Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Wednesday, October 4, 2017

"Out-of-state companies making a run for Ohio’s medical marijuana licenses"

Medical-marijuana-ohioThe title of this post is the headline of this notable new Marijuana Business Daily article that might be of special interest to my Ohio-based students and really to anyone thinking about how the laboratories of democracy in the marijuana reform space still have inter-state elements despite the persistence of national prohibition. Here are excerpts from the article:

Out-of-state medical cannabis companies are jumping into the nascent Ohio market because the state lacks a residency requirement for business owners. While a majority of the applicants are listed as Ohio-based companies, at least a dozen either have an out-of-state business address or are connected to companies based elsewhere.

That’s according to the business information of 185 applications for 24 available cultivation licenses recently released by the Ohio Medical Marijuana Control Program....

Regulators decided against a residency requirement when they drafted the law. Tom Haren, a Cleveland cannabis attorney, said the state went back and forth on the residency issue. “This was the subject of a lot of debate as the rulemaking process moved forward,” he said. “Ultimately what the regulators decided was to err on the side of experience operating in other regulated markets.”...

 While there isn’t a strict residency provision, regulators scoring applications can take into account whether a company’s principal place of business is in Ohio. “What we’ve seen is a lot of the out-of-state investment was done in partnership with Ohio residents,” Haren said.  According to Haren, a majority of applicants were Ohio citizens who partnered with out-of-state groups to help strengthen the experience section of their applications. “It’s hard to have experience in a market that’s been illegal here for the last 70 years,” he added.

October 4, 2017 in Business laws and regulatory issues, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

"The Impact of State Medical Marijuana Laws on Social Security Disability Insurance and Workers' Compensation Benefit Claiming"

The title of this post is the title of this interesting new empirical paper available via SSRN authored by Catherine Maclean, Keshar Ghimire and Lauren Hersch Nicholas. Here is the abstract:

We study the effect of state medical marijuana laws (MMLs) on Social Security Disability Insurance (SSDI) and Workers' Compensation (WC) claiming.  We use data on benefit claiming drawn from the 1990 to 2013 Current Population Survey coupled with a differences-in-differences design.  We find that passage of an MML increases SSDI, but not WC, claiming on both the intensive and extensive margins.  Post-MML the propensity to claim SSDI increases by 0.27 percentage points (9.9%) and SSDI benefits increase by 2.6%. We identify heterogeneity by age and the manner in which states regulate medical marijuana.  Our findings suggest an unintended consequence of MMLs: increased reliance on costly social insurance programs among working age adults.

October 4, 2017 in Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms | Permalink | Comments (1)

Tuesday, September 26, 2017

"[T]o oppose the Medical Marijuana Amendment is to provide material assistance to ISIS and other international terrorist organizations"

220px-Bruce_Fein_by_Gage_SkidmoreThe title of this post is my very favorite phrase in this Washington Times commentary authored by Bruce Fein, who served as associate deputy attorney general under President Ronald Reagan. The commentary carries this full headline: "On the Medical Marijuana Amendment, Trump and Sessions are wrong; Dana Rohrabacher, Senate get it right. " And here is some context leading up to Fein's amusing assertion (emphasized below) that opposing a congressional limit on DOJ funding for prosecuting state-compliant medical marijuana businesses is tantamount to supporting ISIS:

Never underestimate the dishonesty of politicians. Exemplary is the opposition of President Donald Trump and Attorney General Jeff Sessions to extending the Rohrabacher Medical Marijuana Amendment to prohibit the expenditure of federal funds to prosecute medical marijuana businesses that are operating legally under state law. At present, 29 states and the District of Columbia have legalized medical marijuana. (The federal Controlled Substances Act would otherwise expose the distributors or users to federal prosecution.)

The amendment made its way into federal law in a 2014 federal appropriations bill. Three years later, not a crumb of evidence has surfaced suggesting that the amendment had spiked marijuana use or promoted or compounded any tangible evil. During his 2016 campaign, Mr. Trump earnestly promised to “make medical marijuana widely available to patients, and allow states to decide if they want to fully legalize pot or not.”

As U.S. senator, current Attorney General Sessions’ sound track was high octave opposition to the federal government’s penchant for intruding on state prerogatives over voting rights, detentions of or undocumented immigrants, or otherwise. As Attorney General, Mr. Sessions has backed away from the Obama administration’s aggressive oversight of local police forces that have chronically violated constitutional rights.

After making proper deductions for ordinary political dishonesty, voters in 2016 were reasonably confident that Messrs. Trump and Sessions would enthusiastically support an extension of the Rohrabacher Medical Marijuana Amendment.  The idea that the federal government should stick its nose into the medical marijuana business is preposterous. It has no national security dimension. It is vastly less risky than alcohol or tobacco.  And there is nothing in the dynamics of state politics that make state jurisdictions ill-suited to deciding whether their citizens should have access to medical marijuana.  Equally if not more important, every federal dollar expended investigating or prosecuting medical marijuana businesses is a dollar unavailable to detect and prosecute international or home-grown terrorists. In other words, to oppose the Medical Marijuana Amendment is to provide material assistance to ISIS and other international terrorist organizations.

These facts, however, have not deterred Messrs. Trump and Sessions from abandoning their campaign promises or professed constitutional principles....

On Sept. 6, 2017, the House Rules Committee — a puppet of House Speaker Paul Ryan — blocked a floor vote on the Medical Marijuana Amendment. But the Senate Appropriations Committee has passed it, which makes the amendment a candidate for inclusion in a final spending bill.

Every member of Congress should recognize that a vote against the Amendment is a vote in favor of ISIS, al Qaeda, and sister international terrorist organizations.  They rejoice at witnessing our law enforcement resources squandered on chasing after medical marijuana businesses rather than devoted to capturing, prosecuting or killing them.

September 26, 2017 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Monday, September 18, 2017

Fear of feds and prohibition prompt University of Maryland to cancel plans for medical marijuana instruction

In this post from July, I reported on plans by the University of Maryland School of Pharmacy to begin offering training to prepare prospective workers for the medical marijuana industry.  But this new Baltimore Sun article report that now, "citing legal concerns, the University of Maryland’s School of Pharmacy has canceled plans to offer training for those who work in the medical marijuana industry." Here is more:

After consulting with the Maryland attorney general’s office, the university asked pharmacy school officials to cancel the classes, a university spokesman said.... “If there’s any question of the law, they are often consulted,” said Alex Likowski, a spokesman for the University of Maryland, Baltimore. “Regarding medical cannabis, even though Maryland and many other states have approved it, it’s still illegal under U.S. law.”

Katherine Bainbridge, chief counsel of the education affairs division in the attorney general's office, confirmed that she gave advice to the university about the medical marijuana law specific to the courses the pharmacy school planned to offer, but she declined to disclose what the advice was. While the school said it has suspended the program indefinitely, prospective students seeking to enroll through a university-associated website still see a note that enrollments were “suspended temporarily while the business agreements are being finalized by the university.”

