Sunday, October 4, 2015
The slightly silly title of this post is my reaction to this local report from Canada on the political discussion of marijuana reform up north. The piece is headlined "Marijuana ‘infinitely worse’ than tobacco, says Canadian PM Harper," and here are excerpts:
The debate over legal marijuana usage in Canada has become one of key issues in the federal election, pitting Liberal leader Justin Trudeau against the Conservative Stephen Harper, who has challenged his opponent’s pro-legalization stance claiming marijuana is “infinitely worse” than tobacco.
“Tobacco is a product that does a lot of damage. Marijuana is infinitely worse and it’s something that we do not want to encourage,” Harper said, pointing to the dark sides of smoking weed after his opponent Trudeau vowed to legalize marijuana if elected.
Trying to explain why he was so bothered by marijuana, given that tobacco and alcohol are regulated and pot is used for medicinal purposes, Harper said, that the plant is bad for human health. “There's just overwhelming and growing scientific and medical evidence about the bad long-term effects of marijuana,” he said, without backing his claims with any examples. Marijuana 101: Canadian university to teach basics of pot growing, marketing & sales
The Conservative leader also stressed that he will retain tough drug laws aimed at targeting traffickers, who profit off “destroying people's health.” He was reiterating his claims made during Friday’s second French-language debate when he clashed with Liberal Leader Justin Trudeau....
The reality is that we have kids who find it easier to buy marijuana than cigarettes and beer,” Trudeau responded. “If a young person buys marijuana, it’s because he had contact directly with a criminal. We will continue to control marijuana like cigarettes and alcohol, not to sell them in corner stores.” The Canadian federal election will be held on October 19, 2015 to elect members to the country;s House of Commons. Marijuana has been a key topic throughout the campaign, with the Liberals in favor of legalization and regulation and the NDP, headed by Tom Mulcair favoring decriminalization, rather than legalization.
October 4, 2015 in Campaigns, elections and public officials concerning reforms, International Marijuana Laws and Policies, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Thursday, October 1, 2015
The title of this post is the headline of this notable new article, which provide a speedy and notable follow up to this recent post: South Dakota tribe poised to open "marijuana resort" to serve as "adult playground. Here are excerpts from the new article:
A South Dakota Native American tribe has been flooded with requests hours after it announced plans to open the United States’ first marijuana resort this New Years Eve, the tribe said Wednesday. “About 100 people have already called to say they’re coming,” Seth Pearman, tribal attorney for the Santee Sioux in Flandreau, South Dakota, told Al Jazeera. “We’re very excited about this process.”
Marijuana is not legal in South Dakota, but the U.S. Department of Justice said last year that Indian reservations would not face prosecution or federal interference for legally operating — under rules similar to those in states that have legalized recreational use of the drug — its distribution and cultivation facilities.
The Santee Sioux resort, converted from a 10,000 square-foot bowling alley on the reservation, will grow its own marijuana and will have an “upscale bar or club atmosphere” and live music, Pearman said. A nearby casino will provide rooms for overnight guests, he added.
The resort will be open to the public, will sell both marijuana and alcohol to adults over 21 years old and will allow them to consume it openly, Pearman said. A handful of private clubs have been allowed to operate in Colorado, where recreational marijuana use was legalized in 2012, but smoking in public is not legal.
Santee Sioux tribal officials have been researching the idea and touring other marijuana-growing facilities around the country. The tribe has also partnered with Colorado-based marijuana consulting firm Monarch America to learn about cultivating the plant. The tribe will grow its own marijuana in a 10,000 square-foot facility on the reservation with the help of industry experts. The pot will be “high quality, free from contaminants, and organic,” according to Pearman....
Sales will be tightly regulated, and any pot purchased must be consumed on site, Pearman said. Some reservation residents have publicly complained about the project, he said, comparing the situation to the concerns expressed when casinos became popular businesses on reservations in the early 1990s.
The Santee Sioux held several general council meetings inviting all tribal members while it was debating whether to go ahead with the resort. Some people opposed the plan but a tribal survey showed that most supported it, Pearman said. The tribe hopes the resort will boost the reservation’s economy, which is still recovering from the 2008 economic recession. “It’s a great opportunity, with a small investment, to make a lot of money for tribes who have been struggling for hundreds of years to get economic development going,” Pearman said.
Prior related posts:
Sunday, September 27, 2015
The title of this post is the title of this interesting paper authored by Ryan Boudin Stoa available via SSRN. Here is the abstract:
Marijuana is nearing the end of its prohibition in the United States. Arguably the country’s largest cash crop, marijuana is already legal for recreational use in Colorado, Washington, Oregon, Alaska, and Washington DC. Between now and election day 2016, an additional 14 states may place marijuana legalization initiatives on their ballots. In addition, 23 states and Washington DC have legalized medical marijuana, with up to seven states pending legislation. The era of marijuana prohibition is rapidly coming to a close.
At the same time, traditional doctrines of water law are struggling to cope with the modern realities of water scarcity. Administrative agencies lack capacities to monitor and enforce water rights in real-time amid rapidly changing conditions. As marijuana cultivation leaves the black market and enters state regulatory frameworks, legal doctrines and administrative agencies will need to adapt in order to balance existing water rights with the demands of marijuana production. Failure to do so will encourage producers to remain clandestine while perpetuating existing conflicts between legal and illegal water users. At present there is a gap in understanding the relationship between water rights and marijuana legalization, despite their rapid convergence.
This Article is the first to systematically address that gap. The study begins by describing status quo marijuana production taking place outside the context of state water law doctrines, and the unsustainable conditions that often result. Sections III and IV envision a legal marijuana market governed by the predominant doctrines of US water law: prior appropriation and riparianism. In Section V the theoretical becomes reality, as California’s complex water laws are put to the test by the largest marijuana cultivation community in the United States. Section VI concludes with recommendations for states in the process of legalization. Broadly speaking, this Article finds that both common law and regulatory approaches to water allocation are capable of accommodating legal marijuana cultivation, but to minimize disruptions to existing water rights and the marijuana industry, state agencies will need to proactively adapt to the new realities of the legal marijuana economy.
