Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Sunday, May 21, 2017

American Legion, the largest US vets' organization, pressing Trump Administration on medical marijuana reform

LegionemblemThis new Politico article, headlined "American Legion to Trump: Allow marijuana research for vets," reports on a notable new push by a notable organization to seek a notable change in federal marijuana laws with the new administration. Here are excerpts from an article which strikes me as pretty big news:

One of the nation’s most conservative veterans’ groups is appealing to President Donald Trump to reclassify marijuana to allow large-scale research into whether cannabis can help troops suffering from post-traumatic stress disorder . The change sought by The American Legion would conflict with the strongly anti-marijuana positions of some administration leaders, most vocally Attorney General Jeff Sessions.

Under current rules, doctors with the Department of Veterans Affairs cannot even discuss marijuana as an option with patients.  But the alternative treatment is gaining support in the medical community, where some researchers hope pot might prove more effective than traditional pharmaceuticals in controlling PTSD symptoms and reducing the record number of veteran suicides.

"We are not asking for it to be legalized," said Louis Celli, the national director of veterans affairs and rehabilitation for the American Legion, which with 2.4 million members is the largest U.S. veterans’ organization.  "There is overwhelming evidence that it has been beneficial for some vets.  The difference is that it is not founded in federal research because it has been illegal."

The Legion has requested a White House meeting with Jared Kushner, Trump's son-in-law and close aide, "as we seek support from the president to clear the way for clinical research in the cutting edge areas of cannabinoid receptor research," according to a recent letter shared with POLITICO.

The request marks a significant turn in the debate over medical marijuana by lending an influential and unexpected voice.  The Legion, made up mostly of Vietnam and Korean War-era veterans, is breaking with other leading vets’ groups such as the Veterans of Foreign Wars in lobbying for the removal of the major roadblock in pursuing marijuana treatment.  But it also comes as the new administration, led by Sessions, is sending strong signals of its desire to thwart marijuana decriminalization and legalization efforts.  Expectations are growing in Congress that DOJ may even try to roll back medical marijuana laws in 29 states....

"We desperately need more research in this area to inform policymakers," said Sue Sisley, a psychiatrist at the Scottsdale Research Institute in Arizona who is running one of the only cannabis studies underway focused on vets suffering from PTSD.  "I really want to see the most objective data published in peer reviewed medical journals.” She added that she isn’t prejudging what the outcome of the research will be.

“I don't know if cannabis will turn out to be helpful for PTSD,” Sisley said.  “I know what veterans tell me but until we have rigorous controlled trials, all we have are case studies that are not rigorous enough to make me, medical professionals, health departments or policymakers convinced."

Some veterans’ activists are angry at the federal government’s continued resistance to even studying cannabis, even as an average of 20 vets kill themselves every day. "We need solutions," said Nick Etten, a former Navy SEAL who runs the Veterans Cannabis Project, a health policy organization. "We need treatment that works. We need treatment that is not destructive.  The VA has been throwing opiates at veterans for almost every condition for the last 15 years.  You are looking at a system that has made a problem worse the way they have approached treatment."...

The VA declined to address whether it is reconsidering its stance on the issue, citing the illegality of marijuana in all its forms under federal law....  Most leading veterans’ groups are toeing that line, including Veterans of Foreign Wars.  "The VFW has no official position regarding this ongoing debate because marijuana is illegal under federal law," said Joe Davis, the group's spokesman.

But grassroots support is growing among veterans — both young and older — and in Congress to reconsider the current approach.  Much of that is because of growing anecdotal evidence that marijuana helps some veterans with PTSD control their symptoms when approved drugs do not, such as ridding them of nightmares and helping them sleep.  And that is what is driving the efforts of the American Legion.  Celli said the group's Veterans Affairs & Rehabilitation Commission, which represents veterans from World War II to the wars in Iraq and Afghanistan, recently gave the Legion "overwhelming support" to advocate changes....

In addition to cannabis, the organization is advocating for more research on so-called Quantitative EEG neurometrics, which measures the brain's electrical activity.  "The American Legion believes these two areas alone can help cut the amount of veteran suicides and cases of chemically addicted veteran by more than half," the letter to the White House says.  "The American Legion respectfully requests a meeting with President Trump as soon as possible and looks forward to partnering with this administration in the fight against narcotics addiction and reducing the veteran suicide rate from the tragic loss of 20 warriors per day, to zero."

May 21, 2017 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Who decides | Permalink | Comments (0)

Saturday, May 6, 2017

Prez Trump issues notable statement when signing spending bill with DOJ limit on going after medical marijuana states

170301105323-trump-marijuana-780x439As reported in this Bloomberg piece, headlined "Trump Spurns Congress as He Signals Medical Marijuana Fight," the President made a significant statement on a number of topics, including marijuana enforcement, while signing the latest spending bill. Here are the details:

President Donald Trump signaled he may ignore a congressional ban on interfering with state medical marijuana laws, arguing in a lengthy statement that he isn’t legally bound by a series of limits lawmakers imposed on him.

Trump issued the “signing statement” Friday after he signed a measure funding the government for the remainder of the federal fiscal year, reprising a controversial tactic former presidents George W. Bush and Barack Obama used while in office.  Trump also suggested he may ignore gender and racial preferences in some government programs as well as congressional requirements for advance notice before taking a range of foreign policy and military actions....

In the signing statement, Trump singled out a provision in the spending bill that says funds cannot be used to block states from implementing medical marijuana laws.  “I will treat this provision consistently with my constitutional responsibility to take care that the laws be faithfully executed,” he said.

Obama also occasionally released signing statements objecting to congressional restrictions on his authority.  The White House described Trump’s signing statement as routine, but did not indicate whether the president planned to take action to defy Congressional restrictions....

