Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

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Wednesday, May 27, 2015

"As States Become More Pot-Friendly, Feds Warn Employees Not To Light Up"

The title of this post is the headline of this notable International Business Times article, which gets started this way:

Marijuana might be legal in the country’s capital, but not for employees of the U.S. government.  The sobering reminder came in the form of a new guidance issued Wednesday by the Office of Personnel Management.  It stated that federal workers, even those living in states where marijuana is legal, are subject to federal, not local, law – and all the penalties that come with it.

“Heads of agencies are expected to advise their workforce that legislative changes by some states and the District of Columbia do not alter federal law, existing suitability criteria or Executive Branch policies regarding marijuana,” Katherine Archuleta, director of the Office of Personnel Management, said in a statement posted on the agency’s website.  The guidance doesn’t change existing laws barring federal employees from participating in activities the government considers illegal.  It simply underscores a point that may have gotten lost in the shuffle, or that some government employees might rather forget.

 Twenty-three states and D.C. have legalized medical marijuana. Three states – Colorado, Oregon and Washington – along with D.C. allow pot to be consumed for medical and recreational purposes.  The drug remains illegal at the federal level, despite the Department of Justice having promised not to challenge states that decide to legalize it.

The U.S. government employs roughly 4.1 million Americans.  About half a million of them live in the District of Columbia, which legalized recreational pot in February. 

May 27, 2015 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Sunday, May 24, 2015

"Oregon's big marijuana harvests: How do you bring all that pot into the legal market?"

The title of this post is the headline of this interesting local article noting that Oregon already had a robust marijuana production market before it legalized the product via voter initiative last year.  Here is how it gets started:

More than any state that has legalized marijuana, Oregon is a champion when it comes to producing the drug. Seth Crawford, a marijuana policy researcher at Oregon State University, estimates the state grows three to five times the 150,000 pounds or so consumed by Oregon pot users -- a crop potentially worth more than any other single agricultural commodity in the state.

A report from a Seattle venture capital firm specializing in pot says the state's legally allowed producers – those who grow for medical marijuana patients – harvest enough to meet the needs not only of patients in Oregon but in Washington, Colorado and Arizona as well.

"We've got plenty of supply," says Senate Minority Leader Ted Ferrioli, R-John Day, and a member of the committee overseeing implementation of the pot legalization initiative. He wholeheartedly endorsed the common quip that Oregon is the "Saudi Arabia of marijuana."

As a result, the legislative debate over how to implement the November initiative that legalized recreational marijuana has revolved around how to turn this thriving – if often illegal -- industry into an economic and societal success story. The abundance of the state's marijuana crop is driving some of the biggest decisions that legislators face, from how strictly to regulate medical marijuana growers to whether to put a sales tax on pot despite the state's historic hostility to such taxes.

A growing number of legislators on the Joint Committee on Implementing Measure 91 say they want to start retail sales as early as possible to entice growers into the legal market. The Oregon Liquor Control Commission, which Measure 91 charged with regulating the recreational marijuana market, says it probably won't be ready to allow retail outlets to open until fall of 2016.

But key lawmakers on the marijuana committee say they are seriously looking at allowing the sale of at least smokable pot starting Oct. 1 at existing medical marijuana dispensaries. "There are already well-established black-market channels," says Sen. Ginny Burdick, D-Portland and the co-chair of the Measure 91 committee, "and we need to make this (legal) market as appealing to people as possible."

Burdick has been a particularly strong champion of legislation putting stricter limits on the size of medical marijuana growing operations, saying she wants to channel larger and more commercially minded producers into the recreational market.

Oregon has nearly 35,000 registered grow sites, according to the latest Oregon Health Authority records, but three-quarters serve just one or two patients, each of whom can have up to six plants grown for them. Nearly 400 sites grow for at least 10 patients and account for much of Oregon's marijuana crop.

The heart of the industry is in southern Oregon, where growers have plenty of sun and rural isolation. "You can't compete with the quantity and quality produced in southern Oregon," says Crawford, the OSU expert who has extensively researched the area's marijuana culture. He says many growers have been producing pot for decades, perfecting their strains and earning a supplemental income for their family.

May 24, 2015 in Initiative reforms in states, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (1)

Thursday, May 21, 2015

Latest polling data in Colorado and Washington continue to show strong support for legalization

As reported in this new Huffington Post piece, headlined "Pioneer Pot States Did The Right Thing, Polls Show," recent polling in the two states to lead the modern marijuana legalization movement indicates that three years of experience with legalization has not diminished support for these reforms.  Here are the basic details:

Support for legalized marijuana seems to be growing in Colorado and Washington state, which became the first U.S. states to regulate the weed for recreational use two years ago.

A survey released Wednesday from Democratic-leaning Public Policy Polling shows that 56 percent of voters in Washington state approve of their state's recreational marijuana laws, while 37 percent are opposed. The opposition is lower than that in the 2012 vote to approve legalization, in which 56 percent supported the measure, and 44 percent disapproved. Moreover, a majority of Washington voters -- 77 percent -- say the marijuana laws have either had a positive effect or no effect on their lives, according to the poll.

A Qunnipiac poll last month tells a similar story in Colorado. Sixty-two percent of Colorado voters support reformed marijuana laws, the poll shows. That's an increase of 7 percentage points over the margin of support when voters approved Colorado's legalization in 2012....

Colorado became the first U.S. state to legalize recreational marijuana in 2012, quickly followed by Washington. The first retail shops opened in 2014. By the end of last year, voters in Oregon, Alaska and Washington, D.C., approved recreational marijuana legalization measures. By 2016, as many as 10 additional states are likely to consider reforming marijuana laws.

