Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Thursday, September 7, 2017

"How Extensive is Inter-State Diversion of Recreational Marijuana?"

The title of this post is the title of this timely new paper available via SSRN (for a price) and authored by Benjamin Hansen, Keaton Miller and Caroline Weber.  Here is the abstract:

Despite federal prohibition, recreational marijuana is available to 21% of the United States population.  A chief concern among policy makers across multiple levels of government and political parties is inter-state diversion of marijuana from states with legal markets to others.  We measure this diversion with a natural experiment. Oregon opened a recreational market on October 1, 2015 next to an existing market in Washington, which opened on July 8, 2014.

Using comprehensive administrative data on the universe of Washington sales, we find Washington retailers along the Oregon border experienced a 41% decline in sales immediately following Oregon's market opening. Retailers along Washington's borders with Idaho and Canada experienced no such decline.  The decline occurred equally across weekdays and weekends, and was largest among the largest transaction sizes, suggesting diversion, not drug tourism, was to blame.  Our estimates suggest that 11.9% of the marijuana sold in Washington was diverted out of the state before Oregon legalized and 7.5% remains diverted today.

September 7, 2017 in Business laws and regulatory issues, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Wednesday, September 6, 2017

GOP leaders apparently blocking vote on amendment to limit DOJ funding for medical marijuana prosecutions

As reported here by The Hill, "lawmakers said Wednesday that GOP leaders won’t allow the full House to vote on an amendment that bars the Justice Department from pursuing states that have legalized medical marijuana."  Here is more:

At a Wednesday morning closed-door briefing of House Republicans, California Rep. Dana Rohrabacher (R) implored his GOP colleagues to press House leaders to allow a vote on his amendment.  Fellow Californian Rep. Duncan Hunter told The Hill that after Rohrabacher “talked about it this morning in conference,” GOP leaders said “it splits the conference too much so we’re not going to have a vote on it.”

Rohrabacher had pled with his colleagues in a Tuesday night floor speech to allow the vote. “The status quo for four years has been the federal government will not interfere because the Department of Justice is not permitted to use its esources to supercede a state that has legalized the medical use of marijuana,” Rohrabacher said.  He said that without his amendment, “we’re changing the status quo in a way that undermines the rights of the states and the people … to make their policy.”

Rohrabacher’s amendment, co-sponsored with Democratic Rep. Earl Blumenauer (Ore.), was included in the previous four Commerce-Justice-Science funding measures, when President Obama was in the White House. It was also included in an omnibus funding bill signed by President Trump earlier this year that expires at the end of the month.

House Speaker Paul Ryan (R-Wis.) and Majority Leader Kevin McCarthy’s (R-Calif.) offices did not respond to requests for comment.

September 6, 2017 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate | Permalink | Comments (1)

Tuesday, September 5, 2017

Representative Rohrabacher explains why "fellow conservatives should protect medical marijuana"

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This new Washington Post commentary authored by Dana Rohrabacher, a Republican who represents California's 48th District in the US House of Representatives, seeks to make the case for the federal government to stay out of state medical marijuana reform efforts. The piece is headlined "My fellow conservatives should protect medical marijuana from the government." Here are excerpts:

With my Democrat friend Sam Farr, the now-retired California congressman, I wrote an amendment to spending bills that prohibits the federal government from prosecuting medical marijuana cases in states where voters have legalized such treatment. The amendment passed two consecutive years, the second time with a wider margin than the first, and has been extended through continuing resolutions and an omnibus spending bill.

Surprisingly, given the Obama administration’s generally liberal approach to marijuana, its Justice Department tried to interpret the amendment in such a convoluted way as to allow counterproductive raids on marijuana dispensaries. The courts — most recently the U.S. Court of Appeals for the 9th Circuit — repeatedly ruled that our amendment meant exactly what it said.

Unfortunately, my longtime friend Jeff Sessions, the attorney general, has urged Congress to drop the amendment, now co-sponsored by Rep. Earl Blumenauer (D-Ore.). This, despite President Trump’s belief, made clear in his campaign and as president, that states alone should decide medical marijuana policies.

I should not need to remind our chief law enforcement officer nor my fellow Republicans that our system of federalism, also known as states’ rights, was designed to resolve just such a fractious issue. Our party still bears a blemish for wielding the “states’ rights” cudgel against civil rights. If we bury state autonomy in order to deny patients an alternative to opioids, and ominously federalize our police, our hypocrisy will deserve the American people’s contempt.

More than half the states have liberalized medical marijuana laws, some even decriminalizing recreational use. Some eighty percent of Americans favor legalization of medical marijuana. Only a benighted or mean-spirited mind-set would want to block such progress.

Despite federal efforts to restrict supply, studies continue to yield promising results.  And mounting anecdotal evidence shows again and again that medical marijuana can dramatically improve the lives of people with epilepsy, post-traumatic stress disorder, arthritis and many other ailments.  Most Americans know this.  The political class, not surprisingly, lags behind them.  Part of the reason is the failure of too many conservatives to apply “public choice economics” to the war on marijuana.  Common sense, as well as public choice theory, holds that the government’s interest is to grow, just as private-sector players seek profit and build market share.

The drug-war apparatus will not give ground without a fight, even if it deprives Americans of medical alternatives and inadvertently creates more dependency on opioids. When its existence depends on asset seizures and other affronts to our Constitution, why should anti-medical-marijuana forces care if they’ve contributed inadvertently to a vast market, both legal and illegal, for opioids?

I invite my colleagues to visit a medical marijuana research facility and see for themselves why their cultural distaste might be misplaced.  One exists near my district office at the University of California at Irvine, another at the University of California at San Diego.

Better yet, they might travel to Israel — that political guiding light for religious conservatives — and learn how our closest ally in the Middle East has positioned itself on the cutting edge of cannabis research.  The Israeli government recently decriminalized first use, so unworried it is about what marijuana might do to its conscript military.

My colleagues should then return to Washington and keep my amendment intact, declaring themselves firmly on the side of medical progress.  Failing that, the government will keep trying to eradicate the burgeoning marijuana business, thereby fueling and enriching drug cartels. Trust me: Hugs from grateful supporters are infinitely better.

September 5, 2017 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

"How legalization caused the price of marijuana to collapse: Pot has never been so cheap."

