Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Wednesday, November 15, 2017

Exploring criminal justice echoes of past marijuana conviction in era of reform

A student in my Marijuana Law, Policy & Reform seminar this week in his presentation is addressing what he calls "one narrow evidentiary aspect of a much broader area of study: the effect of legalization on how society and the law treat people with marijuana-related felonies who would not have been guilty of the offense after legalization." As he explains, he will be using California as a case study to "examine the effect of Proposition 64 (The Adult Marijuana Use Act) on Cal. Evid. Code 788, which allows parties to admit criminal records of convicted felons to impeach their credibility." Here are the materials he has suggested for class consumption in this way:

Digestible:

S.E. Smith, Punishing Felons After They've Served Their Time, This Ain't Livin' (Oct. 14, 2013) 

Chris Conrad, Current California Penalties vs. Prop 64: Adult Use of Marijuana Act, Drug Policy Action (2016)

In the Weeds:

J. Richards Couzens & Tricia A. Bigelow, Propositon 64: "Adult Use of Marijuana Act" Resentencing Procedures and Other Selected Provisions, Barrister Press (Nov. 2016) 

Richard S. Frase, Punishment Purposes, 58 Stan. L. Rev. 67 (2005).

Joshua Dressler, Hating Criminals: How Can Something that Feels So Good Be Wrong?, 88 Mich. L. Rev. 1448 (1990).

November 15, 2017 in Assembled readings on specific topics, Criminal justice developments and reforms | Permalink | Comments (0)

Examining "The Temperance Movement and Its Relevance on Today’s Marijuana Policy"

My students know that I strongly believe legal and social histories are critical topics for anyone and everyone interested in any aspect of criminal justice reform. (I always find astute the William Faulkner quote: "The past is never dead. It's not even past.") Consequently, I am especially excited that one of my students in my Marijuana Law, Policy & Reform seminar is making his presentations this week on "The Temperance Movement and Its Relevance on Today’s Marijuana Policy." Here are some of the major sources that the student working on this topic has provided for class consideration:

Daniel Okrent, Last Call: The Rise and Fall of Prohibition

Jack S. Blocker, Did Prohibition Really Work? Alcohol Prohibition as a Public Health Innovation

Harry G. Levine & Craig Reinarman, Lessons from Alcohol Policy for Drug Policy

David F. Musto, The American Experience with Stimulants and Opiates (previous class material that everyone already read)

November 15, 2017 in Assembled readings on specific topics, History of Alcohol Prohibition and Temperance Movements, History of Marijuana Laws in the United States | Permalink | Comments (0)

Wednesday, November 8, 2017

A deep dive into the costs of raiding marijuana facilities

As mentioned repeatedly in recent posts, students in my Marijuana Law, Policy & Reform seminar are making presentations on marijuana-related topics of their choosing. One of the planned student presentations for this week will be exploring the "costs of raids" with "examples from states including Utah, California, and Colorado."  Here is an impressive array of materials/links that the student working on this topic has provided for class consideration:

"The High Cost of Shutting Down One Medical Marijuana Operation"

"Drug cops raid an 81-year-old woman’s garden to take out a single marijuana plant"

"DEA warns of stoned rabbits if Utah passes medical marijuana"

"Marijuana Law Enforcement Cost States An Estimated $3.6 Billion In 2010: ACLU"

"Wednesday's DEA Medical Marijuana Raids May Have Cost Taxpayers $12.3 Million"

"Weed dispensaries find legalization leaves them vulnerable to raids and harassment"

"Obama's War on Pot: In a shocking about-face, the administration has launched a government-wide crackdown on medical marijuana"

"Photos: DEA Raids Downtown Medical Marijuana Dispensary"

"Pot dispensary defenders say Toronto police raids were a 'disproportionate' and costly mistake"

"Canada's marijuana stocks on fire as dispensaries raids continue"

"Feds Spend $1 Million to Shut Down Single Marijuana Dispensary"