May 21, 2015 in History of Marijuana Laws in the United States, Initiative reforms in states, Polling data and results, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Tuesday, May 19, 2015

"How D.C. pot legalization has become ‘the dealer-protection act of 2015’"

The title of this post is the headline of this fascinating recent Washington Post article.  Here are excerpts:

Not long ago, a man who had covertly dealt pot in the nation’s capital for three decades approached a young political operative at a birthday party in a downtown Washington steakhouse. He was about to test a fresh marketing strategy to take advantage of the District’s peculiar new marijuana law, which allows people to possess and privately consume the drug but provides them no way to legally buy it for recreational use. Those contradictions have created a surge in demand and new opportunities for illicit pot purveyors.

“Do you like cannabis?” asked the dealer. “Yes,” answered the man, who had recently left his job as a Republican Senate staffer.

So, the dealer recalled, he handed his new acquaintance a tiny plastic bag that contained half a gram of “Blue Dream,” a sweet and fruity strain of marijuana. With the bag he also presented a business card and an offer: If you like what you try, call me. Within days, the man — now a lobbyist — picked up the phone.

The dealer — who, like others interviewed, spoke on the condition of anonymity because what they do remains illegal — said he has used that same in-plain-sight sales pitch at similarly upscale D.C. settings, collecting three new buyers and a pair of new suppliers. The new business is all thanks to the quirks of the District’s legalization, which has boosted the appetite for marijuana as more people become comfortable acquiring it through the black market. “It’s the dealer-protection act of 2015,” he said. “This was a license for me to print money.”

Who is responsible for this unintended consequence depends on whom you ask. In November, Washington voters overwhelmingly approved an initiative that made it legal to possess and grow marijuana, but the following month, Congress enacted a spending prohibition that barred the city from creating a system through which pot could be lawfully bought, sold and taxed.

That means there are only three ways for people in the District to legally obtain marijuana. Someone can give it to them, though the donors, of course, must find their own original source. Residents can each grow as many as three plants to maturity at one time, though that process is complicated, expensive and time-consuming. And with a doctor’s approval, people can get medical-marijuana cards, though supply remains dismal.

“The black market is the obvious choice,” said a 24-year-old government contractor who deals part time. “It’s awesome.”

Rep. Andy Harris (R-Md.), who has led Congress’s charge to thwart the legalization, blamed city leaders, insisting that they should have forbidden possession when he and other lawmakers prevented Washington from creating a controlled marketplace. “There’s no question that demand will go up, and there’s no legal source of supply,” he said. “Clearly, this was not thought out rationally by the city government, which chose to go forward with legalization without regulation.”

John Falcicchio, chief of staff for Mayor Muriel E. Bowser (D), sharply countered that assertion. “In D.C., it shouldn’t be called the black market. It should be called the Harris market,” he said. “If there’s any uptick in the black market, it’s thanks to Harris.”...

That boost in demand, supporters of legalization say, helps explain why lawful use in the District must be paired with lawful sales.   “If you’re going to legalize marijuana, you also have to legalize the supply because you want to get rid of the black market or at least limit the black market,” said Keith Stroup, founder of NORML.  “Right now, they’ve done the exact opposite.”

Delroy Burton, chairman of the D.C. Fraternal Order of Police, said a regulated market would have “pulled the teeth out of the illegal drug trade” and eventually wiped out the violence associated with it.

Jeffrey Miron, an economics teacher at Harvard University, compared marijuana’s potential evolution to that of alcohol after prohibition ended in 1933.   “People seem to prefer going to a legal supplier rather than making beer in their basement,” said Miron, director of economic studies at the libertarian Cato Institute, which supports the legalization of all drugs.

He and others who have studied the topic don’t suggest that illicit sales would disappear overnight, but after several years — even a decade — they argue that the black market could not compete with a controlled market.

Rep. Andy Harris rejected those arguments.  “I think there’s value in keeping the supply chain illegal at this point,” he said, maintaining that it provides “a check on the system.”

The longtime District dealer who now markets his product at chic D.C. gatherings has already considered what he would do if the city regulated pot sales.  He and his friends, he said, would open their own dispensary.  They’d go legit.

May 19, 2015 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Sunday, May 17, 2015

More on the "ag-tech revolution" being spurred by legalized cannabis crops

In this post from a few weeks ago, I was promped by an article about the Tesla battery and marijuana cultivation to ask this question is a post title: "Could/will the marijuana industry become a boon for green energy innovation?".  Continuing with the theme of innovations for ganja growing is this fascinating new article via the International Business Times headlined "Legal Marijuana Cultivation Is Driving A Technology 'Revolution' In Industrial Agriculture." Here are excerpts:

[A] growing number of companies in North America [are] designing new products and systems specifically for the cultivation of cannabis, a finicky crop that needs a precise balance of light, moisture and water to thrive. Although these cannabis ventures aren’t exactly reinventing the wheel -- greenhouse technologies have existed for decades -- they are injecting the kinds of capital and brainpower into the field of industrial agriculture that simply wasn’t there a decade ago.

They’re also adding a new level of urgency. As more countries and U.S. states soften their policies on both medical and recreational marijuana, companies are racing to become the industry leaders in data-mining software, ultraefficient lamps and water-sipping irrigation systems. These tools will benefit more than marijuana growers alone: Industrial food producers and tree growers could adapt the same technologies to cut energy costs and boost their crops. Operators of large buildings could use the systems to lower their electricity use.

