Tuesday, October 19, 2021
Earlier this month, I received an email with links to the helpful work completed by the Drug Policy Alliance setting forth a vision for federal marijuana reforms. Here is the text and links from the email:
Today, the Drug Policy Alliance released new federal cannabis recommendations, that provide a framework for Congress to ensure that reparative justice, social and health equity, and community reinvestment are the central goals of federal regulation. Over the last year, as federal legalization has become more of a reality, we have seen the industry jockeying to regulate themselves, and there is a very real concern that — if not done right — legalization could end up replicating many of the same harms of prohibition, especially for communities of color.
These recommendations are the product of months of discussion and work from a working group we convened of cannabis state regulators, public health professionals, criminal justice reform advocates, civil rights attorneys, people working with directly impacted communities, re-entry advocates, academics and an expert involved in Canada’s cannabis regulation.
October 19, 2021 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)
Sunday, October 17, 2021
The title of this post is the title of this notable new working paper authored by Scott Callahan, David M. Bruner and Chris Giguere. Here is its abstract:
U.S. drug policy presumes prohibition reduces crime. Recently states have enacted medical marijuana laws creating a natural experiment to test this hypothesis but is impeded by severe measurement error with available data. We develop a novel imputation procedure to reduce measurement error bias and estimate significant reductions in violent and property crime rates, with heterogeneous effects across and within states and types of crime, contradicting drug prohibition policy. We demonstrate uncorrected measurement error or assuming homogeneous policy effects leads to underestimation of crime reduction from ending marijuana prohibition.
And here is a key paragraph from the paper's introduction:
Our results indicate that MMLs result in significant reductions in both violent and property crime rates, with larger effects in Mexican border states. While these results for violent crime rates are consistent with previously reported evidence (Gavrilova et al., 2017), we are the first paper to report such an effect on property crime as well. Moreover, the estimated effects of MMLs on property crime rates are substantially larger, which is not surprising given property crimes are more prevalent. We also find novel evidence consistent with our hypothesis that MMLs reduce violent crime rates more in urban counties compared to rural counties, contrary to previous estimates (Chu and Townsend, 2019). We attribute this result to greater conflict between producers in urban counties under prohibition. Overall, our results are consistent with the need for market participants to create de facto property rights under prohibition, often through the use of violence. Our results are also consistent with prohibition causing a diversion of scarce policing resources, which when reallocated have the greatest impact on more pervasive types of crime and in locations where crime rates are higher. These findings demonstrate both the importance of accounting for heterogeneous policy effects on crime and the necessity to correct for measurement error in crime data when conducting policy analysis.
The question in the title of this post is prompted by this new Hill piece headlined "Crist says as Florida governor he would legalize marijuana, expunge criminal records." Here are excerpts:
Rep. Charlie Crist (D-Fla.) on Thursday said that he would expunge criminal records of those facing certain marijuana-related charges and legalize the drug if he is elected the governor of Florida. “Let me be clear: If I’m elected governor, I will legalize marijuana in the Sunshine State,” Crist said in a video posted on his Twitter on Thursday. “This is the first part of the Crist contract with Florida.”
Crist, who is running for the Democratic nomination to take on Gov. Ron DeSantis (R) in 2022, discussed different elements of his gubernatorial platform focused on racial equity in the state, including expunging criminal records for those who have received marijuana-related charges, specifically third-degree felonies and misdemeanors, the Tampa Bay Times reported.
The former Florida governor and Senate hopeful also said that he was in favor of decentralizing the marijuana industry, allowing people to personally grow marijuana plants. He noted that money made through marijuana sales would fund things such as drug treatment programs and police agencies, according to the news outlet.
Crist, who was a Republican while he was in the governor's mansion from 2007 to 2011, acknowledged that his stance, among others, had changed on marijuana use. As governor, he had signed harsh anti-marijuana legislation, which included targeting growing the plant.
His comments were criticized over Twitter by Democratic opponent Nikki Fried, who is also running to take on DeSantis. The state Agriculture commissioner, who has been previously supportive of legalizing marijuana and was a former marijuana lobbyist, according to Tallahassee Reports, accused him of imitating her political stance.
