Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Monday, May 23, 2022

"Capitalizing on Missed Opportunities: An Overview of Cannabis Fundraising Disparities"

I am continuing to catch up on posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center.  The title of this post is the title of this paper authored by Cam Wade, a rising 3L at The Ohio State University Moritz College of Law.  Here is its abstract:

Demanding state regulatory schemes render the operation of cannabis businesses an expensive endeavor and create an urgent need for reliable sources of cash.  Historically, the federal ban on cannabis has hindered the industry’s fundraising efforts, but larger cannabis companies have begun to make inroads toward friendlier deals with manageable interest rates.  This progress has not extended to smaller cannabis businesses, which has prevented many from effectively competing and contributed to a wave of intense industry consolidation around the largest companies in 2021.  This paper explores this fundraising disparity and its policy implications.  Proposed solutions at the state and federal level are also evaluated along with an overview of the limited fundraising options which are currently available to small cannabis businesses.

May 23, 2022 in Business laws and regulatory issues, Federal court rulings, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Friday, May 20, 2022

Ninth Circuit panel holds (in trademark dispute) that "delta-8 THC products are lawful under the plain text of the Farm Act"

Images (6)In this post a few month ago, I noted the growth of so-called delta-8 THC products and all the legal uncertainty around them. Yesterday, in an important ruling, a Ninth Circuit panel directly address question about the legality of delta-8 products under federal law. In AK Futures LLC v. Boyd Street Distro, LLC, No. 21-56133 (9th Cir. May 19, 2022) (available here), a trademark dispute prompted the panel to fully engage the arguments surrounding whether the 2018 Farm Bill served to legalize cannabis products without the standard delta-9 THC, and the opinion ultimately embraces the claim that delta-8 THC products derived from hemp CBD are legal products under federal law.  Here are some key passages from the opinion:

[T]he parties dispute whether the possession and sale of delta-8 THC is permitted under federal law and, consequently, whether a brand used in connection with delta-8 THC products may receive trademark protection.  AK Futures argues that delta-8 THC falls under the definition of hemp, which was legalized by the 2018 Farm Act.  Boyd Street argues a contrary interpretation of the Act based on agency documents and congressional intent....

AK Futures argues the Farm Act’s definition of hemp encompasses its delta-8 THC products so long as they contain no more than 0.3 percent delta-9 THC.  Plain meaning supports this interpretation....  Importantly, the only statutory metric for distinguishing controlled marijuana from legal hemp is the delta-9 THC concentration level....

The Farm Act’s definition of hemp does not limit its application according to the manner by which “derivatives, extracts, [and] cannabinoids” are produced.  Rather, it expressly applies to “all” such downstream products so long as they do not cross the 0.3 percent delta-9 THC threshold....

Regardless of the wisdom of legalizing delta-8 THC products, this Court will not substitute its own policy judgment for that of Congress.  If Boyd Street is correct, and Congress inadvertently created a loophole legalizing vaping products containing delta-8 THC, then it is for Congress to fix its mistake.  Boyd Street’s intent-based argument is thus unsuccessful.  With that, neither of Boyd Street’s counterarguments dissuade us from the conclusion that AK Futures is likely to succeed on the merits of its trademark claim.

May 20, 2022 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Thursday, May 19, 2022

"Long Overdue, Cannabis Needs to Have a Place in Professional Sports"

I am so happy to be able to continue catching up on posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center.   To that end, the title of this post is the title of this paper authored by Caroline Rice, a rising 3L at The Ohio State University Moritz College of Law. Here is its abstract:

Although most professional sport leagues amongst the Big Four (National Football League, National Basketball Association, Major League Baseball, and National Hockey League) have restrictions on athletes’ use of cannabis, many professional athletes have spoken out about turning to cannabis as relief for the chronic pain caused by playing professional sports.  This paper explores how as a result of cannabis being wrongly classified as a Schedule I drug on the Controlled Substances Act, professional leagues followed suit restricting cannabis use and leaving athletes with rigid marijuana testing policies and an overuse of prescription painkillers.  This paper then analyzes the medicinal benefits of marijuana use for professional athletes, and subsequently argues for further use of cannabis in professional sports in the United States. 

May 19, 2022 in Business laws and regulatory issues, History of Marijuana Laws in the United States, Sports | Permalink | Comments (1)

Tuesday, May 17, 2022

"Not Easy Being Green: Unique Financial Challenges Faced by State-Legal Cannabis Businesses"

As mentioned in a prior post, the tail end of a busy semester means I can now catch up on posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center.  So, the title of this post is the title of this paper authored by Jake Avetisian, a rising 3L at The Ohio State University Moritz College of Law. Here is its abstract:

The relationship between cannabis and federal law has never been an amicable one.  However, the recent slew of state legislation legalizing cannabis (whether medical or adult-use) across the country has made things even messier at the federal level.  Although the federal government has attempted over the years (somewhat) to take up a policy of non-enforcement relative to states where cannabis is legalized, it is still a Schedule I drug in the United States under the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970 (the “CSA”).  This has various implications for legal cannabis businesses nationwide, but they aren’t the only ones effected by this classification – although they may be taking the brunt of those effects.  Retaining this classification for a drug that is legal at the state level has caused unintended issues in the context of its intersection with other federal legislation and codes, and the financial services that cannabis businesses need to survive.  Many entities who do business with legal cannabis enterprises are putting the well-being of their own business on the line, creating a chilling effect on financial institutions transacting with state legal cannabis businesses.  This paper will examine cannabis’s continued classification as a Schedule 1 drug, and how this classification adversely affects financial advisory industries that are essential to any successful business – not just a cannabis business.  Specifically, this paper will scrutinize the effects of the liabilities indirectly created by the Schedule 1 classification of cannabis on financial institutions participating in the industry, as well as the secondary consequences of these effects on cannabis businesses themselves and their consumers.  Additionally, this paper will look forward to potential solutions, including one that is already in motion, that could rectify some of these major issues for a quickly growing (no pun intended) industry in the United States.

