Marijuana Law, Policy & Reform

DEPC releases "Ohio Medical Marijuana Control Program at Six Years: Evaluating Satisfaction and Perception"

I am happy to highlight the release of this amazing report, titled "Ohio Medical Marijuana Control Program at Six Years: Evaluating Satisfaction and Perception," authored by my colleague Jana Hrdinova of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law.  This latest insallment of DEPC's annual reporting on Ohio's medical marijuana program is showcased on this DEPC webpage which provides this overview:

Since the inception of the Ohio Medical Marijuana Control Program (OMMCP) in 2019, the Drug Enforcement and Policy Center (DEPC) has surveyed medical marijuana patients and potential patients to evaluate their experiences and satisfaction.  These surveys aim to fill in a critical gap in our understanding of the medical marijuana program in Ohio and to find out how the people being served by OMMCP evaluate its performance.

In November 2023, Ohio voters approved a ballot initiative to join 23 other states in legalizing cannabis for recreational use.  The initiative went into effect on December 7, 2023, legalizing possession of marijuana for personal use of up to 2.5 oz and allowing for home cultivation.  Following a licensing process, official recreational sales in Ohio dispensaries started on August 6, 2024, leaving the medical marijuana program largely unaffected in fiscal year 2024 [which ended in June 2024].  This sixth annual report thus provides a unique snapshot of a medical marijuana program on the brink of recreational sales and provides insights into patients’ opinions about the medical program and its future.

Here are just a few of many notable key findings from the report:

1. Increased patient satisfaction: Our survey recorded a considerable increase of patients reporting being extremely satisfied with the Ohio medical marijuana program, increasing by 12 percentage points from 19% in 2023 to 31% in 2024. A total of 74% of respondents reported that they were either extremely or somewhat satisfied with OMMCP, and only 20% reported being either somewhat or extremely dissatisfied....

2. Falling participation for both patients and physicians: Despite high levels of patient satisfaction, this year was the first year that OMMCP recorded a decline in the number of active patients (patients with active recommendation and registration), decreasing by 10% from its peak in October 2023 (184,958) to 165,746 in June 2024....

3. Flat sales receipts and tax revenue despite increases in sales: In a year-to-year comparison, Ohio medical marijuana market continued to experience a robust growth in the number and weight of product sold. In FY24, sales of plant product increased by 30% compared to the previous fiscal year, going from 71,506 pounds sold in FY23 to 92,979 pounds sold in FY24. Sales of manufactured products also recorded solid growth of 20%, going from 6,794,542 units sold in FY23 to 8,182,377 units sold in FY24.... Despite the robust growth in total sales, sales receipts remained largely flat due to declining prices, increasing only by 2% from $478,067,435 in FY23 to $487,589,380 in FY24....

"Cannabis Policy Impacts Public Health and Health Equity"

The title of this post is the title of this big new report released last week by the National Academies of Sciences, Engineering, and Medicine (NASEM).  I had the great honor of serving on the committee that helped produce this report, which is partially summarized in this press release.  Here are excerpts from the press release:   

The federal government should provide policy guidance to states that have legalized cannabis, close regulatory loopholes on intoxicating products derived from hemp, and create a public health campaign aimed at parents and vulnerable populations, among other measures that would protect public health and reduce the harms of rising cannabis use, says a new report from the National Academies of Sciences, Engineering, and Medicine....   

Among states that have legalized cannabis, policies aimed at protecting public health vary widely, the report finds.  For example, while all of the states have minimum age requirements for cannabis use, not all have mechanisms in place for enforcement through randomized checks, as they would for alcohol or tobacco sales.

 

The potential harms of cannabis use include increased risk of car collisions, development of schizophrenia or psychosis, respiratory symptoms including chronic bronchitis, and lower birthweight from prenatal exposure.  Secondhand smoke from cannabis can also carry risks, as can accidental ingestion or poisoning.  Research points to specific groups that may be especially vulnerable to harm — including those over 65, pregnant women, and children.  While this report does not explore the health impacts of cannabis on individuals, a 2017 National Academies report includes detailed findings on health impacts.

 

“There is an urgent need for a coordinated public health approach to cannabis policy in the U.S.,” said Steven Teutsch, chair of the committee that wrote the report and senior fellow at the Leonard D. Schaeffer Center for Health Policy and Economics at the University of Southern California.  “Our report shows that cannabis policy often focuses on regulating sales and revenue first, and protecting public health second.  Now is the time for the federal government to create guidance for states that have legalized cannabis in the interest of protecting the public’s health.”

