Friday, December 12, 2014
The title of this post is the title of this notable paper authored by Luke Scheuer that I just noticed via SSRN. Here is the abstract:
In recent years many states have legalized the use and sale of marijuana for medical or even recreational purposes. This has led to the booming growth of a “legal” marijuana industry. Businesses openly growing and selling marijuana products to the consuming public are faced with some unusual legal hurdles. Significantly, although the sale of marijuana may be legal at the state level, it is still illegal under federal law.
This article explores the conflict between state and federal marijuana laws from a business entity law perspective. For example, managers owe a fiduciary duty of good faith to their businesses and equity holders. One of the ways in which managers can violate this duty is by causing their business to intentionally violate the law. This is a problem for the marijuana industry because its managers constantly and intentionally violate federal law and therefore violate their fiduciary duties by growing and selling marijuana.
This article concludes that the industry’s ability to attract professional stakeholders is harmed by marijuana business stakeholders’ inability to take advantage of key business law protections, such as limited liability. This article proposes a state law exception that allows for marijuana businesses to operate normally under state business entity law, with normal business entity law protections, despite their continuing violation of federal law.
Tuesday, December 9, 2014
Project SAM and Heritage event to separate "scientific facts from popular fiction" concerning marijuana reform
Today in Washington DC, Project SAM and the Heritage Foundation are co-hosting a notable event titled "Marijuana Policy: Separating Scientific Facts from Popular Fiction." The event is to include keynote remarks by two Republican members of Congress who are both doctors (and I believe ardent opponents of any prohibition reform): Andy Harris (R-MD) and John Fleming (R-LA).
Via this webpage at Heritage, I believe the full event will be webcast starting at 11am EST. (I am hoping the event will be archived there, too, for later viewing.) Here is the description of the event appearing on the Heritage page:
Today, 17 states and the District of Columbia have decriminalized marijuana, four states have legalized the drug, and 23 states have passed so-called “medical marijuana” laws – despite the fact – that it is properly listed as a Schedule I controlled dangerous substance and the FDA does not recognize marijuana as a drug. Big marijuana is big business and has added Libertarians and some small government conservatives to its traditional liberal base. Public support for legalization has skyrocketed over the decades, from 12% in the 1970s to 51% today, down seven points from last year.
But just as public support has grown, so has the scientific understanding of the real dangers of marijuana. Scores of peer-reviewed studies published in the last two decades show how marijuana affects the brain, heart, lungs and mental health; how marijuana has become more potent and addictive; and how it is nothing like alcohol. Join us as our distinguished experts discuss the pot business, the science behind today’s marijuana, and why Americans should oppose legalization.
UPDATE at 12noon: I am in the midst of watching the Heritage event, and it is terrifically interesting. I will have some follow-up posts once the event is over with some generally commentary. But while the event is on-going, I feel compelled to note and lament that it appears that there is not a single person of color speaking among the eight scheduled speakers. I have been persistently concerned that much of the current debate and discussion of marijuana reform has not included diverse voices and perspectives, and this Heritage event (while otherwise first-rate in lots of respects) is aggravating this concern.
Friday, November 21, 2014
The question in the title of this post is prompted by this new Huffington Post article headlined "Veterans May Gain Easier Access To Medical Marijuana." Here are excerpts:
A bill introduced in Congress would allow Department of Veterans Affairs doctors to recommend medical marijuana for their patients. The Veterans Equal Access Act, introduced Thursday by Reps. Earl Blumenauer (D-Ore.) and Dana Rohrabacher (R-Calif.) with 10 bipartisan cosponsors, would lift a ban on VA doctors giving opinions or recommendations about medical marijuana to veterans who live in states where medical marijuana is permitted.
“Post traumatic stress and traumatic brain injury are just as damaging and harmful as any injuries that are visible from the outside,” Blumenauer said. “Sometimes even more so because of the devastating effect they can have on a veteran’s family. We should be allowing these wounded warriors access to the medicine that will help them survive and thrive, including medical marijuana, not treating them like criminals and forcing them into the shadows. It’s shameful.”
Nearly 30 percent of veterans who served in the Iraq and Afghanistan wars suffer from PTSD and depression, according to a 2012 report from the Department of Veterans Affairs. Some scientists have suggested that marijuana may help PTSD symptoms, which can include anxiety, flashbacks and depression. In a recent study, patients who smoked cannabis saw an average 75 percent reduction in PTSD symptoms. "A clinical trial needs to be done to see what proportion and what kind of PTSD patients benefit, with either cannabis or the main active ingredients of cannabis," said Dr. George Greer, who was involved in the study.
This year, federal health officials signed off on a study that would have examined the effects of five potencies of smoked or vaporized cannabis on 50 veterans suffering from PTSD. The study's future still remains unclear because the federal government's sole provider of medical-grade cannabis didn't have the proper strains for the research to begin. Then the study's lead scientist was fired from the University of Arizona, where the research would have taken place.
I have long thought that anyone who claims to support our troops and veterans ought to be active and vocally supporting more serious exploration of the potential benefits of allowing veterans to use marijuana as one way to deal with the difficult problems of PTSD and brain injuries. And because everyone in Congress claims to be a supporter of our troops and veterans, one might believe that the Veterans Equal Access Act should be the rare proposal that garners bipartisan support in Congress. But because the politics of drug policy rarely is free of divisiveness, I fear passage of this bill in either the current or new Congress may be an uphill battle given that the House of Representatives earlier this year rejected a similar measure.
A few prior related posts:
- Congress rejects proposal to let VA doctors recommend medical marijuana
- Supporting the troops with cannabis in Colorado
- "More and More US Veterans are Smoking Weed to Treat Their PTSD"
- Vets making a push for VA to consider allowing marijuana use for PTSD
Wednesday, November 19, 2014
CNN has this notable new commentary authored by Jeffrey Miron urging Congress to follow the lead of states on modern marijuana reform. (Miron is senior lecturer and director of undergraduate studies in the economics department at Harvard University as well as a senior fellow at the Cato Institute.) Here are excerpts:
Marijuana legalization is a policy no-brainer. Any society that professes to value liberty should leave adults free to consume marijuana.
Moreover, the evidence from states and countries that have decriminalized or medicalized marijuana suggests that policy plays a modest role in limiting use. And while marijuana can harm the user or others when consumed inappropriately, the same applies to many legal goods such as alcohol, tobacco, excessive eating or driving a car.
Recent evidence from Colorado confirms that marijuana's legal status has minimal impact on marijuana use or the harms allegedly caused by use. Since commercialization of medical marijuana in 2009, and since legalization in 2012, marijuana use, crime, traffic accidents, education and health outcomes have all followed their pre-existing trends rather than increasing or decreasing after policy liberalized.
The strong claims made by legalization critics are not borne out in the data. Likewise, some strong claims by legalization advocates -- e.g., that marijuana tourism would be a major boom to the economy -- have also not materialized. The main impact of Colorado's legalization has been that marijuana users can now purchase and use with less worry about harsh legal ramifications.