May 17, 2022 in Business laws and regulatory issues | Permalink | Comments (0)

Thursday, May 12, 2022

"Let It Grow: Why More Law Schools Should Teach Cannabis Law"

Cannabis-chart-300x203The title of this post is the title of this new Jurist commentary that I had the honor of co-authoring with Jana Hrdinová.  Here are excerpts:

California’s 1996 ballot initiative protecting medical marijuana users from state criminal prosecution kicked off the modern marijuana reform era in the United States.  In part due to federal prohibition, state medical marijuana laws prompted an array of interesting and intricate legal questions.  Some issues concerned the reach of federal law after state reforms.  Could doctors be punished by federal authorities for recommending marijuana to patients consistent with state law?  Could groups providing marijuana to patients raise a medical necessity defense if subject to federal prosecution?  Other issues arose at the intersection of novel drug laws and other state laws.  Could an employer lawfully fire an employee with a valid medical recommendation simply for testing positive for marijuana?  Could police officers lawfully search a car based simply on the smell of marijuana?

Lawyers and courts have been grappling with these and countless other legal questions across the nation as an ever-growing number of states have legalized marijuana for various uses. Many constitutional questions about potential conflicts between federal and state authority and individual rights have occupied federal courts all the way up the US Supreme Court. A wide array of state law issues have not just occupied state courts, but state administrative bodies and legal ethics panels as well, all seeking to sort out just when and how lawyers can advise or even play a role in the developing marijuana industry.

A full quarter century after California’s first state-level reform, three dozen states have now joined California in legalizing marijuana for a range of medical uses, representing over 70 percent of the US population.  And 18 states plus the District of Columbia, representing over 40 percent of the US population, have also legalized cannabis for recreational use. A large, new cannabis industry has come with a number of complex regulatory and policy issues.  State policymakers and public lawyers now confront the challenge of developing licensing schemes and regulatory rules to protect public health and safety, designing effective tax rates and business structures, and advancing equitable goals ranging from expunging old convictions to helping disadvantaged communities participate in the industry.  Private lawyers helping marijuana businesses must figure out how to raise capital, navigate licensing requirements, and structure acquisitions in the face of diverse state laws and persistent federal prohibition.  Lawyers are also called to review and revise workplace rules about marijuana use, to advise landlords, hospitals, and other venues concerning marijuana use on their properties, and to address myriad other novel issues in this dynamic field.

And yet, with so many new legal questions to grapple with and such rich policy areas to debate, remarkably few law schools are cultivating a modern curriculum by offering courses on cannabis law and policy for the next generation of lawyers.  Beginning in 2018, our center (the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law) has conducted an annual survey of law school curriculum to trace the evolution of teaching in the area of cannabis law and policy.  We have surveyed law schools’ online course schedules and contacted registrar offices by email.  We were surprised initially that barely one in ten law schools offered even a single class in this arena; during the academic year 2018-2019, only 21 out of 201 accredited law schools offered 24 cannabis-specific courses to their students.  This number grew to 29 schools offering 33 courses in 2019-2020, and growth continued with 35 schools offering 35 courses in 2020-2021 and finally 37 schools offering 38 courses in our most recent accounting in 2021-2022.  But even though the number of offered courses has grown over the last four years, law schools still lag significantly behind the fast-moving pace of cannabis legalization.  While now close to 75 percent of US states have some form of legalized marijuana, less than 20 percent of law schools in the US offer instruction on cannabis law.

May 12, 2022 in History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Saturday, May 7, 2022

"Reimagining U.S. Drug Policy Post-Pandemic"

As mentioned in a prior post, the tail end of a busy semester means I can now catch up on posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center. To that end, the title of this post is the title of this paper authored by Samuel DeWitt, a third-year student at The Ohio State University Moritz College of Law. Here is its abstract:

The COVID-19 pandemic caused increased drug use and a widespread decline in mental health throughout American society.  Yet, despite the unprecedented pandemic, society as a whole has shown an impressive ability to adapt to new ways of living, suggesting that a dramatically different version of America is not only possible, but achievable.  Domestic drug policy, which has needlessly prohibited and criminalized a vast array of drugs since the early 1900s, is an area ripe for a similar dramatic change.  This paper explores how the pandemic, combined with concurrent events including a change in Federal Administration and nationwide protests against systemic racism, presents an opportunity for our country to rethink its long-standing drug prohibition on a national scale.

May 7, 2022 in Political perspective on reforms, Who decides | Permalink | Comments (0)

Thursday, April 28, 2022

"Decriminalization as Police Reform"

As mentioned in a prior post, the tail end of a busy semester means I can now catch up on posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center.   Excitingly, this year we opened up this platform to papers submitted by students not from The Ohio State University Moritz College of Law, and we were able to add this paper that has the title of this post and is authored by Marcus Brown of University of North Carolina School of Law.  Here is the abstract of this paper:

Proponents of drug decriminalization typically emphasize the reform’s utilitarian potential to reverse mass incarceration trends, reduce racial disparities within the justice system, and minimize the economic costs associated with drug enforcement.  However, decriminalization has an additional, underappreciated potential to shift drug war-centered policing practices.  This article details how recent decriminalization legislation in New York, Oregon, and Colorado limits police authority to expand stops, conduct searches and make arrests for drug possession.  It also describes how drug decriminalization reduces police department incentives to conduct pretextual stops and militarize its personnel and divisions.  Thus, drug decriminalization should also be understood as a vital tool in limiting intrusive policing practices.  Including this perspective amongst the arguments for drug decriminalization strengthens the potential for substantive reform and may increase support for further legislation.