 

“A federal public education campaign targeting those most at risk of the negative impacts of cannabis — kids, teens, pregnant people, and those over 65 — would go a long way toward supporting public health,” said Yasmin Hurd, the committee’s vice chair, Ward-Coleman Chair of Translational Neuroscience, and director of the Addiction Institute at the Icahn School of Medicine, Mount Sinai.  “Accurate information about reducing the risks of cannabis use can help people make the best decisions for their own health.”

"Cannabis, cannabinoids and health: a review of evidence on risks and medical benefits"

The title of this post is the title of this new publication by multiple authors just released in the journal titled European Archives of Psychiatry and Clinical Neuroscience.  Here is its abstract:

The legalization of cannabis for medical and recreational purposes has progressed internationally.  Cannabis and cannabinoids are advocated for a plethora of medical indications.  An increasing number of medical and nonmedical users regularly consume large doses of delta-9-Tetrahydrocannabinol (THC), the main active component of cannabis.

Aim: to summarize the evidence on (1) risks of recreational cannabis use and (2) effectiveness and safety of medicinal cannabis. 

Findings on recreational use:  Cannabis is mostly used to experience its acute rewarding effects.  Regular use of high THC products can produce addiction (cannabis use disorder or CUD).  Acute consumption of high THC doses (including unintentionally) can cause time-limited mental, gastrointestinal, and cardiovascular problems and motor vehicle accidents.  Chronic patterns of cannabis use have been associated with multiple adverse outcomes that are of particular concern among adolescents and young adults, such as, disrupted learning, impaired cognitive performance, reduced educational attainment and an increased risk of CUD, psychosis/schizophrenia, mood and anxiety disorders and suicidal behaviors.  There is debate about the extent to which cannabis use is a cause of these adverse outcomes.  Physical health risks (e.g., respiratory and cardiovascular, prematurity and restricted fetal growth, hyperemesis syndrome among others) have also been linked with repeated consumption of cannabis with a high THC content.

Findings on medical cannabis use:  Herbal cannabis, medicines from extracted or synthetized cannabinoids — often used as adjuvants to standard medicines — may produce small to modest benefits.  This is primarily the case in treating chronic pain, muscle spasticity, chemotherapy-induced nausea and vomiting, and refractory epilepsy (in the case of cannabidiol, CBD).  The evidence is inconclusive on their value in treating mental disorders and other medical conditions.

Safety:  Cannabis-based medicine is generally well tolerated. There is a risk of mild to moderate adverse effects and CUD.

Some notable numbers on legal marijuana sales and collected tax revenues

Marijuana Moment has two recent articles that seemed worth noting on the economics of modern marijauan reforms:

"Six U.S. States Report Setting New Monthly Marijuana Sales Records":

Officials in at least six states with legal marijuana — Connecticut, Maine, Maryland, Michigan, Missouri and New York — reported hitting their highest-ever monthly sales numbers in August, led by surging summer purchases of adult-use products.

"New Federal Data Shows States Collected More Than $8.7 Billion In Marijuana Taxes Since 2021":

States that have legalized marijuana have reported to the federal government more than $8.7 billion in cannabis tax revenue since tracking began by the U.S. Census Bureau in mid-2021, according to newly updated figures posted by the agency on Thursday.

Overall, California has reported the biggest share of that revenue, at more than $2 billion in tax income, followed by Washington State ($1.3 billion), Colorado ($898 million) and Michigan ($698 million).

Making the case to Prez Biden with candidates for cannabis clemency

I am pleased to see that my former student, Stephen Post, who is now part of the Last Prisoner Project, a nonprofit organization fcused on cannabis criminal justice reform, has this new USA Today opinion piece headlined "Biden promised no jail time for weed. He's running out of time to pardon cannabis convicts."   I recommend the piece in full, and here are excerpts (with links from the original):  

For most of U.S. history, presidents since George Washington have been unwavering in the use of their clemency power. They understood their actions not only as a way to remedy overly harsh sentences but also to help restore public faith in the justice system.

President Joe Biden now has a chance to use his clemency powers to secure – and, in some ways, correct ‒ his legacy on criminal justice reform.  The Biden administration has made it clear that cannabis reform, especially as a racial justice issue, is a priority and one that will energize the electorate. Nevertheless, the president has only granted 1.4% of submitted clemency petitions.

Despite positive use of his clemency powers like providing record relief to almost 13,000 people with his expanded categorical pardons for cannabis possession, President Biden has failed to release a single person in prison for cannabis via commutation....  Marylanders like Jonathan Wall, who has been incarcerated since 2020 on federal cannabis charges, can only get that type of clemency relief from the president.  

