Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Monday, August 22, 2016

A darker view of a recent medical marijuana court victory: "10 things to hate about the McIntosh decision"

In this post over at my other blog, I flagged last week's Ninth Circuit panel ruling in US v. McIntosh, No. No. 15-10117 (9th Cir. Aug. 16, 2016) (available here), on a series of appeals concerning "whether criminal defendants may avoid prosecution for various federal marijuana offenses on the basis of a congressional appropriations rider that prohibits the United States Department of Justice from spending funds to prevent states’ implementation of their own medical marijuana laws."  That ruling was hailed by many marijuana reform advocates as a victory because the court concluded that "at a minimum, § 542 prohibits DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws." 

But astute followers of the law and policies surrounding marijuana reform know that there is rarely simple story around any aspect of federal marijuana laws and policy, and John Hudak has this recent posting at a Brookings blog explaining reasons why "medical marijuana advocates should [still] worry" after the McIntosh decision.  Here are excerpts from the start and the headings of his commentary:

[M]arijuana reform advocates applauded a federal appeals court decision limiting the power of the Department of Justice to prosecute certain marijuana growers. In United States v. McIntosh, the three judge panel (two Republican and one Democratic appointee) dealt explicitly with the Rohrabacher amendment — a rider to a congressional spending bill that barred the DOJ from spending funds on enforcing the Controlled Substances Act in states with medical marijuana reform laws.

Despite the rider being signed into law—by President Obama—the Obama administration continued to bust growers in medical marijuana states. The defendants in the 10 cases grouped together in this appeal hail from California and Washington and were indicted on a variety of federal charges. They fought the charges in lower courts on the basis of the rider without success, and brought their case to the 9th Circuit Court of Appeals.

After the usual judicial hoops of establishing jurisdiction and the appropriateness of the court stepping in at this time to intervene in an ongoing prosecution, the court ruled on the merits of the case.  The 9th circuit decision explains that even though “the rider is not a model or clarity” (24) it “prohibits DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws” (27).

If you’re a marijuana reform advocate, a grower, a cannabis enterprise executive, a patient, or otherwise related to the medical marijuana industry, this is great news, right?

Well, yes and no.  The cork popping over the ruling in McIntosh may have been a bit premature.  While the central holding of the case is a tremendous victory for the movement and offers a real barrier against executive enforcement power in the context of marijuana, the details of the decision are a bit more mixed.  Namely, for the medical marijuana community, there are 10 things to hate about the McIntosh decision.

  1. The ruling has limited scope...
  2. McIntosh is about medical marijuana only...
  3. The Cole Memos are not the Great Savior many believe...
  4. State-level marijuana reforms do not legalize marijuana...
  5. State-level marijuana reforms do not legalize marijuana...
  6. This ruling may not always help current defendants or marijuana law violators...
  7. This ruling may not always help future defendants...
  8. This ruling may not always help future defendants...
  9. This ruling may not always help future defendants...
  10. This ruling may not always help future defendants

August 22, 2016 in Business laws and regulatory issues, Court Rulings, Federal court rulings, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Thursday, August 18, 2016

"Can the Next U.S. President Reschedule Marijuana?"

USP1310-CE-T2The question in the title of this post is the headline of this timely Inc. article, which essentially answers the question via its lengthy subheadline: "The DEA denied the most recent petition to reschedule marijuana, citing a lack of scientific evidence to prove its medical benefits. But here's how Obama, or the next U.S. president, can reschedule the drug." Here is more from the article:

The U.S. Drug Enforcement Administration has denied the most recent petitions to reschedule marijuana. But Hillary Clinton says that if she becomes president, she will move marijuana to the same category as oxycodone and other opioid painkillers available by a doctor's prescription. Clinton, through her senior policy adviser Maya Harris, told The Cannabist that she will reschedule marijuana from its position as a Schedule I substance to Schedule II under the Controlled Substances Act.

"Marijuana is already being used for medical purposes in states across the country, and it has the potential for even further medical use," said Harris in a statement. "As Hillary Clinton has said throughout this campaign, we should make it easier to study marijuana so that we can better understand its potential benefits, as well as its side effects."

Presidential candidates make all sorts of promises, but could a president actually reschedule marijuana unilaterally? The answer is yes, but not with a stroke of a pen.

John Hudak, senior fellow at the Brookings Institute, explains that there are certain procedures in the Controlled Substances Act that must be followed. "A president cannot reschedule a substance by executive order, that is against the Controlled Substance Act," says Hudak. "It is against the letter of the law." Hudak says there is a suggestion in the CSA that the attorney general might be able to reschedule a substance unilaterally through an order, but that would fly against the long-established administrative procedure and might bump up serious legal challenges.

Mark Kleiman, a professor of public policy and the director of the Crime Reduction & Justice Initiative at New York University's Marron Institute, explains how Hillary, if she wins, can follow through on her promise. "She is not making it up. She can reschedule marijuana. It's not that complicated," says Kleiman. The power to reschedule a substance, Kleiman says, has been delegated to the attorney general (who in turn delegates to the DEA) and to the Department of Health and Human Services (which in turn delegates its clinical testing to the FDA). "But, yes," he adds. "Those people work for the president, and, yes, the president can tell them to reschedule marijuana."

The logistical process of rescheduling, Kleiman says, would involve redefining what "current accepted medical use" means in the Controlled Substances Act. Again, it's up to the agencies (attorney general with the DEA; HHS with the FDA) to define what that term means. "All the DEA has to do is explain how they have overruled themselves and will be going back to what DEA administrative law judge Francis Young said in 1988, that 'medical use' means a bunch of physicians believe something is useful," says Kleiman. "The DEA could say how they take notice that a lot of physicians are recommending marijuana and how 25 state legislatures agree with the doctors. We are now saying this has accepted medical use, but it still has high abuse potential; we're putting it in Schedule II."

As the CSA gave authority to the attorney general, who in turn delegated to the DEA, those agencies are allowed to interpret statutes in varying degrees, unless the decisions are "obviously unreasonable, arbitrary, or capricious," says Kleiman. That means if Clinton wanted to reschedule marijuana if she makes it to the White House, she could....

It should be noted, however, that rescheduling will not make the state-sanctioned recreational markets in Alaska, Colorado, Oregon, Washington state, and Washington, D.C. legal, nor will it make the medical marijuana markets in 25 states legal. If marijuana becomes a Schedule II drug, it will still be illegal federally to use, produce, or manufacture. If marijuana were down-scheduled, it would still be federally illegal to produce and sell because Schedule II drugs cannot be given out without a prescription. A prescription can only be written for an FDA-approved drug, and there are no FDA-approved drugs made with the whole cannabis plant. (Marinol, which is FDA approved, is made with synthetic THC.)

As for the industry's hope that the whole plant will be FDA-approved, Hudak says not a chance. Hudak says if cannabis-based medicines are approved in the future, the medicines will not be botanical. Like other FDA-approved drugs, specific chemicals will be extracted and isolated at the molecular level in a method that is replicable and consistent. "You might see cannabinoid compounds rescheduled and put on the market, but whole flower smoked marijuana will never be approved," says Hudak.