“Imitation is flattery, but records are records. People went to jail because Republicans like @CharlieCrist supported and enforced racist marijuana crime bills. Glad he's changed his mind, but none of those people get those years back. Legalize marijuana. #SomethingNew,” Fried tweeted.
Crist last year voted to end marijuana from being prohibited and criminalized federally. “We know that people across racial and income levels use marijuana at the same rate. And yet, for decades, it's been poor, Black, and/or Hispanic folks targeted for prison on marijuana charges,” Crist said in a statement in December. “That tells me that marijuana has been legal now for a while if you had the right skin tone or the right paycheck.”
I surmise that all major Democratic candidates have finally figured out that marijuana reform is a popular position. It will be interesting to watch if this issue could become significant debate topic is red-leaning swing states like Florida and Ohio that have big 2022 elections. I am inclined to believe this topic still is more fringe than fundamental in broader political discourse, but even topics that only move the electorate a little bit could prove consequential sometimes.
October 17, 2021 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Monday, October 11, 2021
The title of this post is the title of an exciting event sponsored by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law. Here is a description of the event from this registration page:
Long seen by the tobacco industry as a consumer segment of consumers ripe for exploitation, urban communities of color have endured vicious decades of deceit and disregard for their health as the targets of menthol cigarette advertising. Menthols comprise some 30 percent of a shrinking tobacco market in the United States.
As the industry and its supporters in public office move to protect their profits from a federal ban, Dr. Wailoo offers a detailed account of how advertising firms explicitly capitalized on poverty, alienation, and drug use to carve a menthol market out of urban space. This effort, which started in the 1950s and lasted decades, followed the tobacco industry’s false framing of menthol cigarettes as a safer, even healthful alternative for smokers beginning in the 1920s.
Join the Drug Enforcement and Policy Center for a moderated discussion with Professor Keith Wailoo, author of Pushing Cool: Big Tobacco, Racial Marketing, and the Untold Story of the Menthol Cigarette, Dr. Amy Fairchild, dean of The Ohio State University College of Public Health, and DEPC Visiting Assistant Professor Sarah Brady Siff.
Again, registration for this event is available at this link.
Friday, October 8, 2021
As reported here, two notable US senators "are urging Attorney General Merrick Garland to decriminalize marijuana on his own" by "asking Garland and Department of Health and Human Services Secretary Xavier Becerra to use powers granted them under the Controlled Substances Act to deschedule — or decriminalize — marijuana at the federal level." The letter to this effect from the desk of Senator Elizabeth Warren and joined by Senator Cory Booker is available at this link, and it starts this way:
We write to urge the Department of Justice (DOJ) to decriminalize cannabis using its existing authority to remove the drug from the Federal controlled substances list. Under the Controlled Substances Act of 1970 (CSA), the Attorney General can remove a substance from the CSA’s list, in consultation with the Secretary of Health and Human Services (HHS). Decriminalizing cannabis at the federal level via this descheduling process would allow states to regulate cannabis as they see fit, begin to remedy the harm caused by decades of racial disparities in enforcement of cannabis laws, and facilitate valuable medical research. While Congress works to pass comprehensive cannabis reform, you can act now to decriminalize cannabis.
The letter goes on to explains the DOJ descheduling process this way:
The executive branch has the authority to initiate the process of cannabis descheduling. The CSA empowers the Attorney General to initiate proceedings to reschedule or deschedule a drug, either individually or at the request of the HHS Secretary or another interested party. The Attorney General then seeks a scientific and medical evaluation from the HHS Secretary, including the Secretary’s recommendations as to the appropriate scheduling for the drug or whether the drug should be descheduled. If the Secretary recommends descheduling a drug, that recommendation is binding on the Attorney General. However, if the Secretary recommends retaining a drug in the same schedule or moving it to a different schedule, that recommendation is not binding and the Attorney General may still choose to initiate a rulemaking procedure to deschedule or reschedule the drug.