The classes, initially scheduled to start in August, offered basic and advanced certifications in areas including cultivation, manufacturing, dispensing, laboratory standards and assessment. It’s unclear whether the courses might be offered in the future. Pharmacy school officials did not respond to requests for comment....

Doctors in Maryland are not required to gain any special certification to recommend medical marijuana, but state law requires workers employed by growers, processors, dispensaries and laboratories to have training in their areas. Patrick Jameson, executive director of the Maryland Cannabis Commission, said workers must obtain training. “The commission expects the most highly trained and knowledgeable people will participate in the program,” he said. It’s unknown where those who want to work in the industry might turn for needed instruction. The state commission does not endorse any particular certification program.

Maryland’s pharmacy school would have joined only a small number of established colleges and universities to lend credibility for training of workers. The pharmacy school had adopted a curriculum developed by the advocacy group Americans for Safe Access, which has been offering training directly since 2002. University officials said suspension of the courses was a not a reflection on that content. The group did not respond to request for comment.

There are other online options for training available — directly through Americans for Safe Access and through the likes of such little-known organizations as Cannabis Training Institute, THC University and Green Cultured. Some state medical societies also offer training, but MedChi does not in Maryland.

Perhaps the only mainstream medical school offering training is the University of Vermont’s Larner College of Medicine, which began offering courses in the spring of 2016. There is a course available to medical and other university students that focuses on clinical trial data, in addition to certification and continuing education courses available to the community. Karen M. Lounsbury, a professor of pharmacology and co-director of Vermont’s medical cannabis course, said officials there had no legal concerns, though they were careful to comply with university policies.

“The biggest concern was that when presenting the clinical trial data for medical cannabis, we could be construed as supporting the use of medical cannabis that is legal in many states, including Vermont, but still illegal at the federal level,” she said. “We confirmed with the university lawyers that as long as we stated a clear disclaimer for each instructor, we would not be violating any university policy.” The disclaimer says: “The content of this lecture material represents the opinions of the instructor based on their research and experience and does not necessarily represent the opinions of the University of Vermont.” She said the program has an “evidence-based” approach and the classes are popular.

Medical marijuana advocates lamented that more well-respected universities were not offering medical courses for doctors or certifications courses for industry workers. Paul Armentano, deputy director of the advocacy group NORML, said such institutions were needed to establish training standards and to directly educate workers and doctors, very few of whom have had any instruction on the subject.

Prior related (and now dated) post:

September 18, 2017 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Another notable new medical marijuana state accepting applications and receiving plenty

33810141423_746482ddf4_bThis AP article, headlined "High Number of Applicants for Arkansas Medical Marijuana," reports on the last-minute rush to file applications to be a part of a green rush in the Natural State (which is also know as the Land of Opportunity). Here are some details:

Would-be growers and distributors of Arkansas' initial medical marijuana crop flooded a state office building Monday, turning in thousands of pages of paperwork and handing over thousands of dollars in application fees.  Applicants faced a three-hour wait ahead of Monday afternoon's deadline, as their number greatly exceeded the clerks available to review paperwork to ensure it was complete.  Those hoping to grow medical marijuana had to pay a $15,000 application fee, while potential distributors paid $7,500. Unsuccessful applicants will have half their money refunded.

Department of Finance and Administration spokesman Scott Hardin said about 300 firms or individuals had submitted applications by the close of business Monday. Clerks were staying late to handle applications from those in the office by the deadline.  About 100 people or firms sought to grow marijuana, with the others hoping to distribute it.

Arkansas voters last year approved marijuana use by people with certain medical conditions.  The new state Medical Marijuana Commission will review applications after the names of companies and individuals have been redacted and then select up to five growers and 32 distributors.  The Arkansas Health Department has approved 1,200 people for a medical marijuana registry, making them eligible to obtain the drug.

Applications from the potential growers and distributors were about 1,000 pages long, on average.  Several who dropped off applications elected not to identify themselves publicly, while others spoke openly about why they considered their applications worthy.  "If you can beat us at our game, I give you all the credit in the world," said Chris Stone, who operates two dispensaries in Illinois.  He has teamed with a pair of Arkansas pharmacists and wants to grow marijuana in the rich, agricultural lands near Brinkley and distribute marijuana at a dispensary on the east side of Jonesboro.

He said his firm failed in a previous attempt to win a grower's permit in Illinois, but took the feedback from that loss to fashion a pair of 1,800-page applications in Arkansas. "Those with successes in other states probably have a leg up on those who are putting together an application for a first time," he said.

September 18, 2017 in Business laws and regulatory issues, Initiative reforms in states, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Thursday, September 14, 2017

Hawaii poised to be first state with cashless marijuana payment system

Safe-Harbor-Canpay-600x460As reported in this Forbes article, headlined "Hawaii Was Slow To Roll Out Medical Marijuana, But Fast To Go Cashless," the 50th state is about to be a first when it comes to the marijuana industry. Here are the details:

Hawaii has decided to turn its medical marijuana program into a cashless payment system in the hopes of avoiding the problems that other states and businesses have faced when dealing large sums of cash. The goal is that by October 1, all of Hawaii’s licensed dispensaries will no longer use cash, but instead ask their customers to pay with a debit payment app.

Governor David Ige said at a press conference on Tuesday, “Cannabis is illegal at the federal level, still a schedule one controlled substance. Because of this, all financial institutions in Hawaii have decided against providing banking services to the dispensaries. This solution allows the dispensaries to be able to write checks, to do all of the normal financial transactions that most businesses would do.” Hawaii legalized medical marijuana in 2000, but only recently implemented its program.

Banking has been tremendously difficult for cannabis companies. The major banks refuse to work with these businesses because marijuana is still federally illegal. The major credit card companies have also turned their backs on customers wanting to use their bank cards to engage in such transactions. This has caused inconvenience for the customers who are forced to pay with cash and the dispensaries that end up with stacks of cash that needs to be processed....

The debit app called CanPay steps in to provide an alternative to cash-only transactions. It is partnered with Safe Harbor Private Banking, a Denver-based division of partner Colorado Credit Union, which is a leading compliant banking program that specializes in working with cannabis companies.  “Removing cash from the equation leads to a more transparent and legitimate way to do business that’s both convenient and secure for all involved,” said Dustin Eide, CEO of CanPay. “Through the lengthy collaboration between ourselves, Safe Harbor, and the tremendous individuals in Hawaii’s legal cannabis market, these dispensaries are now able to operate as closely as possible to businesses in any other industry.”

While the cash has been a problem for some customers and businesses, there are many who prefer to keep these transactions in cash. Concerns over government intrusion and general privacy have kept these consumers wary of a system that can track all cannabis purchases. Dispensaries will still be able to accept cash transactions, although they will encourage customers to use the cashless system. Patients that don’t have a smart phone to use the CanPay system can set up an account with their email and log into a computer at the dispensary to complete a transaction....

