Monday, April 17, 2017
The Denver Post, as highlighted here, this past weekend had a section of its "Sunday Perspective" focused on marijuana reform. Included among the section's contributors were "former Cannabist editor Ricardo Baca, U.S. Rep. Jared Polis, Greenwood Village Police Chief John Jackson, L’Eagle grow and dispensary owner Amy Andrle, Kayvan Khalatbari co-founder of Denver Relief Consulting, and former teachers turned science-based marijuana curriculum developers Sarah Grippa and Molly Lotz." Here are the headlines of the pieces with links:
April 17, 2017 in History of Marijuana Laws in the United 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)
Monday, April 3, 2017
Governors of first four legalization states write to AG Sessions and Secretary Mnuchin in support of Cole Memo
As reported in this Huffington Post piece, "Governors from four states where recreational marijuana is legal for adult use sent a letter to Attorney General Jeff Sessions and Treasury Secretary Steven Mnuchin on Monday urging them to respect state cannabis laws." The full relatively brief letter is available at this link, and here are some key passages:
As governors of states that have legalized marijuana in some form, we ask the Trump Administration to engage with us before embarking on any changes to regulatory and enforcement systems. The balance struck by the 2013 Department of Justice Cole Memorandum (Cole Memo) has been indispensable – providing the necessary framework for state regulatory programs centered on public safety and health protections.
We understand you and others in the administration have some concerns regarding marijuana. We sympathize, as many of us expressed apprehensions before our states adopted current laws. As governors, we have committed to implementing the will of our citizens and have worked cooperatively with our legislatures to establish robust regulatory structures that prioritize public health and public safety, reduce inequitable incarceration and expand our economies.
The Cole Memo and the related Financial Crimes Enforcement Network (FinCEN) guidance provide the foundation for state regulatory systems and are vital to maintaining control over marijuana in our states. Overhauling the Cole Memo is sure to produce unintended and harmful consequences. Changes that hurt the regulated market would divert existing marijuana product into the black market and increase dangerous activity in both our states and our neighboring states. Likewise, without the FinCEN guidance, financial institutions will be less willing to provide services to marijuana-related businesses. This would force industry participants to be even more cash reliant, posing safety risks both to the public and to state regulators conducting enforcement activity. The Cole Memo and FinCEN guidance strike a reasonable balance between allowing the states to enact reasonable regulations and the federal government’s interest in controlling some of the collateral consequences of legalization.
Among the many exciting topics for student presentations in my Marijuana Law, Policy & Reform seminar this coming wee is a look at "recent trends and varying approaches in allowing/restricting home growing marijuana for medicinal or recreational purposes and the plant count and possession limitations these laws impose." As preparation for this topic, my student has provided these links for background reading:
Law review article: Ryan Stoa, “Marijuana Appellations: The Case for Cannabicultural Designations of Origins.”
A research paper expounding upon the possible iterations of a post-legalization marijuana market in the United States. Predictions concerning the form of a future market and the potential regulatory hurdles in the way. The possibility of the marijuana market evolving similarly to the wine industry and avoiding the widespread concern with “Big Marijuana."
Press article: "Costs of Growing Cannabis at Home vs. Buying Bud at a Dispensary"
A helpful guide comparing the costs to a consumer of either cultivating their own marijuana or simply purchasing marijuana from a dispensary.
A recent article from Denver concerning home grown marijuana entering into the black market.
A helpful visual summary of which states have adopted medical/recreational marijuana policies.
Press article: "Home Cannabis Cultivation Laws by State"
A quick reference to the laws of each state that has legalized marijuana for recreational or medical purposes with regard to home cultivation.
April 3, 2017 in Assembled readings on specific topics, Business laws and regulatory issues, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Wednesday, March 29, 2017
"Too Stoned to Drive? The question is trickier than you’d think for police and the courts to answer."
The title of this post is the headline of this ABA Journal article appearing in the April 2017 issue. Here are excerpts:
Massachusetts is one of eight states, plus the District of Columbia, where recreational marijuana use is now legal. Twenty more states have legalized medical marijuana. But science and the law have not kept pace with this rapid political change.
We take for granted that not being able to walk a straight line or stand on one leg means you’re drunk, and that being drunk means it’s unacceptably dangerous to drive. But there is no clear scientific consensus when it comes to smoking pot and driving. And few of the tools police officers have long relied on to determine whether a driver is too drunk to drive, such as the Breathalyzer, exist for marijuana....
Most (but not all) studies find that using pot impairs one’s ability to drive. However, overall, the impairment appears to be modest — akin to driving with a blood-alcohol level between 0.01 and 0.05, which is legal in all states. (The much greater risk is in combining pot with alcohol.)
The increased crash risk with pot alone “is so small you can compare it to driving in darkness compared to driving in daylight,” says Rune Elvik, a senior research officer at the Institute of Transport Economics in Oslo, Norway, who conducted several major meta-analyses evaluating the risks of drugged driving. “Nobody would consider banning people from driving in the dark. If you tried to impose some kind of consistency standard, then there is no strong case, really, for banning it.”
When it comes to alcohol, science and the courts have long established a direct line between number of drinks, blood-alcohol level and crash risk. As one goes up, so do the others. Not so for pot. Scientists can’t say with confidence how much marijuana, in what concentration, used in what period of time, will reliably make someone “high.” (This is especially difficult to gauge because most of the existing studies used pot provided by the National Institute on Drug Abuse, which tends to be a lot less potent than what smokers can buy on the street or in shops.)
Blood levels of THC — the chemical component of pot that makes you high — spike quickly after smoking and decline rapidly in the hours afterward, during the window when a smoker would feel most high. What’s more, regular smokers could have THC in their blood for days or weeks after smoking, when they are clearly no longer high.
Still, laws in 18 states tie drugged driving charges to whether drivers have THC or related compounds in their blood. Some states prohibit driving with any amount, and some specify a threshold modeled after the 0.08 limit states use for blood alcohol. But the lag time between being pulled over and being transported to a hospital for a blood draw — on average, more than two hours — can lead to false negatives, while the tolerance developed by regular users (and the tendency for THC to stick around in their bloodstreams) can lead to false positives. This is why, researchers say, blood THC laws make little sense....