“Cannabis is spurring on an ag-tech revolution,” said Troy Dayton, CEO of ArcView Group, a cannabis-industry research firm in Oakland, California. “This is a boom born entirely out of ending repressive laws. The market is already there, it’s just moving from the shadows into the light. That’s why you’re seeing this incredible growth and why so many people see it as a once-in-a-lifetime [business] opportunity.”

That market is rapidly expanding in the U.S., where 23 states have already legalized medical marijuana, and three states -- Alaska, Colorado and Washington -- allow recreational-marijuana sales. Voters in Oregon approved a ballot measure last fall that allows for personal pot use and limited cultivation. The policy takes effect July 1. In Texas, Ohio, Nebraska and a number of other states, voters and policymakers are considering similar initiatives. (In Canada, medical-marijuana use was legalized in 2001, and recent policy changes are enabling a rise in industrial growing operations.)....

Companies such as Heliostat are moving into the cannabis space for three key reasons -- first and foremost, cash. Unlike tomato and pepper producers, cannabis growers boast wide profit margins, giving them a bigger budget for top-of-the-line technologies and a greater appetite for research and experimentation....

Second, young technology whizzes and expert plant biologists are both bringing their skills to the burgeoning sector. “For the newer generation that’s just getting out of college or new to the workplace, cannabis is a more interesting project than say a real-estate project, or a lettuce project,” said Michael Mayes, CEO of Quantum 9 Inc., a Chicago consulting firm for cannabis cultivation and manufacturing. “The cool factor can drive innovation.”

Third, there is plenty of demand among growers. As they build new greenhouses and indoor facilities, they’re interested in shaving off as much electricity and water consumption as possible to reduce operating expenses and protect profit margins as more players enter the market.

Dayton of ArcView Group said the cannabis industry is still in the earliest stages of its technology “renaissance,” and that the only thing holding it back are prohibitive marijuana policies in certain states.

Even so, the gradual easing of cannabis laws is already drawing interest from mainstream businesses, including a subsidiary of Scotts Miracle-Gro Co. The company’s Hawthorne Gardening Co. in April purchased General Hydroponics Inc. and Bio-Organic Solutions Inc., which make liquid nutrients for indoor marijuana cultivation. Terms were not disclosed, but the acquisition should make Scotts, with its $2.97 billion in annual revenue, a formidable player in the marijuana market.

Prior related post:

Could/will the marijuana industry become a boon for green energy innovation?

May 17, 2015 in Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms, Science, Web/Tech | Permalink | Comments (0)

Friday, May 15, 2015

Pot politics stirring Ohio's political pot as 2015 ballot proposal marches forward

Ohio_marijuana_leaf_20130517213951_640_480One of many reasons I am a huge fan of ballot initiatives proposing marijuana reform (and really of all direct democracy movements) is because these kind of single-issue initiatives enable and often require political figures to take a concrete stand on specific issues that matter to voters.  That reality is on full display this morning in my own Columbus Dispatch, which has two notable new articles about marijuana reform reporting notable new comments and efforts by notable Ohio political figures:

Headline: "P.G. Sittenfeld supports marijuana legalization proposal"

Excerpt:  

Sittenfeld [a 30-year-old Cincinnati City Council member in the race for US Senator]  made ... news by announcing his support for the ResponsibleOhio’s for-profit plan to legalize marijuana and amend Ohio’s constitution to allow 10 investor-owned marijuana-growing sites across the state. The group is well on its way to gathering enough petition signatures to put the issue on the November ballot.

Sittenfeld said he has long advocated “getting rid of old and broken laws” that allow billions of dollars to flow to “brutal drug dealers and cartels” when it could be used for building roads and bridges. He favors “decriminalization, legalization and tight regulation” of marijuana.

His stance places him at odds with both Strickland — the former governor who backs legalizing only medicinal marijuana — and Portman, who opposes full legalization.

“What I support is a whole different approach with regard to drug use, and that is spending less money on the prosecution and incarceration side and more money on prevention and education, which I know works,” Portman said on Thursday on his weekly media call.

Headline: "Dave Yost wants to make it harder for special interests to amend constitution"

Excerpt:

As state officials realize that marijuana legalization is likely to appear on the fall ballot, state Auditor Dave Yost is urging lawmakers to make it harder for “special interest” issues to make it into the Ohio Constitution.  Yost unveiled his idea Thursday at a meeting of the Ohio Constitutional Modernization Commission.

May 15, 2015 in Initiative reforms in states, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Friday, May 8, 2015

Notable new analysis of marijuana reform proposal and Ohio employment law

This new local article, headlined "ResponsibleOhio's marijuana legalization issue wouldn't trump employers' drug policies, legal analysis finds," reports on an interesting legal memo commissioned by the well-financed group seeking to legalize marijuana in the Buckeye state via voter initiative in 2015. Here are the basics:

An analysis of the marijuana legalization issue that ResponsibleOhio hopes to have on the November ballot found that if approved, it would have little to no impact on an employer's ability to control employee use of marijuana.

The analysis, commissioned by ResponsibleOhio, found that language in the issue itself retains significant control for the employer. Beyond that, federal case law also provides further protections, the analysis said.

ResponsibleOhio is trying to amend the Ohio Constitution to legalize sale, possession and personal use of marijuana in the state for people at least 21 years old. The group's proposed amendment to the state constitution would establish a legal marijuana industry in which Ohioans could purchase marijuana and marijuana products from licensed retail outlets for recreational and medical uses. They also would be able to grow marijuana in their homes.

