Wednesday, July 6, 2022
Marijuana Moment has effective coverage to two notable new letters sent recently to the Biden Administration. Here are headlines, links and the ledes:
A coalition of current and former marijuana regulators is urging the Justice Department to instate updated guidance to federal prosecutors on cannabis enforcement priorities as an interim step while Congress considers broader legislation to end prohibition.
Ten members of the Cannabis Regulators of Color Coalition (CRCC) sent a letter to top DOJ officials, as well as the president and vice president, on Tuesday that addresses the urgent need to reinstate something like Obama-era guidance that generally recommended that prosecutors use discretion in marijuana-related enforcement for state-legal activities.
As the the coalition points out in the the letter, which was shared exclusively with Marijuana Moment, the 2013 guidance that was later rescinded by then-Attorney General Jeff Sessions during the Trump administration came before any states had launched retail cannabis sales. Now, with 19 states that have legalized for adult-use and the vast majority permitting some level of medical marijuana access for qualified patients, there’s a need to bring back something akin to the so-called Cole memo, CRCC said.
The updated memo should advise federal prosecutors against going after people for “crimes related to cannabis when those activities accord with relevant state law and a reasonable set of regulatory principles intended to promote safety and fairness,” the letter says.
A coalition of six U.S. senators are renewing their call for the Biden administration to deschedule marijuana and grant mass pardons for people with federal cannabis convictions, calling the Justice Department’s response to an earlier request for action “extraordinarily disappointing.”
In a letter that was sent to President Joe Biden, Attorney General Merrick Garland and Health and Human Services (HHS) Secretary Xavier Becerra on Wednesday, the senators made a dual request: first, that the attorney general work independently to remove cannabis from the Controlled Substances Act (CSA) and second, that the president issue mass clemency for people with non-violent federal marijuana convictions.
Sens. Elizabeth Warren (D-MA), Bernie Sanders (I-VT), Cory Booker (D-NJ), Ron Wyden (D-OR), Ed Markey (D-MA) and Kirsten Gillibrand (D-NY) signed the new letter. The senators said that DOJ took six months to respond to a previous October 2021 letter urging the attorney general to use his authority to unilaterally start the process of federally descheduling marijuana. The “half-page response” was “extraordinarily disappointing,” they wrote.
Friday, July 1, 2022
Marijuana Moment has this lengthy new article under the headline "It’s Up To Biden To Direct Mass Clemency For Marijuana Cases, U.S. Pardon Attorney Says." Of course, in every administration and for every type of federal defendant, grants of clemency are "up to" the President. Nevertheless, this piece serves as a useful review of the state of debate over clemency for federal marijuana offenders, and here are excerpts (with lots of links from the original):
It’s up to President Joe Biden to initiate a process of granting mass clemency for people with non-violent federal cannabis convictions, the recently appointed U.S. pardon attorney told Marijuana Moment on Thursday.
As a general practice, the Justice Department’s pardon office looks as petitions for relief on an individualized basis and then makes recommendations to the president, Pardon Attorney Elizabeth Oyer said during an event hosted by the Justice Roundtable, a coalition of criminal justice reform organizations.
That said, a categorical pardon for people with federal cannabis records is still possible if the president takes action, the former public defender, who was appointed by Attorney General Merrick Garland in April, said. “Right now, the Office of the Pardon Attorney reviews every individual clemency application on an individualized basis — and that could change at the direction of the president,” Oyer said in response to a question from Marijuana Moment about the feasibility of Biden issuing mass pardons and commutations for marijuana convictions in the way Presidents Gerald Ford and Jimmy Carter did for people who avoided the draft during the Vietnam War. “Currently, what we do is we look at cases individually for the most part and not categorically,” Oyer said. But she left the door open that the president could issue a directive otherwise if he wanted to....
The pardon attorney said that when her office makes clemency recommendations, it does take into account “broad categories of policy objectives or criminal justice reform goals or racial justice objectives,” and marijuana cases represent an example of such a category because they have “some sort of cohesive common characteristics.”