The more sensible strategy appears to be prohibiting driving while high, and 31 states take this approach. But proving that a driver is high turns out to be tricky terrain, too....
Research shows that failing a standard field sobriety test correlates closely with having a blood-alcohol level above the legal limit—and officers have the Breathalyzer to confirm their findings. But “the gap between assessment, cannabis use and driving is really not completely closed,” says Thomas Marcotte, co-director of the Center for Medicinal Cannabis Research at the University of California at San Diego....
Some police departments use drug recognition experts — specially trained officers dispatched to evaluate suspected drugged drivers. These officers, commonly referred to as DREs, use an hourlong, 12-step process that includes taking the suspect’s blood pressure and pulse and conducting eye exams and balance tests. They use this information to generate an opinion about whether the driver is intoxicated — and, if so, by what. Preliminary research seems to indicate their opinions are of mixed quality, and not all judges allow DREs to testify to their findings.
“They’re not EMTs. They’re not medically trained,” says [Nicholas] Lovrich, the Washington State professor who, in a recent study of five years of DRE data in Washington and New Mexico, found a false-positive rate for pot intoxication ranging from 38 percent to 68 percent. “Everyone in the DRE business knows it’s really hard to do this.”
The gold standard would be a Breathalyzer-like device that can objectively measure whether someone has recently smoked, as well as how much. Lovrich is working on developing such a tool, using the same type of technology that security screeners use at airports to check for explosives. He says it will be at least two years before the technology is perfected, miniaturized and engineered to be durable enough to toss in the back seat of a squad car.
Thursday, March 23, 2017
Despite lingering uncertainty about enforcement of federal drug law under the Trump Administration, marijuana reform continues in the states. Yesterday, legislators in Illinois introduced bills that would legalize small amounts of marijuana. According to The Chicago Tribune:
Lawmakers are proposing to legalize recreational marijuana in Illinois but say the legislation probably won't come up for a vote until next year.
Sponsors on Wednesday introduced bills that would make it legal for adults 21 and older to possess, grow and buy limited amounts of marijuana.
The state would license and regulate businesses to grow, process and sell the plant, and it would establish safety regulations such as testing and labeling requirements, sponsors said.
The measure would also allow residents to possess up to 28 grams of pot, or about an ounce, and to grow five plants.
The bills propose taxing marijuana at a rate of $50 per ounce wholesale, plus the state's standard 6.25 percent sales tax.
Based on sales of recreational marijuana in Colorado, the Marijuana Policy Project, a national advocacy group, estimates sales in Illinois could generate about $350 million to $700 million per year.
Gov. Bruce Rauner and House Speaker Michael Madigan reserved judgment, as they typically do with new bills. But the Illinois Association of Chiefs of Police opposes legalization, saying marijuana poses a threat to public health and safety, and causes potential enforcement problems because it conflicts with the federal prohibition on marijuana.
The co-sponsors, Sen. Heather Steans and Rep. Kelly Cassidy, both Democrats from Chicago's North Side, said they don't plan to call the bill for a vote this session but will hold hearings to get feedback and see whether some version of a legalization bill can get support next year.
"If we bring this out in the open, we can generate revenue legally rather than for the black market," Steans said.
Cassidy said marijuana prohibition creates far more problems than it prevents. "Regulating marijuana and removing the criminal element from marijuana production and sales will make our communities safer," she said.
Eight states have allowed the sale of the drug, generally by referendum. But in Illinois, it's very difficult to get a binding vote on the statewide ballot, so it probably would take legislative action to change the law.
If approved, the plan would make Illinois the first state in the Midwest to allow the general public, including out-of-state visitors, to buy marijuana, though it would remain illegal to transport it across state lines. The proposal also calls for dividing the tax revenue, with half going to the state's general fund and the rest to schools and drug abuse treatment and prevention.
Thursday, March 16, 2017
The folks at the Congressional Research Service do a terrific job summarizing complicated law and policy issues for members of Congress, and their latest marijuana publication is no exception. This latest CRS report is titled "The Marijuana Policy Gap and the Path Forward," and it covers an amazing amount of marijuana law and policy in under 50 pages. Here are excerpts from its summary:
Most states have deviated from an across-the-board prohibition of marijuana, and it is now more so the rule than the exception that states have laws and policies allowing for some cultivation, sale, distribution, and possession of marijuana — all of which are contrary to the federal Controlled Substances Act (CSA). As of March 2017, nearly 90% of the states, as well as Puerto Rico and the District of Columbia, allow for the medical use of marijuana in some capacity. Also, eight states and the District of Columbia now allow for some recreational use of marijuana. These developments have spurred a number of questions regarding their potential implications for federal law enforcement activities and for the nation’s drug policies as a whole.
Thus far, the federal response to state actions to decriminalize or legalize marijuana largely has been to allow states to implement their own laws on marijuana. The Department of Justice (DOJ) has nonetheless reaffirmed that marijuana growth, possession, and trafficking remain crimes under federal law irrespective of states’ positions on marijuana. Rather than targeting individuals for drug use and possession, federal law enforcement has generally focused its counterdrug efforts on criminal networks involved in the drug trade.
While the majority of the American public supports marijuana legalization, some have voiced apprehension over possible negative implications. Opponents’ concerns include, but are not limited to, the potential impact of legalization on (1) marijuana use, particularly among youth; (2) road incidents involving marijuana-impaired drivers; (3) marijuana trafficking from states that have legalized it into neighboring states that have not; and (4) U.S. compliance with international treaties. Proponents of legalization have been encouraged by potential outcomes that could result from marijuana legalization, including a new source of tax revenue for states and a decrease in marijuana-related arrests. Many of these potential implications are yet to be fully measured.
Given the current marijuana policy gap between the federal government and many of the states, there are a number of issues that Congress may address. These include, but are not limited to, issues surrounding availability of financial services for marijuana businesses, federal tax treatment, oversight of federal law enforcement, allowance of states to implement medical marijuana laws and involvement of federal health care workers, and consideration of marijuana as a Schedule I drug under the CSA. The marijuana policy gap has widened each year for some time.