Tim Shaw, a senior policy analyst at the Bipartisan Policy Center, said that the president is bound by the language in the spending bill that now bears his signature.  “Part of the argument here in this signing statement is that he has the constitutional requirement to execute the law,” Shaw said in an interview.  “But this is one of those laws, and Congress has the ultimate authority over funds getting spent.”

Because the language used in this signing statement is somewhat boilerplate, I am disinclined to view this development as a direct announcement or even an indirect signal of any new firm policy of the Trump Administration in the arena of marijuana reform.  Still, given that the President has said almost nothing about marijuana reform since his election and given that some members of his Cabinet are clearly not fans of the marijuana reform movement, this statement provides more evidence that Prez Trump and others within the White House are not eager to be active cheerleaders for state marijuana reform efforts.

May 6, 2017 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Thursday, May 4, 2017

Highlighting possible hiccups when a marijuana business wants to give away profits to charity

This new local article out of Colorado, headlined "Why Colorado nonprofits are taking a risk accepting donations from pot businesses," highlights yet another was that federal marijuana probation makes it a bit more difficult from a marijuana company to try to do good while doing well.  Here are excerpts:

When is a donation not necessarily something you want to take straight to the bank? Kaya Cannabis, in Denver, is donating a portion to medical marijuana sales to three nonprofit organizations.  "Nothing is simple in cannabis, I've learned," said Amanda Gonzalez, CEO of Kaya Cannabis.  "Many non-profits are part of national organizations or their of board of directors is just a little bit more conservative and nervous about what's still a relatively new industry."

Kaya medical marijuana customers are given a copy of their receipt to put in a basket in front of one of three charities [including] Rocky Mountain MS Center...  "The MS Charity that we are giving to, it was a yearlong process with their board of directors to make sure that they were able to accept these kinds of donations," said Gonzalez....

In Colorado, marijuana is legal.  In the eyes of the federal government, it's still illegal, essentially making donations from a pot shop, drug money.  "Some nonprofits want the waters tested a little bit more," said Gonzalez.

"There is still some legal risk that a nonprofit would need to evaluate, but from the experts we've talked to, it seems small at this point," said Renny Fagan, CEO of Colorado Nonprofit Association.

The Colorado Nonprofit Association sent out an annual survey last year that asked about marijuana industry donations.  One in 10 nonprofits had actively sought out contributions, but two-thirds would consider accepting a donation if offered.

"If the nonprofit receives federal funds through a contract or grant, that contract or grant will probably prohibit a violation of federal law as a condition of receiving those funds, so for those nonprofits, they should not accept donations from a marijuana retailer," said Fagan.  "Most nonprofits do not directly receive federal funds, and so for them, the issue of whether to accept sponsorship or donations from the marijuana industry, really comes down to, how does that fit with their donor base overall and is it consistent with their mission."

May 4, 2017 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Wednesday, April 26, 2017

National District Attorneys Association releases report on "Marijuana Policy: The State and Local Prosecutors' Perspective"

UntitledIn this post a few months ago, I praised the  National District Attorneys Association for forming a diverse working group to address modern marijuana laws and polices.  As detailed in this local article, though, it does not seem all the diverse perspectives reflected in the working group resulted in a nuanced position paper from the group:

District attorneys from across the nation recently backed a position statement that declares that marijuana legalization has increased access by children and that supports federal enforcement.  The perspective – ironically released by the National District Attorneys Association on April 20, the 420 day of marijuana celebration – could help guide policy direction by the Trump administration, which has signaled a possible crackdown.

“Legalization of marijuana for purported medicinal and recreational purposes has increased access by children.  For all of these reasons, it is vitally important to do all we can to prevent access to marijuana by youth in America.  Their health, safety and welfare demand no less,” the perspective states.  It suggests that “marijuana for medical use and recreational use clearly sends a message to youth that marijuana is not dangerous and increases youth access to marijuana.”  The opinion goes on to say that alcohol is different because “alcohol use does not cause the same type of permanent changes to teens’ ability to concentrate and learn that marijuana does.”

The perspective cites “scientific studies” that show cannabis can be addictive, especially for children, and initial evidence of child hospitalizations due to “unintended exposure to marijuana.”   The perspective in many instances draws upon information provided by the anti-marijuana group Smart Approaches to Marijuana, or SAM.

On federal enforcement, the NDAA white paper states that there should be a consistent application of federal law across the nation “to maintain respect for the rule of law.”

The statement has split Colorado district attorneys, especially on the issue of impacts to children. In Colorado, the experience has been the opposite. The latest Healthy Kids Colorado Survey from 2015 found that teen cannabis use has not increased since legalization.  Gov. John Hickenlooper, a Democrat, in February on national television reiterated those statistics.  “We didn’t see a spike in teenage use, if anything it’s come down in the last year, and we’re getting anecdotal reports of less drug dealers,” Hickenlooper said on “Meet the Press.”

It’s a thorny subject for Colorado prosecutors, where legalization has often left district attorneys in an uncomfortable situation. While cannabis is legal in Colorado, it remains illegal on the federal level and in many states.

Tom Raynes, executive director of the Colorado District Attorneys Council, was one of four people from Colorado on a policy group along with prosecutors from other states with “positions all over the spectrum,” he said.  “Nowhere does that document say an individual office or any state organization takes a specific position,” Raynes said.  Raynes said he finds the NDAA statements to be “innocuous and general in nature.”

“The only other statement one could make is that federal drug policy should be applied inconsistently across the nation,” Raynes said. “That would be absurd.”