August 18, 2016 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical community perspectives, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Sunday, August 14, 2016

Highlighting myriad challenges for doctors in a world of widespread state medical marijuana reforms

Dt_160517_medical_marijuana_cannabis_800x600This recent USA Today piece, headlined "As states OK medical marijuana laws, doctors struggle with knowledge gap," puts a needed spotlight on what I think may be the most under-examined aspect of modern state medical marijuana reforms. Here are excerpts:

Medical marijuana has been legal in Maine for almost 20 years.  But Farmington physician Jean Antonucci says she continues to feel unprepared when counseling sick patients about whether the drug could benefit them.  Will it help my glaucoma?  Or my chronic pain?  My chemotherapy’s making me nauseous, and nothing’s helped.  Is cannabis the solution? Patients hope Antonucci, 62, can answer those questions.  But she said she is still “completely in the dark.”

Antonucci doesn’t know whether marijuana is the right way to treat an ailment, what amount is an appropriate dose or whether a patient should smoke it, eat it, rub it through an oil or vaporize it.  Like most doctors, she was never trained to have these discussions. And, because the topic still is not usually covered in medical school, seasoned doctors, as well as younger ones, often consider themselves ill-equipped.  Even though she tries to keep up with the scientific literature, Antonucci said, “it’s very difficult to support patients but not know what you’re saying.”

As the number of states allowing medical marijuana grows – the total has reached 25 plus the District of Columbia – some are working to address this knowledge gap with physician training programs.  States are beginning to require doctors to take continuing medical education courses that detail how marijuana interacts with the nervous system and other medications, as well as its side effects.

Though laws vary, they have common themes. They usually set up a process by which states establish marijuana dispensaries, where patients with qualifying medical conditions can obtain the drug.  The conditions are specified on a state-approved list. And the role of doctors is often to certify that patients have one of those ailments. But many say that, without knowing cannabis’ health effects, even writing a certification makes them uncomfortable.  “We just don’t know what we don’t know. And that’s a concern,” said Wanda Filer, president of the American Academy of Family Physicians and a practicing doctor in Pennsylvania.

This medical uncertainty is complicated by confusion over how to navigate often contradictory laws.  While states generally involve physicians in the process by which patients obtain marijuana, national drug policies have traditionally had a chilling effect on these conversations.  The Federation of State Medical Boards has tried to add clarity. In an Aug. 9 JAMA editorial, leaders noted that federal law technically prohibits prescribing marijuana and tasks states that allow it for medical use to “implement strong and effective ... enforcement systems to address any threat those laws could pose to public safety, public health and other interests.”  If state regulation is deemed insufficient, the federal government can step in.

That's why many doctors say they feel caught in the middle, not completely sure of where the line is now drawn between legal medical practice and what could get them in trouble. In New York, which legalized marijuana for medicinal purposes in 2014, the state health department rolled out a certification program last October. (The state’s medical marijuana program itself launched in January 2016.)  The course, which lasts about four hours and costs $249, is part of a larger physician registration process. So far, the state estimates 656 physicians have completed the required steps.  Other states have contacted New York’s Department of Health to learn how the training works.

Pennsylvania and Ohio are also developing similar programs.  Meanwhile in Massachusetts, doctors who wish to participate in the state medical marijuana program are required to take courses approved by the American Medical Association. Maryland doesn’t require training but encourages it through its Medical Cannabis Commission website, a policy also followed in some other states.

Physicians appear to welcome such direction.  A 2013 study in Colorado, for instance, found more than 80% of family doctors thought physicians needed medical training before recommending marijuana.  But some advocates worry that doctors may find these requirements onerous and opt out, which would in turn thwart patients’ access to the now-legal therapy, said Ellen Smith, a board member of the U.S. Pain Foundation, which favors expanded access to medical cannabis.

Education is essential, given the complexity of how marijuana interacts with the body and how little physicians know, said Stephen Corn, an associate professor of anesthesiology, perioperative and pain medicine at Harvard Medical School.  Corn also co-founded The Answer Page, a medical information website that supports the New York program and is also bidding to supply information for the Pennsylvania program, Corn said....

From a medical standpoint, the lack of information is troubling, Filer said. “Typically, when we’re going to prescribe something, you’ve got data that shows safety and efficacy,” she said.  With marijuana, the body of research doesn’t match what many doctors are used to for prescription drugs.

Still, Corn said, doctors appear pleased with the state training sessions. More than 80% of New York doctors who have taken his course said they changed their practice in response to what they learned.  But even now, whenever Corn speaks with doctors about medical marijuana, people ask him how they can learn more about the drug’s medical properties and about legal risks.  Those two concerns, he said, likely reduce the number of doctors comfortable with and willing to discuss marijuana’s place in medicine, even if it’s allowed in their states.

August 14, 2016 in Federal Marijuana Laws, Policies and Practices, Medical community perspectives, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (2)

Saturday, August 13, 2016

Rounding up reactions to DEA's modest marijuana moves

As reported in prior posts here and here, the Drug Enforcement Agency this past week made only a modest change to federal marijuana policies.  Not surprisingly, the failure of DEA being willing to do a lot more has generated criticisms and various expressions of concern and analytical perspectives.  Here are some of these reactions from various traditional and non-traditional media sources:

  • From Business Insider here, "Here's what the DEA's big decision on marijuana means for users and 'potrepreneurs'"

  • From Forbes here, "DEA's Hypocritical Marijuana Decision Ignores The Evidence"

  • From Marijuana.com here, "DEA No, Clinton Yes: As POTUS, Hillary Would Reschedule Marijuana"

  • From the New York Times here, "Stop Treating Marijuana Like Heroin"

  • From Quartz here, "The DEA's sop to pot advocates won't boost marijuana research very much at all"

August 13, 2016 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Friday, August 12, 2016

"7 Scientific Effects of Marijuana That Experts Want to Study"

The title of this is the headline of this new Time article that serves as a somewhat fitting follow-up to the (big?) news the DEA delivered this week about marijuana scheduling and research.   Here are excerpts:

On Thursday the U.S. government announced that marijuana would continue to be classified as a Schedule 1 drug, meaning it has a high potential for abuse.  However, the feds are allowing more research on marijuana’s medicinal uses by making it easier for researchers to grow it.

Many researchers, both those who view marijuana as beneficial and those who are skeptical, argue that the government’s stance still hinders research.  “I understand the cautious nature of the government, whose role is basically to protect its citizens, but it is disappointing that marijuana continues to be included on the DEA’s list of the most dangerous drugs,” says Dr. Yasmin Hurd of Mount Sinai, who studies the effects of marijuana on the brain.

Though more than 20 states have legalized marijuana for medicinal uses, there’s still a lot scientists don’t know about it.  “It’s actually quite amazing how little we really know about something that has been used for thousands of years,” says Sachin Patel of Vanderbilt University who studies cannabis.  “We desperately need well-controlled unbiased large scale research studies into the efficacy of cannabis for treating disease states, which we have very little of right now.  Without these studies we are basically flying blind with regard to medical marijuana in my opinion.”

Scientists argue that studying marijuana is safe, and researching it shouldn’t be such a difficult process.  “A question that is not on the lips of researchers is whether or not the consumption of cannabis-based medicines is safe,” says Gregory Gerdeman, an Assistant Professor of Biology at Eckerd College.  “In the biomedical research community, it is universally understood that cannabis is a very safe, well-tolerated medicine.”