Wednesday, September 23, 2015
A number of smart folks have talked about state-level marijuana reform as, in the words of GOP Prez candidate Ted Cruz, "a great embodiment of what Supreme Court Justice Louis Brandeis called ‘the laboratories of democracy.’” These two new stories about marijuana reform efforts in Ohio has me thinking that the Buckeye state is already in the midst of one of the most interesting and dynamic experimental forms:
Excerpt: Dr. Suresh Gupta ticked off a list of conditions that marijuana could help alleviate: nausea, cancer, glaucoma, HIV, post-traumatic stress disorder, irritable bowel syndrome.... Gupta is one of several wealthy donors who contributed millions to help bankroll ResponsibleOhio’s effort to place marijuana legalization on the ballot and limit marijuana growing facilities to 10 locations....
Gupta, along with a Columbus co-investor, wants to grow multiple types of marijuana at the Pataskala facility, focusing on treating specific conditions. The nine other marijuana farms will focus on growing marijuana to be sold at retail stores. He also plans to use about 40,000 square feet for a research facility he’s calling the International Cannabis Institute. There, researchers, chemists and microbiologists would study the makeup of each crop and replicate the best strains, Gupta said. “In the United States, there’s virtually no research being done,” Gupta said.
Excerpt: The group behind November's marijuana legalization initiative said Tuesday it had collected more than enough signatures to advance a separate measure that would allow marijuana convictions to be purged. ResponsibleOhio, the group backing Issue 3, said it collected 236,759 signatures of registered Ohio voters to put the Fresh Start Act before state lawmakers next year -- 91,677 are needed to qualify....
Issue 3 would legalize recreational and medical marijuana sales and use for adults over age 21. Commercial growing would be limited to 10 sites belonging to initiative backers, and Ohioans could grow small amounts of marijuana at home. The Fresh Start Act would allow people with convictions made legal by Issue 3 and offenses made legal in the future to file a petition in court to reduce or eliminate their sentences or expunge, or destroy, their criminal records....
ResponsibleOhio Executive Director Ian James said many low-level offenders are unable to obtain employment or secure housing because of criminal background checks. "This allows people ability to move forward," James said at a news conference with several Ohio clergy members.
As an initiated statute, the Fresh Start Act would go before the legislature in January 2016. Lawmakers would have four months to pass the bill, pass a revised version, or reject the bill. If the language is changed or rejected, ResponsibleOhio would have to collect some 92,000 more signatures to put the measure before voters.
The Fresh Start Act would not automatically erase records or free inmates, and it wouldn't apply to federal marijuana offenses. Offenses that are illegal now and would remain illegal under Issue 3, such as driving under the influence of marijuana, would not be eligible for expungement under the proposed law.
Both of these stories suggest marijuana legalization in Ohio, if passed by voters this Novermber, would trigger novel legal and practical development that could significant reshape future marijuana reform efforts. Indeed, the existing ballot measure in Ohio, Issue 3, is already novel and interesting because it is trying to get Ohioians to support moving from blanket prohibition to full legalization in one vote and the effort is being backrolled by a group of investors poised to have a legal advantage in the future marijuana market based on the provisions of Issue 3.
How these experimental elements of proposed reform play out in the Buckeye state is already making Ohio a laboratory of democracy worth watching. And if Issue 3 is approved by voters, Ohio seems sure to have lots of experimental developments and data that should help advance the national dialogue and debate on these matters for years to come.
September 23, 2015 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Initiative reforms in states, Medical community perspectives, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Monday, September 14, 2015
The title of this post is the title of this provocative new Huffington Post commentary authored by Russ Bellville. Here are excerpts:
I'm somewhat of an outlier in the marijuana reform movement these days. Ohio has marijuana legalization on the ballot for 2015, and I'm one of the few high-profile (pardon the pun) legalization advocates pushing hard for its passage. Most of my colleagues are in a hold-their-nose-and-backhandedly-support-it public stance, and some are assiduously attacking the measure and angling for its defeat.
That's because they don't understand the nature of this war. This is not about marijuana and it is certainly not about entrepreneurship. This is about freedom.
In 1971, the president of the United States declared war on people like me who use marijuana. People don't think of it that way, but when you look at how our liberties have been shredded in the War on Drugs, they should.
This war, in a nutshell, is the ability for authorities of the state to abrogate my rights because the drug I choose to use is contraband. The result is a society where my friends who choose to use alcohol, nicotine, and numerous prescription drugs that are far more harmful than my drug are afforded adult respect and accommodation, while my people are treated as criminals.
In 2014, I sat on the side of a Utah freeway while armed agents of the state rifled through my personal possessions and detained me for six hours until I could raise $1,200 because they detected marijuana. For twelve months, I've had to diligently pay $100 a month to ensure I don't have a permanent criminal record, while being extra cautious to avoid encounters with law enforcement who'd quickly discover I have a current criminal drug record in Utah. I take this shit personally.
So the way the war is won is by taking from the authorities, state by state, the ability to fuck with adults who use marijuana. When marijuana is not contraband, the whole game changes. We shift from being criminals seeking a high to consumers of a legal product seeking equal rights. We get businesses and money and tax revenue and lobbyists and politicians on our side.
Then we fight for cultivation rights. Then we fight to make the business model more equitable. But we've got to get it legal first, period.
The reason so many of these stoners against legalization feel confident in "wait 'til next year" is most of them don't get busted. There are 20 million-ish pot smokers, but 675,000-ish marijuana arrests. It's like what, 1 in 30 of us are going to get busted? Then, in Ohio, it's a ticket and driver's license loss, no arrest, so some people don't fear the risk of remaining criminals.
Sometimes that's attributable to those people being white, or older, or both, and being far less likely to be busted if they're careful. Why accept a less-than-perfect legalization, they'd think, when I've already got my hook-up; I smoke pretty much with impunity, and I am disgusted at the idea of know-nothing carpetbagger money guys who don't know their sativa from Shinola swooping in and stealing the industry from my pals who are cop-ducking risk-taking illicit marijuana growers who've kept me high all these years?