Also, while Hawaii may have solved the problem of armored trucks and extra security personnel to oversee stacks of cash, it is also exposing itself to hacking. By depending on one system, the state could leave itself open to hackers who could take the system down and potentially keep patients from buying medicine. However, since cash will still be allowed, hackers wouldn’t completely freeze the industry.

"Hawaii’s adoption of a cashless payment system for cannabis sales is a clever and legitimate workaround occasioned by the unfortunate reality of the banking challenges in the industry," said Bryan Meltzer, a partner at legal firm Feuerstein Kulick. "We have said for a long time that this has created a dangerous situation ripe for robberies and related criminal activity. Hawaii should be applauded for its out-of-the-box thinking."

September 14, 2017 in Business laws and regulatory issues, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Wednesday, September 13, 2017

"How Medical Marijuana Smoothed the Transition to Marijuana Legalization in the United States"

The title of this post is the title of this notable forthcoming article authored by Beau Kilmer and Robert MacCoun which is soon to be published in the Annual Review of Law and Social Science.  Here is its abstract:

Public support for legalizing marijuana use increased from 25% in 1995 to 60% in 2016, rising in lockstep with support for same-sex marriage. Between November 2012 and November 2016, voters in eight states passed ballot initiatives to legalize marijuana sales for nonmedical purposes—covering one-fifth of the US population.  These changes are unprecedented but are not independent of the changes in medical marijuana laws that have occurred over the past 20 years.  This article suggests five ways in which the passage and implementation of medical marijuana laws smoothed the transition to nonmedical legalization in the United States: (a) They demonstrated the efficacy of using voter initiatives to change marijuana supply laws, (b) enabled the psychological changes needed to destabilize the “war on drugs” policy stasis, (c) generated an evidence base that could be used to downplay concerns about nonmedical legalization, (d) created a visible and active marijuana industry, and (e) revealed that the federal government would allow state and local jurisdictions to generate tax revenue from marijuana.

September 13, 2017 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)

Surprising new marijuana lobbyist, a bombastic NY Republican, might be especially significant in the age of Trump

Senate-damato

This new New York Post article, headlined "Former New York senator who opposed smoking pot joins marijuana lobbying group," reports on a very interesting and shrewd hire by the Marijuana Policy Project. Here are the details:

Alfonse D'Amato is going from Senator Pothole to Senator Pot.  The former Republican U.S. senator from New York has been hired as a senior adviser by the Marijuana Policy Project, a national pro-pot group that for the first time is starting an affiliate in the Empire State.

The MPP says it was founded in 1995 to advocate nationally for “sensible and compassionate” laws governing pot use.  In New York, the group will initially focus on promoting ways to strengthen the state's existing medical marijuana program, though D'Amato didn't rule out the idea that the group will be part of any future discussions about legalizing the recreational use of pot for adults.

In addition to D'Amato, the MPP also hired attorney and community organizer Landon Dais to serve as its New York political director.  Both D'Amato — who served in the Senate from 1981 to 1999 — and Dais said that after a slow start, New York's medical marijuana program can be transformed into a national leader.  "The (state) Health Department and the governor's office have come a long way in making the utilization of medical marijuana easier, better, more professional," D'Amato said. "That's a work in progress."

D'Amato said the MPP will push for Gov. Cuomo to sign into law a bill making medical marijuana available to veterans suffering from post traumatic stress disorder. D’Amato said the group will also seek to educate the public and medical community on the value of medical marijuana.  "I'm happy to see we have really moved in the right direction in New York," D'Amato said.

The former senator-turned lobbyist and consultant said the state should also start discussing whether to legalize pot for adults.  While he hasn't yet taken a stand on the issue, D'Amato said "if we want to be realistic, you've got to look at the nation, what is taking place around us.  It's been implemented in (seven) states."...

D'Amato's linkage to a marijuana group is a change for a man who for most of his life was against the use of pot. He said he began evolving on the issue during a discussion with radio personality Howard Stern in 2009.  "I think I'm a conservative, but I don't think I'm a right wing kook," he said.

D'Amato also knocked U.S. Attorney General Jeff Sessions, with whom he served in the Senate, for wanting the federal government to crack down on states that have legalized recreational- and even medicinal- marijuana.  "It's a ridiculous position," he said. "I say how can you on the one hand be for states’ rights and on the other hand say the states that have legalized the use of marijuana, that you're not going to recognize that. You can't be a states’ rights person only when you like what the states are doing and not what the feds are doing.  It's one or the other."

State Conservative Party Chairman Michael Long, who backed D’Amato during his three terms in the Senate, said “I hope the former senator doesn’t partake in a move that would open the door for legalization of marijuana.”  But he said he wasn’t particularly surprised D’Amato hooked up with the Marijuana Policy Project. “He’s a lobbyist now, certainly a person who opens the door for a lot of people,” Long said.

As this article highlights, former Senator D'Amato has a little history from his time in the Senate with current AG Jeff Sessions.  But I think even more important is D'Amato's history as a successful bombastic New York Republican politician.  In various ways, he seems cut from the same cloth as President Donald Trump, and the two surely have some relationship given that D'Amato was a leading New York political figure during the 1980s and 1990s when Trump was building his NYC real estate empire.  In addition, I am sure D'Amato is able to get the ear of still-very-important New York political figures ranging from Rudy Giuliani to Michael Bloomberg to Chuck Schumer.

September 13, 2017 in Campaigns, elections and public officials concerning reforms, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Sunday, September 10, 2017

Limit on DOJ funding for medical marijuana prosecutions extended to December 2017 in stop-gap spending bill

As reported in this prior post, last week early developments in the US House of Representatives made uncertain the prospects for continuation of the spending rider that currently blocks the US Justice Department from going after state-compliant medical marijuana actors.  But, as this Cannabist article reports, another stop-gap spending bill keeps the DOJ spending limit in place for at least another three months.  The article is headlined "Rohrabacher-Blumenauer medical marijuana protections extended by debt limit deal," and here are the details:

Existing federal protections for medical marijuana states are expected to continue through at least Dec. 8.  The $15.3 billion disaster aid package, debt limit increase and government spending extension approved by Congress on Friday includes the existing Rohrabacher-Blumenauer provision, which prevents the Justice Department from using funds to interfere with the 46 states that have legalized some form of medical marijuana.

The aid bill, which was sent to President Donald Trump, extends the omnibus legislation passed in May and will fund the government through Dec. 8.  The short-term spending fix is also a short-term victory for Rohrabacher-Blumenauer sponsors, which were dealt a blow by the House Rules Committee earlier this week. The legislative committee nixed the amendment from House consideration for the fiscal year 2018 funding bill.

“We have at least three months of certainty now, but the fight isn’t over,” officials for Rep. Earl Blumenauer, D-Oregon, told The Cannabist on Friday.  That fight includes efforts to land the provision in the final spending bill, officials said, noting the language was included in the Senate Appropriations Committee’s approved version of the bill.

