets it to mean that it cannot use federal funds to prosecute state employees who are involved in medical marijuana licensing, taxation, and regulation -- that is, those who are actually implementing the state program.  There seems to be a difference between implementing a law (for example, being a state employee who sets or enforces speed limits) and merely obeying a law (a driver who follows the speed limit).  If Congress had wanted to ban individual prosecutions, the most natural way to do so would have been to bar DOJ from prosecuting individuals and businesses who are licensed by state medical marijuana offices and who are in compliance with those regulations.  While it's true that the authors of the Amendment hoped it would ban individual prosecutions (and while one federal judge has said it does) the DOJ argument is, from a pure statutory construction perspective, perfectly reasonable.

Sullum concludes that even if the Amendment did bar DOJ from individual prosecutions, its effects are still very limited:

The rider has no impact in the 27 states that do not have medical marijuana laws, and it applies only to the Justice Department, so it has no effect on actions by the IRS or the Treasury Department that make it difficult for medical marijuana suppliers to pay their taxes and obtain banking services.

More fundamentally, the amendment, which has to be renewed every fiscal year, does not change the Controlled Substances Act (CSA), which continues to classify marijuana as a Schedule I substance with no legal uses. Because marijuana is still prohibited by federal law, people who grow and sell it, no matter the purpose and regardless of their status under state law, commit multiple felonies every day. If no one is trying to put them in prison right now, that is only thanks to prosecutorial forbearance that may prove temporary.

Anyone who provides services to marijuana businesses is implicated in their lawbreaking. Last week a Colorado credit union that wants to specialize in serving state-licensed marijuana businesses tried to persuade a federal judge that it is legally entitled to participate in the Federal Reserve's payment system, without which it cannot operate. The judge did not seem inclined to agree, saying, "I would be forcing the reserve bank to give a master account to a credit union that serves illegal businesses." The U.S. Postal Service announced last month that periodicals containing marijuana ads are "nonmailable," citing a CSA provision that makes it a felony to place ads promoting the purchase of illegal drugs. An accounting firm and a bonding company hired by a Colorado marijuana merchant recently paid $70,000 to settle a federal racketeering suit filed against them by a hotel whose owners were upset about plans to open a pot shop near their business.

Problems like these cannot be solved without changing marijuana's status under federal law. The Rohrbacher-Farr amendment does not do that, no matter how many hopeful headlines it generates.

January 4, 2016 in Decriminalization, Drug Policy, Federal Regulation, Law Enforcement, Legislation, Medical Marijuana, Politics | Permalink | Comments (0)

11 states least likely to legalize marijuana

USAToday. . . is the headline of a story today reprinted in USA Today.  Even Texas has medical marijuana in 2016, and there are lots of stories about states moving toward legalization.  But here's the short version of the list (in alphabetical order) of states that probably won't be seeing much action on that front this year:

 Alabama
Arkansas
Georgia
Idaho
Indiana
Kansas
Oklahoma
South Dakota
Tennessee
Utah
Wyoming

 

 

January 4, 2016 in Decriminalization, Drug Policy, Medical Marijuana, News, Politics, Recreational Marijuana, State Regulation | Permalink | Comments (0)

Wednesday, July 1, 2015

Marijuana Arrives at Midnight in Oregon, Minnesota

Much of the hoopla today surrounds the arrival of medical marijuana in Oregon, where thousands toked up at (and even before) midnight to celebrate legalization.

 

As it happens, midnight also ushered in medical marijuana in Minnesota.  It's a much more limited bill, of course, but the first three families got cannabis a few moments after midnight today.  Here's a good roundup of how the new law works.

July 1, 2015 in Medical Marijuana, News, Recreational Marijuana | Permalink | Comments (0)

Louisiana Gets MMJ Law: Proponents Worry About Effectiveness

Louisiana's new medical marijuana law is moving forward after signature by Gov. Bobby Jindal.  Like the Texas version passed earlier this year, advocates are concerned that it uses the term "prescription" in the text instead of the usual "recommendation," which can leave physicians open to having their licenses to prescribe drugs yanked by the Drug Enforcement Administration. 