Here’s what researchers tell TIME they want to know about marijuana.

Is marijuana an effective cancer therapy?...

What does it do to the brain?...

What dosage or strains have the best use in medicine?...

Can marijuana help brain and cognitive problems?...

What about anxiety?...

Can pot help end the opioid epidemic?...

Are there long term consequences of using pot?

August 12, 2016 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical community perspectives, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Who decides | Permalink | Comments (0)

Thursday, August 11, 2016

DEA announces new policy "designed to increase the number of entities registered under the Controlled Substances Act (CSA) to grow (manufacture) marijuana to supply legitimate researchers in the United States"

As the DEA exaplins in this press release (which also notes its decision to deny petitions seeking rescheduling of marijuana under the CSA (discussed here)), the agency has "announced a policy change designed to foster research by expanding the number of DEA- registered marijuana manufacturers."  The formal announcement of the new policy can be found in this Federal Register document, and here is more about the policy change from the DEA press release:

This change should provide researchers with a more varied and robust supply of marijuana. At present, there is only one entity authorized to produce marijuana to supply researchers in the United States: the University of Mississippi, operating under a contract with NIDA.  Consistent with the CSA and U.S. treaty obligations, DEA’s new policy will allow additional entities to apply to become registered with DEA so that they may grow and distribute marijuana for FDA-authorized research purposes.

This change illustrates DEA’s commitment to working together with the FDA and NIDA to facilitate research concerning marijuana and its components. DEA currently has 350 individuals registered to conduct research on marijuana and its components.  Notably, DEA has approved every application for registration submitted by researchers seeking to use NIDA-supplied marijuana to conduct research that HHS determined to be scientifically meritorious. 

Encouragingly, John Hudak at Brookings, who understand the ins and outs of federal marijuana laws and regulations better than anyone, has this new commentary explainaing why he thinks this DEA marijuana research decision "is more important than rescheduling." Here is how he starts his must-read commentary:

Today the Drug Enforcement Administration is expected to announce its decision on a five-year-old marijuana rescheduling petition.  After a long wait and amid wild speculation about the agency’s intentions, DEA has decided to keep marijuana as a Schedule I substance, but to take the unexpected step of ending the monopoly on the production of research grade marijuana.

This move will certainly disappoint many in the marijuana reform community who hoped that DEA would change marijuana’s status.  Under current policy — and now continuing policy — marijuana is categorized along with heroin and LSD as a substance that has no medical value and that has a high potential for abuse.  Reformers hoped that the administration would accept the claim that marijuana has medical benefit and can be used safely in treatment.  Today, it is opting not to do so.

However, DEA, in a clear sign of the growing political complexity around cannabis policy in the United States, will strike a balance.  Rather than wholly maintaining the current policy, the administration nixed a different stumbling block to the study of marijuana and its efficacy as a medical product: the DEA mandated monopoly on the growth of marijuana for research (administered through the National Institutes on Drug Abuse).  The DEA-mandated NIDA monopoly was cited as a significant barrier to research by observers like myself, Mark Kleiman and many others, as well as clinical researchers themselves.

Despite reformers’ discontent, this decision may be more meaningful than the ultimate goal of rescheduling for both policy and political reasons.

August 11, 2016 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical community perspectives, Medical Marijuana Data and Research, Who decides | Permalink | Comments (0)

DEA concludes that there is "no substantial evidence that marijuana should be removed from schedule I"

2000px-US-DrugEnforcementAdministration-Seal.svgThe language quoted in the title of this post is from the letter, dated July 19, 2016, in which the Drug Enforcement Administration (DEA) announced that it had "formally denied a petition to initiate rulemaking proceedings to reschedule marijuana."   This lengthy document makes this letter and related materials publically available with this explanation: "Because the DEA believes that this matter is of particular interest to members of the public, the agency is publishing below the letter sent to the petitioner which denied the petition, along with the supporting documentation that was attached to the letter."  

Here are some excerpts from the letter:

In accordance with the CSA scheduling provisions, after gathering the necessary data, DEA requested a scientific and medical evaluation and scheduling recommendation from the Department of Health and Human Services (HHS). HHS concluded that marijuana has a high potential for abuse, has no accepted medical use in the United States, and lacks an acceptable level of safety for use even under medical supervision. Therefore, HHS recommended that marijuana remain in schedule I. The scientific and medical evaluation and scheduling recommendation that HHS submitted to DEA is attached hereto.

Based on the HHS evaluation and all other relevant data, DEA has concluded that there is no substantial evidence that marijuana should be removed from schedule I. A document prepared by DEA addressing these materials in detail also is attached hereto. In short, marijuana continues to meet the criteria for schedule I control under the CSA because:

1) Marijuana has a high potential for abuse. The HHS evaluation and the additional data gathered by DEA show that marijuana has a high potential for abuse.

2) Marijuana has no currently accepted medical use in treatment in the United States. Based on the established five-part test for making such determination, marijuana has no ‘‘currently accepted medical use’’ because: As detailed in the HHS evaluation, the drug’s chemistry is not known and reproducible; there are no adequate safety studies; there are no adequate and well-controlled studies proving efficacy; the drug is not accepted by qualified experts; and the scientific evidence is not widely available.

3) Marijuana lacks accepted safety for use under medical supervision. At present, there are no U.S. Food and Drug Administration (FDA)-approved marijuana products, nor is marijuana under a New Drug Application (NDA) evaluation at the FDA for any indication. The HHS evaluation states that marijuana does not have a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions. At this time, the known risks of marijuana use have not been shown to be outweighed by specific benefits in well-controlled clinical trials that scientifically evaluate safety and efficacy....

Although the HHS evaluation and all other relevant data lead to the conclusion that marijuana must remain in schedule I, it should also be noted that, in view of United States obligations under international drug control treaties, marijuana cannot be placed in a schedule less restrictive than schedule II.  This is explained in detail in the accompanying document titled "Preliminary Note Regarding Treaty Considerations."

Accordingly, and as set forth in detail in the accompanying HHS and DEA documents, there is no statutory basis under the CSA for DEA to grant your petition to initiate rulemaking proceedings to reschedule marijuana.  Your petition is, therefore, hereby denied.