 

April 28, 2022 in Criminal justice developments and reforms | Permalink | Comments (0)

Wednesday, April 27, 2022

"Why Now? Medicine, Media, and Mysticism in Past and Present American Thought on Psychedelic Drugs"

With the Spring semester coming to a close, this space will no longer be needed to highlight all the research topics and presentation plans of students in my Marijuana Law, Policy & Reform seminar.  And so, I can now return to, and catch up on, posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center.  To that end, the title of this post is the title of this paper authored by Aaron Roberts, a third-year student at The Ohio State University Moritz College of Law.

The public perception of psychedelic substances has become considerably more favorable in recent years.  This shift can be seen in decriminalization measures passed in several U.S. cities as well as Oregon’s commitment to establish a state-licensed psilocybin-assisted psychotherapy program.  These dramatic developments beg the question: Why now? Three particular aspects of psychedelic drugs have shaped the public response to them in the modern era: the established medical potential of psychedelics, the shift in media treatment of these substances, and their “entheogenic,” or spirituality-inducing, properties.  This paper examines these three factors historically.  Additionally, this paper relates ayahuasca specifically to each of the three areas. Ayahuasca is a useful case study due to its intense psychoactive effects, its onetime popularization, and its longer history of ritualistic, shamanic use. 

April 27, 2022 in Initiative reforms in states, Medical Marijuana Commentary and Debate, Religion | Permalink | Comments (0)

Wednesday, April 20, 2022

Florida official sues feds, stressing Second Amendment and Rohrabacher-Farr Amendment, on gun purchasing limits for medical marijuana patients

Florida-guns-and-mmjThis interesting NBC News piece reports on an interesting new federal lawsuit under the headline "Top Florida Democrat sues Biden administration over marijuana and guns: Agriculture Commissioner Nikki Fried's lawsuit targets a federal requirement that prohibits medical marijuana users from purchasing firearms." Here are excerpts:

Florida’s lone statewide elected Democrat, Agriculture Commissioner Nikki Fried, plans to sue the Biden administration Wednesday to try to block a federal rule that prohibits medical marijuana users from buying guns or maintaining concealed-carry permits. NBC News obtained a draft copy of the lawsuit.

The lawsuit targets a federal form that asks whether the gun buyer is an unlawful user of drugs and specifies that marijuana is illegal under federal law. A person allowed by the state to use marijuana must then check “yes,” which results in denial of the purchase. Lying by checking “no” runs the risk of a five-year prison sentence for making a false statement.

Fried, whose office oversees concealed weapons permits and regulates some aspects of medical marijuana, argues in her lawsuit that the form violates the Second Amendment rights of lawful medical marijuana patients and runs afoul of a congressional budget prohibition on federal agents’ interfering with state-sanctioned cannabis laws.

The suit has ramifications beyond Florida: At least 37 states have legalized medical marijuana, and recreational use is legal in 18 states, as well as Guam and Washington, D.C. The lawsuit is timed to land on April 20 — a nod to the slang reference of "420" for marijuana.

The suit is laden with political opportunity for Fried, who became the only Democrat elected statewide in 2018 when she ran on an unabashedly pro-cannabis platform. Two years before, 71 percent of Florida voters legalized medical marijuana, and polls show a majority favor legalization of recreational use. Florida also has 2.5 million concealed weapons permit holders, according to Fried’s office.

“Medical marijuana is legal. Guns are legal. This is all about people’s rights,” Fried said in a statement to NBC News. “And I don’t care who I have to sue to fight for their freedom.”

In her official capacity as agriculture commissioner, Fried is bringing the suit with three citizens who have been affected by the federal rules. It names the acting head of the Bureau of Alcohol, Tobacco, Firearms and Explosives and Attorney General Merrick Garland as defendants. While it’s rare for a Democrat to sue a Democratic administration during an election year, Fried said the issue can no longer wait because of the volume of complaints her office has received.

A spokesperson for ATF said the agency “can’t speculate on possible litigation or discuss any pending litigation” but implicitly blamed federal lawmakers for not changing the Controlled Substances Act and the Gun Control Act, which respectively regulate marijuana and firearms....

Fried’s former pollster, Keith Frederick, said any risks for her by bucking the Biden administration are offset because she’s raising her profile by embracing a popular issue. “You can have the best affordable housing plan possible, but once you get to point No. 2, people’s eyes glaze over, and they stop paying attention,” Frederick said. “People care about this.”

Support for medical marijuana and cannabis legalization cuts across party lines, as does opposition to the conflicting regulations in state and federal law. Gun rights are also generally popular in Florida.

Fried’s lawsuit notes that even conservative Supreme Court Justice Clarence Thomas groused in an unrelated case about the “half-in, half-out regime that simultaneously tolerates and forbids use of marijuana.” “This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary,” Thomas said.

Other plaintiffs have tried and failed to sue the federal government over gun purchases. Fried’s lawsuit singles out the most recent lawsuit for presenting “a thin and stale factual record” that improperly ignored a federal study concluding that “marijuana use does not induce violent crime.” In addition, unlike the other unsuccessful federal case, Fried’s lawsuit argues that the form violates the so-called Rohrabacher-Farr Amendment, which prohibits ATF from enforcing anti-cannabis policies in states that have opted for legalization.