The title of this post is the headline of this new Wonkblog analysis authored by Keith Humphreys at The Washington Post.  Here is how it starts and ends:

All the diverse effects of legalizing recreational marijuana may not be clear for a number of years, but one consequence has become evident almost immediately: Pot has never been so cheap.  Steven Davenport of the Pardee Rand Graduate School has analyzed marijuana retail prices in Washington state since legal recreational markets opened in July 2014.  Remarkably, prices have fallen every single quarter since....

The ongoing decline in marijuana’s price after legalization has an important implication for drug policy more generally.  The experience of Washington and other marijuana legalization states demonstrates how enormously effective prohibition of production and sale is at raising drug prices.  For example heroin’s price took a decade to fall by 16 percent, which the legalization of marijuana accomplished in just eight months.  Notably, even high taxes on legal marijuana don’t keep the legal price anywhere near what it was when the drug was more broadly illegal.

Prohibition imposes huge costs on drug producing industries that are passed on to consumers in the form of higher prices.  These higher prices are one of the principal reasons (the others being stigma and fear of punishment) that illegal drugs are used so much less frequently than legal drugs such as alcohol and tobacco.  Marijuana is a rare example where we can see the impact of legalizing a drug in real time, which shows that were the production and sale of heroin, cocaine and methamphetamine also legalized, those drugs would also become dramatically cheaper to consume.

September 5, 2017 in Business laws and regulatory issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research | 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)

"Unforeseen Land Uses: The Effect of Marijuana Legalization on Land Conservation Programs"

The title of this post is the title of this new paper authored by Jessica Owley now available via SSRN. Here is the abstract:

This Article explores the tension between land conservation and marijuana cultivation in the context of legalization.  The legalization of marijuana has shifted the locations of marijuana cultivation and with that shift comes environmental and land-use implications.  Investigating commercial-scale marijuana cultivation, this Article details how, in some ways, legalization can reduce environmental impacts of marijuana cultivation while also examining tricky issues regarding tensions between protected lands and marijuana cultivation.

Legalization of marijuana has brought its production out of the federal forests and individuals’ basements and closets and into large-scale agricultural production.  In some ways, the legitimation of the process makes it less likely to be environmentally destructive. If we treat cultivation of marijuana the same as we treat cultivation of other agricultural crops, we gain stricter regulation of the growing process, including limits on pesticide usage, water pollution, wetland conversion, air pollution, and local land-use laws.  Thus, it appears that legalization of marijuana yields an environmental benefit. And yet the story is, of course, more complicated than that.  The strange status of marijuana as both a federally impermissible use and a stigmatized crop suggest that it will not fall under the same legal regimes as other agricultural products.

The Article reaches two main conclusions.  First, in the absence of federal regulations, subnational governments must create and implement environmental and land use regulations governing the cultivation of marijuana to ensure the legal grows do not continue the harmful practices involved with black market marijuana.  Second, land trusts and agricultural protection organizations should not become involved with marijuana cultivation in any form while it remains illegal at the federal level.  To do so puts both the land and their operations at risk.

September 3, 2017 in Business laws and regulatory issues, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Friday, September 1, 2017

"Make Pot Legal for Veterans With Traumatic Brain Injury"

The title of this post is the headline of this notable op-ed in today's New York Times authored by Thomas James Brennan, a former sergeant in the Marine Corps. Here is much of what he has to say: 

The explosion that wounded me during a Taliban ambush in Afghanistan in 2010 left me with a traumatic brain injury and post-traumatic stress. In 2012 I was medically retired from the Marine Corps because of debilitating migraines, vertigo and crippling depression. After a nine-year career, I sought care from the Department of Veterans Affairs.

At first, I didn’t object to the pills that arrived by mail: antidepressants, sedatives, amphetamines and mood stabilizers. Stuff to wake me up. Stuff to put me down. Stuff to keep me calm. Stuff to rile me up. Stuff to numb me from the effects of my wars as an infantryman in Iraq and Afghanistan. Stuff to numb me from the world all around.  The T.B.I. brings on almost daily migraines, and when they come, it’s as if the blast wave from the explosion in Afghanistan is still reverberating through my brain, shooting fresh bolts of pain through my skull, once again leaving me incapacitated. Initially the prescriptions helped — as they do for many veterans. But when I continued to feel bad, the answers from my doctors were always the same: more pills. And higher dosages. And more pills to counteract the side effects of those higher dosages. Yet none of them quite worked.

One thing did. In 2013, a friend rolled a joint and handed it to me, urging me to smoke it later. It will relieve your symptoms, he promised. That night I anxiously paced around my empty house. I hesitated to light it up because I’d always bought into the theory of weed as a “gateway drug.” But after a few tokes, I stretched out and fell asleep. I slept 10 hours instead of my usual five or six. I woke up feeling energized and well rested. I didn’t have nightmares or remember tossing or turning throughout the night, as I usually did. I was, as the comedian Katt Williams puts it, “hungry, happy, sleepy.”

With the help of my civilian psychiatrist, I began trading my pill bottles for pipes and papers. I also began to feel less numb. I started to smile more often. I thought I had found a miracle drug. There was just one problem: That drug was illegal. In 21 states, including North Carolina, where I live, any use of marijuana is forbidden under state law. The current punishments for those who possess or cultivate cannabis — even for medical purposes — may include a felony conviction and imprisonment, loss of child custody and permanent damage to their livelihood. The V.A. encourages veterans to discuss their cannabis use with their doctors, but because cannabis is also prohibited under federal law, the V.A. cannot prescribe it in any form — thereby denying countless veterans relief to many mental health symptoms and other service-connected disabilities.

The medical benefits of marijuana for the more than 360,000 post-Sept. 11 veterans who have brain injuries are not universally recognized. (As many as one in five veterans are thought to have post-traumatic stress.) But medical experts like Dr. Frank Ochberg, a psychiatrist and former associate director of the National Institute of Mental Health, believe that “medical marijuana absolutely belongs in the pharmacy for post-traumatic stress and brain injury treatment.” The V.A., Dr. Ochberg said, “is failing veterans by not making cannabis a treatment option.”...