A second similar publication is available at this link, and the DEA has this press release explaining:

DEA has denied two petitions to reschedule marijuana under the Controlled Substances Act (CSA). In response to the petitions, DEA requested a scientific and medical evaluation and scheduling recommendation from the Department of Health and Human Services (HHS), which was conducted by the U.S. Food and Drug Administration (FDA) in consultation with the National Institute on Drug Abuse (NIDA). Based on the legal standards in the CSA, marijuana remains a schedule I controlled substance because it does not meet the criteria for currently accepted medical use in treatment in the United States, there is a lack of accepted safety for its use under medical supervision, and it has a high potential for abuse

August 11, 2016 in Federal Marijuana Laws, Policies and Practices, Medical community perspectives, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Thursday, July 28, 2016

Democrats formally approve platform calling for "pathway" to marijuana legalization

I continue to not know just how much import and impact official party platforms have. Nevertheless, I still think this press piece about formal events at the DNC, headlined "Democrats become first major party to back pathway to legalizing pot," is reporting on events that are a pretty big deal for marijuana reform advocates now and in the years ahead. Here is the official language from the party platform embraced by Dems:

“Because of conflicting federal and state laws concerning marijuana, we encourage the federal government to remove marijuana from the list of ‘Schedule 1’ federal controlled substances and to appropriately regulate it, providing a reasoned pathway for future legalization. We believe that the states should be laboratories of democracy on the issue of marijuana, and those states that want to decriminalize it or provide access to medical marijuana should be able to do so. We support policies that will allow more research on marijuana, as well as reforming our laws to allow legal marijuana businesses to exist without uncertainty. And we recognize our current marijuana laws have had an unacceptable disparate impact in terms of arrest rates for African-Americans that far outstrip arrest rates for whites, despite similar usage rates.”

Here is more from the press piece with reactions to these developments from leading marijuana reform advocates:

Legalization backers applauded the vote and said it reflected polls that found a majority of Americans wanted to legalize the drug.  “The fact that one of the country’s two major parties has officially endorsed a pathway to legalization is the clearest sign we’ve seen yet that marijuana reform is a mainstream issue at the forefront of American politics,” said Tom Angell, chairman of Marijuana Majority, a pro-legalization group. “A clear and growing majority of voters want to end prohibition.”

Former Secretary of State Hillary Clinton, the Democratic presidential candidate, does not back across-the-board legalization at the federal level. The platform includes her often-used language that marijuana legalization should be left to the states, allowing them to be “laboratories of democracy.”  That’s good news for Washington state, Colorado, Oregon and Alaska, which that have already approved recreational marijuana, along with the District of Columbia....

Mason Tvert, spokesman for the Marijuana Policy Project, a pro-legalization group, said a growing number of state Democratic parties had already backed legalization in their platforms this year.  That includes California, which will vote on recreational marijuana in November.  “It’s not particularly surprising that the platform calls for rolling back the failed policy of marijuana prohibition, seeing as the vast majority of Democrats – and a majority of Americans – support making marijuana legal for adults,” he said. 

Despite the support, Tvert said he wouldn’t be surprised if the issue didn’t get much attention from speakers at the Democratic convention this week.  “The platform typically reflects the positions of most party members, but it does not necessarily reflect the political or policy priorities of candidates and party leaders,” he said.

July 28, 2016 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Monday, July 25, 2016

Effective coverage of RNC and DNC marijuana reform realities

Last month in this post, I highlighted that, at Marijuana.com, Tom Angell does a great job covering news on the marijuana reform law and politics front.  The latest posts from this past week highlight why serious marijuana reform students should be regularly following his work:

July 25, 2016 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Thursday, July 14, 2016

"10 Smoke Signals Heralding The End Of Federal Medical Marijuana Prohibition"

DownloadThe title of this post is the headline of this new Huffington Post commentary authored by Steph Sherer, who serves as the Executive Director of Americans for Safe Access. Here are excerpts from the start and end of this piece along with the author's accounting of the 10 "smoke signals" showing how the winds of change are blowing with respect to federal marijuana policies:

Putting this article together gave me an opportunity step back and observe the landscape that medical cannabis policy has created.  The work of medical cannabis advocates and brave legislators is truly saving lives. Positive outcomes from medical cannabis policies are driving more states to create and improve programs.  With more than 300 million Americans living in the 42 states, along with D.C., Guam, and Puerto Rico, where some kind of medical cannabis law has been passed, there is a strong platform for politicians to move forward on this issue.

After putting this list together, it is mind-blowing to me that Senator Grassley will not allow the Compassionate Access, Research Expansion, and Respect States (CARERS) Act (S. 683/H.R. 1538) a vote in the Senate Judiciary Committee, especially considering that 78% of people in his own state of Iowa support medical cannabis.  Maybe this is one of the reasons he is struggling with his campaign for re-election.  This important bill would remedy the state-federal conflict over medical marijuana law; allowing (not requiring) states that want to participate in medical cannabis programs to do so without breaking federal law.

Maybe Grassley just needs to see this list too…

1. CARERS has Growing Support from Mainstream Republicans, such as Senator Graham (R-NC) and Congressman Young (R-IA)...

2. National Patient Organizations Are Calling for Change in Federal Law...

3. States Keep Passing Medical Cannabis Laws...

4. States Continue to Improve Medical Cannabis Laws...

5. New CDC Guidelines Instruct Pain Doctors Not to Test for THC...

6. Largest Pharmaceutical Retailer Acknowledges Medical Benefits of Cannabis...

7. Politicians Breaking Political Boundaries for Medical Cannabis...

8. Studies Continue to Show Public Health Benefits in States with Medical Cannabis...

9. Both Presidential Candidates Support Medical Cannabis...

10. Opponents Know they are Losing this Fight

In June, a new bill, the bipartisan Medical Marijuana Research Act of 2016, was introduced.  Surprisingly, this bill was sponsored by several known medical cannabis opponents, including Representative Andy Harris (R-Md.), one of Congress’s most vocal opponent of legal marijuana.  Other sponsors included, Earl Blumenauer (D-OR), Sam Farr (D-CA), and Morgan Griffith (R-VA), and in the Senate; Brian Schatz, (D-HI), Orrin Hatch (R-UT), Chris Coons, (D-DE), and Thom Tillis (R-NC).  While it should be commended that they are making a step towards removing federal barriers to medical cannabis research, this bill does nothing to protect state programs and patients.  It is their way of saying, we are losing this fight, so we must give something in return.

Ending the conflict between state and federal medical cannabis laws is the most important goal for keeping patients safe, and for that reason, it is important to remain focused on passing the CARERS Act, which would protect existing state programs and patients.  While more research is certainly desirable, patients cannot wait for the years or decades it may take for the results of this research to drive further Federal policy changes.

And there you have it!  10 reasons that clearly show the end of Federal Medical Marijuana Prohibition is near, and that also show how out of touch Senator Grassley is on this issue.  ASA and many other advocates have worked hard to make the changes mentioned above possible.  If just a small portion of the 89% of Americans who support medical cannabis let their members of Congress know, then this may be the last year for federal prohibition of medical cannabis.

July 14, 2016 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Monday, July 11, 2016

"What (and Whom) State Marijuana Reformers Forgot: Crimmigration Law and Noncitizens"

The title of this post is the title of this new paper by Carrie Lynn Rosenbaum now available via SSRN. Here is the abstract:

This paper asserts that state and local marijuana reforms that relax criminal penalties should, but will likely not, benefit Latino/a noncitizens.  Because of the intricate relationship between criminal and immigration enforcement, state and local police engagement in racial profiling will not only fail to be eliminated by state-level marijuana reforms but may be exacerbated.  As a result, in spite of marijuana law reforms intended to lessen overly punitive penalties stemming from minor marijuana conduct, noncitizen Latino/as will continue to be disproportionately criminally policed and deported.

Scholarly literature addressing the intersection of criminal and immigration law has considered ways in which racial profiling in criminal law enforcement infects the immigration removal process.  However, the literature has yet to explore the way in which sub-federal drug law reforms, and specifically, recent marijuana law reforms, will fall short for noncitizen Latino/as because of the way in which racial profiling in criminal law enforcement infects the immigration removal process.