So, I get it. I'm not ignorant to the shitiness of the business plan, the opportunistic capitalistic ignorant (really, a superhero bud?) asshole behind the measure, and the karmic turd sandwich voting for Issue 3 will be.
But to me, this is war. And it's not us against the corporations or us against the rich, it's us against the prohibition that keeps us second-class citizens.
To me, it's not just Ohio, it's every goddamn state that is so much further behind Ohio, wishing they had a shot at imperfect legalization. States like Texas where women get raped in parking lots by cops who claim they smell marijuana in the women's vaginas. States like Missouri where a man serving life for pot finally gets released, but so many more men and women in so many more states are rotting behind bars. States that only inch closer to freedom on the wave of other states' successes.
I never again want to see the prohibitionists win another battle in this war.... Win every battle. Do not give the opponent any quarter. Be as ruthless to our enemy as they have been to us. They will all be hoping that Ohio defeats legalization in 2015. They want to keep making easy ticket money, busting down home growers' doors, seizing people's assets over marijuana. They want to keep raking in cash for drug testing and prison and probation and parole. Don't give them a victory.
Sunday, September 13, 2015
"California Marijuana Legalization 2015: New Medical Marijuana Law Rankles Top Cannabis Industry Investor"
The title of this post is the headline of this new Internation Business Times article effectively reviewing the dynamics surrounding the notable legislative development in California this past week. Here are excerpts:
California lawmakers quietly passed Friday the state’s most significant medical-marijuana legislation in almost two decades, but some leaders in the space worry that the law’s good intentions could get lost in the weeds . Paving the way for what supporters say is a much-needed regulatory framework for the state’s multibillion-dollar medical-cannabis industry, the California Senate and Assembly voted to approve the historic Medical Marijuana Regulation and Safety Act, which will require licenses for cannabis dispensaries and create a new state agency to oversee the industry.
Although California residents voted to approve medical marijuana back in 1996, a regulatory plan has until now eluded policymakers, who could not seem to agree on specifics. Legislators finally reached a compromise on three bills, which have been sent for final approval to Gov. Jerry Brown, who is expected to sign them into law. The legislation was approved as part of a comprehensive package pushed through on the final day of the 2015 session.
Despite the historic achievement, some leaders in the field expressed concerns about the implications of regulating an industry that has been unregulated for so long. Steve DeAngelo, co-founder of the ArcView Group, mammoth marijuana-investment firm, and the Harborside Health Center, a nonprofit dispensary in the state, said in a statement Saturday that the time pressures made it impossible for state legislators to adequately consider the impact the new law will have on patients who depend on medical cannabis.
“[S]ome of the language in the bill is unclear or may be in conflict with prior legislation,” said DeAngelo, also the health center’s executive director. He added that the center hopes to work with lawmakers in the next session to address and resolve what he called “outstanding issues.”
[T]he legislation approved Friday would create -- in theory, at least -- a working template for how recreational marijuana might be regulated assuming it were to become legal. The bills will also allow for the creation of a new Bureau of Medical Marijuana Regulation within the Department of Consumer Affairs, which will oversee licenses.
With apologies to Voltaire and Dr. Pangloss, the title of this post is my reaction to this notable new Washington Post article discussing how marijuana reform is playing out in the District of Columbia. The piece is headlined "First legal harvest of marijuana fueling gray market for pot in U.S. capital," and here are some extended excerpts:
In upper Northwest Washington, marijuana buds the size of zucchinis hang drying in a room once reserved for yoga. In the Shaw neighborhood, pot grown in a converted closet sits meticulously trimmed, weighed and sealed in jars. Elsewhere, from Georgetown to Capitol Hill to Congress Heights, seven-leafed weeds are flowering in bedrooms, back yards and window boxes.
Welcome to the first crop of legal pot in the nation’s capital — where residents may grow and possess marijuana but are still forbidden to sell it.
In recent weeks, a small army of mostly novice gardeners who took up growing when the District legalized marijuana in February have begun to roll, pack and smoke the joints, bongs and bowls of their labor. By one estimate, they have collectively grown upward of 100 pounds with a street value north of a half-million dollars — far more than most of these amateur cultivators are likely to consume on their own.
All of which presents a thorny question for District leaders and police in a city where cultivation and possession are legal but sales are not: How the heck will all this pot get from those who have it to those who want it?
A fitness instructor who took up the hobby six months ago has amassed enough pot to make tens of thousands of dollars selling it. Instead, he’s begun giving away a little bit to anyone who pays for a massage. The instructor asked not to be named out of concern that he or his home, where he sometimes serves clients, could become targets for criminals.
A T-shirt vendor in Columbia Heights who declined to comment may be working in a similar gray area. College students say the roving stand has become known to include a “gift” of a bag of marijuana inside a purchase for those who tip really well. And recently, dozens of people paid $125 for a class in Northwest Washington to learn about cooking with cannabis from a home grower. Free samples were included.
Andrew Paul House, 27, a recent law school graduate, may be the best early test case for whether home growers can find a way to make money from their extra pot. House has started a corporation and a sleek Web site to order deliveries of homegrown marijuana to D.C. residents’ doorsteps — “free gifts” in exchange for donations to the company, akin to a coffee mug given to donors by a public radio station.
“I believe we are following the letter and the spirit of the law,” House said of the business he has named the Premium Club. “There’s this gap period where there is no retail and there is no regulation. My purpose is to step into that in-between time when there won’t be enough marijuana for adults to use recreationally and allow for the legal transfer under the initiative.”
None of this is what advocates for marijuana legalization who authored last year’s overwhelmingly successful ballot measure intended. They anticipated that if endorsed by voters, the D.C. Council would go the way of Colorado and Washington state and set up a legal system of sales and taxation.
Instead, conservatives in Congress blocked the city from doing so using their federal oversight of the District’s affairs. But Mayor Muriel E. Bowser (D) and Police Chief Cathy L. Lanier went forward with what the letter of the ballot measure allowed, legalizing everything but sales. And they insisted in February that, despite the legal limbo, a gray market for marijuana would not be tolerated.