Most of the major veterans groups, including the American Legion, Iraq and Afghanistan Veterans of America, Veterans of Foreign Wars and Disabled American Veterans, support regulated research into the medical uses of cannabis. But the research is slow in coming: Since 1968, the University of Mississippi has been home to the only licensed facility to produce cannabis for clinical research. In March it was reported that the university’s cannabis was contaminated with lead, yeast and mold — substances that jeopardize research efficacy and patient safety.

What I know is that it works for me. If I hadn’t begun self-medicating with it, I would have killed myself. The relief isn’t immediate. It doesn’t make the pain disappear. But it’s the only thing that takes the sharpest edges off my symptoms. Because of cannabis, I’m more hopeful, less woeful. My relationship with my wife is improving. My daughter and I are growing closer. My past is easier to remember and talk about. My mind is less clouded. More than anything, it feels good to feel again. My migraines and depression don’t control my life. Neither do pills.

But I live in fear that I will be arrested purchasing an illegal drug. I want safe, regulated medical cannabis to be a treatment option. Just like the sedatives and amphetamines the V.A. used to send me by mail. And the opioids they still send to my friends.

September 1, 2017 in Federal Marijuana Laws, Policies and Practices, Medical community perspectives, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)

Thursday, August 31, 2017

"Buzz Kill for Pot Farmers: Lower Prices"

BF-AT618_POTFAR_16U_20170830162105The title of this post is the headline of this Wall Street Journal article reporting on the modern economic realities of the marijuana marketplace moving from black to gray. Here are excerpts:

From Washington to Colorado, wholesale cannabis prices have tumbled as dozens of states legalized the drug for recreational and medicinal uses, seeding a boom in marijuana production. The market is still tiny compared with the U.S. tobacco industry’s $119 billion in annual retail sales, but the nascent cannabis business has grown to more than $6 billion a year at retail, according to data from Euromonitor International Ltd. and Cowen & Co..

For marijuana smokers, the price drop is sweet news. Recreational users and those prescribed cannabis for health reasons have seen prices decline as wholesale prices have fallen, though some retailers have pocketed part of the difference, according to New Leaf Data Services LLC, which researches the U.S. cannabis market....

But for growers—ranging from high-tech warehouse operations to back-country pot farmers gone legit—the price drop has been painful. Since peaking in September 2015 at about $2,133 a pound, average U.S. wholesale cannabis prices fell to $1,614 in July, according to New Leaf. That is the sort of market decline that hit Midwestern corn and soybean growers in recent years after a string of record-breaking crops. “There is an increasing recognition, on the part of the industry and those that grow and dispense, that this market is a commodity,” said Jonathan Rubin, New Leaf’s chief executive.

In response, some producers are taking a page from the food industry, where farmers and food companies increasingly appeal to health- and environment-conscious consumers. Growth in organic food products for years has outpaced conventional grocery sales, and products made without genetically modified crops, gluten and artificial flavorings can command premium pricing and shelf space....

Because cannabis remains illegal under federal law, growers can’t get their crops certified as organic, a label that can only be bestowed by the U.S. Department of Agriculture. Cannabis farmers instead have turned to alternative labels such as SunGrown Certified, which requires that growers use sunlight and water-conservation practices. They hope such labels will entice smokers and secure shelf space in the 29 states where marijuana is legal in some form....

That push to differentiate is splitting pot farmers into rival camps. Indoor-grown cannabis, where climate controls and high-powered lights allow several crops per year, typically is of a more consistent quality, industry officials say. Its dense, often bright-green buds catch consumers’ eyes, often fetch a higher price and can be costlier to produce.

Proponents of marijuana grown outdoors and in greenhouses say indoor facilities rely on synthetic fertilizers and heavily consume electricity. They point to a 2012 paper by University of California Senior Scientist Evan Mills, which estimated that indoor cannabis production accounted for 1% of national electricity use, though some growers have been adopting LED lights, which consume less electricity.

Jeremy Moberg, owner of Riverside, Wash.-based CannaSol Farms and head of the Washington Sungrowers Industry Association, says marijuana smokers will come to care about the environmental cost of their high. “The socially conscious, premium customer is going to want us because we’re sustainable,” he said. “It only takes me 30 seconds to convert somebody wearing Patagonia and driving a Prius that they should never smoke indoor weed again.”

At Hashtag Cannabis in Seattle, Ms. Pillert said customers occasionally ask for pesticide-free or sun-grown varieties. Smokers’ main fixation, she said, is the potency rating for the key active ingredient, tetrahydrocannabinol, or THC: “They want to make sure they are getting the biggest bang for their buck.”

Many in the emergent industry expect marijuana to eventually resemble the beer business, where pricier craft brews have built followings in the shadow of cheaper mass-market beers like Budweiser and Busch. While high-quality strains and specialty brands may secure premium prices, more low-quality marijuana will be processed into oil used in vaporizer cartridges or adult-oriented baked goods like brownies and cookies, growers and retailers said.

August 31, 2017 in Business laws and regulatory issues, Race, Gender and Class Issues, Recreational Marijuana Data and Research | Permalink | Comments (0)

Wednesday, August 30, 2017

New SAM report, asserting legalization states "​have ​not ​fulfilled ​the ​requirements ​of ​the ​Cole Memo," urges federal law enforcement to target big players in marijuana industry

Download (4)Smart Approaches to Marijuana, the leading public policy group advocating against most state-level marijuana reforms, has released today this new  report titled "The​ ​Cole​ ​Memo:​ ​4​ ​Years​ ​Later: Status Report on State Compliance of Federal Marijuana Enforcement Policy." Here are parts of this SAM report's introduction and conclusion:

On ​August ​29, ​2013, ​the ​U.S. ​Department ​of ​Justice ​(DOJ) ​issued ​guidelines ​to ​Federal prosecutors ​and ​law ​enforcement ​officials ​regarding ​where ​to ​focus ​their ​drug ​enforcement efforts ​in ​states ​that ​have ​passed ​laws ​legalizing ​the ​retail ​sales ​of ​marijuana. ​The ​so-called “Cole ​Memo” ​directs ​enforcement ​officials ​to ​focus ​resources, ​including ​prosecutions, ​“on persons ​and ​organizations ​whose ​conduct ​interferes ​with ​any ​one ​or ​more ​of ​[eight] ​priorities, regardless ​of ​state ​law.”...