Yet despite the compelling case for legalization, and progress toward legalization at the state level, ultimate success is not assured. Federal law still prohibits marijuana, and existing jurisprudence (Gonzales v. Raich 2005) holds that federal law trumps state law when it comes to marijuana prohibition. So far, the federal government has mostly taken a hands-off approach to state medicalizations and legalizations, but in January 2017, the country will have a new president. That person could order the attorney general to enforce federal prohibition regardless of state law.
Whether that will happen is hard to forecast. If more states legalize marijuana and public opinion continues its support, Washington may hesitate to push back. But federal prohibition creates problems even if enforcement is nominal: Marijuana business cannot easily use standard financial institutions and transactions technologies such as credit cards; physicians may still hesitate to prescribe marijuana; and medical researchers will still face difficulty in studying marijuana.
To realize the full potential of legalization, therefore, federal law must change. The best approach is to remove marijuana from the list of drugs regulated by the Controlled Substances Act (CSA), the federal law that governs prohibition.
Standard regulatory and tax policies would still apply to legalized marijuana, and states would probably adopt marijuana-specific regulations similar to those for alcohol (e.g., minimum purchase ages). State and federal governments might also impose "sin taxes," as for alcohol. But otherwise marijuana would be just another commodity, as it was before the Marijuana Tax Act of 1937.
A more cautious approach would have Congress reschedule marijuana under the CSA. Currently, marijuana is in Schedule I, which is reserved for drugs such as heroin and LSD that, according to the CSA, have "a high potential for abuse ... no currently accepted medical use in treatment in the United States ... [and] a lack of accepted safety for use." Hardly anyone believes these conditions apply to marijuana.
If marijuana were in Schedule II, which states it as "a high potential for abuse ... [but a] currently accepted medical use in treatment in the United States," doctors could legally prescribe it under federal law, as with other Schedule II drugs such as cocaine, methadone and morphine....
This "medicalization" approach, while perhaps politically more feasible than full legalization, has serious drawbacks. Federal authorities such as the Drug Enforcement Administration could interfere with marijuana prescribing -- as sometimes occurs with opiate prescribing. Taxing medical marijuana may be harder than taxing recreational marijuana. And the medical approach risks a charge of hypocrisy, since it is backdoor legalization. But medicalization is still better than full prohibition, since it eliminates the black market.
For 77 years, the United States has outlawed marijuana, with tragic repercussions and unintended consequences. The public and their state governments are on track to rectify this terrible policy. Here's hoping Congress catches up.
Sunday, November 16, 2014
This new lengthy Washington Post article, headlined "More veterans press VA to recognize medical marijuana as treatment option," highlights a notable constituency eager to have more support for considering use of medical marijuana. Here are excerpts:
At a time when the legalized use of marijuana is gaining greater acceptance across the country, ... a growing number of veterans are coming out of the “cannabis closet” and pressing the government to recognize pot as a legitimate treatment for the wounds of war. They say it is effective for addressing various physical and psychological conditions related to military service — from chronic back pain and neuropathic issues to panic attacks and insomnia — and often preferable to widely prescribed opioid painkillers and other drugs.
Researchers in the United States and several other countries have found evidence that cannabis can help treat post-traumatic stress disorder (PTSD) and pain, although studies — for instance, looking into the best strains and proper dosages — remain in the early stages. Veterans are lobbying for more states to legalize cannabis for medical use — 23 states and the District allow this — but the primary target is the federal government and, in particular, the Department of Veterans Affairs.
The federal government classifies marijuana as a Schedule I drug, the same as heroin and LSD, deeming that it has no accepted medical use and a high potential for abuse. That means that VA, which runs the largest network of hospitals and health clinics in the country, cannot prescribe pot as a treatment, even for veterans who live in a state where medical marijuana is legal.
VA says that its physicians and chronic-pain specialists “are prohibited from recommending and prescribing medical marijuana for PTSD or other pain-related issues.” Medical staff are also prohibited from completing paperwork required to enroll in state marijuana programs because they are “federal employees who must comply with federal law,” said Gina Jackson, a VA spokeswoman.
The swelling chorus of veterans who want to take advantage of marijuana but can’t reflects the growing disconnect between more tolerant state policies and the federal government’s unwillingness to budge. Advocates ... say it is urgent that the federal government recognizes marijuana as a treatment because there are so many veterans of recent wars....
If veterans report their use of marijuana to VA, they could face criminal charges if they live in a state where it is illegal. And though few have indeed been charged, the mere possibility has spawned a culture of “don’t ask, don’t tell,” said Michael Krawitz, a former Air Force staff sergeant and the director of Veterans for Medical Cannabis Access.
VA medical staff have warned that this culture is making for a dangerous situation, especially as more states legalize medical marijuana, because doctors do not know about all of the medications their patients are using. Patients are not routinely given drug tests, but those who are prescribed large amounts of opiates and risk overdosing can be asked to undergo screenings, which can turn up marijuana use. In 2011, VA issued a directive that said patients who were participating in state marijuana programs for pain cannot lose their VA benefits. VA added that it is up to individual patients to craft their “treatment plans” in consultation with their doctors.
Some patients say their VA doctors are making them choose between their prescription drugs and marijuana. “Doctors and administrators wrongly assume that the use of marijuana along with opiates is unsafe,” Krawitz said.
A study published last month in the journal JAMA Internal Medicine reported that “people already taking opioids for pain may supplement with medical marijuana and be able to lower their painkiller dose, thus lowering their risk of overdose.” The study, written by Marcus A. Bachhuber, a researcher at the Philadelphia Veterans Affairs Medical Center, and several colleagues, found that “medical cannabis laws are associated with significantly lower state-level opioid overdose mortality rates.”
Scott Murphy, a retired Army specialist who is the head of Veterans for Safe Access and Compassionate Care, has been compiling a petition asking that marijuana no longer be classified as a Schedule I drug. “Veterans in states without medical marijuana laws feel they need to lie to their physicians for the justifiable fear of losing their earned benefits,” Murphy writes in the petition....
Several VA doctors who specialize in pain management and PTSD said in interviews that they are eager for more research on the medical benefits of marijuana. The doctors, who spoke on the condition of anonymity because they do not have permission from VA to discuss marijuana with the news media, said they feel frustrated because prescription drugs are not helping patients who are suffering. “Anecdotally we know it works, and more and more studies are saying this,” said one VA doctor, a PTSD expert who leads a large East Coast VA pain center. “But we aren’t allowed to study it.”
Researchers at New York University’s Langone Medical Center are developing the first generation of cannabis-related medications targeted for PTSD, according to Alexander Neumeister, a professor of psychology and radiology who is supervising three drug trials. He said research has found that people with PTSD have lower levels of cannabinoid receptors in the brain. These receptors, called CB1, are activated when a person uses marijuana. “We are throwing the wrong pills at the problem and keep doing it,” Neumeister said. “It’s upsetting. It’s heart-breaking and it’s just wrong.”
Saturday, October 18, 2014
As this local article highlights, former New Mexico Governor Gary Johnson is not completely backing off his recent (and self-serving?) suggestion that marijuana could help in the treatment of Ebola. Here are the details:
Former Gov. Gary Johnson caught a few headlines – and at least a little flack – when he suggested on a national TV show this week that marijuana could be a cure for Ebola. Johnson, who served as New Mexico’s governor from 1995 through 2002, stood by his remarks Wednesday. But he explained he was not claiming marijuana is, in fact, a cure for the Ebola virus that has killed nearly 4,500 people, mostly in West Africa.