September 10, 2017 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Sunday, September 3, 2017

Helpful review of possible reform states to watch in 2018 on initiative and legislative fronts

The folks at Marijuana Business Daily have recently put together a two-part series on state-level marijuana reform efforts likely to be making headlines in 2018. Part I looks at initiative campaigns, and Part II is focused on legislature-driven efforts:

"Multiple 2018 marijuana legalization campaigns already underway" discusses ballot campaigns afoot in Michigan, Missouri, Oklahoma, South Dakota and Utah.

"Which state legislatures could legalize recreational, medical marijuana in 2018?" discusses New Jersey, Rhode Island and Vermont as possible recreational legalization states, and Louisiana, South Carolina, Tennessee, Kentucky, Indiana and Texas as (mostly-long-)shots for medical marijuana reforms.

Though all of these potential reform states are interesting to watch, I think Michigan and New Jersey could prove to be especially important states for the future of recreational marijuana reforms nationwide.  (I also believe they are the states in which reform right now seems the most likely.)

Michigan is a state that went for Prez Trump along with other rust-belt states, and it seems certain to be an important state in the 2020 Prez campaign.  A vote in favor of full legalization in Michigan in 2018 could immediately impact how would-be 2020 Prez candidates talk about state marijuana reforms.

 New Jersey not only could be the first state to embrace recreational marijuana reforms through the traditional legislative process, but it also could have a marijuana industry that serves huge population centers ranging from New York City to Philadelphia to even Baltimore and Washington DC.   With probably a quarter of the nation's population less than an afternoon's drive from some part of New Jersey, a decision by the Garden State to start legalizing the gardening of marijuana for recreational purposes surely could have all sorts of national echoes.

September 3, 2017 in Campaigns, elections and public officials concerning reforms, Initiative reforms in states, 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)

Sunday, August 27, 2017

Interesting look at job-creation aspects of Arkansas medical marijuana reform (with a notable developing national story)

BLS-LogoThis local new article form Arkansas, headlined "Medical marijuana industry expected to bring new jobs to Arkansas," provides an effective and thorough accounting of an important economic development element of marijuana reform. For that reason, I recommend the piece in full, and the excerpt below includes a bit of extra national news highlighted below that strikes me as especially notable:

A one-man testing lab in Greenbrier is poised to add up to seven employees, spend more than $1 million on equipment and buy several vehicles to capitalize on the coming sale of medical marijuana in Arkansas.  Kyle Felling, the owner of F.A.S.T. Laboratories, is one part of a burgeoning medical marijuana industry that's expected to create hundreds of jobs in Arkansas, according to industry experts and representatives....

In-state dispensaries and cultivation facilities are expected to provide the bulk of the jobs.  However, other services, like lab testing, are essential for the medical marijuana market to function.  Storm Nolan, president of the Arkansas Cannabis Industry Association, said he expects between 500 and 600 people to be employed where marijuana is grown and sold in the near term....

David Couch, the Little Rock lawyer who sponsored the Arkansas Medical Marijuana Amendment that was approved by voters in November, said he eventually expects 1,500 jobs or more in dispensaries and cultivation facilities.  Nolan and Couch said hundreds more jobs are expected in ancillary businesses, like F.A.S.T. Laboratories....

The accuracy of job estimates is expected to improve with time.  The federal Bureau of Labor Statistics will begin releasing data Sept. 6 under an updated jobs classification system that details marijuana wholesalers, stores and grower employment, David Hiles, an economist with the bureau, said in an email. ...

Specialty companies will be needed to ship, test, market, enforce, track, insure, construct, lobby, inspect, secure and bank in the industry.  However, it's an open question whether many of the businesses will be locally owned.  While the Arkansas Medical Marijuana Commission mandated that dispensaries and cultivation facilities be majority owned by Arkansans, there's no similar requirement for the businesses that will serve them.

James Yagielo, chief executive of Florida-based HempStaff, said many end up being from out of state.  "There are always some ancillary businesses," he said.  "A lot of them -- like us -- are national, but you do get some that pop up."  Nolan said he expects more ancillary businesses to enter the market as the Arkansas Medical Marijuana Commission develops licenses for transportation, distribution and processing.  Those licenses remain on the to-do list of the commission, which currently is taking applications for dispensaries and growers....

Michael Pakko, chief economist at the Arkansas Economic Development Institute at the University of Arkansas at Little Rock, said the nature of the marijuana business -- highly regulated with dispensaries and cultivation facilities required to each have unique ownership -- is costly, but can also provide additional employment....

Entry-level jobs include trimming marijuana at around $10 an hour.  Assistant growers, who plant and nourish marijuana, will earn $15 to $20 per hour.  Master growers, who manage operations, will make between $40 to $60 per hour....  Most dispensaries start with around five employees....  Each store's general manager will earn around $20 per hour. Dispensary agents, who interact with patients, will make $12 to $15 per hour.

While hundreds of jobs are expected to be created in the medical marijuana industry -- on par with a large state economic development project -- Arkansans may not feel the same impact because the jobs will be spread throughout the state, Pakko said.  "Five hundred to 600 jobs -- that would be a pretty good economic development project, but in the overall scheme of things, that's not a very large percentage of Arkansas' workforce or employment base," he said.  "Now in the local communities where those jobs are going to be, it can be a big deal.  It can be a significant impact."

In this MassRoots posting back in February, Tom Angell reported that the "U.S. Bureau of Labor Statistics (BLS) revealed to MassRoots that it will soon begin tracking cannabis sector employment ... [but] added that it won’t necessarily release any numbers."  It would now appear that BLS has data it is prepared to release in only a matter of weeks.  That strikes me as a very interesting and important development that will, among other things, make it much easier for the mainstream media to see and report on the seemingly significant job-creation realities of the emerging marijuana industry.

August 27, 2017 in Employment and labor law issues, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Monday, August 14, 2017

Federal district court in Connecticut rejects preemption claims by employer sued after rescinding employment offer to medical marijuana user

I noted in this post last month the significant ruling of the Massachusetts Supreme Judicial Court in Barbuto v. Advantage Sales and Marketing, LLC, No. SJC 12226 (Mass. July 17, 2017) (available here) allowing a state-law-based civil discrimination lawsuit to proceed after an lawful medical marijuana user has been fired for a positive drug test.  This past week, as detailed in this helpful opinion summary, a similar type of decision was handed down by a federal district judge in Connecticut in Noffsinger v. SSC Niantic Operating Co, LLC, No. 3:16-cv-01938 (D. Conn. Aug 8, 2017) (available here).  Here are the basics:

In an issue of first impression, a federal district court in Connecticut found an implied private right of action under Connecticut’s Palliative Use of Marijuana Act (PUMA) and further held that federal law did not preempt the PUMA discrimination claim of a registered medical marijuana user whose job offer was rescinded after she tested positive, even though she explained to the employer that she only took synthetic cannabis at bedtime and was not under the influence at work. In finding no preemption, the court explained the federal Controlled Substances Act (CSA) does not regulate the employment relationship and that the ADA does not regulate non-workplace activity.