March 16, 2017 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (2)
Wednesday, March 15, 2017
The title of this post is the title of a notable new report issued by National Families in Action. The report can be downloaded at this link, and this press release about the report provides a summary of its themes and core contents:
A new report by National Families in Action (NFIA) uncovers and documents how three billionaires, who favor legal recreational marijuana, manipulated the ballot initiative process in 16 U.S. states for more than a decade, convincing voters to legalize medical marijuana. NFIA is an Atlanta-based nonprofit organization, founded in 1977, that has been helping parents prevent children from using alcohol, tobacco, and other drugs. NFIA researched and issued the paper to mark its 40th anniversary.
The NFIA study, Tracking the Money That’s Legalizing Marijuana and Why It Matters, exposes, for the first time, the money trail behind the marijuana legalization effort during a 13-year period. The report lays bare the strategy to use medical marijuana as a runway to legalized recreational pot, describing how financier George Soros, insurance magnate Peter Lewis, and for-profit education baron John Sperling (and groups they and their families fund) systematically chipped away at resistance to marijuana while denying that full legalization was their goal. The report documents state-by-state financial data, identifying the groups and the amount of money used either to fund or oppose ballot initiatives legalizing medical or recreational marijuana in 16 states. The paper unearths how legalizers fleeced voters and outspent — sometimes by hundreds of times — the people who opposed marijuana.
Tracking the Money That’s Legalizing Marijuana and Why It Matters illustrates that legalizers lied about the health benefits of marijuana, preyed on the hopes of sick people, flouted scientific evidence and advice from the medical community and gutted consumer protections against unsafe, ineffective drugs. And, it proves that once the billionaires achieved their goal of legalizing recreational marijuana (in Colorado and Washington in 2012), they virtually stopped financing medical pot ballot initiatives and switched to financing recreational pot. In 2014 and 2016, they donated $44 million to legalize recreational pot in Alaska, Oregon, California, Arizona, Nevada, Massachusetts and Maine. Only Arizona defeated the onslaught (for recreational marijuana).
March 15, 2017 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, 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, March 6, 2017
Pennsylvania's Auditor General suggests marijuana legalization could help state close budget deficit
A notable bean-counter is making a notable case for marijuana reform in the Keystone State. This official press release, headlined "Auditor General DePasquale Recommends Regulating, Taxing Marijuana as Right Move to Help Deal with Critical Issues: Result would bring in revenue, create jobs, reduce corrections costs," explains:
Auditor General Eugene DePasquale said today Pennsylvania should strongly consider regulating and taxing marijuana to benefit from a booming industry expected to be worth $20 billion and employ more than 280,000 in the next decade. “The regulation and taxation of the marijuana train has rumbled out of the station, and it is time to add a stop in the Commonwealth of Pennsylvania,” DePasquale said during a news conference at the state capitol.
“I make this recommendation because it is a more sane policy to deal with a critical issue facing the state. Other states are already taking advantage of the opportunity for massive job creation and savings from reduced arrests and criminal prosecutions. In addition, it would generate hundreds of millions of dollars each year that could help tackle Pennsylvania’s budget problems.”...
In 2012, Colorado voters approved legalizing, regulating and taxing marijuana. Last year, Colorado – which has less than half the population of Pennsylvania – brought in $129 million in tax revenue on $1 billion in marijuana sales from the new industry that had already created an estimated 18,000 jobs. “The revenue that could be generated would help address Pennsylvania’s revenue and spending issue. But there is more to this than simply tax dollars and jobs,” DePasquale said. “There is also social impact, specifically related to arrests, and the personal, emotional, and financial devastation that may result from such arrests.”
In Colorado’s experience, after regulation and taxation of marijuana, the total number of marijuana arrests decreased by nearly half between 2012 and 2014, from nearly 13,000 arrests to 7,000 arrests. Marijuana possession arrests, which make up the majority of all marijuana arrests, were nearly cut in half, down 47 percent, and marijuana sales arrests decreased by 24 percent. “All told, this decrease in arrest numbers represent thousands of people who would otherwise have blemished records that could prevent them from obtaining future employment or even housing,” DePasquale said. “Decriminalization also generates millions in savings from fewer arrests and prosecutions.”
DePasquale said Pennsylvania has already benefited by some cities decriminalizing marijuana. In Philadelphia, marijuana arrests went from 2,843 in 2014 to 969 in 2016. Based on a recent study, the RAND Corporation estimated the cost for each marijuana arrest and prosecution is approximately $2,200. Using those figures, that’s a savings of more than $4.1 million in one Pennsylvania city. Last year, York, Dauphin, Chester, Delaware, Bucks and Montgomery counties each had more arrests for small amounts of marijuana than Philadelphia. Those counties had between 800 and 1,400 arrests in 2015.
“Obviously, regulation and taxation of marijuana is not something that should be entered into lightly,” DePasquale said. “Should Pennsylvania join the growing number of states benefiting financially and socially from the taxation and regulation of marijuana; there are many things to consider, including details about age limits, regulatory oversight, licensing, grow policies, sale and use locations, and possession limitations.
“As I said earlier, the train has indeed left the station on the regulation and taxation of marijuana,” DePasquale said. “It is time for this commonwealth to seriously consider this opportunity to generate hundreds of millions of dollars in new revenue.”
March 6, 2017 in Business laws and regulatory issues, Criminal justice developments and reforms, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Taxation information and issues , Who decides | Permalink | Comments (0)
Saturday, February 25, 2017
The title of this post is the title of this notable new piece by RAND's Beau Kilmer appearing in the New England Journal of Medicine. Here are excerpts from the start and end of a useful short commentary:
The cannabis-policy landscape is undergoing dramatic change. Although many jurisdictions have removed criminal penalties for possessing small amounts of cannabis and more than half of U.S. states allow physicians to recommend it to patients, legalizing the supply and possession of cannabis for nonmedical purposes is a very different public policy. Since the November 2016 election, 20% of the U.S. population lives in states that have passed ballot initiatives to allow companies to sell cannabis for any reason and adults 21 or older to purchase it. Although other states may move toward legalization, uncertainty abounds because of the federal prohibition on cannabis. The Obama administration tolerated these state laws; it’s unclear what the Trump administration will do.