But Boulder District Attorney Stan Garnett, who leans to the left on criminal justice reform and who sat on the NDAA panel, took issue with the perspective of the association. He said the association is “dominated” by conservative prosecutors from the rural South.  “They don’t tend to be people on the cutting edge of criminal justice reform,” Garnett said.  He added that his participation on the working group was “pretty painful.”  Prosecutors wanted to send a letter to Hickenlooper demanding that he close down all legal marijuana businesses in Colorado.  The governor would not have even had the authority to make such a move.

“If anything, use is going down by children,” Garnett said, adding that NDAA is a conservative group without a lot of experience in the regulated legalized marijuana industry.  There’s a lot of urban myths out there about what’s going on in Colorado from people who don’t really know, and some of that is promulgated by the DEA and the prohibition groups who are funded pretty heavily to continue marijuana prohibition, They tend, on occasion, to distort the reality of what’s going on in Colorado.”

The relatively short report from NDAA is titled "Marijuana Policy: The State and Local Prosecutors’ Perspective," and it can be accessed in full at this link.

April 26, 2017 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 (2)

Tuesday, April 25, 2017

Making the latest full-throated pitch for Congress to finally do something on marijuana reform

Paul Armentano, the Deputy Director of NORML, has this new Daily Caller commentary headlined "It’s Time For Congressional Action On Marijuana Policy." Like many other calls for congressional action, I doubt this piece will actually prod any politician into action. But it is a worthwhile read as a sign of the federal reform advocacy times, and here are excerpts:

West Virginia recently became the 30th state to authorize the physician-recommended use of marijuana or marijuana-infused products.  An additional fourteen states permit patients to access products containing cannabidiol, a specific chemical compound available in the cannabis plant.  And this past January, scholars at the National Academy of Sciences determined that there exists “conclusive evidence” that the herb is effective for the treatment of chronic pain and other diseases.  Nonetheless, federal law continues to declare that neither marijuana nor any of its organic constituents possess any “accepted medical use in treatment in the United States.”  This sort of Flat Earth contention no longer passes the smell test.

That is why it remains exceedingly curious and excruciatingly frustrating that members of Congress steadfastly refuse to amend federal law in a manner that comports with this new reality.  Ninety-four percent of US voters now believe that medical cannabis therapy ought to be legal and regulated, according to survey data provided last week by Quinnipiac University, and the overwhelming majority of Americans now reside in jurisdictions that have amended their laws in a manner that recognizes the therapeutic utility of the cannabis plant.  It is high time that federal lawmakers do the same, and do so soon.

The failure of Congress to amend federal marijuana laws places the millions of patients who rely on these state-sanctioned programs at legal risk.  That is because an existing federal provision protecting these programs could potentially expire later this week. The provision, known as the Rohrabacher-Farr amendment, maintains that federal funds can not be used to prevent states from “implementing their own state laws that authorize the use, distribution, possession or cultivation of medical marijuana.”  In December, Congress re-authorized the amendment as part of a short term spending package through April 28, 2017, at which time the budget — and the Amendment — will expire unless it is reauthorized by Congress.

In recent years, strong majorities of Congress have voted in favor of keeping this budgetary provision in place and it is vital that they do so again, especially now that the incoming administration has threatened to increase anti-marijuana enforcement efforts in states that have legalized it.  Yet Congress can do far more.

Several bipartisan pieces of legislation are pending before the House and Senate that would rectify the existing, and ultimately untenable, conflict between state and federal marijuana laws.  Among these, SB 777 | HR 1810 would amend the federal tax code in a manner that acknowledges the legitimacy of state-licensed marijuana businesses, HR 1820 would expand medical cannabis access to eligible military veterans, and HR 715 would reclassify marijuana and cannabidiol under federal law in a manner that for the first recognizes their therapeutic utility.

In addition, both HR 975, ‘The Respect State Marijuana Laws Act,’ and HR 1227 provide states with the flexibility and autonomy to establish their own marijuana policies free from federal interference.  More than seven out of ten voters, including majorities of self-identified Democrats, Independents, and Republicans, support allowing states — not the federal government — the power to arbitrate pot policy....

[W]e know enough about the relative safety and efficacy of cannabis, as well as the failures of cannabis prohibition, to allow adults the option to consume it and to allow states the autonomy to regulate it as best they see fit. It is time for members of Congress to acknowledge this reality and to amend federal laws in a manner that comports with majority public opinion and the plant’s rapidly changing legal and cultural status.

April 25, 2017 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Friday, April 21, 2017

Might a crack down on state reforms by the feds actually increase the pace for national marijuana reform?

The question in the title of this post is prompted by this Washington Post piece by Paul Waldman headlined "Will Jeff Sessions launch a War on Weed? If so, it could accelerate marijuana legalization." Here are excerpts:

A CBS poll out today shows that 61 percent of Americans favor full legalization, the highest number the poll has recorded, while a Quinnipiac poll puts the number at 60 percent, with an incredible 94 percent saying people ought to be able to get it if their doctors prescribe it (CBS put that figure at 88 percent). Perhaps more important, 71 percent in the CBS poll and 73 percent in the Quinnipiac poll said that the federal government should leave states that have legalized it alone.

But there’s one person who doesn’t agree, and he happens to be the chief law enforcement officer of the U.S. government. In fact, if there’s a single thing that Attorney General Jeff Sessions hates more than undocumented immigrants it might just be marijuana, which is why he appears to be planning what amounts to a return to a 1980s-style War on Drugs. We don’t yet know what practical steps Sessions will take, because things are still in the planning stages. But allow me to suggest that in the end, Sessions might actually accelerate the country’s move toward the eventual goal of full legalization....