Here is how the opinion in Noffsinger gets started, along with a key passage from the heart of the ruling:

Connecticut is one of a growing number of States to allow the use of marijuana for medicinal purposes. Connecticut likewise bars employers from firing or refusing to hire an employee who uses medical marijuana in compliance with the requirements of Connecticut law.  By contrast, federal law categorically prohibits the use of marijuana even for medical purposes.

This lawsuit calls upon me to decide if federal law preempts Connecticut law.  In particular, I must decide if federal law precludes enforcement of a Connecticut law that prohibits employers from firing or refusing to hire someone who uses marijuana for medicinal purposes.  I conclude that the answer to that question is “no” and that a plaintiff who uses marijuana for medicinal purposes in compliance with Connecticut law may maintain a cause of action against an employer who refuses to employ her for this reason.  Accordingly, I will largely deny defendant’s motion to dismiss this lawsuit....

Although most cases dealing with the CSA’s preemption of state medical marijuana statutes have come out in favor of employers, these cases have not concerned statutes with specific anti-discrimination provisions; courts and commentators alike have suggested that a statute that clearly and explicitly provided employment protections for medical marijuana users could lead to a different result.  Indeed, one court recently held that the CSA does not preempt the anti-discrimination-in-employment provision of Rhode Island’s medical marijuana statute. See Callaghan v. Darlington Fabrics Corp., 2017 WL 2321181, at *13–14 (R.I. Super. 2017).

August 14, 2017 in Business laws and regulatory issues, Employment and labor law issues, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (1)

Friday, August 11, 2017

"Can marijuana rescue coal country?"

JO-welcome-WV-02The title of this post is the headline of this extended Washington Post magazine article exploring whether marijuana reform could help address some of the woes to be found in Wast Virginia.  Here are excerpts:

One of the leading proponents of loosening restrictions on marijuana in West Virginia is Democratic state Del. Mike Pushkin, who represents parts of Charleston and its surrounding areas. Pushkin is an unconventional pol — a cabdriver and folk musician who has spoken about his own struggles with addiction. He once told the Charleston Gazette-Mail how he spent 11 years living from crisis to crisis. “I’m sure there were times that my mother would have thought it more likely she would be attending my funeral than she would be attending my swearing-in at the Capitol,” he said.

It took a spiritual awakening to get his addiction under control. To stay sober, he told me, he volunteers at detox facilities and talks to addicts in area jails. This experience informs his policy positions. He’s sure West Virginia can’t arrest its way out of this drug crisis. And he has pushed his colleagues to consider marijuana in a new light. “While marijuana is described as a gateway drug, that’s not proven,” he says. “What is proven is that a lot of people who are prescribed painkillers get hooked on heroin.”...

In May 2016, Pushkin introduced a bill in the West Virginia House of Delegates to let adults grow, use and possess a limited quantity of marijuana, provided that they paid a one-time fee of $500. That month, he told the Charleston Gazette-Mail that he didn’t have high hopes for its passage. He was right: It wasn’t even debated in a committee. But it did spark media attention and prompted an eye-opening brief from the West Virginia Center on Budget and Policy, which showed that a marijuana tax could be a boon for the state, generating as much as $194 million annually if the drug were legal for adult use. That would be enough to eliminate West Virginia’s projected deficit and create a $183 million surplus, a dramatic improvement in a place that’s been slashing everything from higher education to Medicaid as it tries to stay afloat.

Indeed, Pushkin’s argument for marijuana legalization had a strong economic component. “They’re not having the types of budget issues in Colorado that we’re having here,” he told the Charleston Gazette-Mail. In Colorado, where pot is now fully legalized, the industry created 18,000 full-time jobs in 2015 alone. New Frontier Data, a financial consultancy in Washington, estimates that by 2020 the marijuana industry will create upward of a quarter of a million jobs in the United States, more than manufacturing is expected to create.

It’s hard to imagine anywhere that could use these jobs more than West Virginia. Since the 1980s, both coal and manufacturing in the Mountain State have been in a steep decline. As these industries have dried up, so have others that rely on them — such as freight rail, which has cut jobs by the thousands and begun pulling up tracks.

August 11, 2017 in Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Political perspective on reforms | Permalink | Comments (0)

Wednesday, August 9, 2017

Could the States Do Anything to Blunt the Impact of a Federal Crackdown?

Cross-posted at Marijuana Law, Policy, and Authority 

I just returned from the NCSL annual meeting in Boston, where I participated on a Marijuana Federalism panel with Representative Roger Goodman (WA state house) and John Hudak (Brookings). A short recap of the panel can be found here . Consistent with recent reports, all the panelists agreed the Trump Administration is unlikely to crack down on state-licensed marijuana suppliers anytime soon. (John and I have both previously written about the Trump Administration’s approach to marijuana policy, e.g., here and here.)

Nonetheless, given Jeff Sessions’ stated opposition to legalizing marijuana, I think it’s worthwhile to consider what (if anything) the states could do to blunt a federal crackdown, if the Trump Administration did decide to attempt one. Let me offer two possibilities state lawmakers might consider:

1. Create an indemnification fund to help pay the legal expenses of any state-licensed marijuana supplier who faces federal legal sanctions. This would include a supplier who faces a federal criminal prosecution, a civil forfeiture action, or even a civil RICO lawsuit brought by another private citizen.

Why would states ever do this? Individual defendants sometimes lack the ability and / or incentive to optimally (from the state’s perspective) defend themselves against federal claims. For one thing, defendants don't always have the money needed to pursue every viable defense vigorously, especially if their assets have been frozen by the government. In addition, individual defendants capture only a small part of the benefit (to the state) of successfully asserting certain types of defenses. After all, those defenses -- once established -- can be invoked by other, similarly situated defendants.
To illustrate the problem, suppose a Massachusetts-licensed medical marijuana supplier is being prosecuted by the DOJ for distributing marijuana. Her attorneys tell her she could spend $25,000 trying to convince a federal court that her prosecution is barred by the Rohrabacher-Farr amendment (discussed on pages 353-358 of my book), but there’s no guarantee she’ll win – say, because the First Circuit might not follow United States v. McIntoshand the Ninth Circuit’s interpretation of Rohrabacher-Farr. In this case, the supplier might not pursue the defense vigorously (even if she could afford to); she might instead prefer to cut her losses and cut a plea deal, say, by agreeing to shut down her shop if the DOJ drops all of its charges against her. But that may not be the best outcome for the state – it might prefer that the defendant spend $25,000 for even the chance that all state law-abiding medical marijuana suppliers would be declared immune from federal prosecution. Thus, to ensure that defendants vigorously pursue legal defenses that benefit others in the state, the state might help cover individual defendants’ legal expenses (say, using a portion of marijuana tax revenues).
I develop this first proposal in more detail in a symposium article for the Montana Law Review here. It’s loosely modeled on personal liberty laws adopted by northern states in response to the federal Fugitive Slave Act.

