Friday, April 4, 2014
If it clearly saved thousands of innocent lives on roadways, would most everyone support medical marijuana reforms?
The question in the title of this post is my sincere inquiry, directed particularly to those most concerned about modern marijuana reform movements, as a follow-up to this extended (data-focused) commentary by Jacob Sollum at Forbes headlined "More Pot, Safer Roads: Marijuana Legalization Could Bring Unexpected Benefits." Here are excerpts (with key research links retained):
The anti-pot group Project SAM claims drug test data show that marijuana legalization in Washington, approved by voters in that state at the end of 2012, already has made the roads more dangerous. The group notes with alarm that the percentage of people arrested for driving under the influence of a drug (DUID) who tested positive for marijuana rose by a third between 2012 and 2013. “Even before the first marijuana store opens in Washington, normalization and acceptance [have] set in,” says Project SAM Chairman Patrick J. Kennedy. “This is a wakeup call for officials and the public about the dangerousness of this drug, especially when driving.”
In truth, these numbers do not tell us anything about the dangerousness of marijuana. They do not even necessarily mean that more people are driving while high. Furthermore, other evidence suggests that legalizing marijuana could make the roads safer, reducing traffic fatalities by encouraging the substitution of marijuana for alcohol....
According to State Toxicologist Fiona Couper, the share of DUID arrestees in Washington whose blood tested positive for THC, marijuana’s main psychoactive ingredient, rose from 18.6 percent in 2012 to 24.9 percent in 2013. That’s an increase of more than 33 percent, as Project SAM emphasizes with a scary-looking bar graph. At the same time, the total number of DUID arrests in Washington rose by just 3 percent, about the same as the increases seen in the previous three years, while DUID arrests by state troopers (see table below) fell 16 percent.
These numbers do not suggest that Washington’s highways are awash with dangerously stoned drivers. So why the substantial increase in positive marijuana tests? Lt. Rob Sharpe, commander of the Washington State Patrol’s Impaired Driving Section, notes that additional officers were trained to recognize drugged drivers in anticipation of marijuana legalization. So even if the number of stoned drivers remained the same, police may have pulled over more of them as a result of that training....
As Columbia University researchers Guohua Li and Joanne E. Brady pointed out a few months ago in the American Journal of Epidemiology, [a recent] increase in marijuana consumption has been accompanied by an increase in the percentage of drivers killed in car crashes who test positive for cannabinol, a marijuana metabolite.
But as with the increase in DUID arrestees who test positive for THC, this trend does not necessarily mean marijuana is causing more crashes. A test for cannabinol, which is not psychoactive and can be detected in blood for up to a week after use, does not show the driver was under the influence of marijuana at the time of the crash, let alone that he was responsible for it. “Thus,” Li and Brady write, “the prevalence of nonalcohol drugs reported in this study should be interpreted as an indicator of drug use, not necessarily a measurement of drug impairment.”
Another reason to doubt the premise that more pot smoking means more deadly crashes: Total traffic fatalities have fallen as marijuana consumption has risen; there were about 20 percent fewer in 2012 than in 2002. Perhaps fatalities would have fallen faster if it weren’t for all those new pot smokers. But there is reason to believe the opposite may be true, that there would have been more fatalities if marijuana consumption had remained level or declined.
While marijuana can impair driving ability, it has a less dramatic impact than alcohol does. A 1993 report from the National Highway Traffic Safety Administration, for example, concluded: “The impairment [from marijuana] manifests itself mainly in the ability to maintain a lateral position on the road, but its magnitude is not exceptional in comparison with changes produced by many medicinal drugs and alcohol. Drivers under the influence of marijuana retain insight in their performance and will compensate when they can, for example, by slowing down or increasing effort. As a consequence, THC’s adverse effects on driving performance appear relatively small.” Similarly, a 2000 report commissioned by the British government found that “the severe effects of alcohol on the higher cognitive processes of driving are likely to make this more of a hazard, particularly at higher blood alcohol levels.”
Given these differences, it stands to reason that if more pot smoking is accompanied by less drinking, the upshot could be fewer traffic fatalities. Consistent with that hypothesis, a study published last year in the Journal of Law and Economics found that legalization of medical marijuana is associated with an 8-to-11-percent drop in traffic fatalities, beyond what would be expected based on national trends. Montana State University economist D. Mark Anderson and his colleagues found that the reduction in alcohol-related accidents was especially clear, as you would expect if loosening restrictions on marijuana led to less drinking. They also cite evidence that alcohol consumption declined in states with medical marijuana laws.
Anderson et al. caution that the drop in deadly crashes might be due to differences in the settings where marijuana and alcohol are consumed. If people are more likely to consume marijuana at home, that could mean less driving under the influence. Hence “the negative relationship between legalization and alcohol-related fatalities does not necessarily imply that driving under the influence of marijuana is safer than driving under the influence of alcohol,” although that is what experiments with both drugs indicate.
Arrest data from Washington are consistent with the idea that marijuana legalization could result in less drunk driving. Last year drunk driving arrests by state troopers fell 11 percent. By comparison, the number of drunk driving arrests fell by 2 percent between 2009 and 2010, stayed about the same between 2010 and 2011, and fell by 6 percent between 2011 and 2012. The drop in drunk driving arrests after marijuana legalization looks unusually large, although it should be interpreted with caution, since the number of arrests is partly a function of enforcement levels, which depend on funding and staffing.
Two authors of the Journal of Law and Economics study, Anderson and University of Colorado at Denver economist Daniel Rees, broadened their analysis in a 2013 article published by the Journal of Policy Analysis and Management. Anderson and Rees argue that marijuana legalization is apt, on balance, to produce “public health benefits,” mainly because of a reduction in alcohol consumption. Their projection hinges on the premise that marijuana and alcohol are substitutes. If marijuana and alcohol are instead complements, meaning that more pot smoking is accompanied by more drinking, the benefits they predict would not materialize. Anderson and Rees say “studies based on clearly defined natural experiments generally support the hypothesis that marijuana and alcohol are substitutes.” But in the same issue of the Journal of Policy Analysis and Management, Rosalie Liccardo Pacula, co-director of the RAND Corporation’s Drug Policy Research Center, and University of South Carolina criminologist Eric Sevigny conclude that the evidence on this point “remains mixed.”
A study published last month by the online journal PLOS One suggests that the substitution of marijuana for alcohol, assuming it happens, could affect crime rates as well as car crashes. Robert G. Morris and three other University of Texas at Dallas criminologists looked at trends in homicide, rape, robbery, assault, burglary, larceny, and auto theft in the 11 states that legalized marijuana for medical use between 1990 and 2006. While crime fell nationwide during this period, it fell more sharply in the medical marijuana states, even after the researchers adjusted for various other differences between states. Morris and his colleagues conclude that legalization of medical marijuana “may be related to reductions in rates of homicide and assault,” possibly because of a decline in drinking, although they caution that the extra drop in crime could be due to a variable they did not consider.