He said he was simply arguing more research should be done on whether certain cannabis compounds might be effective in fighting the disease. “If I were on a bed right now, and I was infected by Ebola, anything that might save my life I would take in a nanosecond,” Johnson told the [Albuquerque] Journal.
During his Monday in-studio appearance on FOX Business, Johnson went one step further, telling host Stuart Varney that “we actually believe we have efficacy with regard to treating Ebola.”
This summer, Johnson, who lives in Taos and was the Libertarian nominee for president in 2012, was named CEO and president of Cannabis Sativa Inc., a company that plans on selling medical and recreational marijuana products.
While Johnson insisted his suggestion about marijuana and Ebola was not about money, FOX Business host Varney questioned that claim, at one point saying, “Of course it is.” Varney also said Johnson’s argument in favor of easing government drug-testing regulations would lead to “snake oil salesmen” attempting to profit off the Ebola outbreak.
“I am not a snake oil salesman. I’m not. You know, I’m the former governor of New Mexico,” Johnson told KRQE-TV in response to Varney’s comments.
A state Health Department spokesman said Wednesday that the agency is “not aware of any studies suggesting that medical cannabis is a cure or treatment for Ebola.”
The question in the title of this post is prompted by this notable AP piece from Oregon headlined "Economist: Benefits of legal pot outweigh societal costs." Here are excerpts:
University of Oregon economist said Thursday the best-case estimates for Colorado's legal marijuana tax revenue were overstated because of a faulty model. Economist Ben Hansen said at the Oregon Economic Forum that misjudgments in Colorado's revenue estimates stemmed from a term familiar to students in Econ 101: Elasticity of demand.
Previous estimates of demand for recreational marijuana only looked at the potential shift from the black market to the legal market. But with the medical market suctioning off some new consumers, revenue forecasts changed. With various substitutes available, from synthetic marijuana to medical and black-market pot, Hansen said, guessing at the potential revenue impact in Oregon remains difficult....
Colorado has decided to spend pot taxes in arrears, meaning taxes aren't projected but spent only once collected. The unusual budgeting maneuver was adopted because the pot market is expected to be highly volatile for the first several years.
Legalizing marijuana increases its supply and drops its price, Hansen said. That price drop makes additional taxes harder for consumers to notice. That's important when the tax rate people pay in Colorado and Washington for legal pot is north of 40 percent. In Oregon, the same rate is anticipated to be about 15 percent.
While police agencies will no longer arrest or fine people caught with marijuana if it's legalized, Hansen says taxes function as a kind of fine for marijuana consumption. "With legalization, we can kind of double-dip," Hansen said. "We're no longer paying to arrest and incarcerate people, and we're getting tax revenue from it."
Hansen also says he doesn't anticipate a dramatic impact on the alcohol market, though he says studies have shown heavy drinking and beer sales decline in markets where medical marijuana is approved.
Harvard University economist Jeffrey Miron said Thursday that Colorado's medical marijuana market was already commercialized when marijuana was legalized. "The medicinal market was so commercial, so visible, that for all practical purposes, it was legal," said Miron. "Economists consider all that matters are the fundamentals: Can you get access to it, are there barriers to it.
"I just don't think you (in Oregon) will see any kind of dramatic change. You're a long way toward a commercial market already."
October 18, 2014 in Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Monday, October 13, 2014
The question title of this post is my reaction to this interesting report from Florida headlined "How Florida's Medical Marijuana Amendment Managed to Plunge South." The report by Nancy Smith suggests that the marijuana reform ballot initiative going before Florida voters in three weeks is now on the political ropes. Here is her account for why:
In April, Amendment 2 looked indestructible. Poll after poll gave it upward of 80 percent in voter approval. Then all of a sudden the cracks began to show. Numbers dipped slightly. And by May, anybody who says he couldn't see the medical marijuana amendment's steep slide coming wasn't looking very hard....
And here's what I think happened. I think the smooth-sailing pro-constitutional amendment campaign did such a good job of promoting its early popularity, it became a victim of its own success.
Strong Amendment 2 polling numbers plus an end to the struggle in the Florida Legislature to pass the landmark Charlotte's Web bill launched an entrepreneurial feeding frenzy across the state. It was like a gold rush. But it was also a turn-off for conservative voters who felt overwhelmed, who wanted medical marijuana, but not the greed they now identified as an accompaniment.
Sold-out, cannabis-themed business expos and training conventions -- particularly the ones in Miami and Orlando -- got big media publicity, lit up Twitter and attracted medical marijuana "experts" from other parts of the country. Law practices and lobbyists carving out a specialty in medical marijuana consulting were even buying billboard ads along South Florida highways.
The first eye-opening event I remember -- well-publicized before and after -- was staged in mid-April at the Sheraton Hotel in Miami. Bob Calkin, Los Angeles cannabis hustler, charged wannabe entrepreneurs $299 a pop for a 10-hour crash course on how to make a fortune "dispensing medicine." His company, Cannabis Career Institute, headquartered in Calkin's van, raked in $45,000 for a day's work.
As I said, none of this escaped the notice of increasingly jittery likely voters. All told, it's left a sour taste. Floridians now are asking, is this amendment more about who can profit from it than it is about who it might be able to help?
"What am I supposed to think?" asks Mandy Stokes, 54. "I want sick people who can be helped by medical marijuana to have what they need no matter what. But all these people swarming into the state looking to get rich quick ... I don't want Florida to be Colorado and end up with recreational marijuana."...
Retired Tamarac doctor Garrett R. Richardson, a family practitioner, told Sunshine State News, "If I were still practicing, I would have nothing to do with cannabis therapy until the feds decriminalize the plant. I wouldn't want lawyers and patients in my face constantly to recommend something I may not think is the best therapy. No lawyer would be getting rich at my expense, I can tell you that."
Add to mounting fear the increasing presence of well-financed Vote No on 2. Its slick television ads are all over the state's larger markets. And John Morgan's profanity-laced video hasn't helped: Morgan, the father of Amendment 2, cocktail in his hand, standing before a group of cheering young people, urging them to vote for marijuana. Negative publicity, to say the least -- and didn't the Vote No on 2 people jump all over it....
All of a sudden, United for Care went from "we're in!" to "do we still have a chance?" And it's beginning to lose the battle for money. A successful TV ad campaign can cost $1 million a week....
This constitutional amendment needs 60 percent approval to pass and become law on Jan. 6. Yet, of the eight polls released since Sept. 1, the average percentage of support is 57.6....
If you're wondering, the top contributors for the "pro" team, People United for Medical Marijuana, are 1) The John Morgan law firm, $3,535,896; 2) prominent Democratic fundraiser Barbara Stiefel, $605,000; and 3) John Morgan personally, $250,000.
Top contributors for the "con" team, Vote No on 2, are 1) casino magnate Sheldon Adelson, $4 million in two combined chunks; 2) the Carol Jenkins Barnett Family Trust, $540,000; and 3) Republican donor and millionaire Mel Sembler, $100,000....