“So we’re absolutely taking into consideration those categories and those policy objectives and those racial equity objectives, but we don’t look at cases in a batch without individualized review,” Oyer said. “We do look at every single case individually.”
At the event, the pardon attorney also offered advice to advocates on filing clemency petition applications and addressed the “backlog” of cases under review.
Late last year, there were signals that the administration might be moving toward clemency for certain people with federal convictions. The federal Bureau of Prisons (BOP) started asking eligible individuals to get the process started by filing out clemency applications.
Biden has received about a dozen letters from lawmakers, advocates, celebrities and people impacted by criminalization to do something about the people who remain behind federal bars over cannabis. After months of inaction, some members of Congress like Sen. Elizabeth Warren (D-MA) have even sent follow-up letters demanding a response.
Among those pushing for reform is Weldon Angelos, who received a president pardon from Trump in 2020 and has since become a key advocate for criminal justice reform who has worked with both the Trump and Biden administration of furthering relief. “It’s up to President Biden to honor his campaign promise and instruct those involved in the clemency process to prioritize cannabis cases,” Angelos told Marijuana Moment on Thursday. “There is no other group more deserving of relief than those who are incarcerated for something that society no longer considers criminal.”...
At a House Judiciary Committee oversight hearing last month, Chairman Jerrold Nadler (D-NY) and other Democratic lawmakers stressed the need for reforming the federal clemency process, calling for applications to be streamlined to make it easier for people with non-violent federal drug convictions to get relief.
Late last year, a coalition of congressional lawmakers introduced the Fair and Independent Experts in Clemency (FIX Clemency) Act, a bill that would take clemency review away from the Justice Department and instead establish an independent board appointed by the president.
A report published by the Congressional Research Service (CRS) last year affirmed that the president has it within his power to grant mass pardons for cannabis offenses. It also said that the administration can move to federally legalize cannabis without waiting for lawmakers to act.
Monday, June 20, 2022
"United States v. Approximately 64,695 Pounds of Shark Fins: Civil Asset Forfeiture and Implications for the Cannabis Industry"
I am pleased to report that, with this posting, I am now fully caught 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. As I have said in lots of prior posts, it has been a joy to highlight great work by OSU law students and recent graduates, and the title of this post is the title of this paper authored by Alyssa Roberts who recently graduated from The Ohio State University Moritz College of Law. Here is its abstract:
Civil asset forfeiture, a longtime practice in U.S. law enforcement, allows the government to seize any individual property allegedly connected with a crime. In its modern form, the stated aim has been to take down drug kingpins by forfeiting assets connected to large-scale drug rings. However, especially in the context of cannabis, the result has been the forfeiture of billions of dollars -- much of which is never ultimately linked to criminal charges—in small increments from individual people. Of particular concern is the starkly disproportionate effect of civil forfeiture on people of color -- most notably in Black and Latino communities. Further, the legal landscape allows the majority of seized assets, often cash, to flow directly to police departments across the country, creating a perverse incentive for law enforcement to utilize the practice as often as possible.
This paper provides an overview of the machinations of civil forfeiture laws in the United States, as well as historical context for civil forfeiture over the past several decades. It then discusses the interaction between cannabis and civil forfeiture, paying particular attention to industry concerns, and provides several recommendations and policy reforms.