The full lawsuit is available at this link.  The complaint runs 33 pages, followed by more than 200 pages of notable attachment.  

April 20, 2022 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Monday, April 18, 2022

"What Tax Revenues Should Ohioans Expect If Ohio Legalizes Adult-Use Cannabis?"

The title of this post is the title of this new report available via SSRN and produced by the Drug Enforcement and Policy Center and authored by Jana Hrdinova and Dexter Ridgway. Here is its abstract:

Advocates for cannabis reform in Ohio and in other states often stress the tax revenue that can be raised through legalization.  If a citizen-initiated statute currently under consideration in the Ohio General Assembly were to reach the ballot, Ohio voters are likely to hear from reform advocates about the potential tax revenue a new cannabis industry could bring to the Buckeye State.  The purpose of this policy paper is to provide an initial estimate of potential cannabis tax revenue in Ohio that is informed by tax revenue data and trends from a select group of other adult-use states.

Based on our analysis, we are using Michigan FY 2021 data on cannabis tax revenue as our focal point for Ohio cannabis tax revenue estimates given the demographic and tax structure similarities; we are assuming a conservative rate of diminishing retail sales growth through year five of an operational legal adult-use program; we are using state population figures as our basis for calculating per capita cannabis tax revenue rates; and we are modeling for three different Ohio pricing scenarios.  Given these assumptions, the potential annual tax revenue from adult-use cannabis in the state of Ohio ranges from $276 million in year five of an operational cannabis market to $374 million in year five of operations.

April 18, 2022 in Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Taxation information and issues | Permalink | Comments (0)

Student presentation: "Prohibition & the U.S. Economy: How Cannabis Legalization Can Help the United States Economy Recover in a Similar Fashion as the 21st Amendment"

Images (2)The homestretch of students in my Marijuana Law, Policy & Reform seminar presenting on the research topics of their choice includes a focus on economic development issues. Here is how the student describes the topic and some background readings:

Warning lights are now flashing for the U.S. economy as a potential recession appears on the horizon.  At 8.5%, the U.S. is seeing the highest inflation rate since 1981.  It seems that causes for inflation are plentiful.  COVID-19’s impact on the world’s supply chain, surging demand, production costs, relief funds, the Russian war, and an increase in wages to keep up with worker shortages are all reasons economists point to as inflation catalysts.  Recently, it was reported that Americans need to budget an extra $5,200 this year to cover inflation prices.  But the reality is many Americans simply cannot afford to keep up.  Not everyone’s wages have increased, and many Americans are still left without jobs.  Budgeting extra money when so many Americans live paycheck to paycheck or use government assistance to survive is not feasible nor sustainable.

We saw a similar crisis 100 years ago as well.  From 1920 to 1933, Americans suffered through the Prohibition Era, the Stock Market Crash of 1929, and the Great Depression.  During this time, Americans saw a huge downturn in the economy with hundreds of thousands of people out of the job market.  Many businesses shut down. The U.S. government was spending an absurd amount of money to enforce Prohibition all while financially suffering from the loss of alcohol and excise taxes.  Once Prohibition was repealed, Americans saw a boom in economy.  More jobs and legal alcohol sales meant the government was simultaneously reaping the benefits of increased sales tax revenue and newly created income taxes which helped fund the New Deal and, in turn, further helped restore prosperity to the United States.

In this paper, I argue that cannabis can serve a similar purpose to the U.S. economy now as the repeal of alcohol prohibition did in 1933.  Much like the Prohibition Era, the U.S. government spends an obscene amount of money enforcing cannabis prohibition.  There is also a large opportunity cost in delaying federal legalization.  States that have legalized cannabis recreationally have seen a huge boost in economic growth due to job creation, sales tax revenue, and property values.  These dollars are then used to fund social programs, public schools, research, and public safety.  Federal legalization can do the same on a much larger scale.  The economy is becoming more fragile every day, public perception of cannabis has changed, and various proposed reforms have hit Capitol Hill.  I argue that now, more than ever, is the time to federally legalize cannabis because it could be the saving grace that stimulates the economy in the way Americans need.

Background Reading:

Press article from 2020: "Cannabis Legalization Is Key To Economic Recovery, Much Like Ending Alcohol Prohibition Helped Us Out Of The Great Depression"

ACLU blog post from 2012: "Hundreds of Economists: Marijuana Prohibition Costs Billions, Legalization Would Earn Billions"

Blog post by university professor: "How marijuana legalization would benefit the criminal justice system"

Leafly report from 2020: "2020 Cannabis Jobs Report: Legal cannabis now supports 243,700 full-time American jobs"

April 18, 2022 in Business laws and regulatory issues, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Friday, April 15, 2022

Notable federal marijuana reform news with an interesting new bill while we further wait for an old one

6a00d8341bfae553ef0223c85155dc200c-320wiThis past week brought interesting news of federal marijuana reform bill on two fronts.  Marijuana Moment provides the details in these two stories, linked and excerpted here:

"Schumer’s Marijuana Legalization Bill Not Coming This Month, As Senators Work To Finalize Provisions."  Excerpt:

The long-anticipated Senate bill to federally legalize marijuana will not be introduced this month, with Democratic leadership saying on Thursday that the timeline is being extended as they continue to work out various provisions “with the assistance of nearly a dozen Senate committees and input from numerous federal agencies.”

Senate Majority Leader Chuck Schumer (D-NY) has said on several occasions that the bill he’s been working on with Senate Finance Committee Chairman Ron Wyden (D-OR) and Sen. Cory Booker (D-NJ) for many months would be formally filed by the end of April.  That’s no longer the case, with the leader now saying the “official introduction” will take place sometime “before the August recess.”