But a lot has happened since then, namely a 40 percent spike in homicides that has monopolized the attentions of both Bowser and Lanier and led to a reorganization of the city’s narcotics investigators to focus on major streams of drugs into the city. That has left untouched a cottage industry taking root from the inside out, said Delroy Burton, head of the D.C. Police Union. Marijuana has become tolerated in the city so much that the D.C. State Fair added a marijuana-growing competition to its lineup of events Saturday. The “Best Bud” category joined the fair’s growing list of competitions.
“People are disguising sales as thank-you gifts, but they are being smart about it, distributing in a way that they cannot be charged with distribution,” Burton said.
Lanier’s department directed questions to the Bowser administration. Kevin Donahue, the city’s deputy mayor for public safety, said the administration remains focused on those trying to push the envelope of the new law. Representatives of the city’s health and police departments, as well as its licensing and business agencies, have met every other week since February, but the group has yet to identify anyone operating outside the bounds of the law....
“Keep in mind that the spirit, intent and letter of the law is supposed to decriminalize a practice that can lead to overpolicing and overincarceration,” Donahue added. Asked about the Premium Club, Donahue said it didn’t necessarily sound like strict “home grow, home use” — Bowser’s mantra for what’s allowable. Despite a promise to do so, the administration has not yet launched a public awareness campaign around that message....
Under the ballot measure, District residents are allowed to “possess, grow, harvest or process, within the interior of a house or rental unit . . . no more than six cannabis plants, with three or fewer being mature, flowering plants.” If more than one adult lives in the residence, the upper limits are twelve plants with six being mature at any one time. Those rules are among the most liberal in the nation; the District assigns, for example, no definition for the size of a full plant — as California and other states have....
Another grower who spoke on the condition of anonymity because of concerns about security has built an even more sophisticated growing room and expects a yield of medicinal-quality marijuana to “share” with friends suffering from a variety of ailments. The grower went through a months-long process of applying for a city building permit and having contractors and electricians outfit a new $6,000 room constructed in his Adams Morgan home solely for growing pot....
Adam Eidinger, the face of last year’s Initiative 71 campaign, was among those with a meager harvest, but Eidinger has no shortage. He has been gifted marijuana constantly as the harvest has come in. Eidinger said he has found pot on his doorstep, joints rolled up in tin foil and left on his car and bags simply handed to him walking down the street. “I think it’s a sign that people feel good about themselves and what they were able to grow when they give to me,” he said....
House, who launched the Premium Club, declined to say how many home growers he is working with or how many donations or deliveries have been made since the Web site launched last month. He said “business is good — definitely better than expected,” and he is finalizing the launch of a mobile app with real-time information on deliveries.
Already in business for more than three weeks, House advertises that a portion of each $100 donation to the business will go to local charities. He hasn’t given away any of the money yet, but he said in an interview that he will begin to later this month. Of the remaining half, he takes a cut of each donation as his salary. Through a system he described only as “complicated and time consuming,” he said he directs the rest back to home growers.
I am not familiar with any traditional drug dealers who worry about "following the letter and the spirit of the law" or who makes plans to give a portion of his earnings to local charities. Similarly, I am unaware of any traditional drug dealers who plan to give away their product to "friends suffering from a variety of ailments." Thus, compared to the regular black market, the DC legalization initiative reform seems to be an improvement with respect to who is involved in marijuana dissemination.
In addition, unlike in Colorado and other full legalization jurisdictions where there concerns about the emergence of a "big Marijuana" industry that will actively promote marijuana products and profit from marijuana abuse and addition, the DC legalization initiative reform seems to be producing only "mom-and-pop" marijuana producers who should have limited ability to promote and profit considerably from their efforts. In this way for those most concerned about the potential harms of marijuana reform, perhaps the DC gray market is to be preferred to the "white markets" that continue to develop and grow in other legalization jurisdictions.
Like Voltaire, I am talking up the prospect of DC being the "best of all possible marijuana reform worlds" with my tongue planted somewhat in my cheek. Indeed, among hard-core pro-reform and anti-reform advocates on both side of the usual marijuana legalization debate, I suspect that the DC middle-ground seems like it could be among the worst of all possible world. But as the labratories of democracy keep experimenting with reform, I think it ultimately quite valuable that we are seeing many different marijuana reform worlds emerging so that we might be better able to assess effectively which are proving to be the best of the bunch.
Friday, September 11, 2015
The title of this post is the title of this notable new article by Luke Scheuer available via SSRN. Here is the abstract:
As states have legalized marijuana, they have created a booming industry that operates in violation of the federal Controlled Substances Abuse Act. Like the tobacco and alcohol industries, this new legal marijuana industry has the potential to do great harm to American consumers and communities if it is not disciplined and restrained in how it sells and develops its products. Unfortunately the federal government has not yet stepped in to regulate the industry and state governments have imposed only limited controls. In addition, because of the increased threat of criminal and civil liability hanging over the industry, it has been largely shut out from attracting professional stakeholders including banks, venture capital firms, and professional managers which could help impose market discipline.
In order to achieve the policy goals behind legalization of marijuana it is important that states do everything they can in the short term to regulate this industry so that it develops in a responsible manner. One of the things states can do is promote the integration of professional stakeholders into this industry. This essay explores what it means to be a “professional” in the marijuana industry and how more professionals could help mitigate some of the harm this industry poses to the public.
Thursday, September 10, 2015
With election day 2015 now less than eight weeks away (and the start of early voting less than four weeks away), I am pleased to see that some national and local media are starting to engaging in deeper dives into the doctrines and debates surrounding the Ohio marijuana reform proposal now before Buckeye voters. Of particular note are these two lengthy new pieces about what is now known in Ohio as Issue 3:
From the International Business Times here, "Marijuana Legalization 2015: Ohio’s Push To Legalize Pot Creates Rifts Within Pro-Pot Movement"
From the Cincinnati Enquirer here, "Parents of ill children question whether Issue 3 will meet medical marijuana needs"
September 10, 2015 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, Who decides | Permalink | Comments (0)
Monday, September 7, 2015
The title of this post is the title of this new paper by Luke Scheuer now available via SSRN. Here is the abstract:
America is currently in the midst of a “legal” marijuana business boom. In states which have legalized marijuana thousands of businesses have been created and are being openly operated despite the continued prohibition on their main product by the federal Controlled Substances Abuse Act. As a regular part of their business, these companies enter into contracts which violate the CSA, for example, every time they sell their main product.