Monday, October 4, 2021
The title of this post is the title of this new paper recently posted to SSRN and authored by Elle Gerwig, a recent graduate of The Ohio State University Moritz College of Law. (This paper is yet another in the on-going series of student papers supported by the Drug Enforcement and Policy Center.) Here is this latest paper's abstract:
In today’s world, individuals are surrounded by marketing and advertisements. The alcohol and tobacco industries have long faced advertising restrictions, and now cannabis businesses are beginning to see similar restrictions. Unlike other industries, cannabis is still illegal under federal law which creates confusing restrictions for companies who are located in states where medical or adult-use cannabis is legal. This split in ideology between the federal and state governments, along with the confusing state regulations written more for policymakers than industry workers, has set a crash course for cannabis. This paper will examine several marketing areas where the cannabis industry is currently facing strict regulations, such as billboards, social media, and text messaging, as well as the public policy aspects that have influenced the rules on cannabis advertisements. The paper also focuses on the Telephone Consumer Protection Act (TCPA) and the current rise of class actions associated with text-message marketing in the cannabis industry. The primary goal of this article is to discuss the current regulations for cannabis advertising and why these regulations are hurting the growing cannabis industry.
Thursday, September 30, 2021
House Judiciary Committee, by vote of 26-15, approves MORE Act to deschedule marijuana and thereby end federal prohibition
After what reportedly was quite an intriguing discussion, this afternoon the House Judiciary Committee approved the Marijuana Opportunity, Reinvestment, and Expungement (MORE) Act, H.R. 3617, with 26 votes in favor (24 Democrats, 2 Republicans) and 15 votes (all Republicans) against. The MORE Act, as noted in this post from DEC 2020, received a full favorable vote from the House. But at that time, everyone knew there would be no time and likely little interest in Senate action before the Congress term ended. Now there is ample time for the Senate to pass MORE or another like bill, though I think there is considerable uncertainty about there being enough votes for reform.
In case you forgot, in addition to removing marijuana from the prohibitions created by the Controlled Substances Act, the MORE Act would expunge non-violent federal marijuana convictions and support state efforts to do the same, while also providing provide resources and support for minority owned marijuana businesses and creating other reinvestment programs for communities that have been adversely impacted by marijuana prohibitions. Here is a bit more from this Marijuana Moment piece:
Although most Republicans who spoke argued against the bill, Rep. Matt Gaetz (R-FL), who is a cosponsor of it, made the case for reform.
“I am a proud co-sponsor of the MORE Act because the federal government has screwed up marijuana policy in this country for a generation,” he said. “We lied to people about the effects of marijuana. And then we used marijuana as a cudgel to incarcerate just wide swaths of communities, and particularly in African-American communities.”
“We cannot honestly say that the war on drugs impacted suburban white communities in the same way it affected urban black communities. We can’t say that marijuana enforcement was happening the same way on the corner than it was happening in the fraternity house,” he said. “We have an opportunity to fix that problem. The war on drugs, much like many of our forever wars, has been a failure. If there’s been a war on drugs, drugs have won that war.”
However, he expressed certain concerns about provisions of the legislation such as the proposed federal excise tax on cannabis sales. While Gaetz also said that while he supports the MORE Act, he doesn’t feel it stands a chance in the Senate and recommended advancing more modest reform.
While the legislation has largely stayed intact compared to the prior version that passed the chamber last year in a historic vote, there were some modest revisions that were incorporated upon its reintroduction in May.
The panel on Thursday considered additional changes before moving the measure forward, although much of the time was spent debating unrelated issues such as COVID-19 vaccines, abortion policy and protests against police violence.
Rep. Thomas Massie (R-KY) sought to remove the bill’s tax provisions as well as grant funds it would create to help repair the harms of the war on drugs.
Monday, September 27, 2021
The title of this post is the title of this terrific new report authored by Jana Hrdinova of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law. This DEPC webpage provides this overview:
H.B 523, enacted by the Ohio General Assembly, became effective in September 2016 and made Ohio the 25th state to adopt a comprehensive medical marijuana program. A new report from the Drug Enforcement and Policy Center (DEPC) traces the development of the Ohio Medical Marijuana Control Program (OMMCP) since the start of legal sales in January 2019 and documents continued dissatisfaction among patients and prospective patients.
By gathering key program data and reporting on a new patient survey, this research fills gaps in our understanding of the OMMCP five years after becoming law. With multiple new marijuana reforms under discussion in Ohio, the perceived effectiveness and success of the current system among patients and potential patients may shape the long-term prospects and future of the program.