[T]he same Floridians whose initial motives for embracing medical marijuana were pure and true, are now repulsed by what they see as mob greed -- would-be business people flocking to launch ventures in an industry built on disease and suffering. I'm not sure how you overcome that.
October 13, 2014 in Initiative reforms in states, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Political perspective on reforms, Polling data and results | Permalink | Comments (1)
Wednesday, October 8, 2014
I never tire of the phrase "follow the money," and I generally do not use it as a pejorative complaint about modern politics as much as a useful reminder that capitalism (and capital) explains the realities of American law, policy and reform as much as any other force. With these realities in mind, I found especially interesting this informative lengthy USA Today article headlined "Entrepreneurs eye emerging marijuana markets." Here are some extended excerpts:
When James Howler created his marijuana-infused taffy in 2009, the Colorado entrepreneur had trouble finding an accountant willing to keep the books of a company making legally fuzzy medical marijuana candy. Now, five years later, venture capitalists from New York City want to shower him with money for a stake in his Cheeba Chews and a foothold in a $2.6 billion marijuana industry now operating in nearly half the country.
With medical marijuana legal in 23 states and Washington, D.C., and recreational marijuana legal in Colorado and Washington state, the market for weed is rife with potential, and the people in pinstripes have taken note. As the marijuana companies grow more sophisticated — and profitable — they are attracting the attention of investors and corporations.
Tapping into the green revolution, however, brings unique challenges for entrepreneurs and corporate honchos alike. States may have bucked federal law, which considers marijuana illegal for any purpose, but they have imposed their own complicated, lengthy lists of regulations meant to keep cannabis tightly under control and, in some cases, keep the corporate behemoths out.
But with so much money at stake, industry experts say, it's only a matter of time before corporate giants, already eyeing the market, grab their share, too. "If leaders of these companies are not looking at the cannabis space, then they are not doing their jobs," says Chris Walsh, editor of Marijuana Business Daily, a trade publication based in Denver. "Billions of dollars are here, and no seasoned business executive is going to overlook a billion-dollar industry that they might be positioned to tap."...
If the crowd of 200 executives who jammed the marijuana panel at the Wine & Spirits Summit on June 5 in Denver is any indication, the alcohol industry is paying attention. "Some see it as a threat, and some are interested in being part of the industry," says Emily Pennington, editor of Wine & Spirits Daily, an online trade publication that hosted the summit. "Either way, they are watching it very closely."...
Most major tobacco companies, which explored the possibilities of marijuana in the 1970s, when federal legalization seemed possible, now deny any interest. "Marijuana remains illegal under federal law, and Altria's companies have no plans to sell marijuana-based products," says Brian May, spokesman for Altria, the company that owns tobacco company Philip Morris America....
R.J. Reynolds Tobacco also says it isn't interested in marijuana. "We have no intention to have any involvement when it comes to marijuana," spokesman David Howard says. "We have no interest in that industry."
But tobacco giant Japan Tobacco International entered into a deal in December 2011 with Ploom, the San Francisco-based manufacturer of a pocket-sized smoking device that heats tobacco, vaporizing nicotine and flavor without producing smoke, to commercialize the product outside the United States. Although the company maintains its device is solely for tobacco, the latest version, called Pax, is popular among marijuana users.
At least two pharmaceutical firms, AbbVie and GW Pharmaceuticals, already produce medicines that contain active ingredients from cannabis. GW says it is a traditional pharmaceutical company that won't be dabbling in what it calls the "artisanal" medical marijuana business.The company manufactures Sativex, a cannabinoid medicine for the treatment of spasticity due to multiple sclerosis....
Some states don't allow non-residents to open or have equity investments in marijuana businesses. Colorado, which has more than 1,300 licensed marijuana businesses, requires marijuana investors to have lived in the state for at least two years. The owner, operator and employees must all be residents of the state. Non-state residents can lend money but can't have an equity interest, says Colorado Department of Revenue spokeswoman Natriece Bryant. The state enacted those regulations specifically to keep the giant multinationals out, Bryant says....
Most federally insured banks have opted to stay away from the industry because of legal uncertainty about whether transactions for marijuana businesses could be considered money laundering. That means marijuana businesses have little access to small business loans or even payroll accounts. With banks out of the picture for now, most of the financial backing for growth in the marijuana industry has come from venture capital, angel investors and private loans.
"We've had bankers from New York City asking for a tour of the facilities and wanting to know how they can invest," said Ralph Morgan, chief operating officer of O.penVAPE, which specializes in extraction of purified cannabis oil from marijuana and produces a vape pen that vaporizes the oil to be inhaled. O.penVAPE products are sold in Colorado, California, Washington, Oregon and Arizona. "There are tons of people dumping tons of money into the industry," says Cheeba Chews' Howler. "There is money to be made, and that's why that big money is coming in."...
Ultimately, once corporate America thinks the industry is safe, well-established marijuana companies will be targets for acquisition, says Steve Berg, chief financial officer of O.penVAPE. "By virtue of the success we've had and the powerful brand we've developed, we constantly get inquiries from individuals and companies looking to partner," Berg says. None have come from Big Pharma, Big Tobacco or Big Alcohol, "but we feel like we can feel them out there," he says.
"How could it be otherwise? This is a new industry that is growing very, very rapidly," Berg says. "Any business-development division that has any similarity has to have their eye on this ball."
O.penVAPE's chief operating officer, Ralph Morgan, who worked in medical device sales before he and his wife, intrigued by the medical side of cannabis, decided to open a dispensary in Colorado, says there's nothing mysterious about the marijuana industry. "All the regular business rules apply to the marijuana industry — taxation, regulation, human resources," Morgan says. "It's just a different widget."
Morgan says recreational marijuana businesses are a natural fit for the alcohol industry, which is already accustomed to state-by-state regulation. Marijuana products "could be made and distributed in a similar fashion," Morgan says. "The alcohol industry has done a good job of creating brands."
Trip Keber, who four years ago founded Dixie Elixirs to make marijuana-infused drinks, chocolates and lotions, says he, too, has had inquiries from investment bankers, hedge funds and venture capitalists. And at conferences, he has fielded questions from alcohol industry executives. "Four years ago, I couldn't get anyone to return my calls," Keber says. "Now the tables have turned. We are too big to ignore."
One of the biggest signs that the industry has matured is the influx of top-notch professionals — lawyers, accountants, advertising execs — willing to take jobs at the marijuana companies, Berg says. Full legalization in Colorado and Washington was a watershed event for many business professionals, who could then feel it was safe to join the industry, Berg says. "One of the major themes or trends in the legal cannabis industry is the professionalization of the industry," Berg says. "Professionals are crossing over from the more conventional industries because they see a lot of opportunity and a lot of challenge."...
Changes in societal attitudes toward marijuana caught attorney Barry Peek's attention a few years ago. Peek, a labor and employment lawyer at the 65-lawyer New York firm Meyer, Suozzi, English and Klein, did some reading, attended a few conferences and then gathered a group of three or four attorneys in his firm to study the issues around medical marijuana. He concluded that medical marijuana would turn out to be big business. And if it's a new business, Peek says, people will need legal advice.