Friday, June 17, 2022
As it became more and more clear in recent months that there weren't the votes in the Senate needed to pass any of the major federal marijuana legalization bills, federal reform discussions started to grow a bit boring. Whether and how the SAFE Banking bill might get enacted seemed to be the only story afoot, though that still remains a lively and important matter. But just in the last few days, a lot of notable news from both inside and outside the Beltway has started to make the federal reform landscape a lot more interesting for a lot of different reasons. As always, Marijuana Moment has these stories well covered, and here are links to its coverage:
Developments Inside the Beltway
Developments Outside the Beltway
Monday, June 13, 2022
"Capital Expenditure and Acquisition in Conventional Agriculture and Cannabis: A Comparative Analysis"
I am pleased to report that I am almost fully caught 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. I continue to relish the he chance to highlight great work by OSU law students and recent graduates, and the title of this post is the title of this paper authored by Steve Nosco who recently graduated from The Ohio State University Moritz College of Law. Here is its abstract:
Federal laws prohibiting the possession, production, and use of Cannabis create significant operational challenges for state-compliant Cannabis companies. One of the largest challenges is acquiring the initial capital required for any new business to become self-sustaining and profitable. Without traditional sources of capital, namely credit from commercial institutions or government lenders, only individuals with access to significant private funds can become entrepreneurs in this burgeoning industry. In the face of Federal inaction to solve this well-documented problem, States can, and should, take on a leading role. This Paper explores existing federal programs for traditional agricultural lending and suggests how states can emulate these programs for Cannabis businesses within their jurisdictions.
The question in the title of this post is prompted by this interesting Marijuana Moment article headlined "New Details On Congressional Marijuana Omnibus Bill Emerge As Lawmakers Work For 60 Senate Votes." Here are some of the intriguing particulars from an extended piece worth reading in full:
Two key congressmen made waves in the marijuana community on Thursday by disclosing that there are high-level talks underway about putting together a wide-ranging package of incremental marijuana proposals that House and Senate lawmakers believe could be enacted into law this year. But multiple sources tell Marijuana Moment that issues under consideration go further than the banking and expungements reforms that were at the center of the public discussion that has emerged.
The dueling pushes for comprehensive legalization and incremental reform — a source of tension among advocates, lawmakers and industry insiders over many months — may actually result in something actionable and bipartisan by the end of the current Congress, those familiar with the bicameral negotiations say. That said, no deal is set in stone and talks are ongoing.
In addition to the banking and expungements proposals that made waves when discussed publicly at a conference on Thursday by two key House lawmakers, there are also talks about attaching language from other standalone bills dealing with issues such as veterans’ medical cannabis access, research expansion, marijuana industry access to Small Business Administration (SBA) programs and broader drug sentencing reform....
Reps. Ed Perlmutter (D-CO) and Dave Joyce (R-OH) first publicly disclosed that there were discussions about crafting a bipartisan cannabis package at an International Cannabis Bar Association conference on Thursday, with Joyce revealing a recent meeting he had about the idea with Schumer.
Perlmutter, sponsor of the Secure and Fair Enforcement (SAFE) Banking Act, said that his legislation to safeguard financial institutions that work with state-legal marijuana businesses would be part of the package under consideration, but he also said at the time that members are interested in including Joyce’s Harnessing Opportunities by Pursuing Expungement (HOPE) Act to incentive state and local governments to expunge prior marijuana records, as well as proposals to provide veterans with access to medical cannabis and expand marijuana research.
But those four issues — banking, expungements, research and veterans — noted earlier by Law360, are only part of what’s on the table, sources who have been involved in the negotiations but requested anonymity, told Marijuana Moment on Friday. They stressed, however, that a deal has not yet been reached and talks are tentative at this point.
Another possible component that lawmakers have discussed including in the omnibus legislation would be a proposal to give cannabis businesses access to SBA loans and services that are available to every other industry. It’s a reform that Sen. Jacky Rosen (D-NV) in particular has consistently advocated for, including in a recent letter to the head of SBA.
While it’s not clear what stage the negotiations over the prospective marijuana package is at, a congressional source said that Rosen has spoken with Schumer about her interest in advancing the issue as he’s worked to navigate the congressional cannabis waters.
“These talks are very serious,” a source involved in criminal justice reform said. “I would say this is one of the most serious bipartisan, bicameral conversations that we’ve seen occur in our time in this space.”