2. Adopt poison pill legislation that would make it costly for Congress to preempt certain state marijuana reforms. Some state laws are vulnerable to preemption challenge because they (arguably) undermine one of Congress's goals, like deterring drug use. Citing such reasoning, for example, a few state courts have held that state laws purporting to protect medical marijuana patients from employment discrimination are preempted by the federal CSA (the issue is discussed on pages 672-681 of the book). To defuse the threat that a court would find such measures preempted, a state could pass a second law – one that Congress clearly favors – and then tie the two laws (favored and disfavored) together – i.e., make them inseverable.
To illustrate, suppose Massachusetts was interested in preserving its recently recognized employment protections (discussed here) from a preemption challenge. To do so, the state could pass a law limiting the quantity of marijuana that non-residents are allowed to buy at state licensed shops, similar to the way Colorado once limited non-residents to buying one-quarter ounce of marijuana at its shops (discussed at pages 283-287 of the book). It could then make the new quantity restriction inseverable from the employment protections. While Congress (in theory) might not want states to protect marijuana users from employment sanctions, it might tolerate those protections if the states limit non-resident access to marijuana.
I develop this second proposal in more detail in a new article for the George Washington Law Review here. It’s very loosely modeled on the poison pill tactic in corporate law.


Part of the appeal of both options is that their success does not depend on the DOJ’s willingness to heed past enforcement guidelines or Congress’s willingness to restrict the agency’s spending.

August 9, 2017 in Court Rulings, Current Affairs, Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Tuesday, August 1, 2017

So many summer state marijuana headlines, so little summer time....

I have been on the road the last few weeks with limited internet and limited blogging time, and thus I have been barely able to keep up with all the summer state marijuana reform news of late.  Here are links to some news headlines/stories that provide just a sample of some notable late dog-days of summer state stories:

From Massachusetts here, "Massachusetts' Marijuana Law Passed by Voters, Rewritten by Lawmakers"

From Michigan here, "Marijuana is 9% of all Michigan arrests, and other facts on marijuana arrests"

From Nevada here, "Tourists Buying Marijuana In Las Vegas Have Nowhere To Smoke It In Las Vegas"

From Utah here, "Over 75 percent of Utahns support medical marijuana ballot initiative, a new poll says"

From Washington here, "Washington Marijuana Legalization: No Stoned Mayhem on the Freeways"

And, this important story covering lots of states comes from USA Today under the headline "Marijuana's legalization fuels black market in other states." It starts this way:

Marijuana smugglers are growing and shipping vast quantities of illicit cannabis across the USA. They’re mailing it, driving it and, in at least one case, flying it around in skydiving planes. They’re hiding it in truck beds and trunks and vacuum-sealing it to hide the smell as they pass police officers patrolling the interstates.

Many are starting in states where growing marijuana is legal, such as Colorado, and sending the drug elsewhere. In June, Colorado prosecutors said they busted a 74-person operation producing 100 pounds of marijuana per month — enough to generate $200,000 monthly, tax free, for more than four years.

Police seized two tons of cannabis from dozens of homes and warehouses in the Denver metro area. Tangled up in the scheme were fathers and sons and several former professional football players. “Those of us in law enforcement kept saying, '(Legalization) will not stop crime. You’re just making it easier for people who want to make money. What we’ve done is give them cover,' ” Colorado Attorney General Cynthia Coffman said.

For decades, the black market was the only source of recreational marijuana in America. But in 2012, Colorado voters approved a ballot initiative to legalize the drug. Seven states followed in 2014 and 2016. Now, nearly 65 million Americans live in states where adults can legally consume marijuana for any reason.

Legalization advocates have long argued that regulating marijuana forces the industry out of the shadows and into the public eye, where the drug can be taxed and the black market effectively eliminated. But because marijuana remains illegal in so many states, smugglers can take advantage of the patchwork of laws. A pound of marijuana might sell for about $2,000 in Colorado but could fetch three times as much in a large East Coast city.  Less marijuana is crossing the U.S. border, according to the U.S. Border Patrol. The agency's marijuana seizures dropped by almost half between 2011 and 2016, falling from 2.5 million pounds to 1.3 million pounds.

August 1, 2017 in Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Thursday, July 27, 2017

Senate committee preserves spending limit precluding DOJ interference with medical marijuana regimes

As this new piece from The Hill reports, the "Senate Appropriations Committee approved an amendment to a budget bill on Thursday to protect medical marijuana programs from federal interference in states that have legalized the drug for medical use." Here is more:

The amendment to the 2018 Commerce, Justice and Science appropriations bill passed by a voice vote and prohibits the Justice Department from using funds to prevent states from "implementing their own state laws that authorize the use, distribution, possession or cultivation of medical marijuana."

"The federal government can't investigate everything and shouldn't, and I don't want them pursuing medical marijuana patients who are following state law," said Sen. Patrick Leahy (D-Vt.), who offered the amendment. Leahy argued that the Department of Justice (DOJ) should be focusing its limited resources on more legitimate threats.

"We have more important things for the Department of Justice to do than tracking down doctors or epileptics using medical marijuana legally in their state," he said. Sen. Richard Shelby (R-Ala.), however, argued that while civil liberties and states' rights are important, telling DOJ not to enforce federal laws goes against legal principles. "If Congress wants to tell the Department of Justice to stop enforcing the medical marijuana laws, then it should change the authorization within the Judiciary Committee, not through an appropriations provision," he said.

The amendment passed despite a letter Attorney General Jeff Sessions sent in May asking House and Senate leadership not to block DOJ from using funds to enforce federal marijuana laws. "I believe it would be unwise for Congress to restrict the discretion of the Department to fund particular prosecutions, particularly in the midst of an historic drug epidemic and potentially long-term uptick in violent crime," Session wrote in the letter first obtained by Massroots.com and later confirmed by The Washington Post. "The Department must be in a position to use all laws available to combat the transnational drug organizations and dangerous drug traffickers who threaten American lives."

Rep. Dana Rohrabacher (R-Calif.) told The Hill on Thursday that he plans to once again offer the amendment to the House Commerce, Justice and Science Appropriations bill, which passed the appropriations committee earlier this month. When asked if he's expecting a fight on the floor, where he'll be forced to offer the amendment, Rohrabacher said he hopes there isn't one "but if there is, clearly we will win."

July 27, 2017 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Thursday, July 20, 2017

Big meeting of feds and state/local officials in Colorado portends...?

As reported in this US News & World Report article, headlined "Feds Tour Colorado in DOJ Pot Review: Recommendations are due next week on whether to crush state-legal weed," there is some new activity in the arena of federal review of state marijuana reform. But what the new activity will lead to remains unclear. Here are excerpts:

Federal officials asked seemingly mundane questions during a Tuesday meeting in Colorado with state officials, at least some of whom were unaware that the discussion was part of a shadowy review of federal marijuana policy. The meeting provides the best glimpse yet into the issues authorities are considering as they prepare to make recommendations next week on what to do about state-legal recreational marijuana, with options ranging from a crackdown to keeping the status quo.