    David Brown, the director of a group called Sensible Marijuana Policy for Louisiana, said changing out "prescription" for "recommendation" allows doctors and pharmacists to get marijuana to patients without risking their federal license with the Drug Enforcement Agency.

    The federal government, under President Barack Obama's administration, has taken a hands-off approach regarding enforcement of federal marijuana laws in states where it's legal. But the word "prescription" automatically triggers certain federal oversight from the DEA. Marijuana, after all, is still considered a schedule I controlled dangerous substance. As far as the technical law is concerned, it would be analogous to writing and filling a prescription for LSD or peyote, other schedule I drugs.

    "It's a big problem," Brown said. "It renders the new law structurally flawed and unworkable in its current form."

    The sponsor of the bill (SB 143), state Sen. Fred Mills, R-New Iberia, is aware of the concerns of Brown and other advocates. He said, however, that Louisiana Board of Pharmacy Director Malcolm Broussard has assured him the issue of prescription versus recommendation could be "worked through" during the rule-making process.

    Jacob Irving, a medical marijuana advocate and recent graduate of LSU, suffers from spastic quadriplegia -- a rare form of cerebral palsy that causes chronic muscle stiffness and has been effectively treated with marijuana. If the law in its current form is properly enacted, his disease is on the list of those that would quality for medical marijuana. Irving was the one who convinced a House panel to change the wording to "recommendation," before it was stripped out of the bill on the House floor.

    The Louisiana Family Forum, the state's most influential conservative Christian group, requested the word "prescription" be put back into the bill before it reached the House floor. Even the Louisiana Sheriff's Association, who had expressed strong opposition to the bill last year, were OK with "recommendation," Fred Mills said. Family Forum Director Gene Mills said early this month he told Fred Mills putting the prescription language in the bill was a requirement for his group to remain neutral on the bill. Opposition from the Family Forum could have hurt the bill's chance of passing and might have drawn a veto from Gov. Bobby Jindal, who closely follows Mills' guidance on social policies. Jindal, too, had requested the term prescription be used. 

    Gene Mills said the prescription requirement keeps the proposed law in the realm of medical practice, subjecting it to the oversight and "necessary safeguard."

    "That's why we're in the neutral zone," said Gene Mills, days after the House passed the version of the bill with "prescription" included. 

    Brown said the Louisiana Family Forum and Jindal's hardline position on calling it a prescription provides more evidence that the wording neuters the bill. 

    "Why on earth would you insist so hard on that language being included (in the bill) unless you were fully aware, like we are, that by including it you've essentially gutted the bill?" he said. 

    While Irving is hopeful the wording won't cause a problem as the bill's sponsor has suggested, he can't ignore the potential threat it has to thwart access to patients.

    "If a doctor writes a prescription, he may go to jail or lose his DEA license," Irving said.

    Brown said there's no pharmacist willing to put his or federal license at risk by signing off on dispensing a schedule I substance. By doing so, they would be "risking their whole livelihood -- for just that one prescription that they write."

    Broussard, however, acknowledged in an email provided by Mills that the use of the word "recommendation" has been suggested by other states to reduce risk to doctors and pharmacists. But he also indicated it made little difference.

    "The outcome of the process -- whether it is a 'recommendation' or a 'prescription' -- remains the same," Broussard said. "It is an order generated by the physician for filling at the pharmacy."

Unfortunately, while I'm sure Dr. Broussard is a very fine pharmacist, he's not a very good lawyer, and his view that a "recommendation" and a "prescription" are "the same" is simply wrong under Conant v. Walters.  To put it simply, under DEA regulations a prescription is an "order" to a pharmacy to fill a prescription for a patient.  A recommendation is merely the doctor's opinion, sent to a state-licensed facility, that the patient would benefit from the substance.  The former specifically falls within DEA jurisdiction, and prescribing a Schedule I controlled substance is illegal.  The latter is protected speech under the First Amendment and the DEA cannot punish it.

I suspect there are good reasons why opponents of the bill gave in after the word "prescription" was added . . . because they know it will be extremely difficult to make the system work.