One needs to be very cautious, of course, drawing any firm conclusions based on any early research about impaired driving, car crashes, and marijuana reform. But let's imagine it does turn out generally true that legalizing medical marijuana helps produce a 10% drop in a jurisdiction's traffic fatalities. If extended nationwide throughout the US, where we have well over 30,000 traffic fatalities each and every year, this would mean we could potentially save more than 3000 innocent lives each year from nationwide medical marijuana reform. (One might contrast this number with debated research and claims made about the number of lives possibly saved by the death penalty: I do not believe I have seen any research from even ardent death penalty supporters to support the assertion that even much more robust use of the death penalty in the US would be likely to save even 1000 innocent lives each year.)
Obviously, many people can and many people surely would question and contest a claim that we could or would potentially save more than 3000 innocent lives each year from nationwide medical marijuana reform. But, for purposes of debate and discussion (and to know just how important additional research in this arena might be to on-going pot reform debates), I sincerely wonder if anyone would still actively oppose medical marijuana reform if (and when?) we continue to see compelling data that such reform might save over 50 innocent lives each and every week throughout the United States.
Cross-posted at Marijuana Law, Policy and Reform
April 4, 2014 in Criminal justice developments and reforms, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)
Monday, March 31, 2014
The question in the title of this post is prompted by this interesting new piece providing a very personal account of the benefits of medical marijuana. The piece is headlined "The story behind a Mormon marijuana lobby: How a conservative Mormon family found hope in cannabis," and here is how it concludes:
Cannabis isn't a substance my family — under just about any circumstances — would have an interest in legalizing, but what we call normal keeps changing. Alepsia has emerged as a source of legitimate hope for Amelia. Currently, 80 percent of children being treated with Alepsia in Colorado have experienced at least a 50 percent decline in seizures. Although still preliminary, those results vastly outstrip all the FDA-approved medications Amelia has tried. Other states are taking action, and that's a good thing. While Alepsia won't "save" Amelia, it might mean more days smiling and laughing, and fewer sitting on the couch drooling. And it might mean a new routine for my family — which would be more than enough, for us.
Friday, March 21, 2014
Not really. But both houses of the state legislature did just pass a limited measure (called Carly’s Law) that is expected to be signed by the governor. The measure would ostensibly legalize a marijuana extract known as Cannabidiol (CBD) to treat epilepsy. CBD, like other forms of marijuana, is banned by federal law, though it contains none of the psychoactive content (THC) normally found in marijuana. For the story, see this Reuters report. Supporters of the law have a Facebook page as well.
The only reason this development is even worth noting is that it’s occurring in Alabama, the heart of the deep South, where the marijuana reform movement has yet to make any headway. But even in that context, the measure is a rather small victory for reformers. Vanishingly small. Indeed, I’m confident saying this would be the narrowest medical marijuana law any state has troubled to pass, and it might not even meet its quite limited ambitions.
The text of the house and senate versions of the bill can be found here. In a nutshell (it’s a big nut), the law creates an affirmative defense against prosecution for simple possession of CBD by someone who has been diagnosed by a University of Alabama,Birmingham employed physician, as suffering from a debilitating epileptic condition; and for whom a UAB employed physician has also prescribed CBD. Lastly, the UAB shall be the sole supplier of CBD for such persons (the law provides legal protections for UAB employees). Oh, and the law has a sunset provision—it expires in 5 years.
To explain how limited (and potentially ineffective) the measure is, consider that: (1) patients can still be charged with possession of CBD and they (rather than the prosecution) bear the burden of persuading a jury that their possession of the drug was in compliance with the law; (2) CBD isn’t for everybody, especially those who believe marijuana’s medical benefits stem from THC; (3) the provision only protects those suffering from serious epilepsy, and not the myriad other conditions for which other states have allowed treatment (wasting syndrome, PTSD, glaucoma, etc.); (4) patients must be under the care of a UAB employed physician, not just any state-licensed physician; (5) the law requires a physician prescription, which, as I explained in a earlier comment regarding NY’s proposed medical marijuana law, might be impossible to get; that’s because the DEA can take away a physician’s authority to prescribe any legal drug if the physician prescribes a Schedule I controlled substance like CBD; (6) patients must obtain their CBD from the UAB, but the UAB probably can’t supply CBD; as I’ve pointed out repeatedly, direct state supply of marijuana is preempted by federal law, and regardless of whether the DOJ would sue to stop UAB, many other people could probably do so, meaning that perhaps no one – not even sufferers of serious epileptic conditions being treated by UAB physicians who don’t mind putting their medical practices at risk – will get the drug.
Friday, March 14, 2014
In this recent post, I requested (and still seek) information about the intersection of state marijuana reform and traditional family law. For example, I am still wondering if there is any history in states with reformed marijuana of efforts to use (or any formal rejection of) arguments in custody disputes concerning one parent's legal use of marijuana.
Notably, CNN's on-going coverage of marijuana reform has brought these questions to the mainstream media via this new article headlined "Does medical marijuana equal bad parenting?". Here is an excerpt from the lengthy and effective article, which prompts the question in the title of this post:
For agencies enlisted to protect children, marijuana in the home has for decades been an invitation for serious speculation about a parent's fitness. But as the narrative of medical marijuana legalization unfolds across the country, so does a complicated parallel story of patients whose children are being removed to protective custody -- or worse, permanently removed -- ostensibly because of their legal marijuana use. Most medical marijuana legislation does not seem to account for this possibility.
"The judges, the police, CPS (child protective services) have been fighting this war on drugs for so long," said Maria Green, a medical marijuana patient in Lansing, Michigan, whose infant daughter Bree was placed in foster care last year. "They just can't get it out of their minds that this is an 'evil' drug they have to fight against."
To be sure, each case has unique circumstances, and child welfare officials at both the state and local level do not comment about specific cases while they are in process, or even once they are closed. Further complicating the picture: While medical marijuana use is legal in 20 states and the District of Columbia, the federal Drug Enforcement Administration classifies the drug as a Schedule I substance with "no currently accepted medical use in the United States" and high potential for abuse.
In cases involving removal of children, medical marijuana found in the home would seem to be barely distinguishable from other Schedule I substances -- such as heroin or ecstasy. "CPS handles (cases) the same way regardless of what the drug ... is," said Michael Weston, deputy director of public affairs and outreach programs at the California Department of Social Services. "Everything is weighed in reference to, 'Is this a danger to the child? Is there a potential harm to the child? Is this showing signs of abuse or neglect?'"
There have been no substantive studies yet to determine how medical marijuana impacts parenting. There is early data, according to a researcher, suggesting a small increase in child poisonings among medical marijuana patients in states where it is legal. And early epidemiological data draws a link between medical cannabis use and increased corporal punishment and physical abuse -- but not neglect.
"We really don't know what's going on," said Bridget Freisthler, an associate professor in the department of social welfare at UCLA, who studies medical marijuana use among parents. "We don't know whether (medical marijuana) affects parenting or whether caseworkers need to be concerned when they find out this is happening in the home."
Parents fighting to maintain custody of their children say the mere presence of medical marijuana is an almost reflexive trigger for removal. They cite scores of anecdotes concentrated in states where medical cannabis is legal -- children removed from homes where cannabis is used or grown; babies testing positive for marijuana at birth and subsequently removed; children removed because mothers breastfed at the same time that they used medical marijuana.