[T]he big unanswered question is how the attorney general will approach the states that have passed some form of legalization. He could follow the (mostly) hands-off approach that the Obama administration did. Or he could send out federal agents to start shutting down dispensaries across the country. Or he could do something in between. But given his strong views and the fact that marijuana is still illegal under federal law — which gives him substantial power to go after the burgeoning pot industry in states that have legalized it — it’s hard to believe there isn’t some kind of crackdown coming from the Justice Department.

Sessions may already be having a deterrent effect. The Colorado legislature was all set to pass a law regulating marijuana clubs but backed off after the governor warned that doing so could incur Sessions’s wrath. But in other places, the movement toward legalization continues. Just yesterday, West Virginia’s governor signed a law passed by the legislature to create a medical marijuana system in the state.

Which means that if and when he attacks legal marijuana, Sessions will be going after a movement with extraordinary momentum. And it’s not just the opinion polls; it’s also what’s happening at the ballot box. In 2016, marijuana initiatives were on the ballot in nine states and won in eight of them. California, Massachusetts, Maine and Nevada legalized marijuana for recreational use, while Arkansas, Florida, Montana and North Dakota passed medical marijuana initiatives. Only Arizona’s recreational measure was narrowly defeated....

So consider this scenario. Sessions initiates some kind of new War on Weed, one that results in lots of splashy headlines, dramatic video of state-licensed businesses being shut down and thoughtful debates about the proper balance between federal and state power. Then the backlash begins. Even many Republicans express their dismay at the Justice Department’s heavy-handed actions. Pressure builds on President Trump (whose comments on the topic have been mostly vague and noncommittal) to rein Sessions in. The controversy energizes cannabis advocates and the voters who agree with them. More and more candidates come out in favor of legalization, or at least a new federal law that would remove the drug from Schedule 1 (which puts it in the same category as heroin) and leave it up to states to decide how to handle it without any federal interference.

Then in 2020, we see the first major-party nominee who advocates full legalization of marijuana. That last part might not happen three years from now (though some past and future nominees have already sponsored bills to allow medical use). But it will eventually, because politicians inevitably follow where the public has moved.

Most of them do, anyway. But on this issue, Sessions is not such a politician — he’s going to pursue that demon weed no matter what the public thinks. We all know where America is heading on this issue, and Sessions may end up pushing us there just a little faster.

I have been saying throughout the semester in my Marijuana Law, Policy & Reform seminar that a significant marijuana prohibition enforcement effort by the Justice Department might provide the spark in Congress to move forward more seriously and effectively with a variety of proposed federal legislative reforms in this space. For a bunch of reasons, I do not think federal reforms and national legalization are a certainty no matter what AG Sessions decides to do, but I do think there are a lot of interesting elements to what we will see in the marijuana reform space over the next decade and that what AG Sessions seeks to do in this space will be a very important part of the story with lots of unpredictable ripples.

April 21, 2017 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Thursday, April 20, 2017

"Medical Marijuana Laws May Be Associated With A Decline In The Number Of Prescriptions For Medicaid Enrollees"

The title of this post is the title of this notable new study to be published in the journal Health Affairs.  Here is the abstract (with one line emphasized):

In the past twenty years, twenty-eight states and the District of Columbia have passed some form of medical marijuana law.  Using quarterly data on all fee-for-service Medicaid prescriptions in the period 2007–14, we tested the association between those laws and the average number of prescriptions filled by Medicaid beneficiaries.  We found that the use of prescription drugs in fee-for-service Medicaid was lower in states with medical marijuana laws than in states without such laws in five of the nine broad clinical areas we studied.  If all states had had a medical marijuana law in 2014, we estimated that total savings for fee-for-service Medicaid could have been $1.01 billion.  These results are similar to those in a previous study we conducted, regarding the effects of medical marijuana laws on the number of prescriptions within the Medicare population.  Together, the studies suggest that in states with such laws, Medicaid and Medicare beneficiaries will fill fewer prescriptions.

April 20, 2017 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Data and Research | Permalink | Comments (0)

Tuesday, April 18, 2017

Homeland Security Secretary Kelly speaks sternly about marijuana after some prior moderate comments

DownloadAs reported in this NBC News article, the head of the Department of Homeland Security made a few notable statements about federal marijuana policy and practice in a speech today.  Here are the details:

Homeland Security Secretary John Kelly Tuesday called marijuana a "gateway drug" and vowed his agency will uphold federal laws against its possession, a sterner message than he delivered on the topic just last week.

"Let me be clear about marijuana. It is a potentially dangerous gateway drug that frequently leads to the use of harder drugs," Kelly said during a speech about his agency's mission at George Washington University in Washington, D.C. "Its use and possession is against federal law and until the law is changed by the United States Congress, we in DHS, along with the rest of the federal government, are sworn to uphold all the laws that are on the books," he added.

Kelly made headlines on Sunday when he told NBC News' Chuck Todd that "marijuana is not a factor in the drug war" during an interview on "Meet The Press."

That was a noticeably softer tone than other members of President Donald Trump's administration have taken, especially Attorney General Jeff Sessions, an open opponent of legal weed. And Kelly seemed to go out of his way Tuesday to say marijuana is not something the administration takes lightly.

"When marijuana is found at aviation checkpoints and baggage screening, TSA personnel will also take appropriate action," Kelly said. "Finally, ICE will continue to use marijuana possession, distribution and convictions as essential elements as they build their deportation, removal apprehension packages for targeted operations against illegal aliens."