After decades of excessive, punitive, and ineffective policies, particularly in the area of drug law enforcement, states have initiated reforms, including marijuana decriminalization.  At the same time that decriminalization measures are being implemented, in the field of immigration law, resources for apprehension, detention and deportation have skyrocketed, with a focus on “criminal aliens.”  The criminal-immigration removal system has resulted in local and state law enforcement agents playing a critical, and problematic role in the detection, apprehension, and removal of “criminal aliens.”

The plight of noncitizens deported or found inadmissible based on marijuana-related conduct highlights a deeper, systemic problem.  Not only do extremely harsh immigration consequences serve as a double-penalty for potentially minor marijuana offenses, particularly in light of criminal law reforms, but enforcement of remaining marijuana laws will likely fall disproportionately on Latina/o noncitizens.  Over ninety percent of deportations arising out of criminal law enforcement are to Central American and Mexico, yet Mexican and Central American immigrants make up less than half of the United States immigrant population.

While decriminalization of marijuana may be more than a symbolic move away from the failed “tough on crime” policies of the past, it not only fails to take into consideration the impact of marijuana laws on noncitizens but also may exacerbate the racially biased aspects of drug law enforcement on noncitizens, particularly Latinos.  This Article discusses the ways in which criminal-immigration law enforcement has impacted noncitizens, primarily Latino/as, to demonstrate why sub-federal marijuana reforms will fail to alleviate racially disparate outcomes, perpetually leaving Latino/a noncitizens in the shadows.

July 11, 2016 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)

Wednesday, July 6, 2016

New study suggests medical marijuana is already saving millions in Medicare costs

Medicare-and-uncle-samThis new Boston Globe article, headlined "Medical marijuana changing prescription practices, study finds," reports on fascinating new research seeming to document another financial benefit from marijuana reform. Here are the interesting details:

The arrival of medical marijuana in Massachusetts and other states is changing the way doctors prescribe conventional medications, a study published Wednesday reports.

The study, one of the first to investigate whether medical marijuana laws alter prescribing patterns, analyzed data from 17 states and Washington, D.C. It found that after medical marijuana laws were adopted, doctors wrote fewer prescriptions for Medicare patients diagnosed with anxiety, pain, nausea, depression, and other conditions thought to respond to marijuana treatment.

That translated to about $165 million less spent on prescription drugs in just one year in the Medicare program, which provides health insurance for older adults, according to the study published in the journal Health Affairs. Analysts said the findings are especially significant coming amid the nation’s opioid crisis and campaigns to reduce the prescribing of potentially addictive painkillers.

W. David Bradford, a health economist at the University of Georgia and the study’s senior researcher, said an ongoing review of the government’s Medicaid database, which includes a younger population more likely to use marijuana, suggests an even stronger correlation between prescribing trends and medical marijuana laws. Medicaid insures mostly younger patients who are poor and disabled. “This research says there is evidence that physicians are responding as if marijuana is medicine, and as if there is clinical benefit,” Bradford said.

The researchers analyzed millions of drugs prescribed by physicians from 2010 through 2013 in the Medicare Part D database. They focused their analysis on drugs that treat conditions for which marijuana might be an alternative treatment, including anxiety, depression, glaucoma, nausea, pain, psychosis, seizures, sleep disorders, and a muscle control disorder known as spasticity. They found that for all conditions, except glaucoma and spasticity, fewer prescriptions were written when a medical marijuana law was in effect.

To confirm the link to marijuana laws, and not other factors, the researchers compared results from the states with medical marijuana to states that had not legalized it. They did not see a similar decline in prescribing in states without marijuana laws. As a further test, the researchers selected four drugs prescribed for conditions for which there are no studies suggesting benefit from marijuana treatment. Those drugs included blood-thinners, antibiotics, antivirals to treat the flu, and a drug used in dialysis. They found no decline in prescriptions for these drugs....

Avi Dor, a health economist and professor of health policy and management at George Washington University’s Milken Institute, called the study “impressive and timely,” given concerns about prescription opioid abuse. Opioids are often prescribed for many of the conditions the researchers studied. “We can’t be sure about the causality [in the study], but the evidence is strong in favor of the marijuana laws leading to the substitution away from certain drugs,” said Dor, who was not involved in the research. “We just don’t know if, over time, the effects they find will wash out or become amplified,” Dor said. “Physicians and their patients are only beginning to experiment with the new therapeutic alternative of medical marijuana.”

The Health Affairs study estimated that if medical marijuana had been available in all states in 2013, the Medicare prescription program would have saved about $468 million because of fewer prescriptions for just that year -- an amount equal to one-half of 1 percent of Medicare prescription spending that year. But the researchers acknowledged that savings for Medicare might translate into more costs for patients who pay for medical marijuana out of their own pockets, because insurance doesn’t cover the drug.

Dr. Kevin Hill, an assistant professor of psychiatry at McLean Hospital and Harvard Medical School who studies marijuana, said the Medicare savings are important. But he noted physicians remain reluctant to recommend marijuana to their patients because they feel the evidence supporting its use is insufficient, or they are concerned about legal ramifications if they suggest a drug the federal government classifies as dangerous. “Medical marijuana may reduce prescription costs in some cases, but there is a risk that medical marijuana may be used for conditions that are not supported by evidence,” Hill said.

July 6, 2016 in Federal Marijuana Laws, Policies and Practices, Medical community perspectives, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Who decides | Permalink | Comments (0)

Monday, June 27, 2016

Is Congress now really "moving in the general direction of legalization" of marijuana?

The question in the title of this post is prompted by this notable new Politico article and its full headline: "Congress mellows on pot crackdowns: Following the lead of the states, it's moving in the general direction of legalization, advocates say."  Here is how the article begins:

Don’t break out the bong just yet, but Congress is quietly chipping away at the federal ban on marijuana. It’s not happening with a sweeping national law, but through modest provisions slipped into spending bills in recent weeks.

For example: Bills funding the Veterans Affairs Department have a line that lifts a prohibition on medical marijuana. The Senate Appropriations Committee has adopted provisions barring the federal government from interfering on pot enforcement where medical marijuana is already legal. And there’s movement in both chambers to make sure banks don’t get penalized for handling money from legal pot businesses.

None of these will bring overnight change on the federal level. But each little measure shows that Congress, following the lead of the states, is moving in the general direction of legalization, advocates say. “We can kind of look at this as the end of prohibition, or at least the beginning of the end of prohibition,” said Sen. Jeff Merkley, an Oregon Democrat who backed his state’s 2014 ballot initiative to legalize recreational marijuana and is helping lead efforts to soften federal restrictions.

Attitudes around the country and on Capitol Hill have changed so quickly that even advocates of rolling back pot restrictions have been surprised.  It was only a few years ago that even the most modest reform proposals were rejected in the House and Senate, said Michael Collins, deputy director of the Drug Policy Alliance.  Now?  “We just win all the time,” he said, sounding not unlike a certain presidential candidate.