When New York Gov. Andrew Cuomo signed the state's medical marijuana law on July 5, Peek's firm was ready. "We are advising clients on how to maneuver through those regulations," Peek says. "We have a full-service law firm, so if there is a company that needs to get into the business, we can handle corporate issues, tax issues, land-use issues, whatever they need."
Interest in New York is widespread, from farmers in Upstate New York who have idle land that could grow marijuana to doctors who want to dispense it, Peek says. "It will be a growing sector in the legal community," Peek says. "And once the smaller companies get a foothold and become profitable, they will get bought out by larger companies."
Sunday, October 5, 2014
The title of this post is the title of this notable symposium planned for later this month. The event takes place at the University of California Irvine School of Law, and is presented by the Center for Land, Environment, and Natural Resources (CLEANR) and Brown Rudnick LLP, and here is how the event is pitched at this website:
Despite stringent regulation at the federal level, an increasing number of U.S. states have adopted laws legalizing the use of marijuana for medical or recreational purposes. Marijuana production activities are being openly conducted without prosecution, but a suite of land use and environmental laws may nonetheless regulate such conduct, including environmental impacts of farming, consumer product safety, pesticide use, the siting and location of farms and dispensaries, and use of public lands.
Attorneys also face uncertainty as to their ability to advise clients in the marijuana industry about these activities. This symposium explores these many issues, guided by leading practitioners and policymakers deeply involved at the interface of federal and state marijuana use and control.
Alejandro E. Camacho, Professor of Law, Director, Center for Land, Environment, and Natural Resources at UC Irvine School of Law, and Geoffrey K. Willis, Partner, Brown Rudnick LLP, will serve as moderators.
Thursday, October 2, 2014
The title of this post is the headline of this new Wasington Post summary of some notable recent research concerning California marijuana users. Here is how the piece starts (with links from the original):
A 2013 survey in the New England Journal of Medicine found that nearly 8-in-10 doctors approved the use of medical marijuana. Now, a wide-ranging survey in California finds that medical marijuana patients agree: 92 percent said that medical marijuana alleviated symptoms of their serious medical conditions, including chronic pain, arthritis, migraine, and cancer.
The data come from the California Behavioral Risk Factor Surveillance System, a representative health survey of 7,525 California adults produced by the Public Health Institute in partnership with the CDC. Researchers found that in total, five percent of California adults said they had used medical marijuana for a "serious medical condition."
"Our study’s results lend support to the idea that medical marijuana is used equally by many groups of people and is not exclusively used by any one specific group," the authors write. There were similar usage rates among both men and women. Adults of all ages reported medical marijuana use, although young adults were the most likely to use it.
There were some small differences in medical marijuana use across members of different races, although the authors stress that "the absolute difference in prevalence between the racial/ethnic groups is less than three percentage points, which may not have much importance in practical terms."
Monday, September 29, 2014
As reported in this interesting local piece, headlined "U.S. senators join request for medical marijuana waiver: Schumer, Gillibrand back N.Y. in Justice Dept. effort," New York officials are making a concerted effort to aid in marijuana importation. Here are the details:
U.S. Sens. Charles E. Schumer and Kirsten E. Gillibrand on Monday joined New York State’s effort to obtain a waiver from the U.S. Department of Justice allowing the state to import medicinal marijuana to treat children who suffer from rare and deadly seizure disorders.
The letter by the two Democratic senators from New York to Attorney General Eric H. Holder Jr. comes three days after the state Health Department submitted a new waiver request to Washington permitting the emergency importation of the drug while New York prepares to enact a broader medical marijuana program in the beginning of 2016.
The senators, acting after families of ill children sought their intervention with Justice, wrote to Holder that children with severe epileptic disorders “urgently need medicinal marijuana to ease the symptoms of this horrible disease, and these children obviously do not hold any imminent criminal threat.”
The senators are asking that the federal government help pave the way for Charlotte’s Web, a strain of marijuana grown in Colorado that is not smokable, to be permitted to cross state lines for distribution in New York. Parents of children with the condition say the drug offers no real attraction to the black market because the strain of marijuana they seek does not get users high....
There are an estimated 60,000 New Yorkers who suffer from a form of epilepsy that cannot be controlled by over-the-counter medicines, Schumer and Gillibrand said. How many of those are children with the rare seizure disorders who might qualify for the medical marijuana is uncertain, state officials say.
The specific request by Schumer and Gillibrand seeks assurances from Justice that individuals would not be prosecuted for shipping medical marijuana into New York under a state-created emergency program while the broader marijuana program is being developed.
At least three children have died in New York from the seizure disorders, including 9-year-old Anna Conte of Orchard Park, since the medical marijuana measure was signed by Cuomo in July. Before and after the law’s enactment, families urged the state to carve out an emergency exception for their children to get access to cannabidiol, or cannabis oil, which can be taken in pill, oil or other form other than smoking with no psychotropic effects....
In July, the state legalized medical marijuana, but the program is not set to begin before January 2016. Advocates were upset with Cuomo in June, when the medical marijuana deal was struck, because he insisted on killing a legislative provision to permit the state to participate in an emergency-type program for the seizure treatments by allowing marijuana to be transported across state lines into New York.
Now, advocates say that even if the federal government approves the waiver requests, the legislation Cuomo insisted upon and signed in July would have to be amended. That, they say, would require a special session of the State Legislature if patients don’t want to have to wait until January to gain access to the drug.
Emily Pierce, a Justice Department spokeswoman, said the two letters by the state Health Department have been received and are being reviewed. She said the department does not believe that it has ever granted a waiver like the one being requested by New York.
Assemblyman Richard N. Gottfried, D-Manhattan, sponsor of the medical marijuana law in the Assembly, recalled how the governor at the last moment during negotiations insisted that New York not be permitted to import the drug on an emergency basis and that any marijuana dispensed in the state must be grown in the state. “Even if the state licensed a registered organization tomorrow, it would not be allowed to dispense a product that was produced in Colorado or Vermont,” Gottfried said, suggesting that Cuomo call a special session of the Legislature to deal with the matter.
September 29, 2014 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Political perspective on reforms | Permalink | Comments (2)
Sunday, September 28, 2014
As highlighted in this local article, headlined "About a 1,000 show up in Colorado Springs for veterans marijuana giveaway," showing support for the troops had a unique meaning in one Colorado city this weekend. Here are the details:
A free cannabis giveaway at a Colorado Springs hotel Saturday attracted about a thousand people looking for an alternative medication for their physical and mental pain.
Roger Martin, the executive director and co-founder of Operation Grow4Vets, which put on the event, said the group's goal is to bring cannabis to veterans with service-related conditions as an alternative to pain medications. "It isn't going to hurt them as much as the prescription drugs," he said.
Martin, an Army veteran, said he struggled with prescription drug use to help with what he called "24-hour" pain and an inability to sleep. "I just need something to take the pain away during the day," he said. Martin said he discovered edible marijuana as a way to reduce pain and help him sleep more, and he wants other veterans to have the same chance to address ailments.