A discussion draft of the Cannabis Administration & Opportunity Act (CAOA) was first unveiled last year, and advocates and stakeholders have been hanging on the leader’s words as they continue to push for an end to federal prohibition. Most recently, Schumer said last week that he and colleagues were in the process of reaching out to Republican senators to “see what they want” included in the legislation.

The timeline that Schumer previewed has apparently proved too ambitious — but the hope is that by taking extra time to finalize the measure, it will help the senators overcome what are currently significant odds stacked against them to reach a high vote threshold in the chamber, where Democrats hold just a slim majority and several members of the party have indicated that they’re not supportive of legalization.

"U.S. Attorney General Would Be Required To Create Marijuana Commission To Advise On Legalization Under New Bipartisan Bill." Excerpt:

A bipartisan group of congressional lawmakers filed a bill on Thursday that would direct the attorney general to create a commission charged with making recommendations on a regulatory system for marijuana that models what’s currently in place for alcohol.

Reps. Dave Joyce (R-OH), Hakeem Jeffries (D-NY) and Brian Mast (R-FL) are teaming up on what’s titled the Preparing Regulators Effectively for a Post-Prohibition Adult-Use Regulated Environment Act (PREPARE) Act — an incremental reform meant to inform comprehensive cannabis policy changes in the future.

The measure will “provide lawmakers across the ideological spectrum the opportunity to engage on cannabis reform by creating a fair, honest and publicly transparent process for the federal government to establish effective regulation to be enacted upon the termination of its 85-year prohibition of cannabis,” according to a summary from the sponsors....

Here’s what the new bill would accomplish: 

Require the attorney general to establish a “Commission on the Federal Regulation of Cannabis” within 30 days of the bill’s enactment.  The commission would be responsible for studying federal and state regulatory models for alcohol and make recommendations about how they could inform marijuana regulations.  Among other things, the commission’s report must look at the impact of marijuana criminalization, particularly as it concerns minority, low-income and veteran communities.

The panel would also examine the “lack of consistent regulations for cannabis product safety, use and labeling requirements” as well as the “lack of guidance for cannabis crop production, sale, intrastate, interstate, and international trade.“  It would also need to make recommendations on how to remedy cannabis-related banking and research barriers as well as address measures to ensure the “successful coexistence of individual hemp and cannabis industries, including prevention of cross pollination of cannabis and hemp products.”

Members would further be mandated to study and make recommendations on “efficient cannabis revenue reporting and collecting, including efficient and tenable federal revenue frameworks.”  The panel would be required to issue a report to Congress within 12 months.

I have come to believe that Senator Shumer's CAOA is essentially DOA in a Senate that may not now have even 50 votes in support of full marijuana legalization, let alone the 60 needed to get past a filibuster.  But the new PREPARE Act already has bipartisan support, and it seems to only call upon the federal government to take a serious and sustained look at what kind of federal regulatory rules and structures would be preferable as marijuana reform in the states continues apace.  In a well-functioning Congress, I think some version of the PREPARE Act could and should be a no-brainer and likely should have been enacted a number of years ago.  In the current dysfunctional Congress, I fear that we need not seriously prepare for the passage of the PREPARE Act.  But one can still dream. 

April 15, 2022 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Thursday, April 14, 2022

Student presentation on marijuana reform and the Fourth Amendment

Marijuana1I mentioned previously that a big group of Marijuana Law, Policy & Reform seminar students are scheduled to present this week on the research topics of their choice. The fifth exciting (and excitingly different) topic for this coming week's presentations is to be focused on the Fourth Amendment. Here is how the student describes the topic and some background readings:

The Fourth Amendment protects the right to be free from unreasonable searches and seizures.  Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, but this protection has been watered down over the past 100 years.  The War on Drugs led to significant changes in Fourth Amendment law as police began using more intrusive tactics to enforce drug laws, in particular with a focus on marijuana law enforcement from the 1990s to the present.  Police use tactics such as the Terry stop and frisk, warrantless vehicle searches, and drug sniffing dogs are commonly used to detect even small amounts of marijuana, and as of 2018, 89.6% of marijuana arrests were for possession only.

Giving police officers significantly lead way to decide when a search is appropriate has arguably led to racial profiling and consequently, contributed to the racial disparities we see in marijuana law enforcement today.  From 2001 all the way through 2018, a Black person was almost four times as likely to be arrest for marijuana possession as a white person, despite studies showing these groups use marijuana at substantially equal rates.  Further, a Black person is also more likely to be stopped by police for alleged traffic violations and more likely to be searched during a stop.

With the passage of marijuana legalization (decriminalization, medicinal legalization and recreational legalization) we have began to see some of these police practices, restoring some of the Fourth Amendment rights lost due to the war on drugs.  In particular, my project will focus on whether the scent of marijuana is still sufficient to prove probable cause for a search under these various regimes, and whether a drug sniffing dog that is trained to detect marijuana can likewise provide probable cause for a vehicle search.  The hope is that by eliminating these intrusive tactics (saying they do not provide probable cause), we will regain the Fourth Amendment rights lost due to the war on drugs, particularly for those who have been the most affected, people of color, and that racial disparities in marijuana law enforcement will begin to decline.

Background:

Please watch this video explaining police procedures (and misconduct) in the traffic stop of Tae-Ahn Lea. Audit the Audit, Officers Sued for Searching Vehicle During Traffic Stop, YouTube, (Sept. 30, 2019) .