There is also tremendous uncertainty about the net effect of cannabis legalization on public health. Most adults who occasionally use cannabis find it pleasurable and don’t experience substantial problems. There is a growing body of research on the medical benefits of consuming cannabis flowers or extracts, and legalization should make it easier to study the therapeutic potential and allow access for patients who could benefit.
But cannabis use comes with important risks. For example, cannabis intoxication impairs cognitive and psychomotor function, and there’s strong evidence that delta-9-tetrahydrocannabinol (THC), the main psychoactive chemical in cannabis, increases the risk of psychotic symptoms or panic attacks. Approximately 9% of people who try cannabis meet criteria for cannabis dependence at some point. The rate roughly doubles for those who initiate use before 17 years of age and is much higher for adolescents who use cannabis weekly or more often....
Jurisdictions considering legalizing cannabis for nonmedical purposes will have to make several decisions that could have profound consequences for public health. For example, decision makers will have to determine how cannabis will be supplied (see diagram Continuum of Recreational Cannabis Supply Options.). Allowing sales by for-profit companies is only one option. Since daily and near-daily cannabis users account for the vast majority of cannabis expenditures, many businesses will target and attempt to expand the number of heavy users. Experiences with alcohol and tobacco suggest that profit-maximizing firms and their lobbyists will eventually fight to weaken regulations intended to protect health.
Even if states allow for-profit companies to produce cannabis, local governments could limit retail sales to nonprofit organizations or sell the drug through a government monopoly. Jurisdictions less focused on generating tax revenue could simply permit home production and gifting (as Washington, D.C., does) or allow user cooperatives (an option offered in Uruguay).
Second, jurisdictions will have to decide how cannabis should be priced. The post-legalization retail price of cannabis will not only influence revenues and the size of the illicit market, it will also affect consumption. Legalizing cannabis can dramatically reduce production and distribution costs for at least three reasons: suppliers no longer have to be compensated for the risk of seizure and arrest; it allows producers to take advantage of economies of scale; and it makes it easier to incorporate new technologies into the production process. Jurisdictions seeking to ensure that cannabis retail prices don’t drop precipitously have many options. For example, they could limit production, impose costly regulations on suppliers, require a minimum price, or levy an excise tax.
Third, jurisdictions will need to decide whether to update their prevention messaging — and whether prevention campaigns will start before legal cannabis is available. They could target young people with such messages to counter commercial promotion where it’s allowed and encourage adults to talk to them about the effects of cannabis, especially on driving. Prevention also includes efforts to limit access and exposure to cannabis products. Policymakers can learn important lessons about prevention from research on alcohol and tobacco.
Fourth, given the dearth of information about the consequences associated with high-potency cannabis products and our inability to measure cannabis impairment, risk-averse policymakers may consider initially limiting access to certain types of products or imposing a cap on products’ THC content. Another option, offered by Stanford social psychologist Robert MacCoun and others, is to tax cannabis according to THC content, thereby giving jurisdictions a lever to nudge users toward lower-potency products.
Finally, since each supply option has trade-offs, some jurisdictions may want to start with a middle-ground option before embracing a for-profit model (see diagram). One strategy is to implement a sunset clause allowing policymakers to decide after a predetermined period whether to maintain the status quo or switch approaches. Since no one knows the best way to tax or regulate cannabis, creating flexible rules would make it easier to make midcourse corrections and incorporate new research and other insights into policies.
Although public health outcomes are clearly important, they aren’t the only considerations when setting cannabis policy. The costs of enforcing prohibition, racial and ethnic disparities in cannabis arrests, the size of the illicit market, impact on public budgets, and nonmedical benefits of using cannabis (e.g., pleasure, stress relief) are just a few of the other issues that warrant discussion. In addition, we should be skeptical of people who claim to know what the net effect of cannabis legalization on public health will be. Much will depend on implementation decisions, but jurisdictions’ ability to minimize health risks will also depend on how they respond to new information and other sources of uncertainty.
Thursday, February 9, 2017
In Massachusetts and Maine and even in California there have been various moves made by various state officials and politicians to slow the process and progress of implementing 2016 ballot initiatives that legalized recreational marijuana in those states. But the state-level implementation story seems quite different in Nevada according to this new local article headlined "Nevada officials fast track plan to regulate recreational marijuana." Here are the details:
State officials plan to move quickly with a task force for regulating recreational marijuana, the Nevada Senate Judiciary Committee heard Wednesday. The first steps will be putting temporary regulations in place by July to allow medical marijuana establishments to sell recreational marijuana. By the end of the year, permanent regulations are to be in place.
In the world of state government, that is a fast-tracked process for completing regulations. It can take a year or so for that to happen. “The idea is that we would get going pretty quickly,” said Deonne Contine, executive director of the Nevada Department of Taxation.
In November, Nevada voters approved Question 2, which legalized recreational marijuana and tasked the state’s Department of Taxation with developing regulations to guide the new industry. Recreational marijuana has a strong place in the budget plans of Gov. Brian Sandoval, who has proposed a 10 percent tax on the retail recreational marijuana sales to generate an estimated $70 million for public education.
The state is piggybacking on its medical marijuana program, which started in 2014. The temporary program will allow licensed medical marijuana establishments to sell recreational marijuana. Those licenses will be good until Dec. 31, or 30 days after permanent regulations are in place, whichever is first. To get temporary regulations in place, the state will have a public workshop in mid-March followed by an adoption hearing on May 8 at the Nevada Tax Commission meeting. The state would start accepting applications for temporary licenses in May and begin issuing them on July 1.