55% of respondents reported some level of dissatisfaction with OMMCP, with 25.4% reporting being “extremely dissatisfied” and nearly 30% being “somewhat dissatisfied.” However, when compared to previous years the overall dissatisfaction levels are declining (67% in 2019 reported being dissatisfied, compared to 62% in 2020 and 55% this year). Additionally, the intensity of dissatisfaction has lessened.
72% of survey respondents with a qualifying medical condition reported that Ohio dispensaries were their primary source of medical marijuana. For people who indicated that they purchased marijuana from other sources, the primary reason for doing so was the cost of product in Ohio dispensaries and the cost and difficulty associated with becoming a registered patient.
High price of marijuana in Ohio dispensaries was the top reason cited by participants for their continued dissatisfaction, for not using licensed dispensaries, and for opting out of using medical marijuana. Price of marijuana in Ohio continues to be considerably higher than in Michigan and significantly lower than in Pennsylvania. The second and third top-cited reasons were lack of home grow and lack of employment protections, respectively.
81% of respondents reported having trust in the safety of products sold in Ohio dispensaries. Only 8% reported not trusting the safety of dispensary products.
COVID-19 inspired changes, including telemedicine, online ordering and curbside pick-up have had a positive impact on patients’ satisfaction levels.
Despite growth in sales and in the number of patients and caregivers, the number of physicians with a Certificate to Recommend has actually decreased over the last 12 months. Ohio is now second to last in the number of physicians per 100,000 residents able to recommend medical marijuana.
Friday, September 24, 2021
The question in the title of this post is prompted by this notable lengthy new Washington Post article, fully headlined "Greener pastures: Marijuana jobs are becoming a refuge for retail and restaurant workers: An estimated 321,000 Americans now work in the legal cannabis industry, outnumbering the country’s dentists, paramedics and electrical engineers." Here are excerpts:
After a year on the front lines, Jason Zvokel traded in his 15-year career as a Walgreens pharmacist for a different kind of drugstore: a marijuana dispensary.
Now instead of administering vaccines and filling prescriptions, he’s helping customers make sense of concentrates, tablets and lozenges. His pay is 5 percent lower, he says, but the hours are more manageable. “I am so much happier,” said Zvokel, 46, who’s worked in retail since he was 18. “For the first time in years, I’m not miserable when I come home from work.”
The cannabis industry is riding a pandemic high: Marijuana dispensaries and cultivation facilities — deemed “essential” by many states at the beginning of the coronavirus crisis — became an early refuge for retail and restaurant workers who had been furloughed or laid off. The industry has continued to grow, adding nearly 80,000 jobs in 2020, more than double what it did the year before, according to data from the Leafly Jobs Report, produced in partnership with Whitney Economics.
An estimated 321,000 Americans now work in the industry, a 32 percent increase from last year, the report found, making legal marijuana one of the nation’s fastest-growing sectors. In other words: The United States now has more legal cannabis workers than dentists, paramedics or electrical engineers....
That surge in cannabis hiring has put pressure on traditional employers — particularly in the 18 states and the District where recreational marijuana use is legal — to ease drug testing requirements. Amazon, the nation’s second-largest private employer, said in June that it would stop screening employees for cannabis use and would support federal legislation to legalize marijuana. A number of other employers, including retailers, restaurants and city governments have also dropped such requirements in an effort to attract workers in a labor market where job openings outpace the number of unemployed Americans 10.9 million to 8.4 million.
Workers’ rights groups are pressing for broader unionization in the cannabis industry, calling it a critical time to establish well-paying jobs with proper protections. With the right policies, they say, the industry could become a pipeline to middle-class jobs, much like the manufacturing industry used to be....
Brianna Price recently left a job as a grocery stocker to become a “budtender” — an industry term for a sales associate — at a dispensary. She’s been promoted three times in the year she’s worked there, and now oversees all purchasing and a staff of nine.
“It’s the best job I’ve ever had,” said Price, 31, of Midland, Mich., who worked as a paralegal for eight years before she was laid off early in the pandemic. She took a part-time job at the supermarket chain Aldi, but says it paid so little that she had to move back in with her parents. There were other downsides, too: Her shifts often started at 5 a.m. and sometimes consisted of standing outside, wiping down shopping carts for hours on end....