While there may be political concerns perceived to limit President Biden’s ability to grant commutations before Election Day, even then-President Donald Trump granted a few just weeks before the 2020 presidential election. In his four White House years, he granted commutations to 16 people for 27 cannabis offenses, some of whom were released from prison....

If President Biden is looking for the next batch of candidates for clemency, he has already been sent a list of deserving individuals, almost half of whom identify as Black, and whose petitions are sitting with the Office of the Pardon Attorney.

Many of these candidates have sat in prison cells for decades, or even for life, convicted of an activity that is no longer a crime, while thousands of others build business and create wealth doing the same thing.

Former Prez Trump articulates forceful support for state marijuana legalization, federal rescheduling and banking reforms

In this post nine days ago,  I noted new comments from former Prez Donald Trump that were seemingly supportive of Florida's marijuana legalization ballot initiative; in this post last week, I noted further comment from Trump suggesting his position of federal rescheduling would likewise be supportive.   Now, via this social media posting from late last night, Trump make quite clear that he is all-in on both state and federal marijuana reforms.  Here are key excerpts:

As a Floridian, I will be voting YES on Amendment 3 this November.  As President, we will continue to focus on research to unlock the medical uses of marijuana to a Schedule 3 drug, and work with Congress to pass common sense laws, including safe banking for state authorized companies, and supporting states rights to pass marijuana laws, like in Florida, that work so well for their citizens.

With these comments, Trump is no longer hedging in any way his seeming robust support for a wide array of state and federal marijuana reforms. Given Trump's various prior comments recently on these topics that did hedge a bit, I am inclined to guess that Trump was looking to see what kind of reactions his pro-marijuana reform statements engendered. The reactions, at least from Trump's view, must have been positive. I also suspect that some of Trump's latest high-profile political endorsers, specifically from Robert F. Kennedy Jr and from Tulsi Gabbart, may have been urging Trump to become more vocal in his support for reform.

Interesting times.

Recent related posts:

• Former Prez Trump suggests he is supportive of marijuana legalization in Florida and elsewhere
• Does former Prez Trump's praise for medical marijuana suggest he would robustly support federal marijuana rescheduling?

Does former Prez Trump's praise for medical marijuana suggest he would robustly support federal marijuana rescheduling?

I flagged here the notable social media comments from former Prez Donald Trump over the weekend which suggested he is supportive of marijuana legalization in Florida and elsewhere. But I just recently saw some notable follow-up comments about medical marijuana that Trump made during an interview on Lex Fridman’s podcast released earlier this week. This Marijuana Moment piece reports on the comments this way:

Former President Donald Trump says medical marijuana has been “absolutely amazing” for patients, and that a Florida initiative to more broadly legalize cannabis for recreational use will be on the November ballot is “going to be very good” for the state after it passes, which he expects to happen.

The 2024 Republican nominee said during an interview on Lex Fridman’s podcast that was released on Tuesday that “medical marijuana has been amazing,” adding that he’s “had friends and I’ve had others and doctors telling me that it’s been absolutely amazing, the medical marijuana.”

Trump referenced a recent social media post he made about Florida’s Amendment 3 ballot initiative, where he gave tacit support for the proposal. “We can live with the marijuana,” he said.

“It’s got to be a certain age [to purchase],” he said. “It’s got to be done in a very concerted, lawful way. And the way they’re doing it in Florida, I think is going to be actually good. It’s going to be very good, but it’s got to be done in a good way. It’s got to be done in a clean way.” He added that his campaign will be putting out an additional, “more specific” statement detailing his cannabis position within the next week.

I will be eager to see what kind of more specific statement concerning cannabis policy comes from the Trump campaign, and I sincerely hope it will address federal law and on-going efforts to reschedule marijuana under the Controlled Substances Act.  But if Trump is of the view that  medical marijuana is "absolutely amazing," I would think Trump's position of federal rescheduling would be absolutely positive.  After all, marijuana's current status as a Schedule I drug means that is has no accepted medical use, and it seems Trump has heard from friends and others and doctors that marijuana has been amazing as a medicine.   And only be moving marijuana to Schedule III are we likely to have medical marijuana access by patients and robust medical marijuana research "done in a very concerted, lawful way."

"Convergence and Divergence of Alcohol and Marijuana Regulation in a Federalist System Post-COVID-19"

The title of thi spost is the title of this new paper now available via SSRN authored by H. Justin Pace and Eden Punch. Here is its abstract:

After the passage of the Twenty-first Amendment, the regulation of alcohol in the U.S. largely takes place at the state level.  While marijuana has been illegal at the federal level since 1937, states have been liberalizing marijuana laws at the state level since 1996 (when California legalized medical marijuana) by legalizing marijuana for medical or adult use.  Alcohol regulation, which was effectively reset in all states when alcohol was legalized at the federal level, is marked by divergence — significant variation in alcohol laws across states.  Conversely, marijuana regulation, which has slowly spread across the U.S. state-by-state over the last 28 years, is marked by convergence — new marijuana reforms increasingly resemble other reforms.