Matt Kahl, a former Army specialist who works for Operation Grow4Vets as a director of horticulture, said using marijuana saved his life and reduced his dependency on pain medication. Kahl said he was injured when serving in Afghanistan when he was thrown from a vehicle, causing a traumatic brain injury and hurting his spine and back. As part of his recovery, Kahl started taking more than a dozen pain medications per month. After a suggestion from a friend, Kahl started using marijuana to help with the pain. Now, he said, he is off all but two of his medications.
"It doesn't make sense that our first line of defense is toxic medication," Kahl said. He said marijuana use lessened his symptoms of hyper vigilance and pain, and he moved to Colorado, "I would not be alive without this," Kahl said....
Martin said some might have been disappointed because they were not handing out bags of marijuana, but that was not his group's goal. "We're not about getting people high," he said, Martin said the organization plans to have at least three more events this year, including another in Colorado Springs. Operation Grow4Vets also sponsored an event last weekend in Denver, which Martin said attracted hundreds of people, but the event in Colorado Springs, he said, attracted about 1,000 people.
Monday, September 22, 2014
This local article from Alaska, headlined "KTVA reporter quits on-air, reveals herself as owner of Alaska Cannabis Club," reports on how one TV personality decided to use her time on air to provide a marijuana-business-driven decision to tell her bosses to "take this job and shove it." Here are the details:
Reporter Charlo Greene quit on-air during KTVA-TV's 10 p.m. newscast Sunday, revealing herself as the owner of the medical marijuana business Alaska Cannabis Club and telling viewers that she would be using all of her energy to fight for legalizing marijuana in Alaska.
Greene had reported on the Alaska Cannabis Club during Sunday night’s broadcast, without revealing her connection to it. At the end of the report, during a live shot, she announced that she was the club's owner and would be quitting.
“Now everything you've heard is why I, the actual owner of the Alaska Cannabis Club, will be dedicating all of my energy toward fighting for freedom and fairness, which begins with legalizing marijuana here in Alaska," she said. "And as for this job, well, not that I have a choice but, fuck it, I quit.” And with that, she walked off camera....
Reached later, Greene said KTVA had no idea she was going to quit, or that she was connected to the Alaska Cannabis Club. Asked why she quit in such a dramatic way, she said, "Because I wanted to draw attention to this issue. And the issue is medical marijuana. Ballot Measure 2 is a way to make medical marijuana real ... most patients didn’t know the state didn’t set up the framework to get patients their medicine."
"If I offended anyone, I apologize, but I’m not sorry for the choice that I made," she said. In a statement posted on KTVA's Facebook page Sunday night, news director Bert Rudman said, "We sincerely apologize for the inappropriate language used by a KTVA reporter during her live presentation on the air tonight. The employee has been terminated."
Started in April, the Alaska Cannabis Club connects medical marijuana cardholders with other cardholders who are growing cannabis. Growers are offered "donations" as reimbursement for the costs of growing marijuana, the club said in an interview with Alaska Dispatch News in August. The club said it hopes to increase access to medical marijuana patients, despite operating in a legal gray area within Alaska's murky medical marijuana laws. Video clips of the broadcast were quickly uploaded to YouTube and shared on Reddit Sunday night.
Saturday, September 20, 2014
The title of this post is the headline of this recent lengthy and informative Forbes article by Jacob Sullum. Here is how it gets started:
During a visit to the Dixie Elixirs & Edibles plant in Denver last summer, I saw the machines the company uses to produce cannabis concentrates, the kitchen where it makes marijuana-infused chocolates, and the bottling line for its THC-spiked sodas. Toward the end of the tour, I had a semi-serious question for the company’s CEO, Tripp Keber: “Where do you keep your piles of money?”
Keber laughed but quickly turned serious. “We actually have strong banking relationships,” he said. “We don’t talk about them. Asking someone about their banking is like asking them what they wear to bed at night. It’s an intensely personal question, even within the industry.” You can begin to understand why banking is such a touchy subject for the newly legal cannabusinesses in Colorado and Washington (as well as growers and dispensaries in the 21 states that allow medical but not recreational use of marijuana) if you consider the federal laws a financial institution violates when it does business with a state-licensed company like Keber’s.
“By providing [a] loan and placing the proceeds in [a] checking account, the institution would be conspiring to distribute marijuana,” writes University of Alabama law professor Julie Andersen Hill in a paper she presented at a conference on marijuana and federalism last week. “By facilitating customers’ credit card payments, the institution would be aiding and abetting the distribution of marijuana. And by knowingly accepting deposits consisting of revenue from the sale of marijuana, the institution may be acting as an accessory after the fact.”
That is not the end of the possible charges. “A financial institution that knowingly processes transactions for marijuana-related businesses commits the crime of money laundering,” Hill notes. Failure to meet the detailed monitoring and reporting requirements of the humorously named Bank Secrecy Act (BSA), which requires financial institutions to keep an eye out for suspicious activity, also can be treated as a felony.
Bank employees, officers, and directors can be prosecuted for these crimes, some of which may, depending on the amount of marijuana involved, trigger five- or 10-year mandatory minimum sentences. BSA violations are punishable by up to 10 years in prison when combined with other federal offenses. Money laundering can get you up to 20 years, and life is the maximum for participating in a marijuana conspiracy. In addition to the daunting threat of criminal penalties, financial institutions that deal with cannabusinesses have to worry about offending federal regulators with the power to impose millions of dollars in fines or sentence a bank to death by revoking its deposit insurance.
It is little wonder, then, that financial institutions are wary of cannabusinesses, or that the growers, manufacturers, and retailers who are lucky enough to obtain banking services do not want to talk about how they managed to do that. The lack of banking services, which Aaron Smith, executive director of the National Cannabis Industry Association, calls “the most urgent issue facing the legal cannabis industry today,” makes it difficult for marijuana entrepreneurs to raise capital and forces most of them to deal exclusively in cash, which creates administrative, logistical, and security headaches.
Tuesday, September 16, 2014
Why Florida is such an interesting marijuana reform state: "Snowbirds potential partakers of medical marijuana"
This lengthy local article from Florida, headlined "Snowbirds potential partakers of medical marijuana," highlights just some of the many reasons I think Florida is the most interesting state to watch in the near future concerning marijuana law, policy and reform. Here are excerpts from the article:
Sunshine and beaches are great attractions, but there could be another reason snowbirds flock to Florida if Amendment 2 passes: The availability of medical marijuana. Whether that happens depends on several unknowns as Florida heads into the last seven weeks before people vote on the question of legalizing medical pot.
State and local tourism officials don't believe the amendment will have an effect on tourism if it passes. They say the impact on snowbird residents would be miniscule. They also say they have no intention of using medical marijuana as a marketing tool.
Others say it's too early to tell. "I'm a snowbird with pain associated with MS," said David Dillabough, of Syracuse, N.Y., who winters in St. James City. "I avoid hydrocodone, oxycodone and the like. Marijuana is my choice whenever I need a break from persistent pain.
"Like other retired/older people, Florida is attractive to me because of the warmth and sunshine. Legalized medical marijuana wouldn't be the icing on the cake (that would be my friends), but it would be the flowers on the icing."