At the Hempire Collective in Loomis, Mich., where she works, sales have more than doubled in the last year, to roughly $500,000 a month, according to co-owner Mario Porter. He’s expanded his dispensary staff from seven to 12, and expects to hire more this year. Many of his new employees, he said, come from retail jobs that they left during the pandemic.
September 24, 2021 in Business laws and regulatory issues, Employment and labor law issues, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)
Thursday, September 23, 2021
The title of this post is the title of this notable paper that I just saw via SSRN which is authored by Beckett Cantley and Geoffrey Dietrich. Here is its abstract:
The cannabis industry has greatly expanded over the last few years, with a majority of states legalizing cannabis in some form. However, despite the growing popularity of the cannabis industry and more companies entering the market, the Internal Revenue Service (“IRS”) has remained steadfast in denying business deductions for cannabis companies. Under Internal Revenue Code (“IRC”) § 280E, the IRS can disallow all ordinary and necessary business expenses by companies trafficking in illegal drugs. The disallowance of ordinary and necessary business expenses greatly hinders cannabis companies, especially for companies legally operating under state law. Several cannabis companies have also attacked the harsh effects of IRC § 280E on constitutional and public policy grounds. Despite a general shift in medical, legal, and public opinion supporting the full legalization of marijuana, legislation still lags far behind. There is currently pending legislation to address the deductions allowed for marijuana companies and reflects a shift in public policy.
One recent attack on IRC § 280E is that the provision violates the Sixteenth Amendment. Under this theory, cannabis companies argue the definition of income under the Sixteenth Amendment requires gain, and thus the disallowance of ordinary and necessary business expenses imposes a tax on more than a company’s income. For example, the Sixteenth Amendment permits a taxpayer to reduce gross receipts by cost of goods sold before a tax may be imposed. The correct method in calculating cost of goods sold also provides another point of contention between the IRS and cannabis companies. Courts continue to classify cannabis companies as “resellers” instead of “producers,” which reduces the amount that cannabis companies can deduct as cost of goods sold.
Despite the growing popularity of cannabis companies and a growing number of states legalizing marijuana, courts are unlikely to invalidate IRC § 280E as unconstitutional until a sufficient groundswell of support for the policy benefits such a change would permit arises. This article will discuss: (I) a brief evolution of the public support, policies, and rationales behind marijuana legalization and the conflicts arising under the Sixteenth Amendment; (II) competing state and federal laws concerning cannabis regulation; (III) and the constitutionality of IRC § 280E under both the Sixteenth Amendment and the Eighth Amendment; and conclude with (IV) a public policy argument for legislation removing marijuana from the purview of IRC § 280E.
Tuesday, September 14, 2021
The title of this post is the title of this notable new paper now available via SSRN and authored by Viva Moffat, Sam Kamin and Timothy Maffett. Here is its abstract:
At the moment, cannabis companies cannot get trademark protection for their marijuana and marijuana-related products because the “lawful use” doctrine limits federal trademark protection to goods lawfully sold in commerce. Given that the drug remains illegal under federal law, this may not sound like much of a problem, but it has serious consequences for consumers of marijuana. Without trademark rights, a cannabis company in one state can simply use the brand name of a prominent company in another state and consumers will assume that they are getting the products they have come to rely on, with potentially dangerous results. As the cannabis industry has grown, this issue has only become more acute; the current approach of the United States Patent & Trademark Office (PTO) and the federal courts undermines trademark law’s consumer protection and fair competition goals.
Several years ago, we proposed a solution to the unavailability of trademark protection during federal prohibition, one we suggested would help cannabis companies and cannabis consumers bridge the gap from the current period of legal ambiguity through full marijuana legalization. We coined the phrase “trademark laundering” to describe the practice of applying for federal trademark protection for a mark placed on legal products and then using that mark on both legal and illegal goods – on both t-shirts and marijuana, for example. As we anticipated, the practice has indeed taken off, but it has been a success only on the surface.