One of us has previously published scholarship arguing that the difference can be explained by a combination of interest group politics, path dependence, and, most importantly, a temporal effect.  Alcohol and marijuana regulation in the U.S. experienced an exogenous shock with the COVID-19 pandemic, which resulted in significant changes to alcohol and marijuana regulation across the nation.  This paper examines convergence and divergence in alcohol and marijuana regulation from 2020 to the present day, revisiting and reaffirming that previous theory and also applying a federalism lens to explain alcohol and marijuana regulation and predict future developments.

Former Prez Trump suggests he is supportive of marijuana legalization in Florida and elsewhere

As reported in this New York Times article, "Donald J. Trump on Saturday signaled his support for a ballot measure that would legalize recreational marijuana in Florida, stopping short of a full endorsement but saying that he did not believe marijuana should be criminalized in his adopted home state when it is legal in others."  Here is more (with links from the original):

In a post on his social media platform, Truth Social, Mr. Trump portrayed the passage of the ballot measure, known as Amendment 3, as inevitable and raised concerns about its implementation. Public opinion polls show that a majority of Florida voters favor the measure.

“Whether people like it or not, this will happen through the approval of the Voters, so it should be done correctly,” Mr. Trump said. “We need the State Legislature to responsibly create laws that prohibit the use of it in public spaces, so we do not smell marijuana everywhere we go, like we do in many of the Democrat run Cities.”

Mr. Trump, who votes near his Mar-a-Lago estate in Palm Beach, had previously avoided taking a position on the question. His position pits him against Gov. Ron DeSantis and most of the state’s Republican leaders, who are working to defeat the proposal.

Mr. Trump’s statement appeared to walk a line meant to keep him from fully upsetting those opposed to the measure. He did not say how he personally would vote on Amendment 3, and he did not explicitly back the legalization of marijuana even as he again suggested he supported decriminalizing it.

Florida has been trending Republican, but polls show that Amendment 3 is more popular in the state than even Mr. Trump is — indicating that many voters intend to split their ticket and vote both for the former president and for marijuana legalization.  Polling suggests that most Americans now say marijuana should be legal for medical or recreational use.

DEA schedules hearing on federal marijuana rescheduling for December 2, 2024

As reported here via Marijuana Moment, the "Drug Enforcement Administration (DEA) has scheduled a hearing to consider differing expert opinions on the Justice Department’s proposal to federally reschedule marijuana — an extra procedural step that will take place after the November election."  Here is more:

After moving to reclassify cannabis as a Schedule III drug under the Controlled Substances Act (CSA) back in March, DOJ opened a 60-day public comment period that saw more than 4o,000 submissions.  Now that DEA has reviewed the comments, it agreed to an administrative hearing, as requested by several supporters and opponents of the reform.  The hearing will be held on December 2, according to a notice set to be published in the Federal Register on Thursday.

While some advocates and stakeholders had hoped that DEA would avoid this additional step and simply move to final rulemaking, the agency has often scheduled hearings for regulatory proposals of major public interest. And rescheduling cannabis for the first time since it was designated as Schedule I over 50 years ago evidently met that standard.

That said, the hearing adds some uncertainty about the potential rescheduling timeline.  There are some concerns this means the rulemaking process will not be completed before January, which could mean an administrative changeup after the November election that theoretically could affect the rescheduling process.

While some advocates and stakeholders had hoped that DEA would avoid this additional step and simply move to final rulemaking, the agency has often scheduled hearings for regulatory proposals of major public interest. And rescheduling cannabis for the first time since it was designated as Schedule I over 50 years ago evidently met that standard.

That said, the hearing adds some uncertainty about the potential rescheduling timeline.  There are some concerns this means the rulemaking process will not be completed before January, which could mean an administrative changeup after the November election that theoretically could affect the rescheduling process.

New Gallup polling shows "Americans' Views of Marijuana Effects Worsen"

The polling firm Gallup here released the interesting results of its "Consumption Habits" poll. Here are excerpts from Gallup's discussion of its findings:

Americans’ views of the effects of marijuana have worsened over the past two years, as slim majorities now say it negatively impacts both society as a whole (54%) and most people who use it (51%). This contrasts with Gallup’s findings from 2022, when the public was about evenly divided in its assessments of marijuana’s effect on society and more likely to say the effect on most users was positive (53%) rather than negative (45%).