But as the group has collected signatures needed to reach the ballot and sought to raise awareness around the state, it also heard questions from employers who wondered how the amendment would affect their businesses. Would they have to change their companies' internal drug policies? Would they still be able to bar their employees from using the drug?

Greater Cleveland Partnership has heard some of those same questions, said Marty McGann, senior vice president for government advocacy. GCP, with more than 10,000 members, is one of the largest metropolitan chambers of commerce in the country. "At this point, I think it's curiosity (from the businesses)," McGann said. "I haven't heard forceful positions on this. I think it's more realization that this likely to be on the ballot."

GCP is preparing an in-house forum with people from all sides of the issue for its members. The organization hasn't taken a position on the constitutional amendment yet. "We've been known to take positions on different issues," McGann said. "It's not even on the ballot yet. We're just sort of beginning the discussions to understand it."

The questions prompted Responsible Ohio to request an analysis from Dickinson Wright, a Detroit-based firm that specializes in business and financial law that has offices in Columbus. "We wanted to be sure we were being consistent with reality when we said we would not force employers to change their policies," said Lydia Bolander, a spokeswoman for ResponsibleOhio.

The research looked at the language within the amendment as well as existing case law, said Jonathan Secrest, the lawyer who conducted the analysis. "It is our opinion that the legal precedent is on the side of the employer," Secrest said in an email. "ResponsibleOhio's proposal will not compel an employer to loosen their standards on drug testing or consumption in the workplace."

Marijuana remains an illegal drug under federal law. That has led multiple courts to dismiss employee claims of discrimination and wrongful termination, the analysis found....

Beyond the case law, the analysis found that the amendment itself offers employers some built-in protection. It specifically says "nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display or transportation of medical marijuana, marijuana, homegrown marijuana, marijuana-infused products or marijuana accessories in the workplace or to affect employers' ability to restrict the use of such products by employees."

The amendment language provides that employers have no duty to accommodate use of marijuana in the workplace, the analysis said, and treats medical marijuana like any other prescription drug. For that reason, employers likely will want to review their policies to evaluate how they treat employee use of prescription drugs, the analysis said.

May 8, 2015 in Initiative reforms in states, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Thursday, May 7, 2015

"Why Washington state is extinguishing medical marijuana" ... while the black market endures

The title of this post adds to the headline of this notable Mashable piece discussing notable marketplace developments in one of the first two states that legalized recreational marijuana via initiative votes in 2012.   Here are excerpts:

For the past 10 months, three marijuana markets have been operating simultaneously in Washington state: the street market, the medical market and the recreational market. In the future, however, there will only be two. And contrary to some people’s expectations about legal recreational pot making drug dealers obsolete, it’s the medical dispensaries that will disappear first.

Washington State Governor Jay Inslee signed a bill in April that will overhaul medical marijuana and reconcile the two legal markets into one. Medical marijuana dispensaries as they exist now will either close or seek licenses in the regulated industry. In the future, medical customers will have to look to “medically endorsed” recreational marijuana stores for their supply.

Washington's medical marijuana market has always been "looser than anywhere in the country,” says Rick Garza, head of the state Liquor Control Board, the agency that oversees the marijuana industry.

"With I-502 (the recreational market), you have a tightly regulated business that has to make a big investment and pay taxes and fees," says Garza. And while medical marijuana is legal, it has become somewhat of a "gray area" because the "vast majority" of users served by the dispensaries are truly recreational users anyway, says Garza. "You have this unregulated and untaxed [medical] dispensary that's competing directly with the regulated market." "You have this unregulated and untaxed [medical] dispensary that's competing directly with the regulated market."

It's hard to measure the size of each of these markets, but to get a general idea I talked to a budtender and an illegal street dealer to get their perspectives on the state of Washington pot. Regardless where the lines of legality are drawn (and redrawn), there's a lot of pot floating around the Evergreen state. A study by the RAND Corporation found that marijuana consumption in Washington during 2013 was between 135 and 225 metric tons (that’s 297,624 to 464,040 pounds).

Garza guesses the recreational stores have so far only captured 3-5% of the total marketplace. And seeing as how the recreational market has generated $168 million in sales in the 10 months it has been operational in Washington, that gives you an idea of the size and potential of the industry as a whole.

A male pot dealer in his early twenties, who spoke on the condition of anonymity, has been selling weed in the state for the past couple of years while finishing a degree. He sells primarily to college kids, so he didn’t expect business to change, but says he doesn’t see a drop in sales for dealers who sell to older demographics either. “People don't realize just how big the street market is,” he says....

The Liquor Control Board guesses the medical industry has captured 40-50% of the market, but it’s impossible to say how big the medical marijuana population is because Washington has never required a patient registry or ID cards like other states with medical systems do.

Since the state’s first recreational stores opened in July 2014, about 134 retail locations have opened alongside some 1,100 medical dispensaries in the state. However, the Liquor Control Board calls the estimated number of dispensaries “conservative.”

Pricing at medical dispensaries has remained cheaper than that of recreational stores because they aren't subject to the same high taxes. A gram of weed at a dispensary generally costs around $10-12 versus $12-16 on average at recreational stores. Weed on the street, however, remains at a pretty steady $8-10.

"The street can always offer prices that are below that of the stores," says the dealer I spoke with. And while street products may lack the variety of brick and mortar stores, they have added convenience because dealers can move around. "The street can more effectively distribute, because people don't have to come to you."

For some people illegal pot sales are more simple (and familiar). Text your dealer, meet up, trade cash for whatever weed they have and part ways. At recreational stores, customers have to be 21, visit at set hours and locations, and sort through a dizzying array of products. Some people find it more complex to buy legal marijuana.