These businesses, and their stakeholders, rely upon the enforceability of these contracts in order to regulate their relationships. However, under the “illegality” or public policy defense to the enforcement of contracts these contracts are arguably all void and unenforceable. Under the traditional understanding of this defense not only will an illegal contract not be enforced but any consideration paid will not even be returned. This defense is grounded in the public policy against encouraging illegal behavior and is a product of state law. Should courts apply it to the marijuana industry which has been legalized also under state law when it clearly is not against the public policy of states which have legalized marijuana to allow for the sale of marijuana?
This article explores the effects of the conflict between federal and state marijuana laws on these businesses’ ability to enter into legally enforceable contracts. This article argues that marijuana contracts do not in fact violate public policy and therefore should be enforced despite their illegality. Nevertheless, courts should exercise restraint in enforcing these agreements, particularly in applying equitable remedies such as specific performance, so as to avoid forcing individuals to violate federal law.
Friday, September 4, 2015
As highlighted in this posting at Marijuana Politics, headlined "Progressive Icon Elizabeth Warren is Now Open to Marijuana Legalization," Massachusetts Senator Elizabeth Warren had a number of interesting things to say about marijuana reform and marijuana research during an interview this past week. Here is the video:
September 4, 2015 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)
The title of this post is the title of this notable new paper authored by Sam Kamin and Viva Moffat now available via SSRN. Here is the abstract:
Marijuana law is changing rapidly in the United States today – since 1996, 23 states and the District of Columbia have legalized medical marijuana and five jurisdictions have made marijuana legal for all adults. Because marijuana remains a prohibited substance under federal law, however, the states are significantly limited in their ability to control marijuana policy within their borders. For example, because banking is regulated by the federal government, state-licensed marijuana businesses cannot gain full access to banking services; because bankruptcy is a federal benefit, it is unavailable to those involved in the business of violating federal law.
This article examines the implications for marijuana businesses of another area of federal regulation that has heretofore escaped academic commentary: federal intellectual property law. The continuing federal marijuana prohibition means that the most relevant federal intellectual property protections – trademark and patent – are largely unavailable for most marijuana businesses. While they are bound to comply with the dictates of trademark and patent law in their own affairs, marijuana businesses cannot acquire the rights and benefits of those laws or invoke those doctrines against others.
We discuss the ways in which these businesses attempt to circumvent the unavailability of patent and trademark rights, often through reliance on state law doctrines which generally prove insufficient to meet their needs. We also discuss the unexpected natural experiment that the current conflict between state and federal law creates. It is often asserted that intellectual property protections are necessary to foster creativity and investment. Yet the marijuana industry has seen extraordinary innovation and capital formation, even as these ostensibly necessary protections have proven unavailable. We conclude by discussing the implications of this observation for federal intellectual property law and policy more generally.
The question in the title of this post is prompted by this recent lengthy Newsweek article headlined "Women in Weed: How Legal Marijuana Could Be the First Billion-Dollar Industry Not Dominated by Men." Here are excerpts:
It seems fitting that a plant called Mary Jane could smash the patriarchy. After all, only female marijuana flowers produce cannabinoids like the potent THC chemical that gets users buzzed. Pot farmers strive to keep all their crops female through flowering female clones of one plant, called the Mother. And women are moving into the pot business so quickly that they could make it the first billion-dollar industry that isn’t dominated by men....
During the past few years, hundreds of women have been ... propriety in the newly regulated marijuana industry. Indeed, many female entrepreneurs are striking Acapulco Gold. Though the industry is still predominantly male and employment statistics are somewhat vaporous, the power and influence of women are, by all signs, on the upswing. In the summer of 2014, Women Grow — a professional marijuana women’s networking group—launched with just 70 people; today, the monthly chapter meetings in 30 cities attract more than 1,000 women nationwide. The two-year-old Marijuana Business Association, a Seattle-based B2B trade group, started a Women’s Alliance in 2014 that now boasts 500 members. In just two years, Women of Weed, a private social club in Washington, has seen its membership swell from eight to 300.
Drug reform activist attorney Shaleen Title runs a marijuana recruitment agency, THC Staffing, entirely owned and run by women. She says half of the employment placements her company makes are women. “I am especially seeing more women with corporate ‘mainstream’ experience looking to join the marijuana industry,” she says. “With time, there will be more women with marijuana experience.”
Just like in Washington, women in Colorado were important players in the crafting and implementation of the legalization measure amendment. Title joined the Amendment 64 campaign in the summer of 2012. “As a senior staffer, I worked with several other women on the campaign,” she says. Most notably, attorney Tamar Todd, now the director of marijuana law and policy for the Drug Policy Alliance; Betty Aldworth, the primary spokeswoman and now executive director of Students for Sensible Drug Policy, which supports other young women activists; and Rachelle Yeung, now an attorney with Vicente Sederberg, a marijuana-focused law firm. Title says women were chosen deliberately in order to reach women. “Betty had a particular ability to relate to the mainstream. I had previously helped with California’s Prop 19 campaign in 2010, where we had trouble securing women's votes before the initiative ultimately failed. We knew that women's votes were crucial.”
In Colorado and Washington, the key demographic in the legalization movements were 30- to 50-year-old women, according to a study by the Wales-based Global Drug Policy Observatory. “I think women can help demonstrate that it's a reasonable choice for a lot of people,” Title adds. “And it's not going to turn you into Cheech or Chong.”...
Despite its illegal federal status, the marijuana business is one of the nation’s newest and fastest-growing industries. Regulated weed (medical and recreational) made $2.7 billion in nationwide revenue in 2014 alone, up from $1.5 billion in 2013 (medical only, the first recreational shops weren’t open in Washington and Colorado until January 2014). By 2019, the pot sold in all states and districts with legalization is projected to reach nearly $11 billion yearly, according to estimates by ArcView Market Research, an Oakland, California-based pot-focused investor network and market research company.