The latest data, from Gallup’s July 1-21 Consumption Habits poll, show that majorities of Americans in several demographic groups believe marijuana has a positive effect on most who use it. These include those who say they have tried marijuana, young adults 18-34 years old, Democrats, and those who attend religious services less than monthly or never.

By contrast, majorities of their counterparts -- those who say they have never tried marijuana, adults 55 and older, Republicans and those who attend religious services at least monthly -- think marijuana has a negative effect on most who use it. Independents and adults 35 to 54 years old are divided in their views.

All of the groups have become less likely since 2022 to say marijuana has a positive effect on users. Meanwhile, less than half of Americans in each of these groups now think that marijuana positively impacts society.

A separate question in the July survey measures U.S. adults’ opinions of the harmfulness of cigarettes, chewing tobacco, e-cigarettes, cigars, a pipe, nicotine patches, alcohol and marijuana to those who use them.

Although majorities of Americans believe each of the eight substances is “very” or “somewhat” harmful to its users, the two-thirds who say marijuana is very (26%) or somewhat (40%) harmful is the lowest. In contrast, more than nine in 10 U.S. adults consider cigarettes, chewing tobacco, and e-cigarettes or vaping to be harmful, including majorities calling each very harmful.

The public’s perceptions of the harmfulness of marijuana have worsened slightly since last year, when 23% viewed it as very and 35% somewhat harmful.

The 13% of U.S. adults who currently report that they smoke marijuana is down slightly from the 16% to 17% range recorded in 2022 and 2023. Meanwhile, compared with 2022, a steady 12% of U.S. adults say they consume edibles, about matching the 11% of Americans who say they smoke cigarettes, which ties the low in Gallup’s 80-year trend. Seven percent of U.S. adults vape or use e-cigarettes. Alcohol use is more widespread, with 58% of U.S. adults saying they have occasion to drink.

"The Framing of Minority Threat and Moralization to Criminalize Behavior: The Case of Cannabis in the Early 20th Century"

The title of this post is the title of this new article authored by Mike Vuolo, Brian Kelly, Maria Orsini and Joy Kadowaki recently published in the journal Social Problems.  Here is its abstract:

Understanding why particular behavior is encoded in law or other systems of rules has been a core topic of sociology since its inception.  Although differing rhetorical frames have been identified in policy debates, little research directly links such rhetoric and policy passage.  Centering framing theory, we use the case of U.S. cannabis criminalization via mixed-methods content analyses of 9,707 nationwide newspaper articles and event history analysis of state-level criminalization to make several contributions.

First, we go beyond describing rhetorical frames, demonstrating that core framing tasks were associated with spatial and temporal state-level cannabis law passage.  Second, we emphasize that consolidation of two “master frames,” legal and racial, are particularly pertinent to criminalization and permit incorporation of rhetorical minority threat into framing.  Third, an overreliance on population-based minority threat exists in the literature; however, threat can operate absent minority groups.  While demonstrating the effect of vilification of Mexican people, we show that a heterogeneous “othering” of cannabis, by attaching threat to numerous minority groups, was significant for cannabis criminalization, regardless of minority groups’ actual presence.  In addition to interrogating longstanding assumptions regarding cannabis criminalization, our analyses demonstrate the importance of framing and rhetorical racial threat in the social construction of law.

Some new certainty and continued uncertainty in latest state and federal marijuana reform developments

After a lot of uncertainty about when adult-use sales would begin in Ohio, some timeline certainty emerged yesterday in the Buckeye State: "Ohio Cannabis Dispensaries Will Start Adult-Use Sales Aug. 6."  Here are some of the particulars:

Ohio will be the 21st state to launch adult-use cannabis sales when licensed dispensaries open their doors to those 21 and older at 10 a.m. Aug. 6.

The Ohio Division of Cannabis Control (DCC) hasn’t officially issued dual-use certificates of operation—allowing existing dispensaries to serve both medical patients and adult-use customers—to store owners just yet, but the division plans to make a formal announcement Aug. 5, a Department of Commerce spokesperson told Cannabis Business Times....

Ohio’s imminent launch represents a catalyst for the cannabis industry: Ohio will be the fourth most-populated state to commence adult-use sales after California, Illinois and New York.  Ohio is also the first to roll out an adult-use program since Maryland did so on July 1, 2023.

In addition, millions of adults 21 years and older residing in bordering Pennsylvania, Indiana, Kentucky and West Virginia—who don’t have access to adult-use cannabis in their home states—will now live within driving distance of licensed and regulated cannabis products.