May 7, 2015 in Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Tuesday, May 5, 2015

Does new Mizzou "right to farm" amendment create a state constitutional right to grow marijuana?

The question in the title of this post is prompted by this intriguing new St. Louis Dispatch article headlined "Does Missouri's 'right to farm' amendment mean you can grow marijuana in the basement?".  Here are the details of an interested new state constitutional provision and argument in litigation over marijuana prohibition:

A Missouri woman believes her constitutional right to farm shields her against being prosecuted for allegedly growing a small crop of marijuana in her basement.

Lisa Loesch, 52, of Jefferson City, was charged in 2013 with a felony count of manufacturing and/or distributing a controlled substance. Investigators with the Jefferson City Police Department and a regional drug task force said they found nine healthy, potted marijuana plants under grow lights in her basement in October 2012. “The room was set up with grow lights, a CO2 generator, and pots with potting soil,” police said in court records. “The plants were approximately 1 and ½ to 2 feet in height.”

Loesch’s lawyer, a public defender named Justin Carver, filed a motion April 28 asking for her case’s dismissal. Carver argued that growing marijuana is protected by Missouri’s new farming rights amendment, which voters narrowly passed in an August referendum. Of nearly 1 million votes cast, the amendment passed by a margin of 2,376 votes.

The amendment enshrined the right to farm in the state constitution, saying the right of Missouri citizens to engage in agricultural production and ranching practices “shall not be infringed.” It was prompted by rural legislators who said farm culture needed protection from environmentalists and animal-rights activists. Missouri was the second state behind North Dakota to place farming rights in its constitution. “The amendment prohibits the Legislature from declaring what can and cannot be grown in Missouri,” Carver wrote in his motion for dismissal.

Loesch’s lawyer wrote that state laws that prohibit the cultivation of marijuana violate the state and U.S. constitutions and are “vague in that a reasonable person cannot tell and is not given clear notice as to what is prohibited and what is permitted” by law.

The amendment was passed after Loesch was charged. But her attorney says the language of the amendment makes it clear it is not establishing a new right but clarifying an existing right, so it should apply retroactively to Loesch. Loesch pleaded not guilty to the drug charge in February 2013.

This Ballotpedia entry provides background on the "right to farm" provision now in the Missouri constitution, and it reports that the provision reads as follows:

Section 35. That agriculture which provides food, energy, health benefits, and security is the foundation and stabilizing force of Missouri's economy. To protect this vital sector of Missouri's economy, the right of farmers and ranchers to engage in farming and ranching practices shall be forever guaranteed in this state, subject to duly authorized powers, if any, conferred by article VI of the Constitution of Missouri.

I suspect that defendant Lisa Loesch will have a hard time establishing in this case that she qualifies as a farmer exercising her "right ... to engage in farming and ranching practices" through growing a small crop of marijuana in her basement. That said, I could readily imagine a true family farmer starting to grow a small crop of marijuana plants on his family farm and thereafter asserting in the face of a state prosecution that he was just engaged in a form of Mizzou agriculture designed to provide "food, energy, health benefits and security" for his fellow state citizens.

May 5, 2015 in Criminal justice developments and reforms, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Monday, May 4, 2015

SCOTUS asks for views from US Solicitor General on original lawsuit between states over marijuana reform

Via this order list, the US Supreme Court called for the views of the Solicitor General in the original case of Nebraska and Oklahoma v. Colorado.  That is the case, as readers may recall from posts here and here back in December, in which two states filed suit directly in the Supreme Court seeking "a declaratory judgment stating that Sections 16(4) and (5) of Article XVIII of the Colorado Constitution [legalizing and regulating marijuana sales] are preempted by federal law, and therefore unconstitutional and unenforceable under the Supremacy Clause, Article VI of the U.S. Constitution."

I am not sure what the usual timelines tend to be for submission of CVSG briefs during this time of year, but I would think this request from the Justices will just now further slow the resolution of a suit that was filled five months ago and will remain in limbo now until the Solicitor General weighs in.

Prior related posts:

May 4, 2015 in Federal court rulings, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Initiative reforms in states, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Friday, May 1, 2015

Colorado Gov acknowledges benefits of voters legalizing marijuana in state

This notable new FoxNews piece, headlined "Colorado gov now says legalizing marijuana helps state's fiscal health," highlights that the top official in the leading marijuana legalization state has come to see that significant medical marijuana reform may well have more benefits than costs. Here are the details:

Colorado Gov. John Hickenlooper seems to be softening his anti-pot stance. The Democratic governor recently told Fox Business Network that the issue is “not as vexing” as he feared it would be, and partly ties Colorado’s strong fiscal health to the popularity and economic opportunities connected with the legal pot industry.

“It’s all those young people coming and they look at marijuana and say, ‘hey, we can drink whiskey, why can’t we have a legalized system with marijuana?’” he said on FBN. He added, “If you look back, it has turned out to be not as vexing as some of the people like myself” initially anticipated it would be.

Hickenlooper had spoken out against legalizing the drug in the past and said “Colorado is known for many great things – marijuana should not be one of them.” Now, though, he seems to have come around. He told FBN the state has been busy “building a regulatory system, making sure we keep it out of the hands of kids, making sure we keep our streets and roads safe.”