During that time, the legwork for the permanent regulations will be underway. Sandoval issued an executive order this week for a 16-member statewide task force to develop regulations, with input from local government, public safety and public health officials. That task force will meet monthly between February and April and issue a report in May. The goal is to send a draft of permanent regulations to the Legislative Counsel Bureau for review in July. That will be followed by a public workshop in the fall and adoption by December.
Friday, February 3, 2017
A busy week prevented me from finding time earlier to blog about this notable Stateline piece headlined "As More Voters Legalize Marijuana, States Left With Regulatory Hurdles." Here are some highlights:
The battle to legally grow, sell, buy and smoke pot in California has been a long one. Voters in the state ushered in medical marijuana 20 years ago, but took until last fall to approve a plan to legalize and regulate recreational marijuana.
Now, California officials are faced with setting rules for a product that has been outlawed by the federal government since the 1930s — a challenge that lawmakers and regulators in the other states that chose some form of marijuana legalization in the November election also are confronting.
Like California, Maine, Massachusetts and Nevada voted to legalize recreational marijuana. They also will need rules about where pot shops can be located and whether dispensaries can sell food and candy infused with marijuana. They will also have to dovetail their recreational regulations with an existing medical marijuana industry, while Arkansas, Florida and North Dakota will be building medical systems from the ground up.
It could take several years. Colorado and Washington paved the way for recreational marijuana by legalizing it in 2012, but they are still sorting out policy details.
There is often a gap between the language of ballot measures like California’s and the detailed regulations needed to get marijuana markets off the ground. And the referendums that voters approve often call for quick implementation, giving legislators and regulators little or no time to enact policies before the drug becomes legal. “There’s no perfect implementation, there’s no perfect legalization effort,” said Michael Correia, a federal lobbyist for the National Cannabis Industry Association. “There’s going to be hiccups.”...
Arkansas and Massachusetts already are discovering the difficulty of setting up a regulatory system. Arkansas has delayed the launch of its medical marijuana program to give public agencies more time to prepare and lawmakers have introduced bills to restrict how the drug is used. Massachusetts lawmakers delayed the opening of marijuana shops by six months and proposed bills that would limit how much can be grown and possessed.
States also face banking challenges, licensing skirmishes and drugged driving debates. But despite all the difficulties, more states are expected to jump into the legalization fray. Already this year, at least 12 states are considering legislation to legalize and regulate marijuana. Another seven are looking at measures to decriminalize simple possession of marijuana and nearly 30 ballot measures related to marijuana are being considered for elections in 2017 and 2018....
Three years after marijuana could first be bought and sold in Colorado, officials are still working through regulatory changes. This year already, bills have been introduced that would create a licensing system for marijuana smoking clubs, prohibit advertising marijuana without a sales license, and allow the use of medical marijuana for stress disorders.
Similarly in Washington, which legalized marijuana on the ballot in 2012, lawmakers are considering legislation that would allow retailers to sell marijuana merchandise like clothing that bears a store’s logo, regulate in-home marijuana production, and standardize the packaging and labeling of edible marijuana products....
One test of how well legalized marijuana is working will be when California, with about 39 million people and the sixth largest economy in the world, opens its recreational marijuana shops. Market researchers estimate that the California cannabis market will grow by 18.5 percent annually over the next five years, reaching $6.5 billion by 2020. By comparison, revenue in Massachusetts and Nevada, which also legalized recreational marijuana in November, is expected to be about $1.07 billion and $629.5 million, respectively.
But regulating the California market won’t be easy. Already there are rumblings of pushing implementation back a year from 2018 to 2019. And it won’t be entirely up to the state. Local governments will have a lot of say in determining when and where marijuana is bought and consumed.
I’m happy to announce that my first-of-its-kind textbook on Marijuana Law, Policy, and Authority will soon be published by Aspen. It will be out in April (in e form) and May (in print). The teacher’s manual and a companion website will be available soon thereafter. Many thanks to Doug and others who have provided helpful feedback on this book over the last 2.5 years!
The book covers a lot of ground, befitting a field that implicates so many different areas of law. The first chapter of the book is now available on SSRN. That chapter provides more details about the book’s coverage and approach, and it also explains why this is such an interesting and worthwhile area of law to study – and not just for those who are interested in practicing in this burgeoning field.
Not coincidentally, I will be posting more this month (both here and at Prawfsblawg) on topics drawn from the book. My first post at Prawfsblawg briefly laid out the case for teaching and writing about marijuana law. Even though most people who read this blog are already sold on the subject, I’ll copy the relevant passage here:
“For one thing, state marijuana reforms and the federal response to them have sparked some of the most challenging and interesting legal controversies of our day. May the states legalize a drug while Congress forbids it? Even so, are state regulations governing marijuana preempted by federal law? Does anyone (besides the DOJ) have a cause of action to challenge them as such? Can the President suspend enforcement of the federal ban? Do state restrictions on marijuana industry advertising violate the First Amendment? These are just a handful of the intriguing questions that are now being confronted in this field.
Just as importantly, there is a large and growing number of people who care about the answers to such questions. Forty-three (43) states and the District of Columbia have legalized possession and use of some form of marijuana by at least some people. These reforms – not to mention the prohibitions that remain in place at the federal level – affect a staggering number of people. Roughly 40% of adults in the U.S. have tried marijuana, and more than 22 million people use the drug regularly. To supply this demand, thousands of people are growing and selling marijuana. In Colorado alone, for example, there are more than 600 state licensed marijuana suppliers. There are also countless third parties who regularly deal with these users and suppliers, including physicians who recommend marijuana to patients, banks that provide payment services to the marijuana industry, firms that employ marijuana users, and lawyers who advise all of the above.
All of these people need help navigating a thicket of complicated and oftentimes conflicting laws governing marijuana. Colorado, for example, has promulgated more than 200 pages of regulations to govern its $1 billion a year licensed marijuana industry. Among many other things, Colorado’s regulations require suppliers to carefully track their inventories, test and label their products, and limit where and how they advertise. These regulations are complicated enough but doubts about their enforceability (highlighted in the questions above) only add to the confusion and the need for informed legal advice.”