"Marijuana use does not make someone a bad parent," said Sara Arnold, co-founder of the Family Law and Cannabis Alliance. "It should not be the primary or sole basis for any Child Protective Services investigation."
But simply having a medical marijuana card does not mean that that patient is acting responsibly with the medication; nor does the mere presence of marijuana imply lack of safety, according to experts. "Medical marijuana as a risk factor by itself doesn't mean the child isn't safe," said Michael Piraino, chief executive officer of National CASA for Children, an advocacy group for abused and neglected children. "Most kids have had risk factors but remain safe. "But how do you put together all these pieces of information, of evidence, that a child is or isn't safe?"
Thursday, March 6, 2014
As reported in this lengthy local article, headlined "Conservative committee opens door to medical marijuana for Florida," a notable swing/southern state now has a number of notable legislators talking in notable ways about marijuana reform. Here are excerpts:
One conservative Republican who has suffered from brain cancer talked about the deceit of the federal government in hiding the health benefits of marijuana for his cancer. Another legislator reluctantly met with a South Florida family, only to be persuaded to support legalizing the drug.
Then there was Rep. Charles Van Zant, the surly Republican from Palatka who is considered the most conservative in the House. He not only voted with his colleagues Wednesday to pass out the bill to legalize a strain of marijuana for medical purposes, he filed the amendment to raise the amount of psychoactive ingredients allowed by law — to make it more likely the drug will be effective.
The 11-1 vote by the House Subcommittee on Criminal Justice, was a historic moment for the conservatives in the GOP-dominated House. It was the first time in modern history that the Florida Legislature voted to approve any marijuana-related product. “That’s because people here in Tallahassee have realized that we can’t just have a bumper-sticker approach to marijuana where you’re either for it or against it,” said Rep. Matt Gaetz, R-Shalimar, the committee chairman and sponsor of the bill after the emotional hearing. “Not all marijuana is created equally.”
The committee embraced the proposal, HB 843, by Gaetz and Rep. Katie Edwards, D-Plantation, after hearing heart-wrenching testimony from families whose children suffer from chronic epilepsy. A similar bill is awaiting a hearing in the Senate, where Senate president Don Gaetz, a Niceville Republican and Matt’s father, has said he has heard the testimony from the families and he wants the bill to pass as a first step. “Here I am, a conservative Republican but I have to try to be humble about my dogma,” Senate President Don Gaetz told the Herald/Times....
For a committee known for its dense, often tedious scrutiny of legal text, the debate was remarkable. Rep. Dave Hood, a Republican trial lawyer from Daytona Beach who has been diagnosed with brain cancer, talked about how the federal government knew in 1975 of the health benefits of cannabis in stopping the growth of “brain cancer, of lung cancer, glaucoma and 17 diseases including Lou Gehrig’s disease” but continued to ban the substance. “Frankly, we need to be a state where guys like me, who are cancer victims, aren’t criminals in seeking treatment I’m entitled too,” Hood said.
Rep. Dane Eagle, R-Cape Coral, said he had his mind made up in opposition to the bill, then changed his mind after meeting the Hyman family of Weston. Their daughter, Rebecca, suffers from Dravet’s Syndrome. “We’ve got a plant here on God’s green earth that’s got a stigma to it — but it’s got a medical value,” Eagle said, “I don’t want to look into their eyes and say I’m sorry we can’t help you,” he said. “We need to put the politics aside today and help these families in need.”
The Florida Sheriff’s Association, which adamantly opposes a constitutional amendment to legalize marijuana for medical use in Florida, surprised many when it chose not to speak up. Its lobbyist simply announced the group was “in support.” The bi-partisan support for the bill was summed up by Rep. Dave Kerner, a Democrat and lawyer from Lake Worth. “We sit here, we put words on a piece of paper and they become law,” he said. “It’s very rare as a legislator that we have an opportunity with our words to save a life.”
The only opposing vote came from Rep. Gayle Harrell, R-Stuart, an advocate for the Florida Medical Association. Her husband is a doctor. She looked at the families in the audience and, as tears welled in her eyes, she told them: “I can’t imagine how desperate you must be and I want to solve this problem for you.” But, she said the bill had “serious problems.” It allowed for a drug to be dispensed without clinical trials and absent the kind of research that is needed to protect patients from harm. “I really think we need to address this using science,” Harrell said, suggesting legislators should launch a pilot program to study and test the effectiveness of the marijuana strain. “This bill takes a step in the right direction … but it’s not quite there.”
Cross-posted at Marijuana Law, Policy and Reform
Wednesday, March 5, 2014
"I am more convinced than ever that it is irresponsible to not provide the best care we can, care that often may involve marijuana."
The title of this post is the central and essential thesis of this notable new CNN commentary by Dr. Sanjay Gupta. Here are more excerpts from the lengthy piece:
This scientific journey is about a growing number of patients who want the cannabis plant as a genuine medicine, not to get high.
It is about emerging science that not only shows and proves what marijuana can do for the body but provides better insights into the mechanisms of marijuana in the brain, helping us better understand a plant whose benefits have been documented for thousands of years. This journey is also about a Draconian system where politics override science and patients are caught in the middle.
Since our documentary "Weed" aired in August, I have continued to travel the world, investigating and asking tough questions about marijuana. I have met with hundreds of patients, dozens of scientists and the curious majority who simply want a deeper understanding of this ancient plant. I have sat in labs and personally analyzed the molecules in marijuana that have such potential but are also a source of intense controversy. I have seen those molecules turned into medicine that has quelled epilepsy in a child and pain in a grown adult. I've seen it help a woman at the peak of her life to overcome the ravages of multiple sclerosis.
I am more convinced than ever that it is irresponsible to not provide the best care we can, care that often may involve marijuana.
I am not backing down on medical marijuana; I am doubling down.
I should add that, although I've taken some heat for my reporting on marijuana, it hasn't been as lonely a position as I expected. Legislators from several states have reached out to me, eager to inform their own positions and asking to show the documentary to their fellow lawmakers.
I've avoided any lobbying, but of course it is gratifying to know that people with influence are paying attention to the film. One place where lawmakers saw a long clip was Georgia, where the state House just passed a medical marijuana bill by a vote of 171-4. Before the legislative session started, most people didn't think this bill had a chance.
More remarkable, many doctors and scientists, worried about being ostracized for even discussing the potential of marijuana, called me confidentially to share their own stories of the drug and the benefit it has provided to their patients. I will honor my promise not to name them, but I hope this next documentary will enable a more open discussion and advance science in the process.
Marijuana is classified as a Schedule I substance, defined as "the most dangerous" drugs "with no currently accepted medical use." Neither of those statements has ever been factual. Even many of the most ardent critics of medical marijuana don't agree with the Schedule I classification, knowing how it's impeded the ability to conduct needed research on the plant.
Even the head of the National Institute on Drug Abuse, Dr. Nora Volkow, seems to have softened her stance; she told me she believes we need to loosen restrictions for researchers....