As pot legalization spreads, women are taking over more roles in the industry. There are female cannabis doctors, nurses, lawyers, chemists, chefs, marketers, investors, accountants and professors. The marijuana trade offers women a shortcut to get ahead in many avenues, and women in turn are helping to organize it as a viable business. Mary Lynn Mathre founded and is president of the American Cannabis Nurses Association (ACNA), a national organization with 315 members — 271 of whom are women. ACNA board member and director Eloise Theisen in Lafayette, California, created her own medical cannabis treatment clinic, Green Health Consultants. Emily Paxhia analyzes the cannabis financial marketplaces as a founding partner at the marijuana investment firm Poseidon Asset Management. Meghan Larson created Adistry, the first digital video advertising platform for marijuana. Olivia Mannix and Jennifer DeFalco founded Cannabrand, a Colorado-based pot marketing company. In Berkeley, California, three female lawyers—Shabnam Malek, Amanda Conley and Lara Leslie DeCaro—started the National Cannabis Bar Association, and Conley and Malek also started Synchronicity Sisters, which hosts Bay Area “Tupperware parties” to sample pot products made by women for women.
Among the most successful pot pioneers are the women who spot a void in the marketplace and fill it.... Maureen McNamara is starting a statewide certification program in Denver for people in the pot business. Many marijuana edible chefs take her Food Safety classes and her Sell Smart program is popular among marijuana retailers. She has been working directly with Colorado’s Marijuana Enforcement Division, and her curriculum has been approved to become the first certified responsible vendor program, much like those in the bar and alcohol business.
Cannabis science seems to be where women are making the most progress the fastest. Genifer Murray, a scientist who runs a Colorado cannabis testing facility called CannLabs, says she employs mostly women with advanced science degrees. “In a typical science, like environmental or medical, it would take them 20 to 30 years to become something,” she says. “We’re in the infancy. My scientists are going to be cannabis experts — some already are.”
Murray insists that women are better suited for the cannabis industry and will keep flocking to it. “This is a compassionate industry, for the most part, especially if you're dealing with the medical side. The medical patients need time and consideration, and women are usually the better gender for that. The industry is flat-out geared for women.”
Some prior related posts:
Thursday, September 3, 2015
The quote in the title of this post comes from the headline of this new Cincinnati Enquirer article, which highlights some of the unique political dynamics that marijuana reform debates can sometimes engender. Here are excerpts:
This year’s campaign over Issue 3 in Ohio illustrates a counterintuitive political trend: Marijuana blurs partisan lines.
In general, Democrats support legalization and Republicans don’t. Issue 3, which would legalize marijuana by limiting the commercial crop to 10 farms, tends to draw people across party lines and all of the political spectrum:
• Most of the operatives pushing Issue 3 are Ohio Democratic political professionals such as Ian James, executive director of the investor group ResponsibleOhio, and elections lawyer Don McTigue. But Democratic Rep. Mike Curtin of Columbus led the legislative push for Issue 2, a countering initiative on the Nov. 3 ballot, because he opposes putting what he calls a monopoly into the Ohio Constitution.
• Ohio Republicans, led by Gov. John Kasich, speak as one in opposition to Issue 3. Yet the author of the Marijuana Legalization Amendment, Cincinnati lawyer Chris Stock, calls himself an establishment Republican. Andy Douglas, a Republican who served on the Ohio Supreme Court for 17 years, gives legal counsel to ResponsibleOhio.
• Traditional movement activists, most of whom, it’s fair to say, trend liberal, have tried for years to get Ohio politicians to address their issue. But many activists now urge a vote against Issue 3 because they dislike the economic model, which would cut nearly everyone out of the commercial cultivation and restrict home growers to four flowering plants.
Sri Kavuru is executive director of Ohioans to End Prohibition, which wants to put a different legalization initiative on next year’s ballot. The overall shift in attitude about marijuana, he said, is not just political – it’s social, and it’s age-driven. “The younger generation is overwhelmingly in favor of legalization, particularly for medical use,” he said. “You actually see an older generation approving medical use but opposed to full legalization and recreational use. There is a growing social acceptance.”
On the West Coast, marijuana has been an animating element in the political conversation for 40 years, even when not on the ballot. Yet the first state to legalize wasn’t liberal California but more conservative Colorado....
“We’re pretty almost fresh out of issues that scramble things up,” said political scientist David Niven at the University of Cincinnati. “In the 1970s, on almost any issue you could name – gay rights, civil rights – there was good deal of overlap. But we’re in an era now where on any issue, no Democrat agrees with any Republican.”
As a political issue, marijuana legalization appeals to libertarians, Niven and others said, because they see government overreach in personal behavior, such as drug use. In 2009 and 2011, legislation was introduced in Congress that would have repealed federal laws on marijuana: The sponsors were liberal Barney Frank of Massachusetts and libertarian Ron Paul of Texas. Yet the Libertarian Party of Ohio, while acknowledging that it supports legalization, opposes Issue 3 for its “crony-capitalist nature.”...
Complicating the Ohio discussion is Issue 3 itself. It does more than put legalization to a straight yes-or-no vote. The proposed constitutional amendment would limit cultivation of the commercial crop to 10 farms around Ohio, three of them in Hamilton, Butler and Clermont counties. Home growers can obtain a $50 annual permit to raise a crop of up to four flowering plants.
Stock, the amendment drafter, said conservative Ohio voters would not approve of a provision that allowed anyone to grow marijuana, as Colorado and Oregon permit. A limited operation, Stock said, could be more easily and better regulated. But even supporters of legalization in the abstract come down against Issue 3 for allowing two dozen private investors on 10 farms to control the supply of Ohio-grown marijuana.
Wednesday, September 2, 2015
Regular readers are likely by now tired of hearing me talk up Ohio as a state to watch in the marijuana reform universe But these kinds of recent stories highlight why I continue to find Buckeye developments especially interesting in this space:
September 2, 2015 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Initiative reforms in states, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)
Tuesday, August 25, 2015
Marijuana reforms often say they would like marijuana to be treated just like alcohol, and this new article from Oregon suggests that at least a one couple started their marriage in a manner that makes such treatment a reality in one celebratory setting in which alcohol is typically a given. The article is headlined "Oregon wedding features marijuana bar, budtender," and here are the amusing details:
The legalization of pot in Oregon has couples considering weed bars at their weddings.