Most of the winning has taken place during the humdrum, but hugely consequential annual appropriations process, and this year is no different. A series of bipartisan provisions to loosen marijuana laws have been attached to government funding bills and are making their way through the House and Senate.  In particular, lawmakers are making it easier for doctors to prescribe medical marijuana and are nudging banks to provide services to the nascent recreational marijuana industry, a key step toward legitimizing sales of the drug and paving the way for easy access at stores where pot is legal.

Democrats have typically been the strongest backers of reforming marijuana laws, but Republicans are increasingly lending their support as opinion shifts in red states, speeding up momentum in Congress.  “The missing component was the constitutionalists and the libertarian conservatives,” said Rep. Dana Rohrabacher, a conservative Republican from California, who has rallied GOP support to loosen restrictions.

I do not think it is accurate to even suggest that many members of Congress are moving toward full legalization, but I do strongly believe that most members have now come to see that, these days, there is likely more to lose than to gain politically by being a forcefully supporter of blanket prohibition at the federal level. And this reality makes the coming 2016 initiative votes in various states on full legalization so interesting and important. If full legalization wins in most states, I think Congress will see the political writing on the wall. But if it loses in a few states, I suspect the future of major legal reforms in Congress and elsewhere will be a bit slower and less certain.

June 27, 2016 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Saturday, June 25, 2016

"Democratic Senators Push DEA to Downgrade Marijuana Classification"

The title of this post is the headline of this notable new Wall Street Journal piece.  Here are excerpts:

A group of Democratic lawmakers is renewing pressure on the Drug Enforcement Administration to remove marijuana from its current position on a list of the most dangerous drugs, a category that includes heroin and ecstasy. Marijuana’s classification as a “Schedule I” drug is “a main barrier” to research on its potential health benefits and conflicts with a decision by half of the states to approve medical marijuana laws, eight Democratic senators wrote this week in a letter to the DEA and the Department of Justice, its parent agency.

DEA spokesman Russ Baer said in an interview that the agency is in the “final stages” of its deliberation on the issue, and he said a decision on whether to reschedule marijuana is expected “sometime soon.” Mr. Baer said he did not expect an answer by June 30, however, despite previous guidance from DEA officials that they hoped to make a decision in the first half of the year.

An increasing number of states now allow marijuana to be used for medical purposes, but the drug remains strictly illegal according to U.S. law. The federal government has adopted a practice of not prosecuting those who use marijuana according to their home-state laws. The senators argued that this “dissonance” between state and federal laws has “wide-ranging implications for legitimate marijuana businesses, including access to banking services, the ability to deduct business expenses from taxes, and access for veterans.”

Signers of the letters are Sens. Elizabeth Warren of Massachusetts, Barbara Mikulski of Maryland, Barbara Boxer of California, Ron Wyden and Jeff Merkley of Oregon, Kirsten Gillibrand of New York, Edward J. Markey of Massachusetts, and Cory Booker of New Jersey.

After the Food and Drug Administration determines whether a substance has a medical use, the DEA performs its own analysis and classifies a drug under one of five categories that also take into account their abuse potential. The DEA received a binding assessment from the FDA about whether marijuana should be considered to have a medical use nine to 12 months ago, Mr. Baer said.

That decision, which neither the DEA nor the FDA would discuss, is the controlling factor in whether the DEA will remove marijuana from Schedule I, said Mr. Baer. But regardless of the FDA’s decision, the DEA is required by law to do its own analysis, he said.

The full (and relatively short) letter from the Senators to the DEA is available here

June 25, 2016 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Monday, June 20, 2016

Bipartisan Medical Marijuana Research Act of 2016 gets support from most vocal opponents and supporters of reform

Capitolpot-largeAs reported in this WonkBlog posting via the Washington Post, two members of Congress known to marijuana reformers for different reasons are now teaming up to support new federal laws to advance marijuana research.  The piece is headlined "Marijuana’s biggest adversary on Capitol Hill is sponsoring a bill to research … marijuana," and here are excerpts:

Rep. Andy Harris (R-Md.) is Congress's most vocal opponent of legal marijuana, having single-handedly spearheaded a provision blocking legal pot shops in the District of Columbia in 2014. Rep. Earl Blumenauer (D-Ore.), on the other hand, was recently named Congress's "top legal pot advocate" by Rolling Stone.

The two lawmakers couldn't be farther apart on marijuana policy, but they're teaming up this week to introduce a significant overhaul of federal marijuana policy that would make it much easier for scientists to conduct research into the medical uses of marijuana.

As Harris described it in an interview, the bipartisan Medical Marijuana Research Act of 2016 would "cut through the red tape" that currently makes it exceedingly difficult for researchers to obtain and use marijuana in clinical trials. As federal law currently stands, only one facility in Mississippi is allowed to produce marijuana used for research. "Because of this monopoly, research-grade drugs that meet researchers’ specifications often take years to acquire, if they are produced at all," Brookings Institution researchers wrote last year.

Beyond those difficulties, researchers wanting to work with the drug need to have their work approved by the Drug Enforcement Administration, the Food and Drug Administration and, in some cases, the National Institutes on Health. Those hurdles, and the amount of time it takes to jump over all of them, deter many researchers from doing work on marijuana. In one typical case, it took a team of scientists seven years to get full approval to conduct research into using marijuana to treat post-traumatic stress disorder among veterans.

But the bill sponsored by Harris, Blumenauer, Rep. Sam Farr (D-Calif.) and Rep. H. Morgan Griffith (R-Va.) would allow many more growers to produce marijuana for research. It would also remove levels of federal review for marijuana research projects and specify shorter windows for federal approval of the projects.

Crucially, it would also change the criteria by which the federal government allows marijuana research to proceed. "The federal government must grant an application for [approval] unless it's not in the public interest, rather than assuming it's not," Blumenauer said in an interview. "Reversing that presumption is huge."

Marijuana is currently listed under Schedule 1 of the federal Controlled Substances Act, the most stringent category of regulation. This bill would not change the schedule status of marijuana, but it would essentially create a "carve-out" within Schedule 1 for marijuana research, according to Harris. "Marijuana's actually different from other things in Schedule 1, which are all discrete chemicals," he said in an interview. "The plant is a combination of hundreds of compounds, so it needs to be treated separately from the other drugs in Schedule 1."

In a separate action, the DEA is currently considering whether to keep marijuana in Schedule 1, move it to a lower schedule, or de-schedule it entirely. But Harris says that process doesn't affect his thinking on this bill. "I'm not going to wait for the DEA to figure out what's going on," he said.

John Hudak, who studies marijuana policy at the Brookings Institution, calls the bill "a really creative approach by Congressman Blumenauer and his colleagues to effectively reschedule marijuana without having to reschedule it." He added, "It forces the government to make it easier for qualified legitimate researchers to get access to product and conduct that research."

Marijuana advocates used to tussling with Harris over his opposition to legal weed may be surprised to see him coming out forcefully in support of improved research. But as a doctor himself, Harris says researchers tell him that they can't do their jobs on account of federal red tape. "It's a Catch-22 that the research is difficult because of the strict rules, and the rules are strict because of the lack of research," he said. His thinking on the drug hasn't changed, he says: "I think medical marijuana should be much more strictly controlled than it is now." But, he adds, "as a physician I would never want to deny a medicine to a patient that has been shown, with scientific rigor, to help them."