I've tried to pull together these latest developments in our new documentary, "Cannabis Madness." Although the 1936 film "Reefer Madness" was propaganda made to advance an agenda with dramatic falsehoods and hyperbole, I hope you will find "Cannabis Madness" an accurate reflection of what is happening today, injected with the best current science.
You will meet families all across the country -- a stay-at-home mom from Ohio, a nurse practitioner from Florida, an insurance salesman from Alabama -- more than 100 families who have all left jobs, homes, friends and family behind and moved to Colorado to get the medicine that relieves their suffering.
As things stand now, many of these good people don't ever get to return home. Why? Because transporting their medicine, even if it is a non-psychoactive cannabis oil, could get them arrested for drug trafficking. And so they are stuck, cannabis refugees. You will meet them, and if you're like me, you'll be heartbroken to hear their stories, but you'll also have a lump in your throat when you see the raw, true love these parents have for their sick children....
I know the discussion around this topic will no doubt get heated. I have felt that heat. But I feel a greater responsibility than ever to make sure those heated discussions are also well-informed by science. And, with that: I hope you get a chance to watch on March 11 at 10 p.m. Eastern.
I had a great time in San Francisco this weekend at Students for Sensible Drug Policy's western regional conference. Though the conference was Saturday, I stayed in the bay area for a few days longer to meet my newly born niece (I'm an Oakland native and most of my family is still in the area.) The conference was great and featured a fantastic keynote address from San Francisco's Public Defender Jeff Adachi.
Most relevant to this blog was a panel on the future of marijuana reform in California, featuring Amanda Reiman (Drug Policy Alliance), Paul Armentano (NORML), Dale Sky Jones (Coalition for Cannabis Policy Reform), and Perry Rosenstein (Marijuana Majority).
Among the interesting thoughts from the panelists:
• Amanda Reiman talked about the decision to wait until 2016 to run a legalization ballot measure in California. She said that given the loss in 2010, winning the next campaign in California is especially important. Two losses would make it tough to run another campaign in the near term. Because of the cost of running a ballot measure in California, and the fact that demographics make 2014 less certain than 2016, they decided not to go forward with a California ballot measure in 2014.
• Paul Armentano said he thought legalization through legislation may not be too far off, noting that New Hampshire House recently became the first legislative body to vote to legalize marijuana. He argued, however, that anything passed by legislatures is likely to be much more restrictive than Colorado and Washington's laws. He believes that this is because law-makers have a tendancy to over-regulate.
• Paul also talked about the differences between Colorado and Washington's laws, noting that Washington's was more restrictive (it does not permit home cultivation and included a marijuana DUI provision). He said that going into the election, the conventional wisdom was that Washington's additional restrictions would make the ballot measure more likely to pass but that the two laws ended up passing with about the same margin. He said that exit polling indicated this would not have been true in an off-year election. With an off-year election demographic, Washington's law would have still passed with about 55% of the vote. Colorado's would have been a toss-up.
• Dale Sky Jones argued that it is critical for California's legislature to enact medical marijuana regulations by 2015. She said that if California doesn't get regulations in place by 2015, the legislature will almost surely wait for the legalization measure in 2016. This would be problematic because, as the experiences in Colorado and Washington reveal, implementing a legalization law is much more difficult when there is a poorly regulated medical marijuana system (as was the case in Washington) than when there is a very robust medical marijuana regulatory system (as was the case in Colorado.) (Paul discussed the differences between Washington and Colorado in this regard as well.)
• Perry Rosenstein talked about messaging strategies when it comes to marijuana. He argued that visual design is incredibly important on this issue because anything that looks sloppy can reinforce the perception that advocates for legalization are pot-heads.
• Perry also raised an interesitng question: what happens if legal marijuana businesses in Washington and Colorado become established and start running legalization ballot measures in other states. To date, drug policy reform ballot measures have come from advocacy organizations. If the marijuana "industry" starts to run ballot measures, it could mean change comes more quickly. But, it could also result in initiatives that are drafted more in the interest of businesses behind the ballot measures than with public policy goals in mind. In response to this, Amanda mentioned that a vaporizer company has, apparently, been lobbying New York legislators to consider a medical marijuana law that would require patients to use vaporizor pens.
It was a very interesting discussion all around. I think the possibility of "industry" players running ballot measures is especially something to watch for. My own take is that this is unlikely in the near term (meaning 2014 or 2016), mainly because any ballot measure crafted by industry players would be more vulnerable to attacks from political opponents than one that is run by an advocacy organization (e.g., attacks like Project SAM's "big marijuana" argument.) I suspect that this dynamic may not deter industry-created ballot measures for all that long. And we may see one or more in 2016.
But if I had to guess, I would think 2018 is a more likely year for a wave of industry-created measures. If the current trend continues (and I will grant that this is not gauranteed), we will probably have at least 5 states with marijuana legalization laws after the 2016 election. By 2018, support for legalization would likely be more like 60% in favor than 50/50 (again if trends continue.) And, the marijuana industry should be pretty well established by then, at least in Colorado and Washington (and in any states that pass legalization in 2014.) In any event, if'and when this does happen, it could significantly change the landscape when it comes to marijuana law reform.
Tuesday, March 4, 2014
One of many reasons I find state marijuana reform so interesting relates to how developments in this novel legal realm can and will interact with other more traditional bodies of law. A conversation today with a colleague got me to thinking especially about the potential intersection of state marijuana reform and traditional family law.
I wonder, for example, if one parent in a heated custody dispute in Colorado or Washington might now argue that even small state-legal personal marijuana use, because such use remains a federal offense, should be consider against the other parent seeking custody. Similarly, I wonder how judges in states like California with a robust medical marijuana industry might consider and equitably divide a couple's assets in a divorce if and whenever those assets involve what federal law would still consider contraband and/or evidence of a federal crime.
Perhaps some of these issues have been hashed out in some family law setting, and I would be eager to hear (via e-mail or comments) about any leading or noteworthy cases in this general area.
Thursday, February 27, 2014
Today's New York Times has this notable new front-page article headlined "Pivotal Point Is Seen as More States Consider Legalizing Marijuana." Here are some excerpts:
A little over a year after Colorado and Washington legalized marijuana, more than half the states, including some in the conservative South, are considering decriminalizing the drug or legalizing it for medical or recreational use. That has set up a watershed year in the battle over whether marijuana should be as available as alcohol.
Demonstrating how marijuana is no longer a strictly partisan issue, the two states considered likeliest this year to follow Colorado and Washington in outright legalization of the drug are Oregon, dominated by liberal Democrats, and Alaska, where libertarian Republicans hold sway.
Advocates of more lenient marijuana laws say they intend to maintain the momentum from their successes, heartened by national and statewide polls showing greater public acceptance of legalizing marijuana, President Obama’s recent musings on the discriminatory effect of marijuana prosecutions and the release of guidelines by his Treasury Department intended to make it easier for banks to do business with legal marijuana businesses.