This article examines how the PTO and the courts have mishandled marijuana marks and identifies how they have interpreted and deployed the lawful use doctrine in ways that undermine and conflict with trademark’s stated goals. Given that the PTO is unlikely to abandon the lawful use doctrine any time soon, we propose changes to the way the PTO applies that doctrine in the trademark registration process, as well as changes to the courts’ consideration of trademark disputes involving cannabis companies. These changes will ensure that both consumers and marijuana businesses are protected as the United States transitions from marijuana prohibition to a post-prohibition federal regulatory regime.
Monday, September 13, 2021
The title of this post is the title of this notable new paper authored by Sarah Brady Siff now available via SSRN. Here is its abstract:
Marijuana was illegal to possess or sell in California for 103 years. The state first banned it in 1913, grouping it with opiates and cocaine on a list of prohibited vice drugs adopted six years earlier, meaning that it was subject to the same penalties as these other, far more dangerous, drugs until 1961. Initially framed as a “Mexican” drug, marijuana prohibition enforcement began on the periphery of Los Angeles in older Latino neighborhoods as well as in agricultural outposts where immigrants lived, worked, and gardened. Later this policing turned toward the city center, targeting the segregated section of Central Avenue with its jazz musicians and its multiracial nightlife, as well as actors and musicians in nearby Hollywood. By 1950, Los Angeles-area police were arresting more people for the possession or sale of marijuana than for heroin, other opiates, and cocaine combined. Mexican, Mexican American, and Black citizens were the targets of this enforcement in sharp disproportion to their presence there.
Friday, September 3, 2021
"Lower-Risk Cannabis Use Guidelines for reducing health harms from non-medical cannabis use: A comprehensive evidence and recommendations update"
The title of this post is the title of this new article by multiple authored appearing in the International Journal of Drug Policy. Here is its abstract:
Cannabis use is common, especially among young people, and is associated with risks for various health harms. Some jurisdictions have recently moved to legalization/regulation pursuing public health goals. Evidence-based ‘Lower Risk Cannabis Use Guidelines’ (LRCUG) and recommendations were previously developed to reduce modifiable risk factors of cannabis-related adverse health outcomes; related evidence has evolved substantially since. We aimed to review new scientific evidence and to develop comprehensively up-to-date LRCUG, including their recommendations, on this evidence basis.
Targeted searches for literature (since 2016) on main risk factors for cannabis-related adverse health outcomes modifiable by the user-individual were conducted. Topical areas were informed by previous LRCUG content and expanded upon current evidence. Searches preferentially focused on systematic reviews, supplemented by key individual studies. The review results were evidence-graded, topically organized and narratively summarized; recommendations were developed through an iterative scientific expert consensus development process.
A substantial body of modifiable risk factors for cannabis use-related health harms were identified with varying evidence quality. Twelve substantive recommendation clusters and three precautionary statements were developed. In general, current evidence suggests that individuals can substantially reduce their risk for adverse health outcomes if they delay the onset of cannabis use until after adolescence, avoid the use of high-potency (THC) cannabis products and high-frequency/-intensity of use, and refrain from smoking-routes for administration. While young people are particularly vulnerable to cannabis-related harms, other sub-groups (e.g., pregnant women, drivers, older adults, those with co-morbidities) are advised to exercise particular caution with use-related risks. Legal/regulated cannabis products should be used where possible.
Cannabis use can result in adverse health outcomes, mostly among sub-groups with higher-risk use. Reducing the risk factors identified can help to reduce health harms from use. The LRCUG offer one targeted intervention component within a comprehensive public health approach for cannabis use. They require effective audience-tailoring and dissemination, regular updating as new evidence become available, and should be evaluated for their impact.