Oklahoma Municipal Assurance Group (OMAG) piece analyzes the application of the Fourth Amendment in legal states. Matt Love, How Other States Apply the Fourth Amendment to Medical Marijuana (Oct. 15, 2019)

ACLU Report: A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform (2020) 

April 14, 2022 in Assembled readings on specific topics, Criminal justice developments and reforms, Medical Marijuana Commentary and Debate | Permalink | Comments (0)

Wednesday, April 13, 2022

Student presentation on expunging marijuana records effectively in Ohio

ImagesAs students in my Marijuana Law, Policy & Reform seminar are continuing to "take over" my class through presentations on the research topics of their choice, I continue to post here background on their topic and links to relevant materials.  The fourth of this coming week's presentation is focused on record clearing, and here is how the student describes the topic and provided readings:

Effective cannabis law reform cannot occur without also addressing the harm caused to those who have obtained criminal records due to harsh drug laws.  For decades, people throughout Ohio and the rest of the country have been punished by the criminal justice system due to non-violent cannabis offenses.  Thankfully, many states have legalized, or are in the process of legalizing cannabis.  Cannabis legalization is an important step in cannabis law reform because it means people will no longer be charged for cannabis related offenses.  However, legalization alone does nothing to help those who have already obtained cannabis related charges and convictions.  The issue with having cannabis-related convictions is not just the fines or jail time that may come with it, but also the negative consequences of having a criminal record, which continues to affect offenders long after the case is closed.  Cannabis legalization, therefore, must be accompanied by expungement reform in order to help put an end to the negative consequences that those with cannabis related criminal records are experiencing.

Thus, my presentation focuses on analyzing different expungement provisions that have been included in cannabis legalization laws.  Although many states that have legalized cannabis have included provisions on expungement reform, some of these provisions are not as effective as they could be.  Based on my research, I make the following recommendations for Ohio lawmakers to take into consideration when drafting laws on cannabis expungement.  First, I recommend lawmakers to create an individual bill focused solely on cannabis expungement to avoid conflict with Ohio’s “One Subject” rule.  Second, I recommend that cannabis records should be automatically expunged for any non-violent cannabis offenses as well as other offenses that can be tied to cannabis, such as paraphernalia and loitering offenses.  Third, I recommend that there should be no waiting period for the expungement— all cannabis records should start to be expunged as soon as the law is passed.  Lastly, I recommend that the bill should create an independent committee to carry out the expungements to avoid overburdening prosecutors and court staff.

Recommended reading:

J.J. Prescott & Sonja B. Starr, Expungement of Criminal Convictions: An Empirical Study 133 Harv. L. Rev. 2460 (2020).

Akua Amaning, Advancing Clean Slate: The Need for Automatic Record Clearance During the Coronavirus Pandemic, Center for American Progress (Jun. 25, 2020),

Mark Gillspie, Cleveland Seeks to Expunge 4k Minor Marijuana Convictions, Associated Press (April 7, 2022)

50-State Comparison: Marijuana Legalization, Decriminalization, Expungement, and Clemency, Collateral Consequences Resource Center (last updated Jan. 2022)

April 13, 2022 in Assembled readings on specific topics, Criminal justice developments and reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Student presentation on licensing schemes for marijuana reform in Ohio

6a00d8341bfae553ef0282e11483be200bThe third of this week's presentations put on by my Marijuana Law, Policy & Reform seminar students will be focused on how Ohio might approach how setting up a licensing scheme for the marijuana industry.  Here is how the student describes this topic and some background readings:

Summary

In a regulated industry, licensing is the key that unlocks the door for (legal) opportunity.  The ever-expanding cannabis industry is no exception.  Those who hold licenses in this industry enjoy the benefit of legally-sanctioned conduct, while others assume the risks of operating in the black market. 

Ohio is currently faced with the question of whether an adult-use cannabis market should be established within the state.  As a part of answering this question, policymakers need to consider how to set up a licensing scheme for any potential industry.  There are several different considerations that need to be made in approaching such a scheme.  First, there is the issue of responding to different operators within the market and establishing different licenses for these various operators.  Next, there is the debate over whether to establish a limited license market, and how to respond to concerns over monopolization and social equity.  Lastly, policymakers must decide what qualifications will be necessary in order to obtain a license, and which actors will be excluded from such a privilege.

An Act to Control and Regulate Adult-Use Cannabis is a ballot initiative which seeks to introduce an adult-use market in Ohio, and it proposes a detailed framework for licensing this market.  This project analyzes the licensing scheme that would be established in the state, should this initiative eventually be signed into law, and evaluates how this proposed scheme responds to the policy concerns that are inherent in licensing.

Background

Full Text of Ohio 2020 Marijuana Reform Ballot Initiative

Local press article on law enforcement seizure of assets from black-market cannabis operations 

Primer on “plant-touching” cannabis businesses 

Cato Institute blog post on corruption associated with limited licensing

New Jersey Policy Perspective blog post on social equity issues associate with limited licensing

Reason Foundation report examining issues surrounding criminal conviction restrictions in marijuana licensing

April 13, 2022 in Assembled readings on specific topics, Business laws and regulatory issues, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Tuesday, April 12, 2022

Student presentation: "Putting Marijuana Back in the Bottle: FDA’s Role in Future Marijuana Regulation"

Images (4)Continuing the Marijuana Law, Policy & Reform seminar students presenting on research topics of their choice. the second topic for this coming week's presentations will be focused on the role of the FDA.  Here is how the student describes her take on the topic and some background readings:

So far, FDA has been fairly hands-off when it comes to the state-driven marijuana market even though marijuana falls under many of the agency’s statutory domains.  “Marijuana” is a hot commodity as consumers can attest from the plethora of products purporting to contain marijuana derivatives.  Many, if not all, of these products fall under FDA’s regulatory regime.