May 1, 2015 in Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Wednesday, April 29, 2015

Stressing jobs, Ohio union groups come out in support of marijuana legalization effort

This new local article, headlined "Union groups say OK to marijuana legalization," reinforces my belief that the job-creation potential of a legalized marijuana industry ma be quite appealing to certain groups. Here are excerpts from the piece:

The three largest Ohio branches of the union representing nearly 70,000 retail workers, endorsed Wednesday the ResponsibleOhio initiative to legalize marijuana. "The executive board of these locals, which are made up of rank-and-file members, made a decision to support this proposal because we want to make sure that we have good jobs in the new legal marijuana industry," said Laurie Couch, a spokeswoman for United Food and Commercial Workers.

The majority of the local members work in retail stores, Couch said, including Kroger, Meijer and CVS, as well as in food packing and processing. Locals 75, 880 and 1059 issued the endorsement. Local 75 represents 30,000 members in the Greater Cincinnati, Dayton and Toledo areas. Local 880 represents 21,000 in and around Cleveland, and Local 1059 has 18,500 members in Columbus.

Couch said that while it's too early to push the proposed industry on wages, "We're committed to working to make sure they do pay a living wage, good benefits, and that people have the hours that they need." The other important factor for the UFCW, Couch said, is that "The communities where our members live and work really need better public services."

The endorsement follows Monday's nod from Dr. O'Dell Owens, the president of Cincinnati State Technical and Community College.

April 29, 2015 in Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Wednesday, April 15, 2015

Understanding the tax issues and problems posed by Section 280E

As highlighted in many prior posts, students in my marijuana law school seminar are in the midst of assembling readings and leading discussions concerning the research topic(s) that are the focal point for class project(s).  This week, besides the prior topics noted here and here that still on the agenda, is for review of the impact of a federal tax code provision that creates unique problems for state-legal marijuana businesses.  Cribbing from this on-point commentary, my student provides this introduction to this issue:

In 1982, Congress enacted Section 280E of the Tax Code as a way to punish drug traffickers . . . This provision of the Tax Code disallows all deductions and credits for business expenses related to the trafficking of illegal drugs. Since the federal government classifies marijuana as a schedule I narcotic, marijuana falls under this regulation. In 2007, in Californians Helping to Alleviate Medical Problems Inc. (CHAMP) v. Commissioner of Internal Revenue, the U.S. Tax Court ruled that IRC 280E applies to cannabis businesses operating legally pursuant to state law.
 
Despite the foregoing, marijuana operators are able to mitigate some of the impact of 280E in two ways, costs of goods sold (COGS) and deductions for non-trafficking services and expenses.  Per the CHAMP case, marijuana businesses can still take COGS.  Namely, COGS should amount to those costs that go into the production and/or manufacturing of the cannabis.  But it has never been clear what the IRS will actually accept as cannabis COGS.
 
On January 23, 2015, the IRS released an internal legal memorandum outlining how Section 280E should be applied in the cannabis industry.  Though this memorandum may not be used or cited by taxpayers as precedent, it outlines how some IRS officials analyze Section 280E and how to determine COGS.  In the IRS memorandum, marijuana retailers and producers are required to compute COGS under inventory rules that predate the enactment of Section 280E . . .
 
Ultimately, the memorandum outlines a very narrow reading of the costs that can be included in COGS by suggesting that the IRS will not allow cannabis businesses to allocate purchasing, handling, storage, and administrative costs to COGS.
 
In addition to COGS, CHAMP also dictates that a marijuana business that provides other non-cannabis related services, like yoga, massage, or education, can deduct expenses related to those other lawful services . . . For example, a cannabis business can maximize the physical floor space it devotes to other services and minimize the floor space it devotes to cannabis sales. It could give employees not directly involved in cannabis distribution job tasks that do not involve cannabis. This way, the marijuana business can place the greatest amount of expenses in the “deductible” column, resulting in a smaller tax hit.
 
Cannabis businesses will only attain full relief from Section 280E when Congress amends the Tax Code or when Congress re-schedules or decriminalizes marijuana.  (See also: Olive v. Commissioner).
 
My student also provided links to these stories highlighting the practical impact of Section 280E:

April 15, 2015 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana State Laws and Reforms, Taxation information and issues | Permalink | Comments (0)

Friday, April 10, 2015

"What’s Right for Ohio: A Discussion about Marijuana Reform"

The title of this post is the title for a terrific event scheduled to take place on Wednesday, April 15, 2015 at 12noon in the William B. Saxbe Law Auditorium at The Ohio State University Moritz College of Law. I am so very pleased and excited that this event was constructed and will be moderated by one of the students in my Marijuana Law, Policy & Reform seminar, and here is his description of the event with titles/links for some participants:

What’s Right for Ohio: A Discussion about Marijuana Reform will be a discussion about the central issues and interests surrounding marijuana reform in the state of Ohio. With public opinion polls showing that support for recreational marijuana in Ohio has grown above 50%, and as skepticism about the policy of absolute prohibition abounds, the state of Ohio is at the forefront of the marijuana reform debate unfolding nationwide. This discussion will seek to inform the debate that will develop around Ohio in the coming months and years regarding what we, as Ohioans, think the right policy for our state and our country should be. As we know from history, as Ohio goes, so goes the nation. Confirmed participants in the event include:

April 10, 2015 in History of Marijuana Laws in the United States, Initiative reforms in states, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Taking stock of modern marijuana markets and state tax realities

This notable new New York Times article about Colorado's tax revenues and marijuana markets details some important fiscal lessons from the first few years of marijuana legalization. Here are excerpts:

Colorado’s marijuana tax collections are not as high as expected. In February 2014, Gov. John Hickenlooper’s office projected Colorado would take in $118 million in taxes on recreational marijuana in its first full year after legalization. With seven months of revenue data in, his office has cut that projection and believes it will collect just $69 million through the end of the fiscal year in June, a miss of 42 percent.