The guest list on Tuesday included Justice Department attorney Michael Murray, who is leading the department's marijuana policy review, and a State Department official with expertise in treaty obligations, according to Mark Bolton, deputy legal counsel to Colorado Gov. John Hickenlooper, a Democrat. John Zadrozny, a domestic policy adviser at the White House, was in the room, as were two representatives of the White House Office of National Drug Control Policy, says Bolton, who also attended.

A person with knowledge of the meeting's purpose says the gathering and another meeting Wednesday with officials from the city of Colorado Springs are directly related to the ongoing federal pot policy review. The source asked not to be identified. Bolton says he was unaware that the meeting – which featured about 20 state agency representatives -- was directly related to the policy review....

The only question that Bolton recalls Murray asking dealt with whether 2014 guidance from the Treasury Department's Financial Crimes Enforcement Network (FinCen) remains "up to date," he says. That guidance outlined how banks can work with pot businesses, but many financial institutions remain reluctant to take on the compliance burden or perceived risk involved in handling cash for cannabis firms operating in violation of federal law. "I don't remember him asking other questions, but it may be they weren't questions that resonated with me," Bolton says.

The State Department official asked if there had been significant problems with diversion of Colorado marijuana to other countries, Bolton says. A representative of the Colorado Department of Public Safety said that is not a significant problem....

The ONDCP representatives at the meeting asked about educational efforts and about continued black- and gray-market sales, Bolton says. He can't recall Zadrozny asking any questions....

Bolton says state officials shared how Colorado uses marijuana tax revenue – estimated to exceed $500 million since recreational sales began in 2014 – to educate the public about the risks of the drug and about responsible use, and that officials pointed out teen use has not increased. He says participants did not directly address the possible consequences of repealing the Justice Department's 2013 Cole Memo, which allowed recreational pot stores to open....

Hickenlooper was not present at the meeting. But Bolton believes invitations extended by the governor during an April meeting with Attorney General Jeff Sessions, as well as an invitation by Colorado Attorney General Cynthia Coffman, a Republican, inspired the visit. It's unclear if federal officials are touring other states as part of their policy review....

After meeting with state officials, a group of feds met Wednesday with legalization foes in Colorado Springs. No supporters of regulating recreational sales attended, KKTV reported after staking out the meeting and later interviewing Mayor John Suthers, a former U.S. attorney and state attorney general who opposes marijuana legalization. "A lot of [the meeting dealt with] sensitive case investigations. That's another reason why it couldn't be public," Suthers told the station. "Probably most of the discussion centered around the huge black market that exists for marijuana in Colorado." Suthers said the city's police department created the guest list, which included a local doctor and a school district director of discipline. The mayor and the police chief were unable to provide immediate comment....

KKTV reported a member of Vice President Mike Pence's staff and at least one member of the DEA also attended the Colorado Springs meeting. Pence's office did not immediately respond to a request for comment, and the national DEA headquarters referred questions to the local office, which did not immediately respond.

Although the Justice Department could launch a devastating legal assault on state-regulated recreational marijuana, medical marijuana currently is protected from federal prosecutors and anti-drug agents by a budget restriction passed in Congress. And in Colorado, state legislators approved legislation earlier this year allowing businesses to reclassify recreational pot as medical marijuana if the need arises.

July 20, 2017 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (1)

Tuesday, July 18, 2017

Massachusetts top court issues major ruling allowing medical marijuana user to pursue lawsuit against employer after her termination

As reported in this Boston Globe piece, headlined "Ruling means Mass. companies can’t fire workers for medical marijuana," the top court in Massachusetts issued a significant employment law ruling yesterday on behalf of a medical marijuana patient. Here are the basics from the press report:

Massachusetts companies cannot fire employees who have a prescription for medical marijuana simply because they use the drug, the state’s highest court ruled Monday, rejecting employers’ arguments that they could summarily enforce strict no-drug policies against such patients.

Supreme Judicial Court Chief Justice Ralph D. Gants said a California sales and marketing firm discriminated against an employee of its Massachusetts operation who uses marijuana to treat Crohn’s disease when it fired her for flunking a drug test.

In Massachusetts, Gants wrote, “the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication.” Therefore, he said, employers can’t use blanket anti-marijuana policies to dismiss workers whose doctors have prescribed the drug to treat their illnesses.

Instead, antidiscrimination laws require companies to attempt to negotiate a mutually acceptable arrangement with each medical marijuana patient they employ, such as exploring alternative medications or allowing use of the drug only outside of work hours. The ruling overturned a lower court’s dismissal of a lawsuit against brought in 2015 by Cristina Barbuto of Brewster, who was fired by Advantage Sales and Marketing after just one day on the job because she tested positive for marijuana.

Barbuto said she told the company during interviews that she uses cannabis several nights a week — not before or during work hours — to treat her Crohn’s disease, a chronic inflammatory disorder that affects the digestive tract and can inhibit appetites. She said the local hiring manager told her it would not be a problem, and that she was blindsided by her dismissal....

Advocates called the ruling long overdue, and said they expected that other medical marijuana patients who had been fired over their use of the drug would soon contest their dismissals. “We are thrilled that the Supreme Judicial Court of Massachusetts has ruled in favor of compassion for people that use medical marijuana for a range of debilitating conditions,” the Massachusetts Patient Advocacy Alliance, which sponsored the state’s successful 2012 medical marijuana ballot initiative, said in a prepared statement.

A business group that interceded in the case, however, said the ruling would especially hurt small companies that don’t have the resources or expertise to negotiate accommodations for marijuana patients. “This is opening small business owners up to a ton of litigation,” said Karen Harned, the executive director of the National Federation of Independent Business Small Business Legal Center, which filed a brief in support of Advantage. “It’s making their lives harder because they can no longer have a clear drug-free-workplace policy.”

The decision doesn’t mean employers can never fire a patient for using marijuana medically; firms that contract with the federal government, for example, or where workers operate heavy machinery, could argue that accommodating their employees’ use of the drug constitutes an “undue hardship.” But the ruling puts the burden on employers to prove they cannot accommodate medical marijuana patients because their cannabis use impairs their ability to do required work, endangers public safety, or otherwise demonstrably endangers the business, Gants wrote.

“Employers can still prevail,” said Chris Feudo, an attorney at Foley Hoag who represents companies in employment disputes. “Employees aren’t entitled to the accommodation they want; they’re entitled to a reasonable accommodation — and sometimes, there isn’t one.” Still, Feudo said, the ruling will have “really wide implications.”