Their opponents, though, who also see this as a crucial year, are just as keen to slow the legalization drives. They are aided by a wait-and-see attitude among many governors and legislators, who seem wary of pushing ahead too quickly without seeing how the rollout of legal marijuana works in Colorado and Washington. “We feel that if Oregon or Alaska could be stopped, it would disrupt the whole narrative these groups have that legalization is inevitable,” said Kevin A. Sabet, executive director of Smart Approaches to Marijuana, which is spearheading much of the effort to stop these initiatives. “We could stop that momentum.”...
At least 14 states — including Florida, where an initiative has already qualified for the ballot — are considering new medical marijuana laws this year, according to the Marijuana Policy Project, which supports legalization, and 12 states and the District of Columbia are contemplating decriminalization, in which the drug remains illegal, but the penalties are softened or reduced to fines. Medical marijuana use is already legal in 20 states and the District of Columbia.
An even larger number of states, at least 17, have seen bills introduced or initiatives begun to legalize the drug for adult use along the lines of alcohol, the same approach used in Colorado and Washington, but most of those efforts are considered unlikely of success this year.
The allure of tax revenues is also becoming a powerful selling point in some states, particularly after Gov. John W. Hickenlooper of Colorado said last week that taxes from legal marijuana sales would be $134 million in the coming fiscal year, much higher than had been predicted when the measure was passed in 2012....
Opponents of legalization, meanwhile, are mobilizing across the country to slow the momentum, keeping a sharp eye on Colorado for any problems in the rollout of the new law there. “Legalization almost had to happen in order for people to wake up and realize they don’t want it,” Mr. Sabet said. “In a strange way, we feel legalization in a few states could be a blessing.”...
While much of the recent attention has focused on these legalization efforts, medical marijuana may also cross what its backers consider an important threshold this year — most notably in the South where Alabama, Georgia and South Carolina are among the states considering such laws....
Election data, compiled by Just Say Now, a pro-marijuana group, showed that the percentage of the vote that came from people under 30 increased significantly from 2008 to 2012 in states that had marijuana initiatives. This youth vote, predominantly Democratic, rose to 20 percent from 14 percent in Colorado, and to 22 percent from 10 percent in Washington, both far above the 1 percent rise in the national youth vote....
A narrow majority of Americans — 51 percent — believe marijuana should be legal, according to a New York Times/CBS News poll conducted last week, matching the result in a CBS News poll the previous month. In 1979, when The Times and CBS first asked the question, only 27 percent wanted cannabis legalized. There were stark differences in the new poll, though. While 72 percent of people under 30 favored legalization, only 29 percent of those over 65 agreed. And while about a third of Republicans now favored legalization, this was far below the 60 percent of Democrats and 54 percent of independents who did so....
Mason Tvert, director of communications for the Marijuana Policy Project, a leading advocate for legalizing marijuana, said campaigns were already underway to stage aggressive legalization drives in several states over the next couple of years, including Arizona, California, Maine, Massachusetts, Nevada, and possibly Montana. “It is certainly important to maintain the momentum,” Mr. Tvert said, “But I don’t think we can look at any one election cycle and see what the future holds. This is going to be a multiyear effort.”
I do not disagree with the general view that 2014 is a "watershed year" concerning discussion and debate over marijuana reform (and this was one big reason I developed a taught a seminar on the topic at my law school last Fall). But, as the title of this post highlights, I have come to believe that a much broader set of social and political forces help account for modern marijuana reform movement. The forces include, inter alia, a growing distrust of all government among both left-leaning and right-leaning opinion leaders over the last 15 years, growing evidence that the many aspects of the drug war may do more harm than some drugs, the failure of Big Pharma to provide effective pain relief (without too many side effects) to many who suffer from a range of serious medial problems, and changing labor and economic realities that change to cost/benefit realities of pot prohibition versus pot regulation.
I am happy to see the front-page of the NY Times discuss the various 2014 short-term realities that may impact marijuana reform over the next few years. But I would be especially eager to hear from readers concerning what they think are broader social and political forces that will shape these stories over the next few decades.
Cross-posted at Marijuana Law, Policy and Reform
Saturday, February 22, 2014
The title of this post is the amusing subheadline of this amusing marijuana human interest story that has been making the rounds the last few days. The main headline of this Time report is "Smart Cookie: Girl Scout Sets Up Shop Outside Marijuana Dispensary," and here are the details:
You don’t need a MBA to know that the key to sales is to know your demographic. That’s why Girl Scout Danielle Lei should earn a merit badge in business for setting up shop outside of a medical marijuana dispensary in San Francisco.
Lei sold 117 boxes of Dulce de Leches and Tagalong Girl Scout cookies during a two-hour stint outside The Green Cross pharmacy over Presidents Day weekend. According to her mother, Lei sold 37 more boxes catering to the munchies crowd than what she sold during the same two-hour period outside a Safeway store the next day, proving once again that when it comes to business it’s all about location, location, location.
“It’s no secret that cannabis is a powerful appetite stimulant, so we knew this would be a very beneficial endeavor for the girls,” Holli Bert, a staff member at The Green Cross, told Mashable. “It’s all about location, and what better place to sell Girl Scout cookies than outside a medical cannabis collective?”
No MBA or Glengarry Glen Ross style motivational speech necessary for this smart cookie.
Perhaps not surprisingly, a number of other media outlets were also giving this story attention, and this AP story from Phoenix suggests that other Girl Scouts are taking notice:
Customers of some medical marijuana dispensaries are finding they don't have to go far if they have a case of the munchies. Girl Scouts seem to be foregoing the usual supermarket stops for selling their beloved cookies.
A few days after a teenager sold dozens of cookie boxes outside a San Francisco pot dispensary, 8-year-old Lexi Menees will return to Trumed Dispensary in Phoenix on Saturday for the same purpose. The girl's mother, Heidi Carney, got the idea after hearing about what happened in San Francisco. The family says Lexi sold more than 50 boxes on Friday.
Susan de Queljoe, a spokeswoman for the Girl Scouts—Arizona Cactus-Pine Council, says this is not something the organization would encourage but that it's up to the parents.
Tuesday, February 18, 2014
A helpful colleague alerted me to this interesting article discussing why one Colorado doctor has become a vocal opponent of modern marijuana reforms:
A Libertarian pot advocate turned opponent, Dr. Christian Thurstone, is at ground zero in the marijuana legalization battle. The medical director of a large Colorado youth drug treatment clinic; an associate professor of psychiatry at the University of Colorado, Denver; and one of a small number of doctors board certified in general, child and adolescent and addictions psychiatry, he has unique insight into the marijuana momentum sweeping the nation.
Thurstone believes that marijuana legalization is a disaster in the making. He is not shy about saying so. His experience with Colorado toe-in-the-water legalization of marijuana for medical purposes was his epiphany.
He noticed back in 2009, when Colorado began providing "medical" marijuana for its residents, that his clinic's clientele tripled: 95% of his patients came for marijuana addiction. He learned from his teenage clients that "medical" marijuana was easy to score on the streets. But the potency was increasing from medical grade. Soon his young clients would tell him how marijuana was their preferred medicine for relieving stress and anxiety.