April 18, 2017 in Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (3)

Monday, April 10, 2017

Looking back at the history of marijuana law and policy and perceptions

A student in my Marijuana Law, Policy & Reform seminar this week is helping the class look back on the law, policies and perceptions surrounding marijuana many decades ago. Here are the links this student has assembled in preparation for his presentation this coming week:

Text of the Marijuana Tax of 1937

Summary and Conclusions of LaGaurdia Report on Marijuana Effects

Article showing the depictions of Reefer Madness throughout the 20th Century

Hemp for Victory short movie sponsored by the U.S. Government

April 10, 2017 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States | Permalink | Comments (0)

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)

Monday, April 3, 2017

Governors of first four legalization states write to AG Sessions and Secretary Mnuchin in support of Cole Memo

As reported in this Huffington Post piece, "Governors from four states where recreational marijuana is legal for adult use sent a letter to Attorney General Jeff Sessions and Treasury Secretary Steven Mnuchin on Monday urging them to respect state cannabis laws." The full relatively brief letter is available at this link, and here are some key passages:

As governors of states that have legalized marijuana in some form, we ask the Trump Administration to engage with us before embarking on any changes to regulatory and enforcement systems.  The balance struck by the 2013 Department of Justice Cole Memorandum (Cole Memo) has been indispensable – providing the necessary framework for state regulatory programs centered on public safety and health protections.

We understand you and others in the administration have some concerns regarding marijuana.  We sympathize, as many of us expressed apprehensions before our states adopted current laws.  As governors, we have committed to implementing the will of our citizens and have worked cooperatively with our legislatures to establish robust regulatory structures that prioritize public health and public safety, reduce inequitable incarceration and expand our economies.

The Cole Memo and the related Financial Crimes Enforcement Network (FinCEN) guidance provide the foundation for state regulatory systems and are vital to maintaining control over marijuana in our states. Overhauling the Cole Memo is sure to produce unintended and harmful consequences. Changes that hurt the regulated market would divert existing marijuana product into the black market and increase dangerous activity in both our states and our neighboring states.  Likewise, without the FinCEN guidance, financial institutions will be less willing to provide services to marijuana-related businesses.  This would force industry participants to be even more cash reliant, posing safety risks both to the public and to state regulators conducting enforcement activity.  The Cole Memo and FinCEN guidance strike a reasonable balance between allowing the states to enact reasonable regulations and the federal government’s interest in controlling some of the collateral consequences of legalization.

April 3, 2017 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | 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)

Thursday, March 30, 2017

Should anyone get excited about the new "Path to Marijuana Reform" bills just introduced in Congress?

The question in the title of this post was my first reaction to this big new Cannabist story headlined "Bipartisan 'Path to Marijuana Reform' bills introduced to decriminalize, protect, regulate cannabis industry."  The piece has the subheadline "Three marijuana-related bills address issues such as taxation, banking, civil forfeiture, de-scheduling, decriminalization, research, individual protections and regulation," and here are the basics:

U.S. lawmakers on Thursday introduced a package of marijuana reform bills aimed at protecting and preserving existing state-based programs while laying framework for the federal regulation of cannabis. Sen. Ron Wyden, D-Oregon, and Rep. Earl Blumenauer, D-Oregon, announced the “Path to Marijuana Reform,” a bipartisan package of three marijuana-related bills that address issues such as taxation, banking, civil forfeiture, de-scheduling, decriminalization, research, individual protections and regulation. Included in the package is the reintroduction of legislation from Rep. Jared Polis, D-Colorado, to regulate marijuana like alcohol.

“The federal government must respect the decision Oregonians made at the polls and allow law-abiding marijuana businesses to go to the bank just like any other legal business.” Wyden said in a statement, referencing the legalization efforts in his home state and those made elsewhere. “This three-step approach will spur job growth and boost our economy all while ensuring the industry is being held to a fair standard.”

The Path to Marijuana Reform includes the following bills, according to the announcement from Wyman and Blumenauer:

The Small Business Tax Equity Act — Create an exception to Internal Revenue Code section 280E that would allow businesses compliant with state laws to claim deductions and credits associated with the sale of marijuana. Currently, under 280E, people and businesses cannot claim deductions or credits for the sale of Schedule I or Schedule II substances. Sen. Rand Paul, R-Kentucky, is a cosponsor of Wyden’s Senate bill and Rep. Carlos Curbelo, R-Florida, is sponsoring companion legislation in the House.

Responsibly Addressing the Marijuana Policy Gap Act — Remove federal penalties and civil asset forfeiture for individuals and businesses complying with state law; ensure access to banking, bankruptcy protection, research and advertising; expunge the criminal records for certain marijuana-related offenses; prohibits residents of marijuana-legal states to be required to take a marijuana drug test for positions in the federal civil service; and easing barriers for medical marijuana research.

Marijuana Revenue and Regulation Act (Regulate Marijuana Like Alcohol Act) — Remove marijuana from the Controlled Substances Act; impose an excise tax regime on marijuana products; allow for the permitting for marijuana businesses; regulate marijuana in a manner similar to alcohol. Rep. Polis is sponsoring a portion of this legislation in the House.

I am pleased to see additional federal legislative action in this space, but I have little reason to be hopeful that these reform bills will have any more chance of moving forward than a host of other like marijuana reform bill that have previously been put forward in recent years. I am certain that the pro-reform results of so many 2016 ballot initiatives helps keep the marijuana reform momentum moving, but I do not think this momentum has yet built to the point that anyone should get excited about these new bill becoming law anytime very soon.