According ​to ​the ​Department ​of ​Justice, ​the ​Federal ​“hands-off” ​approach ​to ​marijuana enforcement ​enumerated ​in ​the ​Cole ​Memo ​is ​contingent ​on ​its ​expectation ​that ​“states ​and local ​governments ​that ​have ​enacted ​laws ​authorizing ​marijuana-related ​conduct ​will ​implement strong ​and ​effective ​regulatory ​and ​enforcement ​systems ​that ​will ​address ​the ​threat ​those state ​laws ​could ​pose ​to ​public ​safety, ​public ​health, ​and ​other ​law ​enforcement ​interests. ​A system ​adequate ​to ​that ​task ​must ​not ​only ​contain ​robust ​controls ​and ​procedures ​on ​paper, ​it must ​also ​be ​effective ​in ​practice.”

Unfortunately, ​since ​Colorado ​and ​Washington ​became ​the ​first ​states ​to ​legalize ​the recreational ​sale ​of ​marijuana ​in ​2012, ​evidence ​has ​emerged ​that ​regulations ​intended ​to control ​the ​sale ​and ​use ​of ​marijuana ​have ​failed ​to ​meet ​the ​promises ​made ​by ​advocates ​for legalization. ​For ​example, ​states ​with ​legal ​marijuana ​are ​seeing ​an ​increase ​in drugged ​driving crashes ​and youth ​marijuana ​use. ​States ​that ​have ​legalized ​marijuana ​are ​also failing ​to ​shore up ​state ​budget ​shortfalls ​with ​marijuana ​taxes, ​continuing ​to ​see ​a ​thriving ​illegal black ​market, and ​are ​experiencing ​an unabated ​sales ​of ​alcohol, ​despite ​campaign ​promises ​from ​advocates promising ​that ​marijuana ​would ​be ​used ​as ​a ​“safer” ​alternative ​instead.

Moreover, ​state ​regulatory ​frameworks ​established ​post-legalization ​have ​failed ​to ​meet ​each ​of the ​specific ​DOJ ​requirements ​on ​controlling ​recreational ​marijuana ​production, ​distribution, ​and use. ​While ​long-term ​studies ​and ​research ​on ​the ​public ​health ​and ​safety ​impacts ​of ​marijuana legalization ​are ​ongoing, ​this ​report ​provides ​a ​partial ​census ​of ​readily ​available ​information that ​demonstrates ​how ​Colorado, ​Oregon, ​and ​Washington ​State ​- ​the ​jurisdictions ​with ​the most ​mature ​regulatory ​markets ​and ​schemes ​- ​have ​not ​fulfilled ​the ​requirements ​of ​the ​Cole Memo....

Federal ​resources ​should ​target ​the ​big ​players ​in ​the ​marijuana ​industry. ​Individual ​marijuana users ​should ​not ​be ​targeted ​or ​arrested, ​but ​large-scale ​marijuana ​businesses, ​several ​of ​which now ​boast ​of ​having ​raised ​over ​$100 ​million ​in ​capital, ​and ​their ​financial ​backers, ​should ​be ​a priority. ​These ​large ​businesses ​are ​pocketing ​millions ​by ​flouting ​federal ​law, ​deceiving Americans ​about ​the ​risks ​of ​their ​products, ​and ​targeting ​the ​most ​vulnerable. ​They ​should ​not have ​access ​to ​banks, ​where ​their ​financial ​prowess ​would ​be ​expanded ​significantly, ​nor should ​they ​be ​able ​to ​advertise ​or ​commercialize ​marijuana....

These ​large ​marijuana ​operations, ​which ​combine ​the ​tactics ​of ​Big ​Tobacco ​with ​black marketeering, ​should ​form ​the ​focus ​of ​federal ​law ​enforcement, ​not ​individual ​users. ​At ​the same ​time, ​the ​federal ​government ​along ​with ​non-government ​partners ​should ​implement ​a strong, ​evidence-based ​marijuana ​information ​campaign, ​similar ​to ​the truth® ​campaign ​for tobacco, ​which ​alerts ​all ​Americans ​about ​the ​harms ​of ​marijuana ​and ​the ​deceitful ​practices ​of the ​marijuana ​industry.

August 30, 2017 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

"Marijuana Legalization and Nosy Neighbor States"

The title of this post is the title of this notable new paper authored by Alex Kreit now available via SSRN. Here is the abstract:

As more states proceed with marijuana legalization laws, questions have arisen about how to accommodate those states that wish to retain prohibition.  For instance, in 2014, Oklahoma and Nebraska unsuccessfully sued Colorado based on the spillover effects that Colorado’s marijuana legalization law had on its neighboring states.  This article asserts that there are several reasons why state marijuana legalization laws are unlikely to have a large effect on neighboring states.

First, marijuana is not a previously unobtainable good being introduced into the stream of commerce, as it is already available through the black market inexpensively. Second, legalization laws have a number of restrictions that make it very difficult for sellers to profit from exporting legally produced marijuana across state lines. Prohibition states may have reason to worry, however, that illegal marijuana growers will be better able to hide their operations in legalization states that allow residents to grow small amounts of marijuana for personal use, which in turn may increase illegal marijuana exports to neighboring prohibition states.  Prohibition states can minimize this risk of increased marijuana flow by lobbying the federal government to establish rules that protect their interests.

August 30, 2017 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Tuesday, August 29, 2017

"A Conservative Approach to Smarter Federal Marijuana Policy"

Download (2)The title of this post is the title of this notable Cato Institute Capitol Hill Briefing slated for September.  Here is how the event is described from the Cato website:

Featuring Tom Garrett (R-VA-05), U.S. Congressman; Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University; Trevor Burrus, Research Fellow, Center for Constitutional Studies, Cato Institute; moderated by Jonathan Blanks, Research Associate, Project on Criminal Justice, Cato Institute.

The legal sale of recreational marijuana remains limited to a handful of states, but 29 states plus the District of Columbia allow the prescription and distribution of medical marijuana.  Ten of those states — which represent 115 electoral votes — went for President Trump in the 2016 election.  National polling shows that just over half of Americans favor marijuana legalization, but a much larger majority want the federal government to leave marijuana alone in states where it is legal.