"We were shocked by how much people loved it," said groom John Elledge of his recent reception. "I'm still getting a couple of texts a day from guests who enjoyed the weed tent."
Elledge married Whitney Alexander this summer on a West Linn Christmas tree farm.
"On private property where no liquor license is involved, it is legal," said Mark Pettinger with the Oregon Liquor Control Commission. However, he added, a caterer with a liquor license cannot legally serve alcohol at an event where marijuana is also being served to guests. "Caterers should be aware there cannot be bartenders and budtenders."
"We made sure we were legal," said Elledge,"We know the limit is 8 ounces so we had small amounts of 13 varieties with a budtender controlling consumption." The couple had a wedding planner from Lake Oswego's Bridal Bliss.
"This was our first request for a weed bar," said owner Nora Sheils, "We made sure everyone was safe and provided transportation. The couple provided the product and hired the budtender for the tent."
Elledge, who describes himself as a professional marijuana grower, seems pleased to be a pioneer. "Even an 81-year-old woman who hadn't smoked weed since the '60s came into the tent at our wedding," he said. "Though skeptical at first she ended up loving it."
Throughout much of this year, I had been intrigued (but not all that surprised) that efforts to reform marijuana laws through ballot initiative in Ohio had not received all that much attention even as one well-funded group, ResponsibleOhio, seemed well-position to give Ohio voters the chance to legalize fully marijuana. But now that the efforts of ResponsibleOhio have officially brought the issue to the November 2015 ballot as Issue 3, there is much more marijuana reform news and activity afoot in the Buckeye State. Here is a sample of just recent notable headlines and stories from various news sources:
The title of this post is the headline of this notable new Wall Street Journal article that highlights some of the economic development impacts of the marijuana legalization in Colorado. Here are excerpts:
Since voters in Colorado and Washington legalized recreational use of the drug in 2012, growers and distributors have gobbled up most of the available warehouse space in the Denver area, a major logistics hub for companies moving goods between the Midwest and the West Coast.
The marijuana industry is poised to expand quickly. Legal sales in Colorado of medical and recreational cannabis totaled about $700 million in 2014, the first full year for which statistics are available, according to a Wall Street Journal analysis of Colorado tax data. The number of active licenses to grow the plant for retail consumption shot up to 397 from 204, according to Colorado’s Marijuana Enforcement Division.
The problem for Denver business owners: marijuana producers require lots of space to grow, package and store their products. In all, growers and distributors took up a third of all the warehouse space leased in Colorado over the past 18 months, according to Cresa Partners, a brokerage.
The warehouse crunch means many small businesses are struggling to find the space they need. Mr. Badgley, chief executive of Colorado Specialties Corp., a building-supply business, said his 7,500-square-foot warehouse and showroom is so crammed with bathroom fixtures and other materials that it is difficult to navigate. He would like to move to a building with triple the space, but can’t find anything affordable. “It’s all just getting snatched up by these marijuana people,” he said....
. Rents in the Colorado warehouse market rose 10% last year, to $5 a square foot, according to CBRE Inc., a real-estate services firm. The cost to buy warehouse space has doubled to $80 a square foot since the beginning of last year.
“It seems like every warehouse from 8,000 to 20,000 square feet is being turned into an indoor marijuana farm,” said Tom Glaspern, managing director in Denver for SEKO Logistics, a logistics-services provider. “We had opportunities [with customers] last year that we just had to turn down because we didn’t have the space.”...
Mr. Glaspern says the squeeze is especially tight in Denver because Colorado has relatively little industrial space outside the area. What’s more, because Colorado doesn’t border a state that has legalized recreational marijuana use, there isn’t much transport in or out — it is grown, processed and consumed right there....
Most growers use warehouse space as a combination indoor farm, packaging facility, storage space and distribution center. Employees clip buds from plants, cure them and ready them for shipment.
“It’s a factory that grows plants,” says Tim Cullen, owner of Colorado Harvest Co., a retailer that produced 3,600 pounds of pot last year and expects to produce 10,000 pounds this year. “It does not look like your friend’s basement in college.” Colorado Harvest owns 55,000 square feet of warehouse space to supply its five retail locations and is looking to lease 12,000 square feet more. Last year, after seeing warehouse rental prices increase, Mr. Cullen decided to build his own 35,000-square-foot facility in West Denver.
Growers are most interested in warehouses smaller than 80,000 square feet. Such spaces typically are used by modest manufacturing businesses. Converting them into cannabis-growing facilities often requires hundreds of thousands of dollars in upgrades to lighting, electrical and ventilation systems....
Mark Bowen, vice president in the Denver office of DCT Industrial Trust Inc., a real-estate investment trust that owns warehouses, said demand from marijuana growers has driven up the cost of warehouse space for users from the natural gas and tech industries by 60% or more, and increased lease renewal rates by 25% for DCT’s clients worried that if they don’t re-sign they will lose their space to the pot industry. “We’re happy about it,” Mr. Bowen said. Marijuana growers “are taking some of the space…that startups would maybe go to, and some of those businesses are having to come to buildings like ours.”
Over at Reason.com, Scott Shackford makes these interesting additional ponits in this follow-up post about this WSJ piece:
[I]f Colorado sees a clear boom in related logistics-focused commercial and industrial developments, then that’s going to be some great ammunition for other states pushing for legalization. Municipal governments absolutely love the logistics market, particularly in places where manufacturing is no longer (or never was) the source for blue-collar jobs. And of course, real estate professionals and developers have always been able to bend the ears of elected officials. Once the "right" people are also making money off legal marijuana, some resistance is likely to go up in smoke.
Among other thoughts, these pieces make me think it might be a real smart financial play to start buying up under-used wharehouse space in states like Arizona and California and Ohio and Michigan and Massachusetts and any other states likely be be voting on serious legalization initiatives in the next few years.