Eventually, these young addicts came in with "medical" marijuana licenses. It was at this point Thurstone felt he needed to act. He wrote a piece for the Denver Post criticizing medical marijuana laws in January 2010 titled "Smoke and Mirrors: Colorado Teenagers and Marijuana." Thurstone made some fighting points. "What Colorado has created is a backdoor way to legalize marijuana, and it has done so in a manner that makes a mockery of responsible medicine," he wrote....
Five years later Thurstone continues his crusade. During an interview on Denver's KUSA television station in January, Thurstone was quoted as saying, "We're seeing a lot more patients, a lot more youth coming to treatment for marijuana addiction....If somebody tries marijuana before the age of 18, one in six develops an addiction to the drug. If someone waits until after 18, the number is more like one in nine."
"We have good reason to believe from both animal and human studies that exposure to marijuana during this important time of brain development can permanently change the way the brain develops," he added. "We have good evidence showing that marijuana exposure in adolescents confers up to an eight-point drop in IQ from age 13 to 38. We know that youth who use marijuana are two times more likely to develop psychosis as young adults."
Predictably, the pro-pot people have skewered him. They have questioned his knowledge, his competence and just about everything else. But Thurstone's critics do make some salient points when they refer to studies by the CDC in 2012 and another by economists at the University of Colorado, Denver and Montana State University in 2011 that indicate marijuana use among teens declined in Colorado after the passage of the comprehensive medical marijuana laws.
Thurstone criticized the studies. Still they are strong evidence in opposition to him. The debate will continue to rage on, and Thurstone will continue his campaign. He is, after all, a convert who went from being in favor of legalizing pot to opposing it.
I find this article and Dr. Thurstone's perspective quite interesting for a number of reasons, especially because it highlights how one's distinct type of involvement with marijuana use and abuse can (unduly?) influence one's views on the benefits and costs of legal reform. I do not doubt Dr. Thurstone's representation that he has a lot more teenage clients seeking help for marijuana addiction, but I do wonder if that reality is evidence of greater teen use of marijuana or just greater willingness of teens (and their parents) to seek treatment for marijuana problems now that involvement with marijuana is not longer treated as a serious criminal justice concern by the state.
Relatedly, though I am not surprised to hear a doctor express concern about hearing teens say that marijuana has become a "preferred medicine for relieving stress and anxiety," I still wonder if there is obviously a better "medicine" for this purpose. Most adults use alcohol to relieve stress and anxiety, but I doubt society wants most kids to instead try that form of self-medication. In addition, big Pharma makes big money marketing to doctors and patients a bunch of prescription drugs to deal with stress and anxiety, but I am not aware of any strong evidence that the solutions to stress and anxiety peddled by big Pharma are ideal for teens, either.
I make these points not to assert that Dr. Thurstone is misguided to be concerns about teenage marijuana use, but rather just to encourage broader reflection on whether the problems and concerns he identifies have been made worse by marijuana reform or rather have just become more visible to him.
Thursday, February 13, 2014
Orrin Devinsky and Daniel Friedman, two physicians at the NYU Comprehensive Epilepsy Center, provide an informative and sober discussion of medical marijuana issues and research problems in this New York Times op-ed headlined "We Need Proof on Marijuana." Here are excerpts:
Many people have heard the story of Charlotte Figi, a young girl from Colorado with severe epilepsy. After her parents began giving her a marijuana strain rich in cannabidiol (CBD), the major nonpsychoactive ingredient in marijuana, Charlotte reportedly went from having hundreds of seizures per week to only two or three per month. Previously, her illness, Dravet Syndrome, was a daily torture despite multiple high doses of powerful anti-seizure drugs.
As news of Charlotte’s story moved from the Internet to a CNN story by Dr. Sanjay Gupta to Facebook pages, some families of children with similar disorders moved to Colorado, which recently legalized marijuana, to reap what they believe are the benefits of the drug.
Dozens of other anecdotes of miraculous responses to marijuana treatments in children with severe epilepsy are rife on Facebook and other social media, and these reports have aroused outsize hopes and urgent demands. Based on such reports, patients and parents are finding official and backdoor ways to give marijuana to their children.
But scientific studies have yet to bear out the hopes of these desperate families. The truth is we lack evidence not only for the efficacy of marijuana, but also for its safety. This concern is especially relevant in children, for whom there is good evidence that marijuana use can increase the risk of serious psychiatric disorders and long-term cognitive problems.
The recent wave of state legislatures considering and often approvingmedical marijuana raises significant concerns. By allowing marijuana therapy for patients with diseases such as difficult-to-control epilepsy, are state legislatures endorsing the medical benefits and safety of a broad range of marijuana species and strains before they have been carefully tested and vetted? Marijuana contains around 80 cannabinoids (THC is the major psychoactive cannabinoid, largely responsible for the high) and more than 400 other compounds. The chemical composition of two genetically identical plants can vary based on growing conditions, soil content, parasites and many other factors.
While the language of the legislation may be cautious, there is an implied endorsement of medical benefit for marijuana when a legislature passes a bill and a governor signs it into law, and the tremendous gaps in our knowledge are not effectively conveyed to the public....
Before more children are exposed to potential risks, before more desperate families uproot themselves and spend their life savings on unproven miracle marijuana cures, we need objective data from randomized placebo-controlled trials....
Paradoxically, however, as state governments increasingly make “medical” marijuana available to parents to give to their children, the federal government continues to label the nonpsychoactive CBD — as well as THC — as Schedule 1 drugs. Such drugs are said to have “no currently accepted medical use in the United States, a lack of accepted safety for use under medical supervision, and a high potential for abuse.” This designation hamstrings doctors from performing controlled studies. While it is possible to study Schedule 1 drugs in a controlled laboratory setting, it is extremely difficult to study these substances in patients. For our study, we keep the CBD in a 1,200-pound safe in a locked room, in a building with an alarm system.
To foster research, we need to change compounds derived from marijuana from Schedule 1 to a less restrictive category. It is troubling that while few barriers exist for parents to give their children marijuana in Colorado, there are significant federal roadblocks preventing doctors from studying it in a rigorous scientific manner.
When patients have not been able to get successful medical treatment, and they live in a state where the law allows medical marijuana for children — we are not suggesting they smoke the drug — compassionate use is reasonable. But for the long-term health of Charlotte and other patients like her, we urgently need valid data.
Tuesday, February 11, 2014
Though I think we may be nearing the point of inevitability when it comes to marijuana legalization, we aren't there yet. There's a chance that as things move forward, we will see a backlash that reverses the current trend.
If I had to pick issues that could potentially cause such a backlash, the risks of marijuana candies would be near the top of the list. And for good reason. Marijuana candies pose serious policy concerns.
Products that are packaged like and taste like candy can be easily mistaken as regular candy. And we all know who loves candy--kids. Perhaps just as important, many marijuana candies contain so much marijuana that the suggested serving size may be 1/4 or 1/10 of the candy. This is particularly odd when one considers that some of these candies come in the form of a single gummy bear or bon-bon style sweet. When most people see a single gummy bear or bon bon, they assume they should eat the whole thing. But if you were to eat an entire marijuana gummy in one serving, you could end up high out of your mind.