While candidate Trump promised to protect medical marijuana on the campaign trail, President Trump’s Justice Department wants to be more aggressive against state-legal marijuana under the Controlled Substances Act (CSA).  Ultimately, Congress holds the reins on the Department of Justice’s ability to enforce particular provisions of the CSA and determines which substances should be under federal control.

While marijuana decriminalization is often thought to be a Democrat-friendly topic, some of the best arguments for federal recognition of state marijuana policy rest in traditional Republican values of federalism, deference to local policy choices, and a limited federal government.  Moreover, businesses that have no direct ties to cannabis cultivation or distribution like banks and financial institutions can benefit from clear federal rules that tolerate state-legal marijuana transactions.

Join us for a lunchtime discussion to explore several ways Congress can reshape federal marijuana policy in a manner that is more consistent both with public opinion and the conservative values of limited government, federalism, and local policymaking.

August 29, 2017 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Monday, August 28, 2017

"Here's Why Trump Can't Beat Pot"

In this post from way back in December 2016, I suggested it could prove legally and practically difficult for the incoming Trump Administration to go aggressively after state-level marijuana reforms.  The post was titled "why I seriously doubt future AG Sessions will start a foolish new weed war federal offensive," and it outlined some challenges that might arise were the Trump Department of Justice to try to bring back an era of national federal pot prohibition enforcement by executive fiat.  This post's title, which is much more catchy than my Dec 2016 title, comes from the headline of this lengthy BuzzFeed News piece by Dominic Holden.  This BuzzFeed piece covers more effectively and systematically some of the issues and forces I had in mind back in December, and here are highlights:

Donald Trump said three times while campaigning that pot legalization should be left “up to the states.” But after five weeks in the White House, his former press secretary, Sean Spicer, announced that recreational marijuana — which was legalized by eight states without resulting in a crackdown by the Obama administration — has zero leeway under federal law. “I do believe you’ll see greater enforcement of it,” Spicer told the press corps.

Since then, lots of conventional wisdom says the White House can — and probably will — try to shut down America’s pot experiment. That wisdom looked particularly valid given that Trump’s chief law enforcement officer, Attorney General Jeff Sessions, has sharpened the attacks. He said in February that distributing pot remains illegal “whether a state legalizes it or not,” and turned the screws in March by warning federal prohibition “applies in states where they may have repealed their own anti-marijuana laws.”...

How, exactly, the Trump administration will approach this is TBD.  The Justice Department is currently considering its options. At any time, though, Sessions and Trump could begin raids in Alaska, Colorado, Oregon, Nevada, and Washington state — where thousands of state-licensed pot businesses are already operating in the open. The administration could then argue in court that even issuing pot licenses is superseded by federal law.

Raiding farms and stores may seem simple, at first, but unlike federal pot busts in past years, targeting regulated state systems would present new legal disputes over states' rights.  BuzzFeed News' interviews with law enforcement, former federal prosecutors, state officials, and conservative leaders show a crackdown would give rise to a hydra that pulls Trump into logistical, political, and legal traps — replicating his most humiliating setbacks like the travel ban (legal) and Obamacare (political).

Not only is legalization unprecedentedly popular, a crackdown has grown even more unpopular — and Trump would be destroying jobs in rural districts that voted for him. Possibly most damaging for Trump, though, is that he can’t fully win, because state decriminalization of marijuana cannot be completely stopped.  “They have very limited tools, and I think none of them would be successful,” Jenny Durkan, who served as US attorney in Washington state in 2012 when legalization took hold there, told BuzzFeed News. “I just don’t think they can stick the genie back in the bottle.”

There are several paths Trump could take if he wanted to try anyway. Here's why each one would be difficult, or even impossible.

1.  Trump can’t bust all the legal pot businesses because there are way too many already. ...

2.  If Trump were to even threaten pot businesses, he would still end up in brutal court battles. ...

3.  Even if Trump only makes a few busts, the states will get involved and fight Trump, too. ...

4.  Trying to overturn state legalization laws themselves would be difficult and time-consuming — and could still fail. ...

5.  Fighting long legal battles would be unpopular for Trump, and it would grow more toxic by the day. ...

6.  Trump could never stop people from using and growing pot with impunity, even if he won in court. ...

The reporting and analysis in this article merits considerable attention, but I want to put a bit of extra emphasis and spin on the key final point.   Though aggressive enforcement actions and successful lawsuits would not enable federal officials to fully "beat pot," the feds still could bring down much of the modern commercial marijuana industry.  (And, importantly, there are even some folks supportive of marijuana reform who are not so supportive of the modern commercial marijuana industry.)  I continue to believe a new federal weed war remains unlikely, but I also believe there will be notable casualties is such a war still gets waged in some capacity in the coming months.

August 28, 2017 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (5)

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)

Saturday, August 26, 2017

"Traffic fatalities linked to marijuana are up sharply in Colorado. Is legalization to blame?"

Cd0827potdriving3-_-v2-1The title of this post is the headline of this big long article Denver Post article exploring marijuana reform's impact on roadway safety.  Here are excerpts:

The number of drivers involved in fatal crashes in Colorado who tested positive for marijuana has risen sharply each year since 2013, more than doubling in that time, federal and state data show.  A Denver Post analysis of the data and coroner reports provides the most comprehensive look yet into whether roads in the state have become more dangerous since the drug’s legalization.

Increasingly potent levels of marijuana were found in positive-testing drivers who died in crashes in Front Range counties, according to coroner data since 2013 compiled by The Denver Post.  Nearly a dozen in 2016 had levels five times the amount allowed by law, and one was at 22 times the limit.  Levels were not as elevated in earlier years.

Last year, all of the drivers who survived and tested positive for marijuana use had the drug at levels that indicated use within a few hours of being tested, according to the Colorado Department of Transportation, which compiles information for the National Highway Traffic Safety Administration’s Fatality Analysis Reporting System.

The trends coincide with the legalization of recreational marijuana in Colorado that began with adult use in late 2012, followed by sales in 2014.  Colorado transportation and public safety officials, however, say the rising number of pot-related traffic fatalities cannot be definitively linked to legalized marijuana.  Positive test results reflected in the NHTSA data do not indicate whether a driver was high at the time of the crash since traces of marijuana use from weeks earlier also can appear as a positive result.