"New Report: Marijuana Raids Cost Lives, Cannabis Doesn’t"

"Feds Have Lost to the States on Marijuana: Denver Raids Add Proof"

"What's The Co$t?: The Federal War on Patients"

"The Price of Cannabis: An analysis of how decriminalization and Federal enforcement affect the price of marijuana"

November 8, 2017 in Assembled readings on specific topics, Criminal justice developments and reforms | Permalink | Comments (0)

Tuesday, November 7, 2017

A look at marketing and advertising in the marijuana industry

A pair of students in my Marijuana Law, Policy & Reform seminar are this coming week to be discussing marketing and advertising in the marijuana industry. In preparation for the discussion, they suggested review of Leafy's "State-by-State Guide to Cannabis Advertising Regulations," which gets started this way:

As the cannabis industry continues to grow at a rapid pace, it can feel overwhelming to keep up-to-date with the constantly-changing federal and state regulations.  Advertising regulations are especially strict, as many marketing platforms restrict or outright ban cannabis advertisements due to the substance’s federal status.

We put together a state-by-state guide to cannabis advertising regulations that should help cannabis businesses adhere to the guidelines set forth by both the state they’re operating in as well as any states in which they want to advertise.  

November 7, 2017 in Assembled readings on specific topics, Business laws and regulatory issues | Permalink | Comments (0)

Considering the pros and cons of starting a cannabis-related businesses

As mentioned repeatedly in recent posts, students in my Marijuana Law, Policy & Reform seminar are every week delivering presentations on a marijuana-related topic of their choosing. I am professorially giddy about the large number of presentations planned for the next few weeks, and the first student presentation planned for this coming week aspires to "give insight into the pros and cons of starting a cannabis-related business." And here are links the student provided as background for the discussion:

"US Patent Office Issuing Cannabis Patents To A Growing Market"

"Here Are The Top 5 Financial Leaders In The Cannabis Industry"

"Colorado marijuana shops make $28,000 each on the FIRST DAY of legalized pot"

Ohio Medical Marijuana Control Program information on dispensaries

November 7, 2017 in Assembled readings on specific topics, Business laws and regulatory issues | Permalink | Comments (0)

Thursday, November 2, 2017

Diving into the marijuana reform story in Ohio and at Ohio State

As I mentioned in recent posts, students in my Marijuana Law, Policy & Reform seminar are now gearing up for and delivering presentations on a marijuana-related topic of their choosing. The second student presentations planned for this this coming week, as described here, is taking a localized look at marijuana reform issues with "background on the marijuana process in Ohio and progress at The Ohio State University [emphasizing] Ohio State’s role specifically."  In addition, this student is bringing a guest speaker, Mr. Thomas Rosenberger, who currently serves as the Executive Director of the National Cannabis Industry Association of Ohio.  And here are links the student provided as background for the discussion:

 2015 Ohio Issue 3 Tax Estimations

"Risk of losing federal funding reason why medical marijuana research won’t happen"

H.B. 523 PDF (as enacted)

Ohio Medical Marijuana Control Board - Program Rules

"National Cannabis Industry Association of Ohio”

November 2, 2017 in Assembled readings on specific topics | Permalink | Comments (0)

Monday, October 30, 2017

A look at the law and business surrounding industrial hemp

As I mentioned in this recent post, students in my Marijuana Law, Policy & Reform seminar are now gearing up for and delivering presentations on a marijuana-related topic of their choosing.  The first of the student presentations planned for this this coming week is exploring industrial hemp, and here are the links my student has assembled in preparation for her presentation this coming week:

1)  This is a state-by-state list of statutes regulating industrial hemp.

2)  This is a detailed statement to "inform the public how Federal law applies to activities associated with industrial hemp."

3)  This is the newest bill that has been introduced asking to change the definition of hemp.

4)  This is a market projection based on a report by the Hemp Business Journal that discusses the growth of hemp product sales in the coming years.