Two new New York Times pieces discuss this problem. In one, a mother recounts how her son had to go to the emergency room after eating a roommate's marijuana candy bar. In the other, the writer begins: "This is not what I thought marijuana looked like."
Those of us who favor marijuana legalization would be wise to take these concerns very seriously. There are real public health and safety risks that come from people--particularly children-- accidentally ingesting super-strong marijuana candies (or ingesting on purpose, but without realizing that one gummy is meant to be consumed in four servings.)
In terms of the politics, I think the "this is not what I thought marijuana looked like" sentiment is particularly noteworthy. I suspect that many voters who supported legalization in Colorado and Washington had no idea that it might result in the sale of sophisticated candies (or even that such candies were even possible.) And if enough of the folks in this group don't like what they see when they learn about marijuana candy, it is entirely possible they might sour on legalization generally.
To be sure, I don't think we are anywhere near seeing a political backlash because of this issue. But marijuana advocates would be foolish to ignore the possibility of one developing.
February 11, 2014 in Current Affairs, Food and Drink, 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)
I've always thought one of the strangest things about the DEA's insistence that marijuana has no currently accepted medical use is that one of the claimed medical uses is as an appetite stimulant. When I cover CSA scheduling of marijuana in my Controlled Substances class, I sometimes joke about whether we really need scientific studies to know that marijuana can make people hungry.
The DEA's position, of course, is that there isn't enough evidence to say that marijuana can stimulate the appetites of cancer and AIDS patients. (The synthetic-THC drug Marinol, on the other hand, has been officially determined to make people hungry.)
Though I don't think it will be enough to satisfy the DEA, today brings some new scientific evidence of (and explanation for) marijuana's effect as an appetite stimulant. The blog Toke of the Town reports:
In a new study published this week in Nature Neuroscience, European researchers claim to have proven that smoking weed does, in fact, give you the munchies. Beyond that, they appear to have isolated the specific region of the brain that is affected by THC consumption, and identified the process through which that desire to eat an entire box of Lucky Charms at 2am comes from.
Monday, February 10, 2014
Taking up Mark Kleiman's argument that marijuana rescheduling would be meaningless, Jacob Sullum has this excellent piece on Forbes.com, in which he notes:
From the perspective of people who believe marijuana should be legalized for medical or general use, the advantages of [rescheduling] are not as substantial as you might think. But neither are they, as UCLA drug policy expert Mark Kleiman claims, “identically zero.” Moving marijuana to a less restrictive legal category would have some significant practical effects, perhaps the most important of which would be to advance a more honest discussion of marijuana’s hazards and benefits.
The whole thing is well worth reading.
Sunday, February 9, 2014
This new AP article, headlined "Medical marijuana gets traction in the Deep South," highlights that marijuana reform discussions are not confined only to northern and western regions of the United States. Here is how the piece starts:
Medical marijuana has been a non-starter in recent years in the Deep South, where many Republican lawmakers feared it could lead to widespread drug use and social ills. That now appears to be changing, with proposals to allow a form of medical marijuana gaining momentum in a handful of Southern states.
Twenty states and the District of Columbia have legalized medical marijuana, and this year powerful GOP lawmakers in Georgia and Alabama are putting their weight behind bills that would allow for the limited use of cannabis oil by those with specific medical conditions. Other Southern states are also weighing the issue with varying levels of support.
The key to swaying the hearts of conservative lawmakers has been the stories of children suffering up to 100 seizures a day whose parents say they could benefit from access to cannabidiol, which would be administered orally in a liquid form. And proponents argue the cannabis oil is low in tetrahydrocannabinol, or THC, the psychoactive compound in marijuana that makes users feel high.
"I'm an unlikely champion for this cause," said Georgia Rep. Allen Peake, a businessman from Macon who attended the evangelical Dallas Theological Seminary. "Once people realize it's not a 6-year-old smoking a joint, most folks realize this is the compassionate thing to do."
Peake's bill has already earned the backing of more than 80 state lawmakers, including several members of the House Republican leadership, who signed on as co-sponsors and the state's largest professional association of doctors. The bill would revive a long-dormant research program allowing academic institutions to distribute the medical cannabis and would be "limited in scope, tightly restricted, well regulated and managed by doctors," Peake said.
Alabama Rep. Mike Ball, a retired hostage negotiator for the State Patrol, is behind a bill that would allow people to possess the cannabis oil if they have certain medical conditions. It passed a key committee vote on Wednesday. "The public is starting to understand what this is," said Ball, who chairs a powerful House committee and is a prominent voice on law enforcement issues. "The political fear is shifting from what will happen if we pass it, to might what happen if we don't," Ball said.
The bills in Georgia and Alabama still have more vetting, and their ultimate prospects are not certain. But what is happening offers a strong signal of what's to come in other states.
In Louisiana, although a bill has yet to be introduced, a recent committee hearing at the Capitol on legalizing medical marijuana drew a standing-room-only crowd, and Gov. Bobby Jindal made comments last month indicating he was willing to consider it. "When it comes to medical marijuana ... if there is a legitimate medical need, I'd certainly be open to making it available under very strict supervision for patients that would benefit from that," Jindal said, according to a report in The Advocate.
Technically, both Georgia and Louisiana have laws on the books from the 1980s and 1990s that allow for the use of medical marijuana, but those programs essentially ended before they could start. Georgia's law established the academic research program for those diagnosed with glaucoma and cancer patients undergoing chemotherapy and radiation, but the program stalled when the federal government stopped delivery of legal cannabis. Louisiana's law allowed for glaucoma and cancer patients and those suffering from spastic quadriplegia to receive marijuana for therapeutic use but regulations to govern the program were never developed.
In Mississippi, Republican state Sen. Josh Harkins of Brandon is sponsoring a cannabis oil bill similar to the ones in Alabama and Georgia. Harkins said one of his constituents has a 20-month-old daughter with Dravet syndrome, a form of pediatric epilepsy, and the oil can help reduce the number of seizures.
Elsewhere, both Kentucky and Tennessee have medical marijuana bills under consideration although they have yet to gain traction. Kentucky Senate President Rover Stivers, R-Manchester, has said he's not convinced marijuana has legitimate medical purposes and called it an area ripe for abuse.
In Florida, it's likely to become a campaign issue in the fall given that Gov. Rick Scott is up for re-election and a proposed constitutional amendment will be on the ballot that would allow for the medical use of marijuana as determined by a licensed physician. Former Republican Gov. Charlie Christ, now a Democrat seeking to challenge Scott, has called it "an issue of compassion, trusting doctors and trusting the people of Florida."
Friday, February 7, 2014
Pittsburgh Steeler Ryan Clark talked in some detail yesterday about marijuana use in the NFL on ESPN's First Take. First Take's hosts are (in my opinion) among the most annoying on ESPN and this segment is a good example of their grating personalities. But Clark's comments are well worth checking out.
In particular, he emphasizes that many players use marijuana as an alternative to more addictive and harmful pain medications. I think that this is a very powerful concept--both as a matter of politics and policy--that has not made its way into the public consciousness the way marijuana use by cancer patients has, for example.