The full ruling in Barbuto v. Advantage Sales and Marketing, LLC, No. SJC 12226 (Mass. July 17, 2017), is available at this link.  And it gets started this way:

In 2012, Massachusetts voters approved the initiative petition entitled, "An Act for the humanitarian medical use of marijuana," St. 2012, c. 369 (medical marijuana act or act), whose stated purpose is "that there should be no punishment under state law for qualifying patients . . . for the medical use of marijuana." Id. at § 1. The issue on appeal is whether a qualifying patient who has been terminated from her employment because she tested positive for marijuana as a result of her lawful medical use of marijuana has a civil remedy against her employer. We conclude that the plaintiff may seek a remedy through claims of handicap discrimination in violation of G. L. c. 151B, and therefore reverse the dismissal of the plaintiff's discrimination claims. We also conclude that there is no implied statutory private cause of action under the medical marijuana act and that the plaintiff has failed to state a claim for wrongful termination in violation of public policy, and therefore affirm the dismissal of those claims.

July 18, 2017 in Business laws and regulatory issues, Court Rulings, Employment and labor law issues, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (2)

Wednesday, July 12, 2017

"Mapping medical marijuana: State laws regulating patients, product safety, supply chains and dispensaries, 2017"

CoverThe title of this post is the title of this useful new article in the publication Addiction authored by numerous researchers.  Here is the article's abstract:

Aims

1) To describe open source legal datasets, created for research use, that capture the key provisions of U.S. state medical marijuana laws. The data document how state lawmakers have regulated a medicine that remains, under federal law, a Schedule I illegal drug with no legitimate medical use. 2) To demonstrate the variability that exists across states in rules governing patient access, product safety, and dispensary practice.

Methods

Two legal researchers collected and coded state laws governing marijuana patients, product safety, and dispensaries in effect on February 1, 2017, creating three empirical legal datasets. We used summary tables to identify the variation in specific statutory provisions specified in each state's medical marijuana law as it existed on February 1, 2017. We compared aspects of these laws to the traditional Federal approach to regulating medicine. Full datasets, codebooks and protocols are available through the Prescription Drug Abuse Policy System (http://www.pdaps.org/ ; http://www.webcitation.org/6qv5CZNaZ).

Results

Twenty-eight states (including the District of Columbia) have authorized medical marijuana. Twenty-seven specify qualifying diseases, which differ across states. All but two protect patient privacy; only 14 protect patients against discrimination. Eighteen states have mandatory product safety testing before any sale. While the majority have package/label regulations, states have a wide range of specific requirements. Most regulate dispensaries (25 states), with considerable variation in specific provisions such as permitted product supply sources (23 states), number of dispensaries per state (18 states) and restricting proximity to various types of location (21 states).

Conclusions

The federal ban in the USA on marijuana has resulted in a patchwork of regulatory strategies that are not uniformly consistent with the approach usually taken by the Federal government and whose effectiveness remains unknown.

July 12, 2017 in History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Thursday, July 6, 2017

Florida medical marijuana advocate sues after legislature blocks smoking as means to consumption

As reported in this local article, "John Morgan, the Orlando trial lawyer who spearheaded and financed the successful campaign to make medical access to cannabis a constitutional right, filed the lawsuit in Leon County Circuit Court Thursday morning, asking the court to declare the [legislatively developed] law implementing the 2016 constitutional amendment unenforceable.  Here is more about this lawsuit:

Arguing that Florida legislators violated voters’ intent when they prohibited smoking for the medical use of marijuana, the author of the state's medical marijuana amendment sued the state on Thursday to throw out the implementing law....

“By redefining the constitutionally defined term ‘medical use' to exclude smoking, the Legislature substitutes its medical judgment for that of ‘a licensed Florida physician’ and is in direct conflict with the specifically articulated Constitutional process,” the lawsuit states.

More than 71 percent of Florida voters approved the amendment in November 2016, the largest percentage of support a medical marijuana initiative has received by popular vote, Morgan said. The amendment allowed the Legislature to address smoking — but only by prohibiting it in public places, he said, anything more violates the intent of the Constitution.  “If something is not allowed in public, it is allowed in private,” Morgan said at a press conference outside the Leon County Courthouse. “It’s as clear to all of you as it is to any first grader taking first-grade logic.”...

If the court agrees and invalidates the law implementing the amendment, the task of writing the rules for implementing the new amendment will fall to the Florida Department of Health.

The legislation allows for edibles and “vaping” as a delivery system for THC and cannabinoids.  It also provided funding for the Moffitt Cancer Center in Tampa to conduct research into the uses and effectiveness of medical marijuana.  But the House sponsor of the law, Rep. Ray Rodrigues, R-Estero, called smoking a “backdoor attempt at recreational” use of marijuana.  Sen. Rob Bradley, R-Fleming Island, the Senate sponsor, called the measure, which passed during the June special session, “patient-first legislation” that “will expand access to this medicine, while ensuring safety through a unified regulatory structure for each component of the process from cultivation to consumption."

But Morgan, who uses the hashtag #NoSmokeIsAJoke, argues that the legislative claim has been a “bogus argument from Day 1,” and if they were truly interested in keeping the public safe from smoking, they would have taxed tobacco “to the hilt.”  Instead, he said, their arguments enforce what he believes is a quiet campaign against marijuana fueled by “Big Pharma,” which has capitalized on the explosion of opioid abuse.  “I don’t know what drives these politicians other than money and donors,’’ he said.

He said that in the next few weeks he will add to the lawsuit patients suffering from ALS disease, epilepsy and other ailments for whom smoking marijuana is the best way to treat their symptoms.  The lawsuit cites a 2012 study published in the Journal of the American Medical Association and funded by the National Institute on Drug Abuse that found smoking marijuana does not not impair lung function and, when not used heavily, was shown to increase lung capacity.  “Despite decades of marijuana being used for smoking in the United States, there have been no reported medical cases of lung cancer or emphysema attributed to marijuana,” the lawsuit said.

Smart Approaches to Marijuana, a non-profit, non-partisan organization that promotes federal funding of marijuana research, blasted the lawsuit as “nothing more than a smokescreen designed to bypass the FDA and open the doors to a new for-profit, retail commercial marijuana industry in Florida.”

“There's a reason why every single major medical association opposes the use of the raw, smoked form of marijuana as medicine: smoke is not a reliable delivery system, it's impossible to measure dosage, and it contains hundreds of other chemical compounds that may do more harm than good,” said Dr. Kevin Sabet, president of the group, in a statement.

Calvina Fay, executive director of the anti-marijuana group Drug Free America Foundation, also criticized the lawsuit.  “While not perfect, the legislation succeeded in finding a balance that protects the public health and safety of all Floridians while allowing the legal access to marijuana that was approved by voters," she said in a statement.

Morgan counters that those arguments miss the point. “If you are on your death bed, or on your bed in debilitating pain, who really cares if you smoke?” he said.  He warns that by aggressively working against the implementation of what voters supported, legislators have inadvertently “kicked the door wide open for recreational marijuana use in Florida.”  If they don’t allow for smoking as a medical use, the newly formed industry will “bankroll a constitutional amendment to put recreational marijuana on the ballot...and I believe it will pass with 60 percent of the vote," he said.

July 6, 2017 in Initiative reforms in states, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (1)