March 30, 2017 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)

Thursday, March 23, 2017

Legalization Lite: The Case for De-scheduling Marijuana

The title of this post is the title suggested by a student in my Marijuana Law, Policy & Reform seminar as a preview of his planned presentation to the class next week.  Here are the resources the student assembled as background on this topic to go with the great title (which leads to show my age by thinking "tastes great/less filling"):

1.  Sam Kamin, Legal Cannabis in the U.S.: Not Whether, But How?, 50 UC Davis L. Rev. 617 (2016).

2.  Jeffrey M. Jones, In U.S., 58% Back Legal Marijuana Use, Gallup (Oct. 21, 2015)

3.  Abigail Geiger, Support for Marijuana Legalization Continues to Rise, Pew Research Center, Oct. 12, 2016

4.  Kevin Loria, 11 Key Findings from One of the Most Comprehensive Reports Ever on the Health Effects of Marijuana, Business Insider, Jan. 12, 2017,

5.  Ryan Stoa, Is Big Marijuana Inevitable?, The New Republic, Aug. 19, 2016

6.  Debra Borchardt, Marijuana Sales Totaled $6.7 Billion in 2016, Forbes, Jan. 3, 2017

7.  Robert Benzie, Recreational Weed Could Be A $22.6 Billion Industry: Study, The Toronto Star, Oct. 27, 2016,

8.  Angela Dills, Sietse Goffard, & Jeffrey Miron, Dose of Reality: The Effect of State Marijuana Legalizations, The Cato Institute, Sep. 16, 2016,

9.  Jeffrey A. Miron & Katherine Waldock, The Budgetary Impact of Ending Drug Prohibition, The Cato Institute (2010)

10.  Beau Kilmer, Trump's Marijuana Options, The Hill (Jan. 17, 2017)

March 23, 2017 in Assembled readings on specific topics, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Thursday, March 16, 2017

New Congressional Research Service report on "The Marijuana Policy Gap and the Path Forward"

The folks at the Congressional Research Service do a terrific job summarizing complicated law and policy issues for members of Congress, and their latest marijuana publication is no exception. This latest CRS report is titled "The Marijuana Policy Gap and the Path Forward," and it covers an amazing amount of marijuana law and policy in under 50 pages. Here are excerpts from its summary:

Most states have deviated from an across-the-board prohibition of marijuana, and it is now more so the rule than the exception that states have laws and policies allowing for some cultivation, sale, distribution, and possession of marijuana — all of which are contrary to the federal Controlled Substances Act (CSA).  As of March 2017, nearly 90% of the states, as well as Puerto Rico and the District of Columbia, allow for the medical use of marijuana in some capacity.  Also, eight states and the District of Columbia now allow for some recreational use of marijuana.  These developments have spurred a number of questions regarding their potential implications for federal law enforcement activities and for the nation’s drug policies as a whole.

Thus far, the federal response to state actions to decriminalize or legalize marijuana largely has been to allow states to implement their own laws on marijuana.  The Department of Justice (DOJ) has nonetheless reaffirmed that marijuana growth, possession, and trafficking remain crimes under federal law irrespective of states’ positions on marijuana. Rather than targeting individuals for drug use and possession, federal law enforcement has generally focused its counterdrug efforts on criminal networks involved in the drug trade.

While the majority of the American public supports marijuana legalization, some have voiced apprehension over possible negative implications.  Opponents’ concerns include, but are not limited to, the potential impact of legalization on (1) marijuana use, particularly among youth; (2) road incidents involving marijuana-impaired drivers; (3) marijuana trafficking from states that have legalized it into neighboring states that have not; and (4) U.S. compliance with international treaties.  Proponents of legalization have been encouraged by potential outcomes that could result from marijuana legalization, including a new source of tax revenue for states and a decrease in marijuana-related arrests.  Many of these potential implications are yet to be fully measured.

Given the current marijuana policy gap between the federal government and many of the states, there are a number of issues that Congress may address.  These include, but are not limited to, issues surrounding availability of financial services for marijuana businesses, federal tax treatment, oversight of federal law enforcement, allowance of states to implement medical marijuana laws and involvement of federal health care workers, and consideration of marijuana as a Schedule I drug under the CSA. The marijuana policy gap has widened each year for some time.

March 16, 2017 in 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 (2)

Wednesday, March 15, 2017

More notable comments about marijuana and federal enforcement from AG Sessions in new speech and Q&A

Jeff-sessions-attorney-general-630x354Over at my Sentencing Law & Policy blog, I have this new post highlights various aspects of  this extended speech delivered by Attorney General Jeff Sessions today in Richmond, Virginia.  Though covering various topics, these passages from the speech are sure to intrigue those following marijuana law, policy and reform:  

Our nation is in the throes of a heroin and opioid epidemic. Overdose deaths more than tripled between 2010 and 2014. According to the CDC, about 140 Americans on average now die from a drug overdose each day. That means every three weeks, we are losing as many American lives to drug overdoses as we lost in the 9/11 attacks. Illegal drugs are flooding across our southern border and into cities across our country, bringing violence, addiction, and misery. We have also seen an increase in the trafficking of new, low-cost heroin by Mexican drug cartels working with local street gangs. As the market for this heroin expands, gangs fight for territory and new customers and neighborhoods are caught in the crossfire.

There are three main ways to fight the scourge of drugs: criminal enforcement, treatment and prevention. Criminal enforcement is essential to stop both the transnational cartels that ship drugs into our country, and the thugs and gangs who use violence and extortion to move their product. One of the President’s executive orders directed the Justice Department to dismantle these organizations and gangs — and we will do just that.

Treatment programs are also vital.  But treatment often comes too late to save people from addiction or death. So we need to focus on the third way we can fight drug use: preventing people from ever taking drugs in the first place.

I realize this may be an unfashionable belief in a time of growing tolerance of drug use. But too many lives are at stake to worry about being fashionable.  I reject the idea that America will be a better place if marijuana is sold in every corner store. And I am astonished to hear people suggest that we can solve our heroin crisis by legalizing marijuana — so people can trade one life-wrecking dependency for another that’s only slightly less awful. Our nation needs to say clearly once again that using drugs will destroy your life.