June 20, 2016 in Federal Marijuana Laws, Policies and Practices, Medical community perspectives, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Who decides | Permalink | Comments (0)

Monday, June 6, 2016

"Tax Benefits of Government-Owned Marijuana Stores"

The title of this post is the title of this notable new article authored by Benjamin Leff and now available via SSRN. Here is the abstract:

Over a year ago (March 7, 2015), a little store called the Cannabis Corner opened up in the small town of North Bonneville, Washington, about an hour by car from Portland, Oregon.  The Cannabis Corner is the first marijuana store to be operated by a “public development authority,” an independent entity created by a state or local government.  Public development authorities are generally exempt from federal income taxes under section 115 of the Internal Revenue Code.  For a marijuana business, this exemption is especially valuable because section 280E of the Code currently prevents marijuana businesses from deducting many of the ordinary expenses other businesses regularly deduct, resulting in extremely high federal income taxes.

This Article is the first to address whether independent governmental affiliates that sell marijuana are exempt from federal income tax under section 115 of the Internal Revenue Code.  It argues that such entities should easily pass the IRS’s current interpretation of the three requirements for tax-exemption under section 115: (i) that exempt income be derived from “the exercise of any essential governmental function;” (ii) that such income “accru[e] to a State or any political subdivision thereof;” and (iii) that the income “not serve private interests[.]” In addition, this Article argues that the fact that selling marijuana is illegal under federal law is not a bar to exemption under section 115 of the Code the way it is under section 501(c)(3).

Tax exemption for public development authorities that sell marijuana is important because of the non-tax benefits of a marijuana market dominated by government sellers.  Some of these benefits exist when governments are participants in a marijuana market that is open to private sellers as well, such as is the case in North Bonneville, Washington.  This Article also explores the benefits that might accrue if a state chose to create a regulatory regime for legalizing marijuana in which all marijuana selling took place in government-owned stores. Many states have experimented for years with state control of liquor sales, but there are reasons to believe that marijuana may be significantly more suited to a state-controlled market than alcohol, at least for a transitional period.  The question of whether an independent governmental affiliate is exempt from federal income tax, including section 280E, is especially important to governments contemplating the contours of their legal marijuana markets.

June 6, 2016 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Taxation information and issues | Permalink | Comments (0)

Monday, May 30, 2016

In tradition of George Washington and Thomas Jefferson, Libertarians nominate for Prez a cannabis businessman in Gary Johnson

926d67549938b727ed1419c8ad3fc0e3_f262For a host of reasons, I am pleased to see the Libertarian Party getting more than its usual attention this election cycle; and, as reported here, this past weekend the Libertarian Party selection Gary Johnson and William Weld to be their Prez and VP candidated for 2016.   Supporters of marijuana reform likely know the name Gary Johnson, and this recent AP article headlined "This marijuana-loving Libertarian staking claim as Trump alternative," highlights some of the reasons why. Here are excerpts:

Johnson is [going to be] relying on an intensifying schedule of media appearances to boost his name recognition in an effort to reach the necessary 15 percent threshold to qualify for the presidential debates this fall.  “We cannot go into a battleground state and compete,” said Johnson’s senior strategist Ron Nielson, citing the high cost of running a campaign in states like Florida or Ohio.  The Johnson campaign will instead focus its resources on cheaper states where libertarians have done well in the past, places like Alaska, maybe New Hampshire, he says.

Yet Trump’s Republican critics don’t necessarily need to find a candidate who can win. Many are seeking a legitimate protest candidate where they could focus their anti-Trump energy. Should that candidate earn even a few percentage points in key states this fall, it could hurt Trump’s chances. “Gary will be an outlet for millions of Americans who just can’t fathom the idea of voting for Hillary Clinton or Donald Trump,” said Ed Crane, who co-founded the libertarian-leaning Cato Institute and now runs a super PAC he says may support Johnson “down the road.”...

Johnson represents a set of policies that do not line up perfectly with Republicans or Libertarians. He embraces fiscal conservatism, but not to the lengths that some hardline anti-government libertarians would like. He considers himself a liberal on social issues, supporting same-sex marriage and abortion rights. And he supports a non-interventionalist foreign policy that focuses on America’s challenges at home.

Many know him best for his repeated calls to legalize drugs. Johnson largely focuses his energy on marijuana, but also suggests that concern over narcotics such as heroin are exaggerated compared to the impact of alcohol or even smoking cigarettes. He is a regular marijuana user, noting that he most recently took an edible form of the drug three weeks ago.

“I’m one of the 100 million Americans that do this. If that disqualifies me from being president, so be it,” he told The Associated Press, adding that he recently purchased the drug legally in Colorado but illegally transported it back to his home in New Mexico. “Sure, I’m in the tens of thousands of those that are guilty of that phenomenon,” he says.

He promises not consume marijuana if elected president, however. “I think the American people deserve to know that there will be a steady hand,” he said. “And I would hope that my history regarding this stuff would bear out the fact that I’m a pretty disciplined cat.”

Left out of this story is the fact that Johnson was not so long ago, as reported here, the CEO of Cannabis Sativa Inc.   And, as the title of this post is meant to suggest, that history creates a notable connection between Prez Candidate Johnson and our Founders.  Specifically, although there is much debate over whether and how the Framers of our Constitution used cannabis, I am pretty sure it is widely acknowledged that both George Washington and Thomas Jefferson grew hemp for sale on their Virginia farms.  Thus, like Johnson, they were both involved in cannabis commerce.

May 30, 2016 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Saturday, May 28, 2016

Calling out Leg/Reg, Ad Law scholars to start looking seriously at pros/cons of structures of state (and eventually federal) medical marijuana reforms

Download (19)As explained in this prior post, this past week the Ohio General Assembly passed a massive medical marijuana bill that creates a remarkable regulatory structure for the development and application of rules and regulations for medical marijuana in the Buckeye State.  Specifically,  the 126-page(!) Ohio medical marijuana bill (available here; detailed summary/analysis here), creates three enduring regulatory bodies in charge of various parts the state's marijuana programming: the Department of Commerce, the board of pharmacy, and the medical board.

In addition, the bill also creates for, a five-year period, a multi-member "medical marijuana advisory committee" which "may develop and submit to the department of commerce, state board of pharmacy, and the state medical board any recommendations related to the medical marijuana control program."  In my prior post, I suggested that Ohio-based lobbyists would surely love this regulatory structure; this post is my effort to encourage fellow LawProfs who follow closely the work of legislators and adminstrative regulators to love looking closely not only this Ohio legislation, but also the broader set of fascinating "leg/reg" and administrative law issues that are swiftly emerging at the local, state and federal level concerning medical marijuana reform.

For a range of understandable reasons, the traditional press and most marijuana/drug policy advocates spend a lot more time talking and thinking about recreational marijuana reforms than about (much more prevalent) medical marijuana reforms.  Serious followers of the work of state legislatures and thoughtful legal scholars should realize, however, that medical marijuana reform efforts at the local, state and federal level is where the most significant (and diverse) action is now to be found and observed.   Only five jurisdictions have enacted recreational marijuana reforms and all of those were the result of voter initiatives.  But more than two dozen states have now enacted major medical marijuana reforms, and another dozen-and-half  states have enacted limited-CBD-oil type reforms.  