Thursday, September 2, 2021
Rounding up some of the round-ups of the many comments submitted on early draft of federal Cannabis Administration and Opportunity Act
As detailed in this prior post, in mid July 2021, US Senate Majority Leader Chuck Schumer, along with Senators Ron Wyden and Cory Booker, unveil what was described as a "discussion draft" of a lengthy federal marijuana reform bill titled the Cannabis Administration and Opportunity Act (CAOA). The full text of this CAOA "discussion draft" is available here, and marijuana reform advocates (and opponents) unsurprisingly has a whole lot that they wanted to discuss about this discussion draft. September 1 was the deadline for the submission of comments, and I received multiple emails from multiple groups promoting their comments. Helpfully, I have seen a few press pieces that serve to round up some of the comments:
From Law360, "Pot Advocates Advise Careful Rollout Of Federal Legalization"
From Marijuana Moment, "Senators Flooded With Input On Federal Marijuana Legalization Bill"
From MJ Biz Daily, "Marijuana trade groups offer comments on Schumer’s federal legalization bill"
The Marijuana Moment piece provides a particularly fulsome review of (and helpful links to) lots of the submitted comments. Here is how it sets up the review:
While legalization proponents have widely celebrated the introduction of the Cannabis Administration and Opportunity Act (CAOA), they have some suggestions for improvement — principally as it concerns issues of social equity, licensing, tax policy and interstate commerce.
Senate Majority Leader Chuck Schumer (D-NY), Senate Finance Committee Chairman Ron Wyden (D-OR) and Sen. Cory Booker (D-NJ) are the lead sponsors of the legislation, and after releasing a draft version of the measure in July, they opened a public comment to receive input on what will be a revised measure the senators plan to formally introduce.
Pro-reform organizations like NORML, Marijuana Policy Project (MPP), National Cannabis Industry Association (NCIA) and Hemp Roundtable made their voices heard — and while they generally applauded the senators’ work to end federal cannabis prohibition, they had some recommendations for revisions. Prohibitionist groups also weighed in with thoughts about the proposal can be changed to better reflect their concerns with the overall policy of legalization.
A few prior related posts:
- Great early coverage of US Senate Leader Chuck Schumer's "discussion draft" of new Cannabis Administration and Opportunity Act
- Some federal reform headlines a week after introduction of the Cannabis Administration and Opportunity Act
Friday, August 27, 2021
The title of this post is the title of this new piece authored by Benjamin Seymour now on SSRN. Here is its abstract:
This Comment offers a fair lending solution to promote racial equity in federal cannabis banking reform: amend the Equal Credit Opportunity Act to ensure individuals previously arrested, charged, or convicted for selling, cultivating, or possessing marijuana will not therefore be precluded from loans to start legal cannabis businesses. Given disparities in the criminal enforcement of marijuana laws, this amendment would provide racial justice benefits, while also encouraging entrepreneurship. As a market-based social justice effort, this amendment offers a bipartisan approach to one of the most vexing and contentious issues in marijuana banking reform.
This Comment briefly surveys the federal statutes that have led to an under-banked cannabis industry and discusses the costs of cash for marijuana businesses. It then examines prior reforms proposed by academics, executive-branch officials, and legislators. Finally, this Comment explores the racial equity concerns that these proposals fail to address and develops a fair lending approach for justice in marijuana banking reform.
Monday, August 23, 2021
"Legalization Without Disruption: Why Congress Should Let States Restrict Interstate Commerce in Marijuana"
The title of this post is the title of this notable new paper now available on SSRN authored by Robert Mikos and Scott Bloomberg. Here is its abstract:
Over the past twenty-five years, states have developed elaborate regulatory systems to govern lawful marijuana markets. In designing these systems, states have assumed that the Dormant Commerce Clause (“DCC”) does not apply; Congress, after all, has banned all commerce in marijuana. However, the states’ reprieve from the doctrine may soon come to an end. Congress is on the verge of legalizing marijuana federally, and once it does, it will unleash the DCC, with dire consequences for the states and the markets they now regulate.
This Article serves as a wake-up call. It provides the most extensive analysis to date of the disruptions the DCC could cause for lawmakers and the marijuana industry. Among other things, the doctrine could spawn a race to the bottom among states as they compete for a newly mobile marijuana industry, undermine state efforts to boost participation by minorities in the legal marijuana industry, and abruptly make obsolete investments firms have made in existing state-based marijuana markets. But the Article also devises a novel solution to these problems. Taking a page from federal statutes designed to preserve state control over other markets, it shows how Congress could pursue legalization without disruption. Namely, Congress could suspend the DCC and thereby give state lawmakers and marijuana businesses time to prepare for the emergence of a national marijuana market. The Article also shows how Congress could make the suspension temporary to allay any concerns over authorizing state protectionism in the marijuana market.