But police, victims’ families and safety advocates say the numbers of drivers testing positive for marijuana use — which have grown at a quicker rate than the increase in pot usage in Colorado since 2013 — are rising too quickly to ignore and highlight the potential dangers of mixing pot with driving....

Estimates vary for how much marijuana use has increased in Colorado since legalization.  Surveys by the federal Substance Abuse and Mental Health Services Administration found that use within 30 days rose from about 12 percent of Colorado adults in 2013 to 17 percent in 2015, a 42 percent increase.  But the Colorado Department of Public Health and Environment published a survey last year putting adult use at 13 percent in 2015, indicating a slower rate of growth.

The number of drivers involved in fatal crashes testing positive for marijuana rose 88 percent from 2013 to 2015, FARS data show.  The numbers are not strictly comparable as the usage estimates would take into account Colorado’s population growth rate of roughly 1.8 percent a year....

Law enforcement officials, prosecutors and public policy makers concede there’s still too little information about marijuana and how it’s detected to understand just how much the drug is affecting traffic fatalities.  Even coroners who occasionally test for the drug bicker over whether to include pot on a driver’s death certificate.  “No one’s really sure of the broad impact because not all the drivers are tested, yet people are dying,” said Montrose County Coroner Dr. Thomas Canfield.  “It’s this false science that marijuana is harmless, … but it’s not, particularly when you know what it does to your time and depth perception, and the ability to understand and be attentive to what’s around you.”...

The trends in the state appear nearly identical in Washington state, where recreational marijuana was legalized at about the same time.  Officials there have been tracking the drug’s impact on driving much more carefully and for a longer period, statistics show. What Washingtonians have been seeing is starting to be revealed here: “Drug-impaired driving is now eclipsing alcohol, and that’s frustrating,” said Darrin Grondel, director of Washington’s Traffic Safety Commission, which is gathering and studying the data.

However, Colorado’s understanding is due to deepen.  The legislature last session passed House Bill 1315, which mandates a vigorous analysis of traffic fatalities statewide and the extent to which marijuana and other drugs are involved and prosecuted.  As part of that project, state police have re-analyzed about a third of blood samples taken from suspected drunk drivers in 2015 and, according to a person familiar with that project, found that more than three in five also tested positive for active THC.

Coroners and police say they have no idea just how many drivers – dead or alive – have active THC in their system because so few of them are tested for it in the first place.  Colorado’s Department of Public Safety in March 2016 said barely half of all drivers involved in fatal crashes were tested for drugs – and 81 percent of the ones tested were dead.  That has remained relatively unchanged since 2012, when 45 percent of all drivers in fatal crashes were tested.  That’s because Colorado’s DUI laws are such that a positive reading for alcohol impairment quickly results in a suspended license.  Not so for marijuana....

Transportation officials are concerned not only with pot-related fatalities but with the overall rise in traffic deaths.  While CDOT doesn’t see the number of drivers involved in fatal crashes as “a reliable measurement,” preferring metrics such as the number of actual crashes and fatalities, it does note that those are also on the rise. The reason, said CDOT’s Cole, is probably due in part to an increase in motorcycle fatalities, pedestrian deaths, cellphone use — and marijuana.

August 26, 2017 in Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research | Permalink | Comments (1)

Friday, August 25, 2017

Colorado sends its forceful response to letter from AG Sessions about marijuana reform concerns

As noted in this prior post, last month US Attorney General Jeff Sessions sent letters to the leaders of states with recreational marijuana laws detailing troublesome data that, in the words of these letters, raised "serious questions about the efficacy of marijuana 'regulatory structures'."  And, as reported in this prior post, last week Washington set a forceful response to AG Sessions.  This week, as reported here by HuffPost, Colorado sent its response in the form of this detailed five-page missive.  (Alaska and Oregon have also responded forcefully to the Sessions latter, but Colorado and Washington seem to me the most important states to watch because they have the most mature marijuana industries and the longest-in-place regulatory regimes.)  Here is part of the HuffPost summary of the letter:

Colorado Gov. John Hickenlooper (D) and Attorney General Cynthia Coffman (R) mounted a vigorous defense of their state’s legalized and regulated marijuana program Thursday, replying to a critical letter from Attorney General Jeff Sessions that was directed at states that have legalized marijuana for recreational purposes.

Hickenlooper and Coffman, in a response letter dated Thursday, tell Sessions that their state’s numerous marijuana laws and regulations are “effective.” They said the regulations work smoothly to prevent diversion of the drug outside of the state, block marijuana use by minors and protect the public’s safety and health. The pair also encourage the federal government to work with the state to “fortify” the robust program that it has already built....

“The State of Colorado has worked diligently to implement the will of our citizens and build a comprehensive regulatory and enforcement system that prioritizes public safety and public health,” the Colorado letter reads. “When abuses and unintended consequences materialize, the state has acted quickly to address any resulting harms. While our system has proven to be effective, we are constantly evaluating and seeking to strengthen our approach to regulation and enforcement.”

The Colorado officials detailed statistics that the state provided to the Department of Justice in a report in July, a document HuffPost obtained and previously reported on earlier this month, to back up their argument that state-level legalization of marijuana is effective.

Prior related posts:

August 25, 2017 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Thursday, August 24, 2017

Interesting accounting and analysis of "America’s Marijuana Evolution"

2017_timelineAsset_1_4x-80_no_logoThe folks at Third Way have this notable new publication titled "America’s Marijuana Evolution." Regular readers of this blog will be familiar with the ground covered in this piece, but it still makes for an interesting read based on how legal and policy changes are discussed.  Here is one excerpt focused on state laws and political developments:

A detailed analysis of the ten states to most recently legalize medical marijuana legislatively finds that most bills passed with large majorities, regardless of the party controlling the chamber. In nine of those ten states, the measure passed with at least 60% of the vote in the lower chamber of the state legislature. And in all but Ohio, the upper house voted in favor of legalization with at least 58% of the vote. In several states, the bills passed with more than 80% or even 90% approval—making it clear that medical legalization on the state level has gained wide support across the ideological spectrum.