October 30, 2017 in Assembled readings on specific topics, Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)

Monday, October 16, 2017

Examining taxation issues and economic development surrounding the marijuana industry

I am excited to realize and report that, after spending the first half the current semester preparing various presentations for the students in my Marijuana Law, Policy & Reform seminar, this week begins the part of the class in which students are to begin making presentations to each other. The first of the student presentation planned for this this coming week is exploring "tax liability."  Here are the links the presenting student has assembled in preparation for his presentation this coming week:

Relevant Internal Revenue Code Provisions:

26 U.S. Code § 280E - Expenditures in connection with the illegal sale of drugs

26 U.S. Code § 162 - Trade or business expenses

26 U.S. Code § 62 - Adjusted gross income defined

Three Short Articles on the Economic Impact of Marijuana

"What If Marijuana Were Legal? Possible Outcomes"

"Dose of Reality: The Effect of State Marijuana Legalizations"

"The Economic Impact of Marijuana Tax and Regulation in Colorado"

October 16, 2017 in Assembled readings on specific topics, Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Taxation information and issues | Permalink | Comments (0)

Wednesday, August 9, 2017

New Website for my Book, Marijuana Law, Policy, and Authority

I’ve just launched the official companion website for my new textbook, Marijuana Law, Policy, and Authority. The website address is https://my.vanderbilt.edu/marijuanalaw/.

The book website includes:

  • more information about the book, including two sample chapters
  • updates on big post-publication developments in the field, like the 10th Circuit Civil RICO decision and Cory Booker’s Marijuana Justice Act (the latter of which I cross-posted here last week)
  • teaching resources, including syllabi to help in designing and teaching a marijuana law cla
  • in the coming weeks I’ll also be adding materials (cases, articles, etc.) that I couldn’t fit in the book but which might be of interest to readers

I’ll continue to cross-post here on some of the biggest developments in the field (thanks to Doug for the ongoing hospitality!), and I’ll continue to follow this blog with enthusiasm – it’s a terrific resource for anyone interested in the field!  

August 9, 2017 in Assembled readings on specific topics, Books, Weblogs | Permalink | Comments (0)

Thursday, April 27, 2017

"Drug-Impaired Driving: A Guide for States"

DUIDinfographic_web1The title of this post is the title of this notable newly updated report with newly updated statistics about the road-safety problems created by drugged driving.  Here is a part of the report's introduction and background:

This report, originally released in September 2015, was prepared by Dr. James Hedlund under contract with the Governors Highway Safety Association (GHSA), the national association of state and territorial highway safety offices that address behavioral highway-safety issues, including drugimpaired driving.  An open forum on drugged driving at GHSA’s 2014 Annual Meeting noted the need for this type of resource.  Funding was provided by the Foundation for Advancing Alcohol Responsibility (Responsibility.org).

This revision, also prepared by Dr. Hedlund, updated the report to April 2017.  It includes 34 additional citations, drug-impaired driving data from 2015, state laws as of April 2017, and 15 state programs.

The report was guided by an advisory panel of experts from the states, the research community, and several organizations concerned with impaired driving.  It provides references to research and position papers, especially papers that summarize the research on drugs and driving that have appeared in the last 20 years.  It includes information obtained by GHSA from a survey of state highway safety offices. It does not attempt to be a complete review of the extensive information available on drugs and driving.

Drug-impaired driving is an increasingly critical issue for states and state highway safety offices. In 2015, the most recent year for which data are available, NHTSA’s Fatality Analysis Reporting System (FARS) reported that drugs were present in 43% of the fatally-injured drivers with a known test result, more frequently than alcohol was present (FARS, 2016).  NHTSA’s 2013–2014 roadside survey found drugs in 22% of all drivers both on weekend nights and on weekday days (Berning et al., 2015).