In the ’80s and ’90s, we saw how campaigns stressing prevention brought down drug use and addiction.  We can do this again. Educating people and telling them the terrible truth about drugs and addiction will result in better choices. We can reduce the use of drugs, save lives and turn back the surge in crime that inevitably follows in the wake of increased drug abuse.

In addition to these prepared remarks, AG Sessions also apparently had some interesting things to say during a Q&A after his speech.  Tom Angell, in this new MassRoots posting, provides this report:

U.S. Attorney General Jeff Sessions is indicating that he might keep Obama-era marijuana enforcement guidelines in place, perhaps with some modifications. "The Cole Memorandum set up some policies under President Obama's Department of Justice about how cases should be selected in those states and what would be appropriate for federal prosecution, much of which I think is valid," he said in a question-and-answer session with reporters following a speech in Richmond, Virginia.

That memo, adopted in 2013, lays out guidelines for how states can avoid federal interference with their marijuana laws.

Sessions added that he "may have some different ideas myself in addition to that" but indicated that the federal government would not be able to enforce its remaining marijuana prohibition across the board in states with legalization. "Essentially we’re not able to go into a state and pick up the work that the police and sheriffs have been doing for decades," he said.

The attorney general also addressed medical cannabis, suggesting that it "has been hyped, maybe too much."

"It's possible that some dosages can be constructed in a way that might be beneficial," he said. "But if you ever just smoke marijuana for example where you have no idea how much THC you're getting it's probably not a good way to administer a medicinal amount. So, forgive me if I'm a bit dubious about that."

March 15, 2017 in Federal Marijuana Laws, Policies and Practices, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Wednesday, March 8, 2017

Series on "Marijuana in the age of Trump" via The Cannabist

The Cannabist has a series of new article under the heading "Marijuana in the age of Trump." Here are the headlines and subheadlines of the three pieces with links thereto:

Part 1: ‘Something’s going to have to give’: An untenable conflict between feds, legalized states: Cannabis businesses, legalization forces prepare to fight as ground shifts beneath their feet

Part 2: Federal marijuana law enforcement: What you need to know: The Cannabist talks with drug policy and legal experts about what could take shape, from selective raids and the threat of asset seizures on cannabis businesses to how cases could be handled in federal court

Part 3: What is the Supremacy Clause and what does it mean for states’ rights to legalize marijuana?: If preemption of state law happens and federal prohibition stands, "That's shooting themselves in the foot," says Robert Mikos, an expert on federalism and drug law

March 8, 2017 in Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Thursday, March 2, 2017

Eleven Senators write to AG Sessions to urge "that the Cole Memorandum remain in place"

As reported in this Politico article, a "group of senators is pushing Attorney General Jeff Sessions to uphold the Obama-era policy of allowing states to implement their recreational marijuana laws, after the Trump administration has indicated it could crack down on marijuana." Here is more about the letter this group sent to AG Sessions and its context:

The effort is led by Sens. Elizabeth Warren (D-Mass.) and Lisa Murkowski (R-Alaska), who hail from states that have legalized marijuana. Press secretary Sean Spicer has hinted at "greater enforcement" of federal laws treating marijuana as an illegal drug. Sessions said this week that he is "dubious about marijuana" and is reviewing current policy.

But senators are beginning to push back. "We respectfully request that you uphold DOJ's existing policy regarding states that have implemented strong and effective regulations for recreational use," the senators wrote to Sessions. "It is critical that states continue to implement these laws."

Eight states and the District of Columbia have legalized marijuana for recreational use. Most of the senators who signed on to the letter hail from those states; Murkowski is the only Republican. The senators who signed the letter in addition to Warren and Murkowski are Democratic Sens. Patty Murray of Washington, Ron Wyden of Oregon, Jeff Merkley of Oregon, Maria Cantwell of Washington, Ed Markey of Massachusetts, Brian Schatz of Hawaii, Catherine Cortez Masto of Nevada, Cory Booker of New Jersey and Michael Bennet of Colorado.

"Do they really respect states' rights? Then you should respect all of them, not just pick and choose the ones that you want to support or not. Many states have gone not only the path of Nevada of recreational marijuana but medical marijuana. How can you pick or choose one or another?" Cortez Masto said in an interview.

Indeed, it's not just a concern for senators from states that have legalized the drug. It's also an issue for conservatives who are worried about the GOP selectively allowing states' rights to supercede federal law. Sen. Rand Paul (R-Ky.) said Sessions told him that he "would have some respect for states' rights on these things." "I’ll be very unhappy if the federal government decides to go into Colorado and Washington and all of these places. And that’s not the intention that my interpretation" of the conversation," Paul said. "We’re concerned about some of the language that we’re hearing. And I think that conservatives who are for states' rights ought to believe in states' rights. I'm going to continue to advocate that the states should be left alone."

In interviews, some Republicans from states with legal marijuana said they were less concerned about Sessions. They said that in his discussions with senators before his confirmation hearing, they were left with the impression that he will respect state laws and not change federal policy. Sen. Cory Gardner (D-Colo.) said that after speaking with administration officials, he believes "nothing at this point has changed."...

In an interview, Murkowski said she was not yet alarmed, but was monitoring the Justice Department closely. "It's probably a little premature to try to predict what may or may not be coming out of the administration on this, so I think we just need to sit back and see," she said.