This lengthy new Vice article, headlined "How America's Legal Weed Is Changing the Black Market and Influencing Mexican Cartels," provides an effective (though necessarily incomplete) account of how legal reform developments in the United States are impacting all sort of marijuana markets. The piece merits a full read, and here are excerpts:
And these are mostly happy days for the legal weed industry, whose sales revenues grew from an estimated $1.5 billion in 2013 to $2.7 billion last year; one projection has them hitting $35 billion by 2020. All across Oregon, which legalized medical marijuana in 1998, people are attempting to carve out niches, hawking a dizzying array of weed sodas, candies, extracts, and other products. Oregonians overwhelmingly approved a ballot initiative last year that sanctioned pot sales to recreational users, making the state the next frontier of the so-called "green rush" that began in Colorado and Washington in 2012....
That new day hasn't dawned entirely. The hodgepodge of pot laws nationwide — 23 states plus Washington, DC now allow some form of medical marijuana — has created a situation ripe for exploitation. One of the great promises of marijuana legalization has been the concurrent elimination of the black market for weed, putting local dealers out of business and sticking it to Mexican cartels by cutting into their bottom line.
But while that may happen eventually, the black market in the United States is still thriving. Growers, consumers, dealers, and others in the industry told VICE News about operators that undercut prices at state pot shops, and several sources described illicit operations that ship large quantities of weed across the country from states that have legalized pot to states that haven't. Mexican organized crime experts told us that cartels are still smuggling bricks of bud across the border, and are perhaps even improving the quality of their product to cater to the rising expectations of American stoners.
"You're not going to eliminate the black market overnight," Beau Kilmer, co-director of the RAND Drug Policy Research Center, told VICE News. "It's going to take some time, because essentially when you look at prices in the black market, whether it's marijuana or meth or cocaine, you're compensating drug dealers and everyone in the supply chain for the risk of arrest and incarceration. That goes away with legalization."
Most experts agree with Kilmer, saying that in time, as more states repeal pot prohibition, the dynamics of the marijuana black market will begin to resemble those of America's tobacco and alcohol black markets. There are still people selling untaxed loose cigarettes and running moonshine even though the vast majority of consumers prefer going to the store to buy smokes and alcohol legally. Right now, it's extremely tempting for growers in legal states to export their product to prohibition states, where prices are far higher.
Sam Chapman, cofounder of New Economy Consulting, a firm that specializes in the marijuana industry, told VICE News it's widely known that a significant portion of the weed grown in Oregon and northern California gets exported to the East Coast. "We've been seeing that product end up in Florida, end up in New York — places that don't have cannabis decriminalization and have very harsh punishments," he said. "When you have prohibition in other states, it drives the price up [there] because it's not regulated… I'd guess 80 percent of all product in Oregon is, unfortunately, leaving the state."
August 25, 2015 in Business laws and regulatory issues, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research | Permalink | Comments (0)
Saturday, August 22, 2015
Spotlighting a unique (and uniquely valuable?) aspect of proposed Massachusetts legalization initiative
Jacob Sullum has this new Forbes piece which effectively highlights a unique element in a marijuana legalization proposal making the rounds in Massachusetts. The piece is headlined "By Allowing Pot Pubs, A Massachusetts Measure Would Treat Cannabis Consumers More Like Drinkers," and here are excerpts from the start and end of the piece:
When the Campaign to Regulate Marijuana Like Alcohol in Massachusetts unveiled the text of its 2016 legalization initiative this month, the group highlighted several features of the measure but omitted the most interesting one. The Regulation and Taxation of Marijuana Act would allow consumption of cannabis products on the premises of businesses that sell them, subject to regulation by the state and approval by local voters.
That’s a big deal, because until now no jurisdiction has satisfactorily addressed the obvious yet somehow touchy question of where people can consume the cannabis they are now allowed to buy. The legalization initiatives approved by voters in Colorado, Washington, Oregon, and Alaska all promised to treat marijuana like alcohol, which implies allowing venues similar to taverns where people can consume cannabis in a social setting. Yet all four states say businesses that sell marijuana may not let customers use it on the premises.
Although a few “bring your own cannabis” (BYOC) clubs have popped up to accommodate people who want to use marijuana outside their homes from time to time, the legality of such establishments is a matter of dispute. The result is that people can openly buy marijuana without fear, but they still have to consume it on the sly, just like in the bad old days. The problem is especially acute for visitors from other states, since pot-friendly hotels are still pretty rare.
The Massachusetts initiative boldly addresses this consumption conundrum by allowing for something like Dutch-style cannabis cafés. At the same time, it reassures people who don’t like the sound of that by permitting such businesses only in towns where a majority of voters have agreed to allow them. Pot pubs also would be subject to restrictions imposed by state regulators, who might insist that they operate more discreetly than Amsterdam’s famous “coffee shops.”
The initiative says “no person shall consume marijuana in a public place or smoke marijuana where smoking tobacco is prohibited.” But it adds that the rule “shall not apply to a person who consumes marijuana or marijuana products in a designated area of a marijuana establishment located in a city or town that has voted to allow consumption on the premises where sold.” The question would be put on the local ballot in any city where supporters managed to get signatures from 10 percent of voters.
By contrast, the four states that have already legalized marijuana for recreational use uniformly ban consumption in pot stores. They also impose additional restrictions on consumption that are open to interpretation and leave people uncertain about where it’s OK to use marijuana....
Mason Tvert, who helped run the Amendment 64 campaign in Colorado and is now pushing the Campaign for Limited Social Use in Denver, takes a similar view. “Marijuana’s now a legal product for adults in Denver, and it’s really time that we give adults a place to use it legally and socially,” he told the Associated Press last month. “We shouldn’t be requiring that you sit at home if you choose to use marijuana as an adult.”
Tvert’s initiative, which is expected to be on the ballot in November, will give Denver voters a chance to decide whether they meant it when they said marijuana should be treated like alcohol. But the big test will come next year, when voters in Massachusetts (and possibly in California as well) will decide whether to let pot smokers out of the basement.
August 22, 2015 in Business laws and regulatory issues, Initiative reforms in states, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)