The state Department of Health financial analysis estimating the possible impact of the passage of Amendment 2 says snowbirds are a potential pool for medical marijuana tourism. "An estimated 17,178 to 41,271 may apply for an ID," the analysis says. That estimate has not been updated since the analysis was released in early November, said Phil E. Williams of the state Office of Economic and Demographic Research. However, the multistep process someone will have to go through to get an ID for medical pot would discourage shorter-duration visitors, the analysis says....
If the amendment passes, the effective date would be Jan. 1. The health department would have six months from that date to come up with rules; nine months to issue ID cards to qualified patients and caregivers; and nine months to register medical marijuana dispensaries.
Tamara Pigott, executivwere director of the Lee County Visitor & Convention Bureau, said you have to remember tourists and snowbirds are two different things: Snowbirds are considered part-time residents who are here for a month or longer and often own property. Many snowbirds have established Florida residency, an attractive option because the state has no income tax. Tourists are short-term visitors.
Even if up to 41,000 snowbirds could apply for a medical pot ID, that number pales in the context of the actual numbers of state visitors, she said. Visitors reached 94.3 million last year according to Visit Florida, the state's official tourism and marketing entity, and the state is aiming for 100 million in 2014. One conference alone could bring in 40,000 people in a big city, Pigott said. "I don't anticipate that we would see a significant bump."
The legalization of medical marijuana might affect seasonal residents, said Jack Wert, executive director of the Naples, Marco Island, Everglades Convention and Visitors Bureau. "But it probably would not have much effect on short-term visitors, which is what we do and how we promote," he said. Snowbirds aren't even counted in their statistics, he said. "I guess we're going to watch it and see where it goes from here."...
Taylor West, deputy director of the National Cannabis Industry, agrees with Florida officials when it comes to tourism and medical marijuana. The reason is states that have legalized medical marijuana have a residency requirement, she said. However, one possible exception is that Nevada is planning to allow reciprocity in their medical program, so people who are legally registered as medical marijuana patients in other states can purchase medical marijuana in Nevada, she said. "But that hasn't actually started yet, and it's still not going to create a tourism boom, since anyone it would affect is able to access medical marijuana in their home states already," West said....
Kathy Lowers of Naples said Amendment 2 will not make Florida a more attractive place to visit or live. Lowers, who has six children, said she moved here from California in part to avoid what she called the "sleaziness" of pot shops that popped up there. "To me, if Florida goes the way of California, I will just be so depressed," she said. "I am not against medical marijuana, but against pot shops dispensing it. There is a big difference.
"The Florida amendment is way more liberal than even the California one, so goodbye to family-friendly Florida," Lowers said. "People like me come here because it is more wholesome than other places; pot will ruin that benefit of visiting or living in Florida."
Wednesday, September 10, 2014
The question in the title of this post is prompted by the very first sentence of this provocative recent New York Times op-ed authored by former NFL player Nate Jackson. Here are excerpts from a piece headlined "The N.F.L.’s Absurd Marijuana Policy":
Virtually every single player in the N.F.L. has a certifiable need for medical marijuana.
The game we celebrate creates a life of daily pain for those who play it. Some players choose marijuana to manage this pain, which allows them to perform at a high level without sacrificing their bodies or their minds.
I medicated with marijuana for most of my career as a tight end from 2003 through 2008. And I needed the medication. I broke my tibia, dislocated my shoulder, separated both shoulders, tore my groin off the bone once and my hamstring off the bone twice, broke fingers and ribs, tore my medial collateral ligament, suffered brain trauma, etc. Most players have similar medical charts. And every one of them needs the medicine.
Standard pain management in the N.F.L. is pain pills and pregame injections. But not all players favor the pill and needle approach. In my experience, many prefer marijuana. The attitude toward weed in the locker room mirrors the attitude in America at large. It’s not a big deal. Players have been familiar with it since adolescence, and those who use it do so to offset the brutality of the game. The fact that they made it to the N.F.L. at all means that their marijuana use is under control.
Had marijuana become a problem for me, it would have been reflected in my job performance, and I would have been cut. I took my job seriously and would not have allowed that to happen. The point is, marijuana and excellence on the playing field are not mutually exclusive....
Nearly 17,000 Americans overdosed and died from prescription painkillers in 2011, according to the most recent figures from the Centers for Disease Control and Prevention. These are the same pills I was handed in full bottles after an injury. The same pills that are ravaging our cities. The same ones that are creating a population of apathetic adults, pill-popping their way through the day and dead behind the eyes. The same ones that are leading high schoolers to heroin because the pills no longer get them high and are too expensive. Yeah, those....
In my playing days, the marijuana smokers struck me as sharper, more thoughtful and more likely to challenge authority than the nonsmokers. It makes me wonder if we weren’t that way because marijuana allowed us to avoid the heavy daze of pain pills. It gave us clarity. It kept us sane....
Professional football is a violent trade that could use some forward thinking. The N.F.L. and the N.F.L. Players Association, which agreed to the league’s substance abuse policy in collective bargaining, should rethink their approach. The policy reflects outdated views on marijuana and pain management, punishes players who seek an alternative to painkillers, keeps them in a perpetual state of injury and injury management, and risks creating new addicts.
Tuesday, September 9, 2014
The Gray Lady continues to do important reporting and advocacy concerning marijuana reform as evidenced by this recent article headlined "Legal Use of Marijuana Clashes With Job Rules." Here are excerpts from this piece:
Brandon Coats knew he was going to fail his drug test. Paralyzed in a car crash when he was 16, he had been using medical marijuana since 2009 to relieve the painful spasms that jolted his body. But he smoked mostly at night, and said marijuana had never hurt his performance answering customer calls for a Colorado satellite-television provider.... “There are a lot of people out there who need jobs, can do a good job, but in order for them to live their lives, they have to have this,” said Mr. Coats, who is 35. “A person can drink all night long, be totally hung over the next day and go to work and there’s no problem with it.”
But when it comes to marijuana, Mr. Coats and other users are discovering that marijuana’s recent strides toward the legal and cultural mainstream are running aground at the office. Even as 23 states allow medical or recreational marijuana, employment experts say that most businesses are keeping their drug-free policies. The result is a clash between a culture that increasingly accepts marijuana and companies that will fire employees who use it....
Employers and business groups say the screenings identify drug-abusing workers, create a safer workplace, lower their insurance costs and, in some cases, are required by law. But marijuana advocates say the prohibitions amount to discrimination, either against people using marijuana to treat a medical condition or against people who smoke it because they simply have the legal right to do so, off the clock and away from the office. “It wasn’t like I was getting high on the job,” Mr. Coats said. “I would smoke right before I go to bed, and that little bit would help me get through my days.”
On Sept. 30, he will take that argument before the Colorado Supreme Court in a lawsuit challenging his 2010 firing. For years, courts in Colorado and across the country have ruled against marijuana users, saying that companies have the right to create their own drug policies. But legal experts say that if Mr. Coats prevails — he lost 2-1 in an appellate ruling — his case could transform how businesses must treat marijuana users.