Although FDA has issued some warning letters regarding company actions within the marijuana space, the agency has not developed a consistent theme for regulation.  Once it does, some state regulations may be preempted.  This would throw the current regulatory landscape into question.  Such entry may also change the dynamic of the marijuana industry.  For example, as companies face federal regulation, entry into the marijuana space may become more expensive and push small sellers out of the market.  Conversely, a dual marijuana marketplace may be established — one that establishes itself nationwide and another that attempts to maintain the current system by only selling intra-state.

FDA does not need to completely reinvent the wheel when it comes to marijuana regulation, although it statutorily may have to consider factors unique to current state regulations.  However, given the history of introducing more robust regulations onto new industries, as FDA did with tobacco industry, systems states are already finding successful, and other nations’ marijuana schemes, there are many avenues for FDA to ensure the American public is protected from unsafe products without overly disrupting the current market.

Every year that the federal government declines to implement a regulatory scheme for marijuana products, states are creating their own processes — some more and some less permissive.  This paper describes the statutory basis for FDA to regulate marijuana.  It also describes how future FDA regulation might interplay with current state regulation or be preempted.  Next, it analyzes possible industry challenges as federal regulation becomes more prominent.  Finally, it recommends how FDA may enter the regulatory space in tandem with state regulation and avoid stifling an already robust market.

Background Reading

Law review article: "The Surprising Reach of FDA Regulation of Cannabis, Even after Descheduling"

Law review article (by own own Prof Zettler): "Pharmaceutical Federalism"

US Food & Drug Administration webpage: "FDA Regulation of Cannabis and Cannabis-Derived Products, Including Cannabidiol (CBD)"

Government of Canada webpage: "Health products containing cannabis or for use with cannabis: Guidance for the Cannabis Act, the Food and Drugs Act, and related regulations"

April 12, 2022 in Assembled readings on specific topics, Federal Marijuana Laws, Policies and Practices, Food and Drink, History of Marijuana Laws in the United States, International Marijuana Laws and Policies, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Student presentation examining application of immigration laws in wake of marijuana reforms

Immigration-and-Marijuana-2-1024x683A big group of Marijuana Law, Policy & Reform seminar students are scheduled to present this week on the research topics of their choice.   As I often mention, before their presentations, students are expected to provide in this space some background on their topic and links to some readings or other relevant materials.  The first new topic for this coming week's presentations is to be focused on immigration laws .   Here is how the student describes the topic and some background readings:

Abstract:

This project attempts to raise the profile of and build solidarity among disparate groups on the issue of considering how immigration law should be amended or enforced in the wake of the move towards legalization, whether on a state-by-state or federal level.  The final product will consist of a paper that goes into detail on perspectives and policy rationales for amending the INA to remove marijuana from disparate political perspectives -- those who are already committed to immigrants' rights, those who are already committed to marijuana legalization, and those who are hostile to both. 

For the first group, it's fairly self-explanatory: marijuana use is a deportable offense for immigrants whether or not it is legal, which makes little sense in the era of marijuana reform.  For legalization supporters, I focus on economic developments and social justice.  Allowing immigrants into the group of people who could purchase and use marijuana would both bring more revenue into the market and create a new group of folks who could work in both agricultural and retail ends of the business. Further, given the divisive history of the connections between marijuana criminalization and immigration, noncitizens should be a key consideration in legalization legislation and regulation just as social equity programs are now for women and other minoritized people.  Finally, for those who aren't familiar or amiable to either perspective, the paper dives into arguments about job creation, notions of justice and fairness, and the assertion that supporting minoritized individuals such as immigrants and people of color is beneficial for all members of the U.S. 

After writing the paper, I will be developing a series of issue factsheets based on the arguments and categories above to garner support for solutions to the above issues, such as encouraging readers to support certain bills, state and district level reforms to the criminal justice process, organizations doing work on this issue. 

Background reading:

Law Review Student Comment (2015): "Nonserious Marijuana Offenses and Noncitizens: Uncounseled Pleas and Disproportionate Consequences"

Law Review Student Note (2021): "The Impact of Marijuana Decriminalization on Legal Permanent Residents: Why Descheduling Marijuana at the Federal Level Should Be a High Priority"

Press article providing historical context (2019): "The Surprising Link Between U.S. Marijuana Law and the History of Immigration"

Advocacy group report detailing the personal harm of the current deportation laws and scale of the issue (2015): "A Price Too High - US Families Torn Apart by Deportations for Drug Offenses"

April 12, 2022 in Assembled readings on specific topics, Federal Marijuana Laws, Policies and Practices, Political perspective on reforms, Who decides | Permalink | Comments (0)

Wednesday, April 6, 2022

Student Presentation Analyzing Ohio Senate Bill 261 and Oklahoma’s Free Market Experiment in Medical Marijuana

Oklahoma1As my Marijuana Law, Policy & Reform seminar continues with student presentations on their research topics, the third of this coming week's presentations is focused on what the student calls the "free market" approaches to medical marijuana.   Here is how the student describes the topic along with background materials:

Presentation Summary

Ohio Senate Bill 261 seeks to improve Ohio’s existing Medical Marijuana Control Program.  If passed, Senate Bill 261 would multiply the number of licensed dispensaries, increase the number of qualifying conditions, enable physicians to remotely recommend medical marijuana via telehealth, and create the Division of Marijuana Control, which would divest the Board of Pharmacy of its current responsibilities.  While not expressly stated, Senate Bill 261 would embrace a free-market approach to medical marijuana in a similar fashion to Oklahoma, which has often been described the “Wild Wild West of Weed.”  The overarching theme of this presentation is the public perception of such a medical marijuana regime and whether Senate Bill 261 is giving the patients what they want.