In the coming weeks, I will blog about some of the questions noted above. In the meantime, if you are interested in teaching a course or a unit on any aspect of marijuana law, contact me – robert<dot>mikos<at>vanderbilt<dot>edu -- I would be happy to chat.
February 3, 2017 in Assembled readings on specific topics, Books, Business laws and regulatory issues, Current Affairs, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, State court rulings, Who decides | Permalink | Comments (2)
Thursday, January 19, 2017
Two notable new pieces from two notable marijuana reform states (co-authored by two notable former students who took my OSU College of Law marijuana seminar)
One of many reasons I have been bullish on teaching marijuana reform at The Ohio State University Moritz College of Law is because I view the new marijuana reform universe to be a particularly exciting potential "growth industry" for junior lawyers. For that reason (and others), I was so very pleased to see this week the publication of these two (very different) pieces discussing marijuana reform developments in two (very different) states that were both co-authored by students who took my marijuana reform class. Here are links to the pieces and their starting paragraphs:
From California here, "Reclassifying Marijuana Convictions on Your Criminal Record Under California's New Proposition 64," a piece co-authored by Cat Packer, who is now a policy coordinator at the Drug Policy Alliance based in California.
On November 8, 2016, Californians took a major step towards ending the war on drugs and repairing some of the damage inflicted on people’s lives by marijuana prohibition, by passing Proposition 64, the Adult Use of Marijuana Act. Although, the most serious marijuana-related crimes such as providing marijuana to minors, or attempting to smuggle marijuana across state lines remain felonies, under Prop. 64, most marijuana-related misdemeanors and felonies have been reduced or altogether eliminated. These sweeping reductions in criminal penalties are retroactive, meaning past convictions for marijuana offenses reduced or eliminated under Prop. 64 can be reclassified on a criminal record with the courts for free.
From Pennsylvania here, "Medical Marijuana Comes to Pennsylvania: What to Expect As the Keystone State Rolls Out its New Medical Marijuana Program," a piece co-authored by Kelly M. Flanigan, an Associate at K&L Gates
A lack of consensus regarding both medical and recreational marijuana has sparked intense debate across the country. Combined with federal law prohibitions, the state-by-state mosaic creates a dynamic legal landscape. Marijuana remains illegal federally and retains its classification as a Schedule I drug under the Controlled Substances Act. However, 26 states and the District of Columbia have enacted state laws legalizing marijuana in some form. On April 17, 2016, Pennsylvania joined other states that have recognized some medical use for marijuana when Governor Tom Wolf signed the Medical Marijuana Act (“Act 16”) into law.
The Pennsylvania Department of Health (“DOH”) is charged with implementing Act 16, and it promptly developed the medical marijuana program. The DOH has been rolling out temporary regulations (three sets so far) and it anticipates that medical marijuana will become available in Pennsylvania in early 2018. The first critical date for those interested in becoming a medical marijuana organization is January 17, 2017, when the DOH releases its applications for grower/processors and dispensaries through its website.
January 19, 2017 in Criminal justice developments and reforms, 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)
Friday, January 13, 2017
The title of this post is the headline of this lengthy new article from The Hill. Here are excerpts:
Legislators in more than a dozen states have introduced measures to loosen laws restricting access to or criminalizing marijuana, a rush of legislative activity that supporters hope reflects a newfound willingness by public officials to embrace a trend toward legalization.
The gamut covered by measures introduced in the early days of legislative sessions underscores the patchwork approach to marijuana by states across the country — and the possibility that the different ways states treat marijuana could come to a head at the federal Justice Department, where President-elect Donald Trump's nominee for attorney general is a staunch opponent of legal pot.
Some states are taking early steps toward decriminalizing possession of small amounts of marijuana. In his State of the State address this week, New York Gov. Andrew Cuomo (D) said he will push legislation to remove criminal penalties for non-violent offenders caught with marijuana. “The illegal sale of marijuana cannot and will not be tolerated in New York State, but data consistently show that recreational users of marijuana pose little to no threat to public safety,” Cuomo’s office wrote to legislators. “The unnecessary arrest of these individuals can have devastating economic and social effects on their lives.”
New Hampshire Gov. Chris Sununu (R) said during his campaign he would support decriminalizing marijuana. Legislation has passed the Republican-led state House in recent years, though it died when Sununu’s predecessor, now-Sen. Maggie Hassan (D), said she did not support the move.
Several states are considering allowing marijuana for medical use. Twenty-eight states already have widespread medical marijuana schemes, and this year legislators in Missouri, South Carolina, Tennessee, Texas and Utah have introduced bills to create their own versions. Republicans in control of state legislatures in most of those states are behind the push.
Legislators in Connecticut, Rhode Island, Vermont, Delaware, New Mexico and New Jersey will consider recently introduced measures to legalize marijuana for recreational use.
There is little consensus on just how to approach legalization: Three different bills have been introduced in Connecticut’s legislature. Two have been introduced in New Mexico, and three measures to allow medical pot have been filed in Missouri.
In 2016, voters in four states — Maine, Massachusetts, Nevada and California — joined Washington, Oregon, Alaska and Colorado in passing ballot measures legalizing pot for recreational purposes. Those efforts, marijuana reform advocates say, have lifted the stigma legislators might have felt. “Now that voters in a growing number of states have proven that this is a mainstream issue, many more lawmakers feel emboldened to champion marijuana reform, whereas historically this issue was often looked at as a marginalized or third-rail issue,” said Tom Angell, chairman of the pro-legalization group Marijuana Majority.
Just because measures get introduced does not mean they will advance. In many cases, Angell said, it is governors — Democrats and Republicans alike — who stand in the way. Though Democrats control the Connecticut legislature, Gov. Dan Malloy (D) has made clear he is no supporter of legalized pot. Vermont Gov. Phil Scott (R) has not said he would veto a legalization bill, though he is far less friendly to the idea than his predecessor, Democrat Peter Shumlin.
In New Mexico, Gov. Susana Martinez (R) has called decriminalizing marijuana a “horrible, horrible idea.” Democratic legislators are considering a plan to put legal marijuana to voters, by proposing an amendment to the state constitution. If New Jersey legislators advance a legalization law, they would run into an almost certain veto from Gov. Chris Christie (R).