Most people immediately grasp the dangers that conventional pain medications carry. And, because pain is largely in the eye of the person suffering from it (testing for pain is not like taking a person's temperature or giving them an x-ray), I think it is very difficult to discount self-reports from people who say it helps them. The more that athletes speak out about this, I think the more average folks will accept (with good reason in my view) that marijuana can be used to treat pain and that it might be a better option than other medications.
Here's Clark on the subject:
Clark, a 12-year veteran, discussed the topic of marijuana use and the league's testing system Thursday morning on ESPN's "First Take."
"I know guys on my team who smoke," Clark said. "And it's not a situation where you think, 'Oh, these are guys trying to be cool.' These are guys who want to do it recreationally.
"A lot of it is stress relief. A lot of it is pain and medication. Guys feel like, 'If I can do this, it keeps me away from maybe Vicodin, it keeps me away from pain prescription drugs and things that guys get addicted to.' Guys look at this as a more natural way to heal themselves, to stress relieve and also to medicate themselves for pain. Guys are still going to do it."
Wednesday, February 5, 2014
The Super Bowl may be behind us, but the question of marijuana use by NFL players is not. The latest, Jets Player Antonio Cromartie says he thinks it is time for the NFL to let the issue go:
Cromartie said in an interview with Thisis50.com, a website launched by rapper 50 Cent, that he thinks the NFL should take marijuana off the banned substances list.
“They need to just let it go,” Cromartie said, via Brian Costello of the New York Post. “We’re just going to do it anyway. They just need to let it go. They need to go ahead and say, ‘Y’all go ahead, smoke it, do what you need to do.’ “
Cromartie may be a free agent this off-season. It will be interesting to see if this impacts interest in him among NFL teams (and, in the nearer team, whether his agent or some Jets media rep will encourage Cromartie to retract or "clarify" his comments.)
A few days ago, Mark Kleimen weighed in, saying that marijuana rescheduling is essentially beside the point. Since marijuana still would not have FDA approval, Kleiman argued, growing marijuana "would still be the illegal manufacture of a Schedule II controlled substance." Although overstated (and full of odd and off-base personal attacks against Jacob Sullum), Kleiman's basic point is valid and often overlooked: rescheduling marijuana would not solve the conflict between state medical marijuana laws and the federal Controlled Substances Act. (Unlike Kleiman, I do not think rescheduling would have "zero" practical effect--it would have a significant political impact and could provide space for litigation on the legality of distributing marijuana without FDA approval, for example as an herbal supplement.)
Putting the question of what impact rescheduling might have aside, however, I just saw an update to Kleiman's post that struck me as misguided. In the update, Kleiman claims that marijuana could not be moved below Schedule II because "more than 2 million people in the U.S. meet diagnostic criteria for cannabis abuse or dependency at any one time."
Kleiman's position stems from the federal Controlled Substances Act's three scheduling criteria, one of which is a substance's relative "potential for abuse." The law provides that substances in Schedules I and II are those with a high potential for abuse. Schedule III substances have a potential for abuse less than those in Schedules I and II and so on.
The trouble is, the CSA does not define the term "potential for abuse." (In fact, the only term in the CSA's scheduling criteria that is expressly defined, is "United States.") The result--as anyone with a basic familiarity with administrative law can guess--is that the DEA has enjoyed incredibly broad discretion to interpret and define "potential for abuse" and other scheduling criteria.
And here's where Kleiman's position is not as air-tight as he seems to think it is. Currently, the DEA defines "potential for abuse" in a way that equates, roughly, to overall use rates. And if we apply this definition (as the DEA does), Kleiamn is right: marijuana's abuse potential would place it in Schedules I or II.
But there are plenty of other reasonable ways to define "potential for abuse." And the only thing stopping the DEA from adopting a different definition of "potential for abuse" is, well, the DEA. Instead of focusing on the total number of users, for example, we might define "potential for abuse" based on the percentage of users who become addicted to a substance or based on the ancillary harms that come from regular use. (Indeed, many people seem to think idea that marijuana's abuse potential is the same as heroin's is pretty ridiculous. Presumably, folks in this category think that there are other measures of abuse potential than Kleiman's/the DEAs.)
This is not to say that marijuana would necessarily end up with a lower abuse potential rating if the DEA decided to revise its definition of the term. My point is only that it could and that there are certainly reasonable definitions of "potential for abuse" in which it almost surely would. Kleiman's position that marijuana's abuse potential means it must remain in Schedule I or II misunderstands the way administrative law works and the DEA's power to interpret "potential for abuse."
I examined the DEA's definition of "potential for abuse" in some detail in this article for the Albany Government Law Review last year.
Friday, January 31, 2014
I'm late in joining the exchange between Doug and Rob on local control of marijuana policy. A couple of years ago, I chaired a City of San Diego task force on local regulation of medical marijuana. In California, there is very little state-wide regulation of medical marijuana (approaching zero.) And, in the absence of state control, it has been up to localities to fill the void.
The San Diego City Council established the task force on which I served in 2009 and we gave the City our recommendations in 2010. Although the City Council passed an ordinance based in large part on our recommendations, it was rescinded after a backlash from dispensary owners (who used a quirky signature gathering procedure that we have to force Council's hand on the issue). Today, San Diego has no medical marijuana ordinance and dispensaries operate in a gray area here (to the extent they are able to operate at all.)
My experience on the task force convinced me more than ever of the value in state-wide regulation when it comes to marijuana policy. There are many aspects of marijuana policy that cities and counties are really not equipped to handle. And plenty of others that can be addressed locally but are much more efficiently handled at the state level.
That said, I do think there is real value in local control on some points. I lean towards Doug's view that cities and counties should be permitted to ban retail sale of marijuana in Colorado and Washington, for example. I think this sort of local control would be likely to help reform efforts overall, since residents in deeply prohibitionist counties and cities might be less concerned about statewide legalization if they can prevent "pot shops" from operating where they live. (My position is much different when it comes medical marijuana, where I've found that the sickest patients with the greatest need are the ones who suffer most when they don't have access to local dispensaries.)
When local control goes beyond land use and retail stores, however, then Rob's concern about the complexity of a dis-uniform regime becomes much more persuasive to me. It is one thing for a city or country to be able to ban retail marijuana sales (or regulate hours of operation, zoning, outdoor signage, etc.) It's quite another if cities can regulate, for example, the THC content in products that are sold. Or, even more problematic, if a locality had the power to ban transportation of marijuana or to re-criminalize personal possession by adults. For a state-wide regulatory scheme to function well, a marijuana manufacturer in one part of Washington needs to be be able to transport marijuana across the state without being subjected to a patchwork system of transportation regulations and outright transportation bans.
In California, an appeals court recently held that localities can ban all medical marijuana cultivation--even a single plant. The ruling, if adopted by other appeals courts (or the California Supreme Court), could leave patients in many parts of the state without any legal way to access marijuana. I think that is a serious problem and at-odds with the intent of California's Proposition 215.
All this is to say, when it comes to localism, I think the devil is in the details. On some points, like banning the retail sale of recreational marijuana, the benefits of local control may justify the costs. But on other items, like THC content or product labeling, I think state-wide uniformity is critical.
January 31, 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 (3)