Not impossible, though.  Assuming they get some lawyers involved in analyzing the issues, it's possible to work out a system under which physicians could comply with the statute without triggering license revocation by the DEA.  We'll keep watching.

July 1, 2015 in Legislation, Medical Marijuana, State Regulation | Permalink | Comments (0)

Monday, June 29, 2015

Delaware Gets first MMJ Dispensary

It took four years after Delaware first authorized medical marijuana, but the first dispensary just opened in the First State.  Here's the intro from a piece at philly.com:

    Delaware has become the second state in the [Mid-Atlantic] region to make its debut in the  burgeoning medical marijuana industry.

    A long line formed Friday when its first dispensary, First State Compassion  Center, opened in a former tile market in a bustling Wilmington industrial park.  CannaCare Docs, a company that employs physicians to certify eligible patients,  fielded questions from curious passers-by a few doors away.

    New Jersey led the way in the area when it legalized medical marijuana in  2010. Delaware followed in 2011. Pennsylvania fell behind while nearly half the  states nationwide adopted marijuana programs. Some Pennsylvania senators have  said they plan soon to push a stalled bill with bipartisan support onto the  floor for debate.

    The differences between the programs and dispensaries in New Jersey and  Delaware are stark.

The article is a good overview of current MMJ regimes in Delaware, New Jersey, and Pennsylvania, and worth a read.

 

June 29, 2015 in Medical Marijuana, News, State Regulation | Permalink | Comments (0)

Minnesota Eases MMJ Rules

The Gopher State took a significant step last week:

    Minnesota eased a statewide ban on medical marijuana products Wednesday, approving the use of pills and oils for seriously ill patients, while upholding a ban on products that can be smoked.

    Under the new law, users will be able to use liquid and pill extracts of marijuana plants, provided they are suffering from serious conditions such as epilepsy, HIV and cancer, the Associated Press reports. The law also restricts sales to only eight dispensaries within the state.

    While legalization advocates hailed the new rules as a step forward, they argued that Minnesota’s approach was unusually restrictive, potentially excluding patients living in rural areas or on tight budgets from obtaining the drugs.

June 29, 2015 in Medical Marijuana, News, State Regulation | Permalink | Comments (0)

Tuesday, June 16, 2015

Colorado Employers Can Fire Workers for Medical Marijuana Use

Colorado employees who demand drug-free workplaces can fire employees who test positive for marijuana, even if the employees have a medical marijuana authorization and consume the weed in their off-duty hours.

That's the ruling in Coats v. Dish Network, a much-watched decision, in which the Centennial State's highest court upheld an earlier decision by the state's court of appeals.  The unanimous opinion (Justice Monica Márquez did not participate) was written by Justice Allison Eid, a former law professor.

At issue in the case was a state law prohibiting employers from terminating employees for engaging in "lawful" activities in their off-hours.  The plaintiff argued that using marijuana was "lawful" under Colorado law.

The decision is a pretty straightforward application of statutory construction.  The court finds that the word "lawful" means "not . . . prohibited by law."  Marijuana possession is explicitly prohibited by federal law --  the Controlled Substances Act -- and so would generally not be considered "lawful."  The court went on to consider whether the legislature, in using the word "lawful," meant only things prohibited by Colorado law.  But the language, the court found, is not restricted.  Ordinarily, something is not lawful if it is prohibited by any level of government.  Thus, employers presumably can fire employees for engaging in federal crimes (such as tampering with the U.S. mail or violating customs laws) that are not expressly illegal under state law.

The case is a blow to MMJ patients whose employers have drug-free workplaces.  They will have to decide whether to use their medication or find alternate employment.  It's a win for employers who face pressure from the feds to be drug-free and faced the possibility of being whipsawed between state and federal law.

Because the court's opinion involved interpreting a statute, the Colorado legislature could reverse the decision simply by passing a new law saying that Coloradoans cannot be fired for using medical marijuana on their own time. 

June 16, 2015 in Business, Legislation, Medical Marijuana, State Regulation, Workplace | Permalink | Comments (1)