While 14 state legislatures have legalized marijuana for medical use, no state legislature has passed a measure legalizing pot for recreational use. “Every year, we’ve seen legalizers throw everything at the wall to see what might stick,” said Kevin Sabet, who heads the anti-legalization group Smart Approaches to Marijuana. “I’m not surprised by any means. I don’t think there’s much appetite to legalize through the legislature.”...
In Washington, the incoming Trump administration has sent signals that encourage, and worry, both supporters and opponents of looser pot rules. The Obama Justice Department issued a memorandum to U.S. attorneys downplaying the importance of prosecuting crimes relating to marijuana in states where it is legal.
Trump’s nominee to head the next Justice Department, Sen. Jeff Sessions (R-Ala.), has been sharply critical of states that have legalized marijuana. In his confirmation hearings this week before the Senate Judiciary Committee, Sessions said current guidelines, known as the Cole memo, are “truly valuable.”
Marijuana industry advocates seized on those comments in hopes of locking Sessions into maintaining the status quo. “The current federal policy, as outlined by the Cole memo, has respected carefully designed state regulatory programs while maintaining the Justice Department’s commitment to pursuing criminals and prosecuting bad actors,” said Aaron Smith, executive director of the National Cannabis Industry Association.
Wednesday, January 4, 2017
The title of this post is the headline of this notable new article that reports that the "DC Cannabis Coalition says it plans to hand out thousands of joints of marijuana on Inauguration Day — for free — to urge federal legalization of pot." Here is more:
The group plans to start handing out joints at 8 a.m. Jan. 20 on the west side of Dupont Circle in the nation's capital, where recreational marijuana is legal. Then, marchers will walk to the National Mall where the real protest will begin.
"The main message is it’s time to legalize cannabis at the federal level," said Adam Eidinger, the founder of DCMJ, a group of D.C. residents who introduced and helped get Initiative 71 passed in the District. Initiative 71 made it legal to possess 2 ounces or less or marijuana, to grow it, and to give it away, but it is not legal to sell it.
Eidinger is worried, though, that all this progress will be lost with the incoming administration, specifically, with President-elect Donald Trump's pick for attorney general, Jeff Sessions. "We are looking at a guy who as recently as April said that they are going to enforce federal law on marijuana all over the country. He said marijuana is dangerous," Eidinger said.
The great marijuana giveaway is legal, as long as it's done on D.C. land. "We don't want any money exchanged whatsoever. This is really a gift for people who come to Washington, D.C.," he said.
There will 4,200 gifts, to be exact. Then, at 4 minutes and 20 seconds into Trump's speech (420 is the internationally known code for weed), protesters are encouraged to light up. That part, is most definitely illegal. "We are going to tell them that if they smoke on federal property, they are risking arrest. But, that's a form of civil disobedience," said Eidinger. "I think it's a good protest. If someone wants to do it, they are risking arrest, but it's a protest and you know what, the National Mall is a place for protest."
Eidinger said this is not an anti-Trump event, or even an attempt at disrupting the ceremony. Everyone is welcome.... Eidinger said the DC Cannabis Coalition is hopeful the new administration will not be a problem, but they are preparing for the worst.
January 4, 2017 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Sunday, January 1, 2017
A recent study reveals that Washington teens' view of the harmfulness of marijuana has decreased since the state legalized the drug for recreational use by adults in 2012. They're also reportedly using it more. According to this Reuters article:
For the new study, the researchers used data from a national survey of 253,902 teens in grades eight, 10 and 12. The survey, conducted between 2010 and 2015, included questions about how harmful adolescents perceived marijuana to be and whether they had used it within the past month.
In Washington state, eighth graders' perception of marijuana's harmfulness fell by about 14 percent from before legalization (2010 to 2012) to afterward (2013 to 2015). Similarly, among 10th graders, the perception of harmfulness decreased about 16 percent.
Additionally, the proportion of kids reporting marijuana use in the previous month rose 2 percent among eighth graders and about 4 percent among 10th graders over that same period.
Those changes were significant when the researchers compared them to states that hadn't legalized recreational marijuana, where teens' perception of harm fell by 5 to 7 percent and their use of the drug only increased about 1 percent.
There were no significant changes in perceived marijuana harmfulness or use among 12th graders in Washington, however. The researchers speculate that older students may already have a fully formed opinion of marijuana.
Additionally, the researchers didn't see any significant before-and-after-legalization differences among students in Colorado. Possibly, they say, this might be because adolescents there were exposed to a robust medical marijuana industry before its recreational use was legalized.
The findings on teen usage are particularly interesting given the recent National Survey on Drug Use and Health numbers showing a substantial decrease in marijuana use by Colorado teens since that state began selling legal weed in 2014. As The Washington Post's Christopher Ingraham reported:
The state-level data from the National Survey on Drug Use and Health showed that 18.35 percent of Coloradans ages 12 to 17 had used marijuana in the past year in 2014 or 2015, down sharply from 20.81 percent in 2013/2014. (In this survey, years are paired for state-level data to provide larger sample sizes). That works out to roughly a 12 percent drop in marijuana use, year-over-year.
Year-over-year teen marijuana use fell in most states during that time period, including in Washington, the other state to open recreational marijuana markets in 2014. But that drop wasn't statistically significant...
This federal data released this week is the first clear evidence of a drop in teen marijuana use in Colorado following legalization. Legalization supporters have long argued that the best way to prevent underage marijuana use is to legalize and regulate the drug.
Wednesday, December 28, 2016
As reported in this local article, "Massachusetts lawmakers quietly shuttled a bill to Gov. Charlie Baker's desk delaying the implementation of recreational marijuana by six months." Here is more:
The bill does not affect the provisions that are already in effect: Personal possession inside and outside a person's primary residence, as well as home growing. Those provisions went into effect on Dec. 15, 2016. Under the new law voters passed in November, retail pot shops were likely to open in 2018, after the set-up of a Cannabis Control Commission.