Meanwhile, there is still continued uncertainty concerning the timeline for potential federal refrom in the form of rescheduling. But, as reported in this Marijuana Moment article, a collection of US Senators are urging the Drug Enforcement Administration  to "promptly finalize" the proposed rule to reschedule marijuana from Schedule I to Schedule III.  Here are the basics:

In a letter sent to Attorney General Merrick Garland and DEA Administrator Anne Milgram on Friday, Schumer and Sens. Cory Booker (D-NJ), Ron Wyden (D-OR) and others implored the administration to follow through on a proposal to move cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA), as the Justice Department formally proposed in May.

“The proposed rule to reclassify marijuana to schedule III recognizes the medical benefits of marijuana, will improve access for studying the health effects of short and long-term cannabis use, and will provide relief to cannabis businesses that continue to navigate a patchwork regulatory system to conduct legal business,” they said.

The full letter from the seven Senators (all Deomocrats) is available at this link.

DEPC event on Aug 7: "Federal Marijuana Reform: Effects and Echoes of Rescheduling"

I am pleased to be able to spotlight another great Drug Enforcement and Policy Center (DEPC) event focused on federal marijuana reforms.  This online event,  titled "Federal Marijuana Reform: Effects and Echoes of Rescheduling," will take place on August 7, 2024 from 12 noon to 1:15 pm EDT.  The event is described this way on this event registration page (where one can directly register):

After decades-long efforts by advocates and researchers, President Biden announced in October 2022 that he instructed “the Secretary of Health and Human Services and the Attorney General to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law.”  In May 2024, the Attorney General submitted a notice of proposed rulemaking to the Federal Register, initiating a formal rulemaking process to consider the reclassification of marijuana from a schedule I to a schedule III drug under the Controlled Substances Act (CSA).

While the rulemaking process timeline has some uncertainties, many expect a final rescheduling rule could appear as soon as September or October 2024.  But what would such a move mean for modern marijuana laws, policies and practices?  Could medical marijuana products be prescribed by doctors and sold in pharmacies nationwide?  Would changes in federal laws dramatically impact current medical and recreational industries operating under disparate state systems?  And would placement in schedule III make a meaningful difference in the operation of criminal justices systems, especially for people with marijuana-related criminal convictions at the federal or state level?

Panelists:

John Hudak, Director of the Maine Office of Cannabis Policy
Robert Mikos, LaRoche Family Chair in Law, Vanderbilt University Law School 
Fatima Afia, Attorney, Rudick Law Group, PLLC
Shane Pennington, Partner, Porter Wright Morris & Arthur LLP 

Moderator:
Cat Packer, Distinguished Cannabis Policy Practitioner in Residence at The Ohio State University Drug Enforcement and Policy Center and Director of Drug Markets and Legal Regulation at Drug Policy Alliance

Split Oklahoma Court of Criminal Appeals affirms dismissal of criminal charge of child neglect brought against woman who used medical marijuana when pregnant

As reported in this local press piece, "women with state medical cards who use marijuana during pregnancy can’t be prosecuted for child neglect, the Oklahoma Court of Criminal Appeals ruled Thursday."   The ruling in State v. Agular, No. 2024 OK CR 18 (Okla. Ct. Crim. App. July 18, 2024) (available here), is an interesting read, and here are a few passages from the majority opinion:

The issue in this appeal is whether an expectant mother who holds a medical marijuana card and uses the drug while pregnant has exposed her unborn child to illegal drugs constituting the crime of child neglect, which in Oklahoma includes "the failure or omission to protect a child from exposure to . . . the use, possession, sale, or manufacture of illegal drugs." 10A O.S.Supp.2019, § 1-1-105(48)(b)(1) (emphasis added).  The Information charges Aguilar with a single felony count of child neglect by "exposing J.W.B. to controlled dangerous substances in utero, specifically Marijuana." (Emphasis added). Thus, the charging document accuses Aguilar of a crime which does not exist, i.e., child neglect by exposure to "controlled dangerous substances" as opposed to exposure to "illegal drugs[.]"  This is not a matter of semantics, and although this charging error does not determine the outcome of this appeal, the apparent confusion in terminology and definitions which led to that error is central to understanding how to properly resolve this case.

The terms "controlled dangerous substance" and "illegal drugs" are not synonymous; the former includes hundreds of prescription drugs which, like marijuana, are lawful to possess only with a prescription or other legal authorization.  The term "controlled dangerous substance" is defined in 63 O.S.Supp.2019, § 2-101(8) as any drug listed in any of the Schedules I through V of the Uniform Controlled Substances Act.  However, neither that Act nor any other provision of Oklahoma law defines the term "illegal drug", so we must ascertain the meaning of that term, and specifically, whether the marijuana use in this case is included within it so as to constitute child neglect....