The full text of the letter that these Senators sent to AG Sessions can be accessed at this link. The quote in the title of this post reflect what serves as the main substantive request in the letter appearing in this closing paragraph:

We respectfully request that you uphold the DOJ's existing policy regarding states that have implemented strong and effective regulations for recreational marijuana use and ask that the Cole Memorandum remain in place.   It is critical that states can continue to implement these laws under the framework of the Cole Memorandum.  In addition, we request that state and local elected officials, and public health and safety officials, be afforded an opportunity to comment on any shift in policy from that expressed in the Cole Memorandum, to avoid disruption of existing regulation and enforcement efforts.  We appreciate your immediate attention to this request.

Some recent prior related posts:

March 2, 2017 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Tuesday, February 28, 2017

Aggregating evidence on marijuana's role in curbing opioid abuse after AG Sessions expresses skepticism

Attorney General Sessions today took more shots at marijuana reform, which included criticism of the suggestion marijuana could help curb the nation's opioid problems.  In response, Christopher Ingraham has this lengthy Washington Post piece assembling all the recent research supporting the notion that marijuana could help curb the nation's opioid problems. The piece is headlined "Attorney General Sessions wants to know the science on marijuana and opioids. Here it is." Here is the start of the article and its main bold headings that set up discussions of recent research (readers should click through for a bunch of links):

Speaking this morning before the National Association of Attorneys General, U.S. Attorney General Jeff Sessions expressed doubt that marijuana could help mitigate the opioid abuse epidemic.

“I see a line in The Washington Post today that I remember from the '80s,” Sessions said. "'Marijuana is a cure for opiate abuse.' Give me a break. This is the kind of argument that's been made out there to just — almost a desperate attempt to defend the harmlessness of marijuana or even its benefits. I doubt that's true. Maybe science will prove I'm wrong.”

The stakes are pretty high here. After all, opioids killed 33,000 people in 2015, up from around 8,000 in 1999. As the head of the Department of Justice, Attorney General Sessions oversees the Drug Enforcement Administration, which just last year reaffirmed its belief that marijuana has no medical value and hence should remain illegal (which makes it substantially more difficult for researchers to conduct studies).

Here's a run-down of where the evidence on marijuana and opiates stands.

Marijuana is great at treating chronic pain....

States with medical marijuana laws see fewer opiate deaths....

Medical marijuana is associated with fewer opiate-induced car crashes....

Painkiller prescriptions fall sharply after medical marijuana laws are introduced....

Among chronic pain patients, marijuana use is associated with less opiate use....

The scientific evidence available so far indicates marijuana holds great promise for mitigating the effects of the opiate epidemic. Researchers desperately want to know more, but as long as the Drug Enforcement Administration considers marijuana a Schedule 1 controlled substance, they'll have a hard time getting more answers.

February 28, 2017 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Data and Research, Who decides | Permalink | Comments (0)

"Confusion mounts over Trump administration’s stance on marijuana"

The title of this post is the title of this new article in The Hill.  Here are excerpts:

The Trump administration is signaling a crackdown on federal drug laws, leaving apprehensive top officials in states that have legalized recreational marijuana searching for answers.

Senior Trump administration members have hinted in recent days that they plan to more strictly enforce drug laws, a reversal from the Obama administration, which largely tolerated legal marijuana industries in states where voters had given the go-ahead.

“I’m dubious about marijuana. I’m not sure we’re going to be a better, healthier nation if we have marijuana sold at every corner grocery store,” Attorney General Jeff Sessions told state attorneys general on Tuesday.... White House press secretary Sean Spicer said last week he believed the administration would push “greater enforcement” of federal drug laws, under which marijuana is still a banned substance.

Neither Sessions nor Spicer addressed the Cole Memo, the Obama-era legal guidance that de-prioritized marijuana enforcement in states where the drug is legal. Since establishing their recreational marijuana regimes, Colorado, Washington, Oregon and Alaska have followed that federal guidance.

“In an imperfect system, the Cole Memo has worked. States that have legalized marijuana I think have worked hard to adhere to the Cole Memo,” said Washington Attorney General Bob Ferguson (D)....

Along with the four states that have implemented legalized marijuana, four more — Massachusetts, Maine, Nevada and California — are setting up their own regulatory regimes, after voters passed legalization efforts in November.

Most elected officials opposed legalization efforts in their states. But once voters have spoken, those elected officials don’t want federal officials cracking down on a product that is legal under state law, though still illegal at the federal level. And the marijuana industry is a boon for state economies, with legal marijuana sales over $1 billion in Colorado last year.

“I took an oath to support the constitution of Colorado,” Gov. John Hickenlooper (D) said in an interview. Hickenlooper questioned whether the Trump administration “really want[s] to come down and be heavy-handed on entrepreneurs.”

“I don’t know what direction the Justice Department is going to go, but it is going to raise some legal issues,” Nevada Gov. Brian Sandoval (R) said. Both Hickenlooper and Sandoval opposed their state’s legalization initiatives.

State and federal officials from legalization states have asked the Justice Department for guidance but have received no clear answers. No Justice Department officials showed up at the National Governors Association’s annual winter meeting this weekend in Washington. Hickenlooper, Sandoval and a spokesman for Washington Gov. Jay Inslee (D) said they had not been able to speak with Trump administration officials about their predicaments.

Inslee and Ferguson wrote Sessions last week to ask for a meeting to discuss state pot laws, though they have received no reply. Hickenlooper said he too will request a meeting. “I’ll have to probably come back and talk to [Sessions]," Hickenlooper said. “I want to make sure that we have a discussion about it. I’ll come back, we’ll try to set a meeting up.”

But many officials, like Sandoval, predict legal clashes ahead if the federal government changes its approach. “States like Washington have legal tools to resist such an effort, in the same way we have legal tools to resist the executive travel ban,” said Ferguson, who led the lawsuit against the Trump administration’s executive order on refugees and immigrants from seven Muslim-majority nations.

February 28, 2017 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)