Marijuana is even less of a partisan issue on the state level than on the federal level, though Democratic policymakers at all levels of government remain more supportive of reform than Republicans. In every single one of the ten states to most recently legalize legislatively, the majority passing the bill through each chamber of the state legislature was bipartisan. And while in nine of those ten states the Governor signing the bill into law was a Democrat, in the three most recent — Ohio, Pennsylvania and West Virginia — both chambers of the state legislature were controlled by Republicans. In fact, in Ohio Republican Governor John Kasich signed his state’s bill into law, making it the first to enact marijuana legalization through a process that was Republican-controlled at every stage. And the Democratic Governor of West Virginia who signed his state's bill into law earlier this year — Jim Justice — has since announced he is switching party affiliation to be a Republican.

When Vermont became the first state in the nation to pass a recreational legalization bill this spring, it did so with healthy majorities as well—20-9 in the Senate and 79-66 in the House. Though only a handful of Republicans voted for the bill in each chamber, when Republican Governor Phil Scott vetoed it, he said that he is not philosophically opposed to marijuana legalization and has since been working with the legislature on a new bill that addresses some specific concerns he had raised.

Increasingly, marijuana reform is becoming a bipartisan issue in state legislatures, regardless of the party in power. That’s especially true for medical legalization, which is now the law of the land in the majority of states.

We analyzed the state legislative and gubernatorial elections immediately following legalization in each of the ten states that most recently legislated medical marijuana, and we couldn’t identify a single instance of negative political consequences for elected officials who supported legalization of medical marijuana.

We could find no state legislative races in which voting in favor of a medical marijuana bill was detrimental. Only two state senates flipped party control after legalization—New York and Minnesota—but in both the medical marijuana vote had been overwhelmingly in favor and bipartisan. Only two state lower chambers flipped party control as well — Minnesota and New Hampshire — but in neither state was marijuana a major campaign issue. Not a single Governor in any of these ten states lost a reelection campaign because he or she signed a medical marijuana bill into law — in fact, only one Governor lost their reelection at all (Democrat Pat Quinn of Illinois), and it was to an opponent who did not oppose medical marijuana legalization.

It seems clear that legalizing medical marijuana is not a political liability for Governors or state legislatures. In fact, given the overwhelming popularity of medical marijuana, just the opposite may prove to be true going forward, especially as more states legalize and those that don’t are left behind.

State policymakers have led the way on marijuana reform. More than half of the 29 states that have legalized medical marijuana did so legislatively, and more are likely to follow. The growing bipartisan nature of state reforms and the absence of any major political consequences for those policymakers who enacted them illustrate that policymakers can feel comfortable publicly supporting legalization, regardless of party affiliation.

August 24, 2017 in Campaigns, elections and public officials concerning reforms, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Interesting Opportunity to Try to Shape the WHO’s Scheduling of CBD (and Possibly Domestic Law Too)

Cross posted at Marijuana Law, Policy, and Authority.

The World Health Organization (WHO) is apparently reviewing the scheduling of Cannabidiol (CBD) and 16 other drugs under the 1971 Convention on Psychotropic Substances. Prior to a meeting of the relevant WHO committee in early November, the WHO has asked member states (including the U.S.) for input. The Food and Drug Administration (FDA) is responsible for coordinating the United States’ response. To fulfill its responsibility, the FDA has issued a public call for comments “concerning abuse potential, actual abuse, medical usefulness, trafficking, and impact of scheduling changes on availability for medical use” of CBD (and the 16 other substances). The call for comments can be found here. Comments may be submitted electronically on the website (see upper right hand corner). Already more than 1,200 comments have been submitted.

I don’t know what sort of comments would convince the FDA to push for re-scheduling. As discussed in Chapter 5 of my book (pages 195-203), the FDA doesn’t put much stock in personal testimonials when making scheduling recommendations under domestic law (i.e., the CSA). For better or worse, it generally demands large scale, double-blind, well-controlled studies to demonstrate the medical efficacy of a drug—a demonstration that is needed to move a drug off of Schedule I (pages 200-201).

And if the WHO decides to reschedule CBD under the Convention, it’s not clear what impact (if any) it would have on scheduling under the CSA. The relationship between the CSA and the Convention is detailed 21 U.S.C. § 811. As discussed in the book (pages 272-275), the CSA seemingly requires the DEA to use the Convention as a floor, but not a ceiling, for purposes of regulating drugs. In other words, it seemingly requires the DEA to regulate drugs at least as stringently as called for by the Convention, but does not obligate the DEA to relax federal controls just because the Convention believes a softer approach is warranted (say, by medical utility).

So with those caveats, let me say that this might be an opportunity to shape the law – or at the very least, it might be an opportunity to teach about how to shape the law by submitting comments to a federal regulatory agency.

Hat tip to Vincente Sederberg, which sent an email earlier this week announcing the call and proposing to help coordinate comments. You can contact the firm here.

August 24, 2017 in Current Affairs, Federal Marijuana Laws, Policies and Practices, International Marijuana Laws and Policies, Medical Marijuana Commentary and Debate | Permalink | Comments (0)

Wednesday, August 23, 2017

"Congress To Decide On State Marijuana Protections Soon"

The title of this post is the headline of this recent posting by Tom Angell at Massroots that provides a very helpful review of some coming opportunities for members of Congress to show whether they stand on various issues relating to marijuana reform.  I recommend the piece in full, and here are excerpts:

Here a some of the cannabis amendments that could be voted on in the House next month, if they are not blocked by leadership:

Protecting state medical cannabis laws: This is the big one. State-legal medical cannabis patients and providers have been protected from Justice Department interference since this rider was first enacted in late 2014. Since then it has been extended annually, and would almost certainly be approved by the House with a strong bipartisan margin again if allowed a vote. But even without a House vote, the language is already in the Senate bill and thus still alive for inclusion in the final spending legislation that will be sent to President Trump.

Protecting all state marijuana laws: In 2015, an amendment to broaden the medical cannabis protections to cover all state marijuana laws — including those allowing recreational use and sales — came just nine flipped voted shy of passing on the House floor. Since then, the number of states with legalization has doubled and a number of retiring prohibitionist lawmakers have been replaced by supporters. Advocates feel that if the measure is brought up this year it will likely pass. (The Senate has never voted on such a broad proposal, and that chamber’s Appropriations Committee did not consider it during their passage of 2018 Justice Department spending legislation.)