In particular, marijuana use is increasing.  As of April 2017, marijuana may be used for medical purposes in 29 states and the District of Columbia (NCSL, 2017a).  The most recent is West Virginia, which authorized medical marijuana in April 2017, with use to begin in July 2019.  Recreational use is allowed in Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Washington and the District of Columbia and 13 other states have decriminalized possession of small amounts of marijuana (NCSL, 2016). Congress identified drug-impaired driving as a priority in the Fixing America’s Surface Transportation (FAST) Act of 2015 (https://www.fhwa.dot.gov/fastact/).   This multi-year highway bill directed NHTSA to develop education campaigns to increase public awareness about the dangers associated with drugged driving.   The Act also required the Department of Transportation to study the relationship between marijuana use and driving impairment and to identify effective methods to detect marijuana-impaired drivers.  Legislatures, law enforcement, and highway safety offices in many states are urged to “do something” about drug-impaired driving, but what to do is far from clear.

April 27, 2017 in Assembled readings on specific topics, Medical Marijuana Data and Research, Recreational Marijuana Data and Research | Permalink | Comments (0)

Wednesday, April 26, 2017

"Osbeck and Bromberg's Marijuana Law in a Nutshell"

The title of this post is how West Academic Publishing is promoting its latest notable nutshell publication authored by Mark Osbeck and Howard Bromberg. In part because I think it is near impossible to summarize modern marijuana law in short form, I view this nutshell effort as extraordinary in various respects. And here is how West briefly describes the product:

Concise yet comprehensive text that provides an overview of marijuana law. It discusses important issues pertaining to public policy, legal history, constitutional law, criminal law, and jurisprudence, as well as practical legal issues that concern both marijuana-related businesses and individuals, in areas such as banking, employment, tax, bankruptcy, and child custody.

The text provides in-depth coverage of federal laws governing marijuana, along with an overview of international, state, and local laws relating to marijuana regulation. It also provides an overview of arguments for and against medical and/or recreational legalization, as well as an analysis of how marijuana compares to other potentially harmful substances, both legal and illegal.

April 26, 2017 in Assembled readings on specific topics, History of Marijuana Laws in the United States, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Wednesday, April 19, 2017

Examining interaction between the marijuana legalization and crime rates, accidents and other feared harms

I am saddened by reality that this week is the final week of my Marijuana Law, Policy & Reform seminar, which means it will be the last week of student presentations. One presentation this week is exploring "the interaction between the legalization of marijuana and crime rates, crash fatalities, etc." Here are the links this student has assembled in preparation for his presentation this coming week:

Empirical article published in March 2014, "The Effect of Medical Marijuana Laws on Crime: Evidence from State Panel Data, 1990-2006"

Cato policy analysis published in September 2016, "Dose of Reality: The Effect of State Marijuana Legalizations" Empirical article published in December 2015,

"Impacts of Changing Marijuana Policies on Alcohol Use in the United States"

April 19, 2017 in Assembled readings on specific topics, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research | Permalink | Comments (0)

Friday, April 14, 2017

Another look at banking problems and alternatives for the marijuana industry

As noted in this prior post, this past week a student in my Marijuana Law, Policy & Reform seminar presented on the law, policies and practices surrounding banking activities for the marijuana industry.  But this issue is so big and important, another student also spent the semester looking at this topic, and here are additional resources he sent my way in preparation for his coming coverage of the issue in class:

My paper is on the intersection of the marijuana laws and the banking industry but also details attempted risk management and solutions via technology. Technologies such as cryptocurrencies and third party payment apps such as Paypal and Venmo have all toed the line of anti-money laundering statutes.  Likewise, I address third party apps that perform due diligence for the banking industry by way of seed to sale tracking systems and point of sale systems thereby reducing risk for the banks.

The following are articles relevant to my paper.  I did not want to send FinCEN guidance or the 2014 Cole Memo as they have already been posted here.

An article detailing the secrecy of big banks working with the marijuana industry and suggesting that the banking woes may not be as deep rooted as once thought.

A link to podcasts from past Crypto Cannabis Conferences discussing cryptocurrencies in the marijuana industry.

An article which details one of the many tech startups attempting to reduce risk for banks by performing due diligence in compliance with FinCEN guidance and the Cole memos.