To be clear, Senate leadership isn’t giving up the push for the broader CAOA legalization bill at this point. Nor is Perlmutter fully conceding passing the SAFE Banking Act on a sooner timetable, either as standalone legislation or as part of a large-scale manufacturing bill called the America COMPETES Act that’s currently in a bicameral conference committee....
Other sources told Marijuana Moment that they’ve been involved in conversations about potentially adding to the in-progress cannabis package language that would provide for record sealing of federal misdemeanor convictions, as would be prescribed under the standalone Clean Slate Act from Rep. Lisa Blunt Rochester (D-DE). It’s the type of reform that presumably would not compromise GOP support given the widespread recognition that offenses like simple possession should not lead to long-term consequences like the loss of access to housing and job opportunities.
June 13, 2022 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Political perspective on reforms, Who decides | Permalink | Comments (0)
Saturday, June 11, 2022
I continue to be excited to continue to be able to post 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. In so doing, it is such a pleasure to get to review and highlight great work by OSU law students and recent graduates on so many important and cutting-edge topics. The title of this post is the title of this paper authored by Jamie Feyko who recently graduated from The Ohio State University Moritz College of Law. Here is its abstract:
We have built motherhood into an impossible ideal. Mothers are expected to do it all, be it all, have it all. And these unachievable expectations begin before a child is even born. If something goes wrong during pregnancy, we immediately blame the mother. This culture of blame becomes even more magnified when mothers struggle with addiction. Mothers are blamed for struggling with substance use disorders (SUDs), despite modern medicine establishing — definitively and indisputably — that addiction is a disease, not a choice or a moral failing.
Starting in the 1980s, the criminal justice system began a determined effort to criminalize mothers struggling with SUDs. Drawing on law review articles, legal precedent, and newspaper articles, this paper will explain the relatively modern legal development of criminalizing mothers for struggling with SUDs and contextualize this movement within the evolving cultural beliefs surrounding motherhood and addiction. This paper will detail the ways in which prosecutors first began filing charges against mothers for exposing their fetuses to drug metabolites in utero, the shaky legal foundations of these early attempts, and how state statutes expanded to provide stronger legal footing for criminalizing mothers with addiction. The paper will conclude by explaining the ultimate futility of trying to use the criminal system to “deter” mothers from the disease of addiction and highlight policy changes that would be better suited for addressing the problem of maternal substance use disorders.
Friday, June 10, 2022
"Getting Rid of the “Scarlet-M”: The Harms of the War on Marijuana and Why Social Equity Should Be Incorporated into Marijuana Reform"
As I continue 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, I continue to have the chance to highlight great work by OSU law students and recent graduates. The title of this post is the title of this paper authored by Jesse Plaksa who recently graduated from The Ohio State University Moritz College of Law. Here is its abstract:
When Congress criminalized marijuana as part of the Controlled Substances Act of 1970, it appointed a commission to recommend marijuana's permanent legal status; the Commission recommended it be decriminalized, recognizing that total prohibition would likely be counterproductive in light of the minimal risks to marijuana users. Because of this, marijuana never should have been criminalized in the United States. Thus, states and the federal government should enact social equity programs along with legalization to begin fixing the problems created by criminalization.
Countless lives were ruined by marijuana arrests and convictions from direct consequences, such as imprisonment or fines, and the numerous collateral consequences that follow. Putting aside the formal collateral consequences, the stigma from marijuana arrests or convictions also caused immense economic and other harm. To remedy the economic harms, jurisdictions should include social equity provisions in their legislation, such as supporting those harmed by the war on marijuana in participating in the newly regulated market and using tax revenue or other funds to invest in harmed communities. Marijuana convictions should be automatically expunged, and people incarcerated for marijuana crimes should be immediately released to remedy the carceral harm upon legalization; these remedies should apply to all marijuana convictions, whether a felony a misdemeanor.