But the bill on its way to Baker's desk changes the deadlines for the commission to draft and approve regulations, vet applicants and issue retail licenses for selling and cultivation. The commission was originally due to be set up by March 2017. The Massachusetts House and Senate passed the bill on Wednesday. Marijuana legalization advocates have repeatedly called for the timelines and deadlines to stay the same, saying they are doable.
"The legislature has a responsibility to implement the will of the voters while also protecting public health and public safety. This short delay will allow the necessary time for the Legislature to work with stakeholders on improving the new law," Senate President Stanley Rosenberg, D-Amherst, said in a statement. "Luckily, we are in a position where we can learn from the experiences of other states to implement the most responsible recreational marijuana law in the country," he added, referring to states like Colorado, Oregon and Washington.
December 28, 2016 in Business laws and regulatory issues, History of Marijuana Laws in the United States, Initiative reforms in states, Recreational Marijuana State Laws and Reforms | Permalink | Comments (1)
Sunday, December 18, 2016
As regular readers know, 2016 was a banner year for marijuana reform. Specifically, in addition to eight states in which voters enacted significant recreational or medical marijuana reforms by ballot initiatives, two important "rust-belt, swing-states," Ohio and Pennsylvania, enacted medical marijuana reforms via the traditional legislative process. Here is a round-up of some recent notable news from a number of these states:
From Alaska here, "Downtown Anchorage retail marijuana store opens up shop"
From California here, "Legalization is opening doors for new marijuana entrepreneurs. Are we about to see a pot gold rush?"
From Florida here, "Medical marijuana questions linger after Amendment 2"
From Maine here, "Recount bid ends, clearing way for legal marijuana in Maine"
From Montana here, "Hundreds of patients apply for medical marijuana after court ruling"
From Nevada here, "How will legalized recreational marijuana affect the gaming industry?"
From Ohio here, "Survey finds Ohio physicians not yet sold on medical marijuana"
From Pennsylvania here, "Pa. senator says he used medical marijuana despite ban"
Thursday, December 15, 2016
The title of this post is the headline of this Boston Globe article, which gets started this way:
It was 1911. The New England Watch and Ward Society (née the New England Society for the Suppression of Vice) was battling against drugs and other “special evils.” And in April of that year, the group’s leaders successfully petitioned the Massachusetts Legislature to outlaw possession of several “hypnotic drugs,” including cannabis.
One hundred five years, seven months, and 16 days later — Thursday — marijuana became legal again in Massachusetts. The Governor’s Council, a Colonial-era body that vets judges and accepts election tabulations, on Wednesday formally certified the results of a ballot question that allows marijuana for recreational use.
The initiative passed last month with 1.8 million people voting for the measure, despite the opposition of top politicians, the Catholic Church, doctors and business groups, and an array of other civic leaders. About 1.5 million people voted against it.
Perhaps the loudest voices opposed to the measure came from law enforcement. But on Wednesday, police were learning how to enforce what one top public safety official called “a complex web” of rules for licensed and unlicensed sellers, for those who sell the drug for profit and those who give it away.
Even as pot remains illegal under federal law, possession, use, and home-growing are now allowed under state law for adults 21 and over. But public consumption of the drug remains forbidden in Massachusetts, as do several related activities, such as smoking weed anywhere tobacco smoking is prohibited. It will also be illegal to drive under the influence of marijuana, though there is no cannabis equivalent in the law to the 0.08 blood-alcohol limit.
Selling pot, too, remains outlawed until the state treasurer sets up a regulated marketplace and licenses retail stores. The law sets a January 2018 time frame for pot shops to open, creating a legal gray zone until then — buying up to an ounce of pot from a dealer is legal, but the dealer is breaking the law.
The Massachusetts measure is part of a national trend. Voters here were joined on Nov. 8 by those in Maine, California, and Nevada. The people of Colorado, Oregon, Washington state, Alaska, and the District of Columbia also voted to legalize marijuana in recent years.
Monday, December 12, 2016
The question in the title of this post comes from this local article on the progress of the recount of the marijuana legalization initiative in Maine, which began last week and (very likely?) could extend into 2017. The unofficial result from Election Night was a victory of 4,073 votes for marijuana legalization, but an automatic recount is required by state election law because the result was by a margin of less than one percent. Officials have until the end of the week to complete the count, otherwise the counting will resume after the holiday break on January 1. From the article:
The recount of the marijuana legalization vote moves into its second week Monday with the No on 1 campaign picking up a small number of votes.
The recount of the contentious ballot issue began last Monday and focused on the largest cities in Maine, including Portland and Bangor. Sixteen percent of ballots cast statewide have been recounted by hand.
The start of the recount was delayed until 11 a.m. Monday because of snow.
The No on 1 campaign says it continues to pick up votes, but did not provide specific numbers. The Secretary of State’s Office will not release new vote totals until the recount is over.
Question 1 on the Nov. 8 ballot appeared to have legalized marijuana by a margin of just over 4,000 votes.
David Boyer, manager of the Yes on 1 campaign, said last week the no side picked up 26 votes in Portland, a number he characterized as statistically insignificant. The results released on Election Day showed Portland residents approving Question 1 by a vote of 25,594 to 13,008. He said the yes side has gained votes in other towns...
The recount could take a month to finish and cost up to $500,000, largely in costs for State Police to collect ballots from 503 municipalities.
Question 1 on the Nov. 8 ballot passed by 4,073 votes – 381,692 to 377,619 – according to unofficial results from the Secretary of State’s Office. Opponents did not have to pay for the recount because the margin was so small at less than 1 percent of votes cast.
If the election results stand, the new law will take effect as soon as the first week of January, though the exact date is unclear because the recount must be completed first. The process of reviewing as many as 700,000 ballots from roughly 500 communities could delay implementation even if the review does not uncover enough counting errors to overturn the results.
The new law makes it legal for adults to possess as much as 2.5 ounces of marijuana and grow a limited number of plants. It also allows for retail stores and social clubs, which likely won’t open until 2018 because the state has to develop licensing and regulatory rules.