We find that the most logical reading of 10A O.S.Supp.2019, § 1-1-105(48)(b)(1) is that "illegal drugs" means those drugs whose possession or use violated the law at the time of that possession or use. Hence, an expectant mother who exposes her unborn child to illegal methamphetamine could be convicted of child neglect.  See State v. Green, 2020 OK CR 18, 474 P.3d 886.  Conversely, under that definition, an expectant mother's licensed possession and use of medical marijuana would not trigger an automatic finding of neglect for failure to protect her unborn child from exposure to illegal drugs because as to her, marijuana is not an illegal drug.

One of the two dissents includes this passage providing a different view of this matter:

The child neglect statutes were undoubtedly enacted to protect children from harm. Marijuana is still an illegal Schedule I drug except for a person who holds a medical marijuana license. In this case, the baby's exposure to Appellee's use and possession of marijuana, a Schedule I drug, is illegal because the baby has no medical marijuana license. It is not the mother's use or possession of marijuana that is criminalized by the child neglect statute, but her exposure of her unborn child to the use or possession of marijuana, an illegal drug for the child.

"Marijuana and the Tyrannies of Scheduling"

The title of this post is the title of this new paper authored by Robert Mikos now available via SSRN. Here is its abstract:

The Drug Enforcement Administration (DEA) is about to reschedule marijuana under the Controlled Substances Act (CSA), marking an historic shift in federal policy toward the drug.  This Essay analyzes the reasoning behind the agency’s decision and its implications for other Schedule I drugs, including promising psychedelics like psilocybin and methylenedioxymethamphetamine (MDMA). 

The Essay begins by highlighting a new test the agency introduced to determine whether a drug has a “currently accepted medical use” (CAMU).  In the past, the DEA insisted CAMU could be demonstrated only by successfully completing rigorous scientific research demonstrating a drug is effective.  But because the CSA limits the ability to conduct such research on Schedule I drugs, the agency’s CAMU test proved nearly impossible to satisfy, imposing what I call the Tyranny of Science.  In its latest marijuana rescheduling decision, however, the DEA announced that CAMU could also be demonstrated by showing there is already widespread clinical use of a drug.

Because state medical marijuana programs are wildly popular, the agency was able to find that marijuana has a CAMU under the new test, even though scientific proof of its medical efficacy is still lacking. Nonetheless, I argue the new CAMU test is unlikely to facilitate rescheduling of any other drug. In effect, the new test requires convincing popular majorities to pass state laws legalizing medical use of a drug the federal government has banned outright. Although marijuana advocates eventually convinced enough voters in enough states to satisfy this daunting test, no other Schedule I drug is likely to repeat that feat anytime soon (if ever).

But the Essay proposes a way to soften the Tyrannies of Scheduling: I argue the DEA should de-emphasize CAMU in scheduling decisions. The agency has long insisted that a drug with no CAMU must be placed on Schedule I, regardless of its harms.  But the agency has never offered a persuasive rationale for making CAMU paramount in scheduling decisions, and the Essay shows that the agency’s approach is contrary to the text and purposes of the CSA.  De-emphasizing CAMU would reduce the distortive influence the tyrannical CAMU tests now wield over the administrative scheduling process, resulting in more rational scheduling decisions that better reflect the benefits and dangers of controlled substances, as Congress intended.

DEPC event: "Implementing Issue 2: Ohio Dives into Adult-Use Marijuana"

I am pleased to be able to spotlight another great Drug Enforcement and Policy Center (DEPC) event focused on the implementation of marijuana reforms in the Buckeye State.  This online event,  titled "Implementing Issue 2: Ohio Dives into Adult-Use Marijuana," will take place on July 16, 2024 from 12 noon to 1:15 p.m. EDT.  The event is described this way on this event page (where one can register):

After months of rulemaking, following the template Ohio voters put into law through passage of Issue 2, the Ohio Department of Commerce has established a licensing process for the state’s first adult-use cannabis operators.  Ohio medical marijuana operators have a priority in obtaining adult-use licenses, and Ohio could have adult-use stores operating around the state as soon as this summer.  Yet many questions about industry regulations and operations remain unanswered, including what legal changes might move forward in the Ohio General Assembly, when and how Issue 2’s social equity provisions will be implemented, and the impacts of an adult-use market on the state’s medical marijuana program.  Join the Drug Enforcement and Policy Center and our panel of experts on Tuesday, July 16 as we discuss these topics and more.