Tuesday, June 7, 2022
"The Right Prescription: High Cost Savings and Other Benefits from Medicare and Medicaid Coverage of Medical Marijuana"
As I continue 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, I continue to have the chance to highlight great work by OSU law students and recent graduates. The title of this post is the title of this paper authored by Nathan Ecker who recently graduated from The Ohio State University Moritz College of Law. Here is its abstract:
As medical marijuana usage continues to grow, coverage options under federal and private health insurance schemes have wilted away. Despite the expanding list of qualifying conditions for medical marijuana, patients seeking coverage under Medicare, Medicaid, or other governmental health insurance programs are consistently denied funding under these plans. Instead, patients are forced to either rely on “traditional pharmaceuticals” or incur the out-of-pocket expenses for medical marijuana. However, by expanding health insurance coverage to include medical marijuana, medical treatment options would expand, and the government would experience significant cost savings. This Paper examines the benefits to expanding Medicare and Medicaid coverage to encompass medical marijuana and suggests possible solutions for implementation.
June 7, 2022 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)
Monday, June 6, 2022
The question in the title of this post is prompted by this recent news, as well covered by Marijuana Moment:
Several leading marijuana businesses and stakeholders are banding together to sue the federal government over what they believe to be unconstitutional policies impeding their operations, according to the CEO of one of the companies. And, he says, they’ve retained a prominent law firm led by an attorney who has been involved in numerous high-profile federal cases.
There have been various attempts to upend federal prohibition through the court system, but what makes this emerging effort especially notable is that the coalition of multi-state operators (MSOs) in the cannabis industry will apparently be represented by the firm Boies Schiller Flexner LLP.
David Boies, the chairman of the firm, has a long list of prior clients that includes the Justice Department, former Vice President Al Gore and the plaintiffs in a case that led to the invalidation of California’s ban on same-sex marriage, among others. The prominent firm’s willingness to take on the case from the marijuana industry would be a firm indicator that they see merit to the issue at hand.
Abner Kurtin, founder and CEO of Ascend Wellness Holdings, told Marijuana Moment in a phone interview on Friday that this is an “industry-wide effort,” with at least six major cannabis operators “favorably disposed” to joining the suits — one of which would focus on stopping the federal government from impeding intrastate cannabis commerce and another challenging a tax provision known as 280E that blocks the industry from taking tax deductions that are available to any other company.
Because these suits have not yet been filed, it is too early to predict whether or when they might impact federal policy or politics. But this posting from Andrew Smith at Harris/Bricken concludes with an effective accounting of why these suits are worth watching:
The lawsuits come at an opportune time, as many federal bills to legalize cannabis use at the federal level are stuck in either the House of Representatives or the Senate (see our recent summaries here and here). In addition, Kurtin mentioned that the lawsuits will be argued from a perspective of states’ rights, which will likely garner support from both political parties and appeal to the Supreme Court’s conservative majority.
Ultimately, the lawsuits to end cannabis prohibition represent another angle — which avoids the various hurdles of legislative approval — for federal prohibitions on cannabis to be overturned. Even if the litigation fails, it should exert even more pressure on Congress to Act. But the potential agreement of a highly regarded constitutional law firm to represent a coalition of major players in the cannabis world signals the potential merits of their claims.
Sunday, May 29, 2022
"The Real War on Families – An Examination on American Child Welfare Law in the Shadow of Drug Prohibition"
As mentioned in a number of prior posts, the end of a busy semester becoming the start of summer means I am able 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 Karen Augenstein, a recent graduate of The Ohio State University Moritz College of Law. Here is its abstract:
American law emphasizes the value of family whether that be through tax deductions on children or mandating child support. However, when it comes to the War on Drugs, the importance of family seems to have been forgotten in favor of punishing those with substance abuse issues in the worst way possible: taking away their children. Whether the intention of lawmakers or not, those who suffered the most tended to be minority and poor parents, the ones who struggled to have their voices heard. Even today, America continues to punish victims of abuse by removing their children and imposing harsh, impossible requirements for reunification.