Creating more competition in Ohio’s medical marijuana industry is a chief concern among many patients, who often argue that further competition is needed to lower prices.  The vast majority of Ohio patients agree that products sold by dispensaries are currently too high.  The expansion of the number of licensed dispensaries and provisions aiming at improving cultivators are likely to create more competition and lead to lower prices.  But will the expansion of up to 300 licensed dispensaries in Ohio lead to market saturation and thus make it hard for dispensaries to make any money?  This presentation argues that this is an overblown concern in Ohio, unlike it is in Oklahoma.

This presentation also analyzes the qualifying condition provisions, as well as scrutinizing the bill for things that it lacks, such as proscribing standards for doctors or expunging the past criminal records of licensed patients.  Overall, the presentation finds that Senate Bill 261 was carefully crafted to pass the Ohio legislature by focusing on market-oriented and patient-driven concerns and concludes by suggesting that the result will positively transform Ohio’s medical marijuana industry from a market perspective.

Background materials:

Background information about Senate Bill 261: Summary of S.B. 261 from Ohio Legislative Service Commission

Local press article about the Bill: “Marijuana bill could cut prices, increase access

Great local press article on medical marijuana in Oklahoma: “How Recreational Is Oklahoma’s Medical Marijuana Market?

Text of Oklahoma medical marijuana initiative: Oklahoma’s State Question 788

April 6, 2022 in Assembled readings on specific topics, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Monday, April 4, 2022

Student presentation exploring patent protection for marijuana plants

My Marijuana Law, Policy & Reform seminar continues with student presentations on the research topics of their choice.   The second of this coming week's presentations is focused on patent protection for marijuana plants.   Here is how the student describes the topic and the provided readings:

Presentation Summary

Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. Intellectual properties are one of the most valuable assets for the companies and there are multiples ways one can protects this asset.  And how would businesses in Cannabis go about protecting it’s IP rights under current law, and how much would it effect federal reforms and how would reforms effect IP industries?

Different IP requires different protections, like trademark, copyright, and patent.  And the one I will be focusing on will be patent protection.  Patent protection is most desired of all IP protections as it grants 20 years of monopoly from date of filing.  However, for marijuana related IP to be protected under patent, there are multiple hoops to overcome.  As a plant, it is very difficult to claim a patent.  Furthermore, patents are exclusively governed by federal law, and under federal law marijuana is still illegal, as a Schedule 1 drug under the Controlled Substances Act.   With patent, could provide incentives for researching marijuana and to be able to have enough scientific data to remove it form schedule 1 drug.

This does not mean that getting patent for marijuana is impossible.  There are multiple ways to get over the barriers.  And there are some successful examples of marijuana patent.  This include government owned marijuana patent.  And this patents not only provide economic benefits to patentees but also to the public as it will provide incentive to have more research done on the marijuana.

Background

Background information about marijuana patent law: “Basics of Marijuana Patent law” 

Examples and introduction to obstacles of marijuana patent and examples of marijuana patent: “Twelve Cannabis Plant Patents and Counting

Information about plant patents in general: “General information about 35 U.S.C. 161 plant patents” 

News report of government owned marijuana patent: “Feds patented medical pot…while fighting it” 

April 4, 2022 in Assembled readings on specific topics, Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)

Sunday, April 3, 2022

Student presentation on native tribes exploring marijuana marketplaces

Download (24)My Marijuana Law, Policy & Reform seminar is in its homestretch, and there are scheduled for the coming weeks a host of student presentations on the research topics of their choice.   As I often mention, before their presentations, students are expected to provide in this space some background on their topic and links to some readings or other relevant materials.  The first of this coming week's presentations is focused on native tribes involved in marijuana activities.   Here is how the student describes the topic and the provided readings:

Summary:

Native Americans have the highest poverty rate in the United States and the percentage of American Indians and Alaska Natives living in poverty is nearly twice the rate of the nation.  In addition, the U.S. Commission on Civil Rights “reported that -- due to things like historical discriminatory policies, insufficient resources, and inefficient federal program delivery -- Native Americans continue to rank near the bottom of all Americans in terms of health, education, and employment.”  Some tribes have begun to look towards the marijuana marketplace as a different way to generate revenue for their tribe and to encourage economic development.

Tribes that have been able to build successful marijuana enterprises have seen great benefits.  The Las Vegas Paiute in 2017 opened a 15,800 square foot dispensary called NuWu Cannabis Marketplace which has since been deemed a blueprint for the industry and brings in over $5 million in sales per month.  A designated amount of the profits from the company goes to the Paiutes’ general fund to support things like medical and educational expenses of tribe members.  However, some tribes have faced extensive legal barriers to their attempts to tap into this potential financial gain.  Federal raids and threatened state intervention has left some Native American communities weary of even thinking about entering into this realm.

Marijuana is still illegal under federal law and the federal government is in charge of regulating tribes.  However, Congress can transfer its jurisdiction over tribes to the states if it chooses and in some states it has given them exclusive jurisdiction, through Public Law 280, over all crimes committed on reservations.  The interaction between state and federal law and the overall lack of clarity often leaves tribes to make tough decisions in this space with little guidance.  This presentation explores the legal issues implicated with tribal marijuana and discusses what has happened when tribes have entered or tried to enter the market.

Background Reading:

April 3, 2022 in Assembled readings on specific topics, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)