That figure is consequential in two ways. First, it’s a wide miss. Second, compared with Colorado’s all-funds budget of $27 billion, neither $69 million nor $118 million is a large number. “It’s a distraction,” Andrew Freedman, Colorado’s director of marijuana coordination, says of the tax issue. And despite the marijuana tax miss, overall state revenues are exceeding projections, which may force the state to rebate some marijuana tax receipts to taxpayers.

In the political debate over marijuana policy, fiscal benefits — bringing marijuana into the legal economy and taxing it — have loomed large. The summary of the marijuana legalization question put before voters in 2012 stipulated the first $40 million raised by one of the three taxes on recreational marijuana would be put toward school construction each year. In practice, Colorado is likely to receive just $20 million from that tax this year.

But it’s not just Colorado. When Scott Pattison, the executive director of the National Association of State Budget Officers, appeared on C-Span’s Washington Journal call-in show to discuss state finances in December, callers repeatedly suggested that legal marijuana could fix budget gaps in other states. One asserted, incorrectly, that legal marijuana had increased Colorado’s tax revenues by a billion dollars.

Colorado’s marijuana taxes are part of a broader trend in recent years: States, looking for ways to close budget shortfalls without raising broad-based taxes, have leaned on “sin” revenues: higher taxes on cigarettes, higher fees and fines and higher revenue from gambling. And as they have sought to squeeze more revenue from these sources, they have often been disappointed....

In the case of marijuana, Colorado’s revenue has disappointed because legal recreational marijuana sales have been lower than expected. State officials thought many customers of medical marijuana dispensaries would migrate to the recreational market. But this process has been slow, in part because there is a financial disincentive to switch: Medical marijuana is subject only to general sales tax, while a 15 percent tax is imposed on recreational marijuana at wholesale and a further 10 percent at retail, in additional to the general sales tax.

But Mr. Freedman says the biggest drag on revenue is that so much of Colorado’s marijuana market remains unregulated. A 2014 report commissioned by the state’s Department of Revenue estimated 130 metric tons of marijuana was consumed in the state that year, while just 77 metric tons was sold through medical dispensaries and recreational marijuana retailers. The rest was untaxed: a combination of home growing, production by untaxed medical “caregivers” whose lightly regulated status is protected in the state constitution and plain old black-market production and trafficking....

But even if Colorado got all this right, improved revenues would not be among the most important effects that marijuana legalization has on the state. “Tax revenue is nice to have, but in most states is not going to be enough to change the budget picture significantly,” Mr. Kleiman says. “The stakes in reducing criminal activity and incarceration and protecting public health are way higher than the stakes in generating revenue.”

April 10, 2015 in Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Taxation information and issues | Permalink | Comments (2)

Monday, April 6, 2015

Attention 2016 Prez candidates: swing states swinging toward full legalization of marijuana

As reported in this notable new Time article, "majority of voters in three key swing states support legalizing marijuana, according to a new poll."  Here are the basic details: 

The Quinnipiac survey out Monday shows that 55% of voters in Florida, 52% in Ohio and 51% in Pennsylvania support allowing adults to “legally possess small amounts of marijuana for personal use.” Legalizing medical marijuana is even more acceptable to swing state voters, with 84% of Floridians, 84% of Ohioans, and 88% of Pennsylvanians supporting medical pot.

Florida and Pennsylvania have pending bills to legalize marijuana this year, and it legalization could become a wedge issue in he 2016 presidential race.

The poll included more than 1,000 voters in each state.

April 6, 2015 in Polling data and results, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Saturday, March 28, 2015

Colorado files SCOTUS brief responding to neighbors' lawsuit (and other states provide amicus support)

As reported in this Denver Post piece, headlined "Colorado officials defend marijuana legalization at U.S. Supreme Court," Colorado state lawyers have now officially responded, four months after the initial complaint, to the lawsuit filed by Oklahoma and Nebraska about marijuana reform in the Mile High State. Here are the basics:

Arguing that two neighboring states are dangerously meddling with Colorado's marijuana laws, state Attorney General Cynthia Coffman on Friday urged the U.S. Supreme Court to reject a landmark lawsuit filed by Nebraska and Oklahoma over marijuana legalization. In a brief submitted in response to the lawsuit, Coffman wrote that Nebraska and Oklahoma "filed this case in an attempt to reach across their borders and selectively invalidate state laws with which they disagree."

The two states' lawsuit seeks to strike down Colorado's licensing of recreational marijuana stores. Nebraska and Oklahoma officials argue that the stores have caused a flood of marijuana into their states, stretching their law enforcement agencies thin and threatening their sovereignty.

But Coffman argued the lawsuit, if successful, would only worsen problems involving black-market marijuana in all three states. Colorado's regulations for marijuana stores "are designed to channel demand away from this black market and into a licensed and closely monitored retail system," she wrote. If the stores are closed, Colorado would be left with laws that legalize marijuana use but do not regulate its supply. "This is a recipe for more cross-border trafficking, not less," Coffman wrote.

Friday's brief is the first time Colorado officials have had to make a full-throated argument in favor of the state's marijuana legalization laws. In doing so, the brief spends several pages noting states' lengthy history of trying to regulate marijuana, "a product whose use is staggeringly widespread." Nearly half of all states now have laws legalizing recreational or medical use of marijuana, the brief states....

Nebraska and Oklahoma filed their lawsuit directly with the Supreme Court because it involves a dispute between states. Before the lawsuit gets a hearing, the nation's highest court must first decide whether to take up the case. There is no timeline for the decision.