Letting Washington, D.C. legalize and regulate marijuana sales: In 2014, District of Columbia voters approved a ballot measure that legalized low-level cannabis possession and homegrow. But, thanks to Congressional meddling, they have no place to legally buy marijuana. Under annual amendments championed by Congressman Andy Harris (R-MD), D.C. government is prohibited from spending its own money to legalize and regulate cannabis sales. The bill coming to the floor next month continues a version of that rider that was expanded in scope by a spending bill signed into law by President Trump earlier this year....

Allowing marijuana businesses to access banks: Because of federal prohibition laws, many banks refuse to work with cannabis businesses. As a result, they often have to operate on a cash-only basis, which makes them targets for robberies....

August 23, 2017 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Tuesday, August 22, 2017

"Regulating Marijuana Advertising and Marketing to Promote Public Health: Navigating the Constitutional Minefield"

The title of this post is the title of this notable new article authored by Leslie Gielow Jacobs that is available via SSRN. Here is the abstract:

   Marijuana legalization, at least to some extent, is now a reality in half of the United States.  This shift reflects the good reasons to decriminalize marijuana use and to legalize and regularize its cultivation, distribution and retail sale.  Legalization also introduces substantial public health dangers and injects the potent tool of advertising and marketing to promote marijuana into the struggle for persuasive influence between sellers aimed at increasing profits and regulators trying to minimize the damages to public health.  But limits on advertising and marketing to reduce adverse public health consequences are difficult to impose because of the increasingly aggressive interpretations of the protections for advertising articulated by the Supreme Court.  Regulators must understand the types of regulations that will provoke constitutional challenges, and how a court’s analysis of each type of regulation will proceed.

   This Article is the first to provide detailed analysis and concrete, step-by-step guidance for regulators seeking to balance the electoral mandate to provide access to marijuana products with their ongoing and urgent responsibilities to protect public health.  It provides regulators with the knowledge they need to understand the constitutional implications of a wide range of options, and to make choices that implement their public health objectives without provoking expensive legal challenges.

August 22, 2017 in Business laws and regulatory issues, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Monday, August 21, 2017

Notable review of major Philly firms now happy to talk up their marijuana practices

SdaOnly a couple of years ago, it seemed relatively rare to find lawyers in big firms with significant marijuana practices and rarer still to hear those lawyers actively discussing their marijuana work.  Against that backdrop, this new Philadelphia Inquirer article provides another example of the changing marijuana times.  The piece is headlined "Philly-area law firms bullish on cannabis despite grave legal risks," and here are excerpts:

Lawyers going into the marijuana business face potential arrest, disbarment, and even imprisonment. But they’re gambling that the smoke will clear, and the federal government will eventually legalize cannabis.  Many of Philadelphia’s biggest firms — Duane Morris, Fox Rothschild, and Cozen O’Connor among them — have set up practices recently to serve cannabis growers, dispensaries, and related entrepreneurs as the state aggressively gears up to make medical marijuana available to patients by early 2018.  Last month, Pepper Hamilton “formalized” its marijuana industry group.

“We saw it as a growth opportunity,” said Joseph C. Bedwick, partner at Cozen O’Connor. But the continuing disconnect between state and federal laws, and the Trump administration’s antipathy toward marijuana, has created what Bedwick calls “a big ball of uncertainty.”

“At any moment, theoretically, they can say, ‘We’re going to crack down on this,’ ” Bedwick said. And with so many attorneys getting into the cannabis game, some doubt there will be enough work to sustain those practices....

“You have a hatchet over your head with the federal government,” said Andrew B. Sacks, chairman of the medical marijuana and hemp department at Sacks Weston Diamond, which was among the first to represent marijuana-related businesses.

Joshua Horn, co-chair of the cannabis practice at Fox Rothschild, is optimistic.  He said it’s unlikely the feds would shut down state-legal medical marijuana operations, given the current status of the law, guidance from the DOJ, and budgetary constraints.  “They don’t have the manpower, they don’t have the budget, and popular will is strongly against it,” Horn said.  “More than 90 percent of the people in the commonwealth support the medical marijuana program, and Pennsylvania isn’t the most liberal state.”

Few attorneys have been prosecuted under federal or local laws. However, California attorney Jessica McElfresh — who has represented cannabis clients for more than seven years — was arrested at gunpoint in May.  The San Diego district attorney charged McElfresh on multiple felony counts, alleging she helped hide evidence of a hash oil manufacturing facility.  It seized her client files and issued a warrant for all of McElfresh’s cellphone location data for three years, along with her calendar, address book contacts, and internet searches.  “There have been attorneys that have been charged, but they participated more directly in the businesses,” McElfresh said last week. “There’s never been one like mine.”

Philadelphia attorney Steven Schain of the Hoban Law Group said he considers the San Diego case chilling.  “It represents a landmine in all our paths,” Schain said.  “Sizzle aside, marijuana remains 100 percent illegal under federal law.  Any real cannabis lawyer is exposed to massive federal and civil prosecution.  But we’re willing to take the risk.”

Boutique firms were the the first to represent aspiring cannabis clients in the state, said Sacks.  As trailblazers, they wrestled early on with the dilemmas created by the tension between the conflicting state and federal statutes....   Though the boutiques ... were the first to have a toehold in the state, large national firms soon appeared.  

Of the 12 companies chosen by the state Department of Health to grow cannabis, six were represented by out-of-state firms.  That hasn’t dampened the enthusiasm of attorneys wanting to get into the cannabis game. More than 145 lawyers have signed on to serve on marijuana committees run by the Pennsylvania and Philadelphia Bar Associations, said Sacks, who chairs those committees.

Hoban’s Schain doubts there’s enough work to warrant so many players.  “Legalized marijuana is suffused with irrational exuberance,” Schain said.  “Everyone is convinced that somebody is making loads of money and trying to get a piece of the action.  But if you’ve been in the industry more than 10 minutes, you know the reality is quite different.”

But Bedwick, of Cozen O’Connor, said that his firm was in for the long game and that many clients are related tangentially to the cannabis industry.  They’re real estate owners, investors, lighting manufacturers, builders, and security companies.  Those entrepreneurs are looking for advice on issues that include banking, taxation, intellectual property, and labor law.

August 21, 2017 in Business laws and regulatory issues, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)