Moreover, and perhaps even more importantly, state legislatures have played a significant role in all of the most recent medical marijuana reform efforts in a number of big diverse states ranging from California to Louisiana to New York to Illinois to Pennsylvania to Ohio.   In addition, even at the federal level where blanket prohibition is the law of the land, we have seen lots of notable bills proposed (and some provisions passed) that directly impacts how federal agencies and agents are to engage with state medical marijuana reforms.  And, of course, there is ever-growing discussions of whether, when and how marijuana's placement on Schedule 1 of the Controlled Substantive Act might get changed.

Snip20151020_1In addition to seeing a whole lots of legislative and regulatory action at all levels, there is an extraordinary diversity in regulatory structures being put in place and starting to operate in various ways in various states.  The Ohio legislation, for good of for bad, highlights the problematic reality that still nobody is yet sure at all what could or should be the best structure for developing sound on-going medical marijuana rules and regulations: is sound reform really about "medical/patient" issues for agencies like pharmacy/medical boards; is it really about "business/consumer" issues for agencies like a Department of Commerce or Taxation; or is medical marijuana its own special, strange, unique space that call for its own special, strange, unique regulatory body.

For the record, especially right now when blanket federal marijuana prohibition is still the basic law of the land, I consider medical marijuana reform and regulation to occupy its own special, strange, unique space calling for its own special, strange, unique regulatory body.  For that reason and others, I am encouraged that the new Ohio law has created a diverse, multi-member "medical marijuana advisory committee," and I am hopeful that this body ends up staffed with a motivated and informed group of quasi-policy-makers who will take a leadership role in the months and years ahead as Ohio moves forward with its marijuana reform efforts.  

That all said, and as this post is meant to highlight, my perspectives on these critical legislative/regulatory issues would be greatly informed and enhanced by having legal scholars who study these issues actively providing their informed perspective on the good, the bad and the ugly of sound regulatory reforms.  I know these folks know a lot about topics relating to regulatory (in)efficiency and agency capture and all sort of other important topics, and I want to start better understanding what I know that I now do not know on these next forteirs for marijuana reform.

Long story short:  I am putting you on notice Chris Walker, and I am eager to see some comments!

Some prior related posts about Ohio's recent legislative and regulatory medical marijuana activity:

May 28, 2016 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Tuesday, May 24, 2016

GOP Congressman Dana Rohrabacher admits currently using topical marijuana to treat his arthritis pain

RohrabacherThe Huffington Post has this notable new article headlined "GOP Congressman Says He Uses Medical Marijuana To Ease Arthritis Pain: The plant helps relieve pain so severe it was waking him up at night." Here are the details:

Rep. Dana Rohrabacher (R-Calif.), a leading voice for the reform of marijuana laws in the United States, became the first sitting member of Congress in recent history to admit to medical marijuana use.

Rohrabacher, speaking to a group of cannabis activists on Tuesday on Capital Hill, said he has been an avid surfer for about three decades but had not been able to enjoy the sport for about a year and a half due to arthritis pain he’s developed in his shoulder. The pain became so severe that it has disrupted his sleep, the lawmaker said. That is, until he tried medical marijuana.

“I went to one of these hempfests or something like that they had in San Bernardino,” Rohrabacher said, as first reported by Russ Belville at Cannabis Radio.

At the hemp festival, he met a vendor who introduced him to a cannabis-infused topical rub. “This guy was showing me the medical things and all that, and he says, ‘You should try this.’ And it’s a candle and you light the candle, and the wax is in there and it melts down, and then you rub it on whatever you’ve got problems with,” the Republican congressman said.

He finally tried the product a couple of weeks ago, and that was “the first time in a year and a half that I had a decent night’s sleep because the arthritis pain is gone.” The attendees cheered his comments.

Rohrabacher, a vocal supporter for reform of the nation’s marijuana laws, is one of the main sponsors of a measure that blocked the Department of Justice from using funds to target and prosecute medical marijuana patients or businesses who are operating legal in their state. The amendment has been reauthorized for the past two fiscal years.

“Now don’t tell anybody I broke the law, they’ll bust down my door and take whatever’s inside and use it as evidence against me, whatever it is,” Rohrabacher said. “The bottom line is, there’s definitely cannabis in there and it makes sure that I can sleep now.”

This was the first time Rohrabacher has spoken publicly about using medical cannabis, his press secretary Ken Grubbs told The Huffington Post. It was also the first time in recent history that a sitting congressman admitted to using medical marijuana, said Marijuana Majority founder Tom Angell.

“Putting a face on the people who use marijuana will help immensely in the battle to end criminalization and other forms of harmful discrimination,” Angell added. “It’s now going to be much harder for members of Congress, particularly those in the GOP caucus, to vote against medical marijuana, since they now know that one of their friends and colleagues is directly benefiting from it.”

May 24, 2016 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate | Permalink | Comments (1)

Friday, May 20, 2016

John Hudak pens terrific "memo to Hillary Clinton and Donald Trump on marijuana policy"

Regular readers are likely used to seeing me in this space praise the work being done by Brookings in general, and John Hudak in particular, in the arena of responsible and thoughtful discussion of marijuana law, policy and reform.   This latest Brookings piece by Hudak, styled "A memo to Hillary Clinton and Donald Trump on marijuana policy," further demostrates why my praise is justified. I recommend the lengthy piece is full, and here are excerpts from how it starts and ends and the headings in between: 

Eight months from today one of you will be inaugurated the 45th President of the United States. There is much to think about between now and then, but one issue with a penchant for falling between the cracks is marijuana policy.  Marijuana policy is no longer just a punchline, reserved for the attention of activists. Marijuana policy will be a serious part of the next administration’s domestic policy, and it is critical that you create a strategy accordingly.

Both of you have suggested you are open to reforms or, at a minimum, to let states operate as they wish. However, a laissez-faire approach to cannabis is a dangerous stance that creates a bevy of policy problems at the federal, state and local levels. There is tremendous complexity involved in creating a uniform and consistent policy strategy.  Marijuana will impact almost every corner of your administration — some obvious, some less so. To get it right — that is to make sure that your administration advances your policy goals — there are seven key steps to take.

1. When vetting possible appointees, ask them about cannabis....

2. Talk to Congress about marijuana....

3. Talk to states that passed marijuana reform....

4. Talk to cannabis businesses, patients, consumers, and activists....

5. Talk to marijuana reform opponents....

6. Talk to scientists studying (or trying to study) cannabis....

7. Think about your marijuana legacy....

The nation is changing its views on cannabis, and reform is not a flash in the pan, but a certainty in the future of American public policy.  Your administration has the opportunity to initiate a sensible, safe, effective, and robust reform that reflects the policy changes in the states and a federal government ready to facilitate a working system.  You can help mold the future of this policy, or you can be a bystander to history, remembered more for being a roadblock than a transformational policy champion.  Ten years ago it would have been toxic to engage marijuana policy in this way, but as America changes its mind on cannabis, it may be even more toxic to stand by and do nothing about it.

May 20, 2016 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)