The lawsuit does not challenge Colorado's laws for medical marijuana use or sales, nor does it seek to strike down laws legalizing recreational marijuana use and possession. Instead, Nebraska and Oklahoma argue in the lawsuit that Colorado's licensing of marijuana stores "has created a dangerous gap in the federal drug control system."...

In a statement Friday, Coffman — a Republican who opposed marijuana legalization — said she shares Nebraska and Oklahoma's concerns about illegal marijuana trafficking. Coffman's brief, though, pins the blame for that trafficking not on Colorado's marijuana stores but on "third parties who illegally divert marijuana across state lines." The brief points to the recent indictments of 32 people accused in a massive marijuana-smuggling ring as evidence that Colorado authorities are continuing to bust traffickers.

Colorado's laws received support Friday from Coffman's counterparts in Washington state and Oregon — where recreational marijuana is also legal. In a friend-of-the-court brief filed Friday in support of Colorado's laws, Washington and Oregon attorneys general argue that Colorado's laws don't hurt Nebraska and Oklahoma's abilities to enforce their own laws.

"Nebraska and Oklahoma retain the constitutional powers of every other sovereign State in the nation," the brief argues. "They can investigate and prosecute persons who violate their laws; neither is powerless to address marijuana within their borders."

The full 35-page brief filed by Colorado is available at this link.

I tentatively predict that the Supreme Court will refuse to hear this case, but I confidently predict that most everything about modern marijuana law and policy is pretty darn unpredictable.

Some prior related posts:

March 28, 2015 in Court Rulings, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Thursday, March 26, 2015

Too many marijuana candies and handgun make for suicidal mix in sad Colorado case

After three years of legalization and 15 months of recreational sales, there is now another sad case in which a premature death apparently can be closely connected to the consumption of edible marijuana.   This local story, headlined "Keystone visitor commits suicide after eating marijuana candies," provides these details:

A Tulsa, Oklahoma man visiting Keystone committed suicide after consuming a large amount of edible marijuana candies, according to a Summit County Coroner’s report. Summit County Coroner Regan Wood said the cause of death was a gunshot wound to the head. Luke Gregory Goodman, 22, was staying in Keystone with his cousin at the time of the incident, and was taken to Summit Medical Center Saturday night. Later, he was flown to St. Anthony’s Lakewood Hospital, where he was kept on life support for two days until he died Tuesday morning.

Wood said that Goodman’s cousin reported he and Goodman had consumed edibles earlier Saturday. A CBS4 report says Goodman bought $78 of edible marijuana with his cousin, Caleb Fowler, in Silverthorne. Goodman consumed five peach tart candies in total, each containing 10 mg of the active ingredient in marijuana, the recommended dose for an adult. The back of the package said the candies were supposed to take 1-2 hours take effect.

According to CBS4, Fowler said that several hours later, Goodman became “jittery” then incoherent and talking nonsensically. “He would make eye contact with us but didn’t see us, didn’t recognize our presence almost. He had never got close to this point, I had never seen him like this,” Fowler said.

Later, when his family left the condo, Goodman refused to join them. According to the report, Goodman may have used a handgun he normally carried for protection. Taneil Ilano, a Public Information Officer with the Summit County Sheriff’s Department, said a witness reported that Goodman consumed about four marijuana edibles that day, described as gummy bears. She added that police were dispatched around 10 p.m. on Saturday.

Luke Goodman’s mother, Kim Goodman, told CBS4 that her son had no signs of depression or suicidal thoughts, and believed the large amounts of edibles triggered his death. “It was 100 percent the drugs,” she said. “It was completely because of the drugs — he had consumed so much of it.”

The toxicology results are pending and will take about three weeks to be finalized.

As noted in this prior post from nearly a year ago, in the first part of 2014 two deaths in Denver were linked to marijuana intoxication .  I have been pleasantly surprised that there have not been more of these kinds of tragic cases resulting from misuse of the drug, but my heart now  goes out to everyone connected to this latest tragic incident.

Prior related post:

March 26, 2015 in Current Affairs, History of Marijuana Laws in the United States, Recreational Marijuana State Laws and Reforms | Permalink | Comments (4)

Comparing successful state recreational marijuana initiatives and Ohio proposals

In addition to having a notable guest speaking in my marijuana law school seminar this week (basics here), and having one student do a presentation on drugged driving (basics here), another student this week is giving a presentation on textual and substantive similarities between the adult-use recreational marijuana initiatives/regimes that have been enacted in four states to date (Alaska, Colorado, Oregon and Washington)  and Ohio's three recreational marijuana proposals.  Links to basic legal information about the four legalization states can be found via this NORML webpage, and the basic text or a summary of the Ohio proposals are here:

 
 
 
 
 
 

March 26, 2015 in Assembled readings on specific topics, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Tuesday, March 24, 2015

Basic readings concerning drugged driving realities and laws

In addition to having a notable guest speaking in my marijuana law school seminar this week (basics here), we are starting a series of weeks in which students are to present to the class some readings and engage in discussion concerning the research topic that they are working up. This week, one of the topics to be covered is drugged driving, and here are links to the student-assembled reading:

Drug Impaired Driving: Understanding the Problem and Ways to Reduce It

Drug Per Se Laws: A Review of Their Use in States

(My students only need to read the Ohio section in the "Drug Per Se Laws" comparative article, though they (and other readers) might want to review the whole document for a national perspective.)

March 24, 2015 in Criminal justice developments and reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)