An article describing an alternative payment system for the marijuana industry

April 14, 2017 in Assembled readings on specific topics, Business laws and regulatory issues, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Monday, April 10, 2017

Looking at banking issues and reform for marijuana industry

A student in my Marijuana Law, Policy & Reform seminar is looking closely at the law, policies and practices surrounding banking activities for the marijuana industry, and he has provided for class reading the following links in preparation for his presentation this coming week:

April 10, 2017 in Assembled readings on specific topics, Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)

Sunday, April 9, 2017

Examining ethical marijuana law advertising

A student in my Marijuana Law, Policy & Reform seminar is looking closely at the laws and policies surrounding marijuana advertising, and he has provided for class reading the following cases (and one video) in preparation for his presentation this coming week:

1.  Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976).

2.  Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557 (1980).

3.  FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 161 (2000).

4.  "First Ever Marijuana TV Ad" Video

April 9, 2017 in Assembled readings on specific topics, Business laws and regulatory issues | Permalink | Comments (0)

Monday, April 3, 2017

Examining distinctive state laws on home growing marijuana for medicinal or recreational purposes

Among the many exciting topics for student presentations in my Marijuana Law, Policy & Reform seminar this coming wee is a look at "recent trends and varying approaches in allowing/restricting home growing marijuana for medicinal or recreational purposes and the plant count and possession limitations these laws impose." As preparation for this topic, my student has provided these links for background reading:

Law review article: Ryan Stoa, “Marijuana Appellations: The Case for Cannabicultural Designations of Origins.”

A research paper expounding upon the possible iterations of a post-legalization marijuana market in the United States. Predictions concerning the form of a future market and the potential regulatory hurdles in the way. The possibility of the marijuana market evolving similarly to the wine industry and avoiding the widespread concern with “Big Marijuana."

Press article: "Costs of Growing Cannabis at Home vs. Buying Bud at a Dispensary"

A helpful guide comparing the costs to a consumer of either cultivating their own marijuana or simply purchasing marijuana from a dispensary.

Press article: "16 people indicted in massive home-grown marijuana operation across Denver area"

A recent article from Denver concerning home grown marijuana entering into the black market.

NORML map with links

A helpful visual summary of which states have adopted medical/recreational marijuana policies.

Press article: "Home Cannabis Cultivation Laws by State"

A quick reference to the laws of each state that has legalized marijuana for recreational or medical purposes with regard to home cultivation.

April 3, 2017 in Assembled readings on specific topics, Business laws and regulatory issues, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Looking at realities and regulations for CBD oil and other cannabis products without THC

One of my Marijuana Law, Policy & Reform seminar students is taking a deep dive into products and processes involving cannabis without THC, giving particular attention to the "murky issues relating to CBD oil and the extraction of oils from all cannaboids." For this topic, my student has provided for posting here "some interesting articles about CBD oil, hemp and the implications for the USDA and FDA [that reveal] some conflicting reports about legality, organic certification and other important matters" as background for his presentation:

USDA Instruction on Organic Certification of Industrial Hemp Production

Press article: "USDA Announces Domestic Grown Hemp Can’t Be Labelled Organic"

Press release: "CBDRx Receives USDA Organic Certification for Its Hemp"

FDA report: "2016 Warning Letters and Test Results for Cannabidiol-Related Products"

Press article: "New DEA Rule Says CBD Oil is Really, Truly, No-Joke Illegal"

April 3, 2017 in Assembled readings on specific topics, Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate | Permalink | Comments (0)

Sunday, April 2, 2017

Diving into issues presented by marijuana in the workplace

As readers know from recent posts, my Marijuana Law, Policy & Reform seminar students deep into their class presentations and we have a big final few weeks afoot. One student this coming week is looking at labor and employment law issues, and here are the materials this student has prepared for background on this topic:

Briefing on "Legal Issues: Marijuana In The Workplace"