This paper is divided into three sections. The first section examines the basis for child welfare in America, focusing primarily on three pieces of child welfare legislation that incorporated parental drug use into its mandates: Child Abuse Protection and Treatment Act of 1974, Adoption Assistance and Child Welfare Act of 1980, and the Adoption and Safe Families act of 1997. The second section breaks down two areas of child welfare law: infants born testing positive for drugs and the explosion of the foster care system, and examine how drug laws, coupled with punitive, discriminatory action, broke apart families. Finally, the third section recommends changes the American child welfare system could make in its approach to drug addicted parents, in an effort to reunify, rather than punish, parents who suffer from substance abuse issues.
Thursday, May 26, 2022
"Legal-ish: An Analysis of Cannabis Law in Ohio and Recommendations for the Future of State Drug Reform"
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 means continuing to highlight great work by OSU law students and recent graduates. The title of this post is the title of this paper authored by John Berk who just this month graduated from The Ohio State University Moritz College of Law. Here is its abstract:
While bans on marijuana have been eliminated in a majority of states over the past several years, Ohio continues to be stuck in the past with a limited medical program that imposes strict limitations on cultivators, dispensaries and patients. Full legalization in Michigan and Illinois have been hugely successful, but Ohio’s timid approach has had mixed results due to overregulation and outdated ideas about cannabis users. It is time for Ohio to move boldly on drug reform in the cannabis space with full legalization, eliminating excessive regulation, creating aggressive criminal justice reform and possibly legalizing other substances before it is left behind by its neighbors.
Wednesday, May 25, 2022
As reported in this local article, "Rhode Island on Wednesday joined its two neighboring states and 16 others in legalizing the recreational use of marijuana." Here is more:
Less than 24 hours after lawmakers overwhelmingly passed the bill, Gov. Dan McKee signed the measure, which promises automatic expungement of past marijuana possession convictions and reserves a quarter of new retail store licenses for minority communities disproportionally hurt by the War on Drugs.
Speaking on the steps of the State House, awash in sunshine, McKee said the law was “equitable, controlled and safe” while establishing a regulatory framework that emphasizes public health and safety. “The end result is a win for our state both socially and economically.”
The law calls for retail sales beginning Dec. 1, but it will be a while before most of the stores are open. The state’s three currently operating medical marijuana dispensaries will be the first retailers of recreational marijuana as well, followed by six others in various planning stages.
Who wins 24 other retail licenses, and when, will be up to a new three-member cannabis control commission that will be appointed by the governor. Recreational marijuana will be taxed at 20% – a new 10% cannabis tax, a new 3% tax by the community where the marijuana is sold, and the current 7% sales tax....
Cannabis use would be banned anywhere where cigarette smoking is now banned. But if it’s legal to smoke a cigarette on Main Street in West Warwick right now, you'll be able to smoke cannabis, too. That could change. The law includes language that gives communities the power to adopt ordinances to restrict or ban the “smoking or vaporizing of cannabis in public places.”... The law allows people to have three growing plants and three dried plants. [and] it will be legal to have up to an ounce of marijuana in your possession. And possession of between one ounce and two ounces will be a civil violation. Previously up to an ounce was a civil violation, much like a parking ticket, and it was illegal to possess more than one ounce. [People with cannabis convictions] can request an expedited expungement through the courts and have any costs waived. But the law has given the courts until July 1, 2024, to provide automatic expungement to all who are eligible. Under the legislation, any prior civil violation, misdemeanor or felony conviction for possession of marijuana that would be decriminalized will be automatically erased from court record systems.
The new legislation allows for up to 33 retail licenses distributed in six zones statewide, including at the three current medical marijuana dispensaries and the six others in various planning stages.
Monday, May 23, 2022
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.
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"
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.
Thursday, May 19, 2022
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.
Tuesday, May 17, 2022
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.
Thursday, May 12, 2022
The 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.
Saturday, May 7, 2022
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.
Thursday, April 28, 2022
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.