Panelists:
Thomas Haren, Partner and Cannabis Practice Chair, Frantz Ward
Megan Henry, Reporter, Ohio Capital Journal
Shaleen Title, Distinguished Cannabis Policy Practitioner in Residence, Drug Enforcement and Policy Center, The Ohio State University; Founder and Director, Parabola Center for Law and Policy

Moderator:
Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law, executive director, Drug Enforcement and Policy Center, Moritz College of Law, The Ohio State University

Rounding up some recent notable marijuana legal news and commentary from various quarters

I have not blogged in this space much latety as I have been consumed with activity by the US Supreme Court and other legal developments in recent weeks.  In addition, I do not usually cover much day-to-day marijuana news because all sort of outlets cover this news (and Marijuana Moment covers it especially well).  But as these streams come together, I though it useful to do a quick post highlighting some notable marijuana legal news and commentary.  So:

From the AP, "Brazil’s Supreme Court decriminalizes possession of marijuana for personal use"

From Bloomberg Law, "Federal Cannabis Law Dispute Tossed by Massachusetts Judge"

From Harris Sliwoski, "Cannabis Law and Gun Rights: News from SCOTUS"

From Marijuana Moment, "South Dakota Law Banning Intoxicating Hemp Products Takes Effect After Judge Declines To Block It"

From Marijuana Moment, "DeSantis Seems To Concede He Vetoed Hemp Ban Bill, In Part, To Engage Industry In Marijuana Legalization Opposition Campaign"

From MinnPost, "Court decision ending cannabis odor as sole reason for search codified by Minnesota lawmakers"

From the Missouri Independent, "Missouri courts still slogging through marijuana crime expungements, long after deadline"

From MJBiz Daily, "How will Supreme Court ruling affect marijuana rescheduling?"

"Ohio Principals' Perspectives on How Adult-Use Marijuana May Impact Schools and Students"

The title of this post is the title of this terrific new report now available via SSRN and authored by Peter Leasure Jana Hrdinova with the Drug Enforcement and Policy Center.   Here is the report's abstract:

Over the last decade, significant effort has been devoted to examining whether the legalization of recreational cannabis leads to higher rates of use among youth given that some research links adolescent marijuana use with various negative educational, health, and safety outcomes.  Although some national survey results over the last decade suggest that current marijuana use among high school students has decreased, the concern about youth use remains (especially in jurisdictions that have recently legalized marijuana for recreational use).  The goal of the current study was to explore current issues with student marijuana use in Ohio’s K-12 schools and anticipated future issues given the recent legalization of adult-use marijuana in Ohio.

In December 2023, before any recreational marijuana was available for sale in the state of Ohio, an online survey was distributed to Ohio’s K-12 principals that covered three general areas: current student behavior with respect to marijuana, anticipated impact of marijuana legalization on students, and anticipated impact of marijuana legalization on schools and its policies.  The results indicated notable agreement among principals that current marijuana use on school premises and away from school premises was perceived as a problem.  Principals also reported high levels of concern about the anticipated impact of cannabis legalization on their students with respect to increased marijuana use among students, increased physical and mental health issues, negative impact on academic performance, and negative impact on students’ behavior at school.  While the results generally showed higher levels of agreement about expected negative impacts among principals at high schools and middle schools, elementary school principals still noted modest to high levels of concern for many questions.  Given those results, it is not surprising that many principals stated that they would likely increase education about the negative effects of marijuana use. Further, over 80% of principals noted that more funding should be provided to Ohio schools for marijuana-specific education now that recreational marijuana is legalized in Ohio.

"Drug Crimes: The Case for Abolition"

The title of this post is the title of this notable new paper authored by my Ohio State colleague Sean Hill now available via SSRN. Here is its abstract:

Nonwhite communities experience higher rates of arrest, prosecution, and incarceration than white communities for drug offenses, and these disparities have persisted even in the wake of decriminalization and legalization. Although a diverse array of political stakeholders increasingly agree that drug policies should be reformed, they are nearly unanimous in their opposition to abolition.  While select drug crimes may be worthy of reduced punishment or conversion into civil offenses, these stakeholders contend that the abolition of criminal institutions will inevitably jeopardize public safety.

This Article challenges the widespread presumption that drug law and policy correlates with the protection of the public.  Drug crimes are, instead, an essential vehicle for the subordination of nonwhite people and for the misallocation of resources across racial groups.  Part I of the article contests the presumed correlation between illicit drugs and violence and illuminates how drug criminalization erodes individual and collective safety.  Part II addresses how drug policy sustains white and American hegemony, respectively, by legitimating racist ideologies and by justifying force against marginalized people both in and outside of the country's borders.  Finally, Part III explains how abolition represents a viable path away from the harms of prohibitionist policies.