Article on "Marijuana Use and Its Impact on Workplace Safety and Productivity"

Article on "Medical Marijuana and the Workplace: What Employers Need to Know Now"

Press report on "Colorado Supreme Court says companies can fire workers for using medical marijuana in their off-hours"

April 2, 2017 in Assembled readings on specific topics, Business laws and regulatory issues, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Saturday, April 1, 2017

Marijuana Policy Within Professional Sports -- Arguments For and Against League Acceptance and Player Use

In my Marijuana Law, Policy & Reform seminar, there is often interest in exploring how professional sports leagues deal with marijuana issues (and the issue changes dynamically nearly every year).  This year is no different, and  I am excited to review the materials and hear the presentation of this year's student addressing the topic that serves as the title of this post.  Here are several links to articles sent to me by the student in preparation for his presentation:

National Football League, Policy And Program On Substances Of Abuse

Article on "MLB, NBA, And NFL’s Policy On Cannabis

Article on "NFLPA: Marijuana policy in NFL is "a CBA issue, not a law-enforcement issue'"

Commentary on "Why the NBA’s Marijuana Policy Is Superior to the NFL’s"

Article on "The NHL's Attitude Toward Marijuana Might Surprise You"

Article on "The Effect Of Weed On Exercise: Is Marijuana A Performance-Enhancing Drug?"

Article on "The Green Team: 18 of the Biggest Cannabis Advocates in Sports"

April 1, 2017 in Assembled readings on specific topics, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Sports | Permalink | Comments (0)

A Survey of Legal Issues & Risk Management Methods for Medical Marijuana Start-ups in Ohio

A terrific guest speaker for part of my last class means that my Marijuana Law, Policy & Reform seminar students are going to be making a large number of class presentations this week.  So, blog readers should be prepared and excited to be seeing a bunch of posting about diverse topics that are the focal point for student work.  For example, one student is focused on medical marijuana "start ups" in the Buckeye State, and he has provided the following synopsis and links as a preview of his presentation:

The conflict of Ohio law and applicable federal law on medical marijuana presents a myriad of legal issues for individuals and businesses to consider when deciding whether to participate in the new cannabis industry.  But because federal law preempts conflicting state law, the primary goal of participants should be to manage the risk of federal enforcement uncertainty to an acceptable level.  For those who are willing and able to manage the risk of uncertainty, participation in the new cannabis industry is not just about making money -it’s also about making history.  Meanwhile, those who are unable to navigate the complex contours of cannabis law are left watching from the sidelines.

1.      Federal Preemption: Risk of Forfeiture. August 2013 Cole Memo; The Role of Local Law Enforcement in Civil Forfeiture

2.      Local Government Law: Risk of Local Zoning/Land Use Restrictions. Ohio H.B. 523; Garcia v. Siffrin Residential Ass'n, 63 Ohio St. 2d 259, 407 N.E.2d 1369 (1980)

3.      Banking Law: Risk of Money Laundering Liability. BSA Expectations Regarding Marijuana-Related Businesses.

4.      Intellectual Property Law: Risk of Unsecured Enforcement Rights. In re Morgan Brown, U.S.P.T.O. Trademark Trial and Appeal Board, Serial No. 86/362,968 (2016); In re Christopher C. Hinton, U.S.P.T.O. Trademark Trial and Appeal Board, Serial No. 85/713,080 (2015).

5.      Tax Law: Risk of Preclusion. Capitalization of Inventoriable Costs; Californians Helping to Alleviate Med. Problems, Inc. v. Comm'r, 128 T.C. 173 (2007).

6.      Employment Law: Risk of Disputes. Ohio HB 523; Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir. 2012).

7.      Bankruptcy Law: Risk of Relief Dismissal. In re Arenas, 514 B.R. 887 (Bankr. D. Colo. 2014); In re McGinnis, 453 B.R. 770 (Bankr. D. Or. 2011).

April 1, 2017 in Assembled readings on specific topics, Business laws and regulatory issues, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)