Relatedly, the NYTimes had this editorial headlined "Obsolete Zero Tolerance on Pot."
Tuesday, August 19, 2014
As promised, I’m going to dive into a new project evaluating the “local option” for marijuana: i.e., proposals to allow local governments (usually counties) to ban marijuana sales, notwithstanding state legalization of the drug.
I plan to post the project piecemeal. I'm still working on the language, ideas, and research, so I welcome feedback. I’ll start, naturally, with the Introduction (omitting footnotes) and follow with the Parts II and III to follow over the course of the next week. Here goes:
The states have largely prevailed in their struggle against the federal government for control over marijuana policy. More than 20 states have already legalized marijuana under state law and the number is sure to grow. Though the federal government has not yet repealed its own marijuana prohibition, it has largely ceded control of the issue to the states. As I wrote nearly five years ago,
[M]edical marijuana use has survived and indeed thrived in the shadow of the federal ban. The war over medical marijuana may be largely over, though skirmishes will undoubtedly continue, but contrary to conventional wisdom, it is the states, and not the federal government, that have emerged the victors in this struggle. Supremacy, in short, has its limits.
But the states are now facing growing opposition from within. Citing concerns over marijuana’s perceived harms, many communities in marijuana legalization states are seeking to re-instate marijuana prohibition at the local level. In Colorado alone, for example, more than 150 municipalities have passed ordinances banning marijuana shops outright.
These local ordinances raise one of the most important and unresolved questions surrounding marijuana law reforms: What power, if any, should states give local governments to regulate marijuana? How the states answer this question will determine just how quickly and broadly marijuana legalization spreads. The experience with alcohol control is instructive. Although national alcohol prohibition was repealed in 1933, and although Mississippi repealed the last statewide alcohol prohibition in 1966, hundreds of local communities – governing roughly 10% of the nation’s population -- continue to ban the sale of alcohol today, more than 80 years after the ratification of the 21st Amendment.
Despite the importance of the local authority question, there has been surprisingly little attention paid to it. Most marijuana legalization states failed to address local authority in their marijuana reform legislation, sparking dozens of lawsuits challenging local ordinances. In many states, the issue of local control remains unsettled. And while many scholars have weighed in on the federalism issues surrounding marijuana law reforms, they have all but ignored the important power battles now flaring up within the states.
This Article begins to fill the gap. It aims to provide lawmakers, jurists, scholars, and other interested parties insights into the desirability of enabling local communities to ban marijuana. It approaches this task in two ways. First, it discusses the theory of local control. The theory seeks to balance the interests of individual local governments against those of our broader society. On the one hand, local governments can tailor their policies to satisfy local tastes. What’s right for Last Vegas isn’t necessarily right for Reno. On the other hand, local policies can also affect outsiders who have no say over them. What happens in Vegas doesn’t necessarily stay there. The desirability of local control over any given issue hinges on the relative strength of these competing considerations.
Second, the Article attempts to gauge the strength of these competing considerations for marijuana. Would local control advance local policy interests? Would it harm outsiders? It is, of course, far too early to gauge the impact of local marijuana regulations. But we do have more than one century worth of experience with local alcohol regulations. I argue that this experience holds some valuable lessons for debates over local marijuana control. In particular, I find our experience with local alcohol control should temper enthusiasm for giving local government similar control over marijuana. The research on local alcohol control suggests that local alcohol regulations have effects beyond the boundaries of the jurisdictions that adopt them. A wet county might thwart a neighboring dry county’s effort to curb alcohol consumption and the harms that go along with it. Likewise, a dry county might shift some of the harms of alcohol consumption onto a neighboring wet county. The sobering experience with local alcohol control suggests that the state or even national governments might be better suited to controlling that substance and, by extension, marijuana as well.
The Article proceeds as follows. Part I discusses the current controversy over local marijuana regulation. Part II discusses the theoretical framework for evaluating the desirability of local control. Part III discusses the lessons of local alcohol control. Part IV then returns to draw some tentative conclusions about the desirability of local marijuana control.
August 19, 2014 in Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (1)
Monday, August 18, 2014
This local article from Florida, headlined "Ad war looms over medical marijuana: 'Compassion for sick' versus 'Devil in the details'," spotlights the developing terms of debate in the campaign for and against Florida's medical marijuana initiative being voted upon this November. Here are some of the details:
A burst of ads coming soon to TV screens in Florida will feature patients and doctors extolling the virtues of marijuana as a compassionate way to treat the sick and ease their pain. The soft-sell campaign, a laid-back variation on the usual political pitch, is designed to promote a constitutional amendment on November's ballot to legalize medical marijuana.
Countering that message will be a rival set of ads warning that approval of the amendment would lead to widespread drug use, supplied by "pot docs" and "pot shops" at every turn.
The dueling ad campaigns will compete for attention amid political appeals from candidates for governor and other offices, adding to an expected deluge of election messages though late summer and early fall.
Neither side would say when its ads will start or how much it's planning to spend. But both sides are preparing to hit the airwaves with TV and radio spots while developing networks of campaign volunteers and delivering their messages on the Internet. It's not quite politics as usual.
"We're not in a partisan scrum. We're not in an attack-and-response mode," said Ben Pollara, campaign manager of United for Care, which is spearheading the marijuana amendment. "We're just going to go out there and have people share their stories about how medical marijuana has affected them, or could have affected them, and their loved ones." The testimonials, he said, will come from patients, doctors and nurses.
He said 10,000 volunteers have signed up to help convey the message through phone calls, in-person talks and social media. They will be pitching constitutional Amendment 2, which "allows the medical use of marijuana for individuals with debilitating diseases as determined by a licensed Florida physician."...
Early polls indicate overwhelming public support for medical marijuana — by 88 percent in a statewide Quinnipiac University poll — but analysts expect a close vote on Amendment 2, which requires 60 percent approval to become law.
Opponents, including law-enforcement groups and Republican leaders, say the amendment is full of loopholes that could allow unscrupulous "pot docs" to recommend the drug for recreational users. "The thing I would be concerned about is the ruse of medicinal marijuana for purposes of allowing people basically to buy a joint and smoke it," U.S. Sen. Marco Rubio, R-Fla., told Florida reporters this month.
Nonprofit groups that oppose the measure have banded together under the Don't Let Florida Go to Pot coalition, which provides speakers at public forums. A separate group known as Vote No on 2 will lead the ad campaign.
A sample ad already has popped up on the Internet. The video shows scenes of children walking past marijuana stores in California, big piles of pot and derelicts puffing on pipes. "They say they just want to help the sick, but that's not the whole story," a narrator intones. These scenes are interspersed with commentary from experts, such as lawyers and cops, who support the theme "The Devil is in the Details."
"A vote for Amendment 2 is a vote for legalization of marijuana forever in the state of Florida," Grady Judd, president of the Florida Sheriffs Association, tells viewers.
The coming air war will bring the debate into Floridians' living rooms. "There's certainly going to be enough spending to make it a salient issue, with both sides ramping up their ad buys," said Daniel Smith, political science professor at the University of Florida. He said this issue, highlighted by the ads, will prompt some voters to cast ballots who otherwise might not bother with a non-presidential election.