Thursday, August 19, 2021
Medical marijuana prisoner cites recent Justice Thomas statement questioning federal prohibition in support of sentence reduction
In this post a couple of months ago, I noted Justice Thomas's five-page statement respecting denial of cert in Standing Akimbo v. US questioning whether the Raich decision upholding federal power to prohibit all marijuana activity is still good law. As noted in this recent Marijuana Moment article, headlined "SCOTUS Justice’s Marijuana Comments Should Help Federal Prisoner Win Freedom, Attorney Says," a high-profile federal prisoner is now using this statement to support his argument for a sentence reduction. Here are the details:
Lawyers for a man serving time in federal prison for operating a state-legal medical marijuana dispensary are making the case that a U.S. Supreme Court justice’s recent statement denouncing the inconsistencies of federal cannabis policy underscore the need for the relief to be granted to their client.
Luke Scarmazzo, who was sentenced to 22 years in federal prison while acting in compliance with California’s marijuana laws, filed a motion for compassionate release in June. And his legal team recently submitted a supplementary brief that cites statements from one of the Supreme Court’s most conservative justices, Clarence Thomas.
While the high court recently declined to take up case related to an Internal Revenue Service investigation into tax deductions claimed by a Colorado marijuana dispensary, Thomas issued a statement that more broadly addressed the federal-state marijuana disconnect.
Now, Scarmazzo’s team is arguing that the U.S. District Court for the Eastern District of California should take the justice’s comments into account when considering his motion for compassionate release.... The crux of the new brief from Scarmazzo’s lawyers concerns Thomas’s statement in the unrelated IRS case.
Attorneys asserted that the justice’s comment “is an acknowledgement by the highest court in the land of the monumental change that has occurred throughout the nation in the attitudes and laws governing marijuana, and therefore provides further, compelling, support to the extraordinary and compelling reason the defendant should be eligible for Compassionate Release based on a change in law.”
“While Justice Thomas’s opinion does not embody the resolution or determination in a specific case, his opinion rests upon a solid foundation and is no less applicable to the Defendant’s case,” it continues. “Thomas felt compelled under the circumstances to expound upon the history and current state of the federal prohibition on cultivation and use of marijuana, the many changes to the laws at the state level, and the contradictory federal marijuana policy that are virtually unsustainable at this point.”
“This court should join the majority of District Courts who have granted Compassionate Release when the law has changed, and reform has occurred. Since the long sentence is not consistent with the current state of law, or the sentences imposed upon his co-defendants, and since he may provide life saving support to his father, Mr. Scarmazzo should be granted compassionate release.”
Prior related post:
Sunday, August 15, 2021
California Supreme Court rules Prop 64 did not undo criminalization of possession of cannabis in prison
This past week, the California Supreme Court ruled in People v. Raybon, No. S256978 (Cal. Aug. 12, 2021) (available here), that state prisoners cannot legally possess marijuana while in prison. The start of the court's ruling highlights why this was not quite a no-brainer given the law of Proposition 64:
This case requires us to interpret Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act (Prop. 64, as approved by voters, Gen. Elec. (Nov. 8, 2016) (Proposition 64 or the Act)). The question we must answer is whether Proposition 64 invalidates cannabis-related convictions under Penal Code section 4573.6, which makes it a felony to possess a controlled substance in a state correctional facility. Although Proposition 64 generally legalizes adult possession of cannabis, it contains several exceptions. One such exception provides that the Act does not amend or affect “[l]aws pertaining to smoking or ingesting cannabis or cannabis products on the grounds of, or within, any facility or institution under the jurisdiction of the Department of Corrections and Rehabilitation . . . .” (Health & Saf. Code, § 11362.45, subd. (d).) The Attorney General contends this exception applies to violations of Penal Code section 4573.6, meaning that possession of cannabis in a correctional facility remains a felony. Defendants disagree, arguing that because the exception only refers to “[l]aws pertaining to smoking or ingesting cannabis,” it does not apply to laws that merely criminalize possession of cannabis.
Ultimately, we find the Attorney General’s proposed reading of Health and Safety Code section 11362.45, subdivision (d) to be more persuasive. As discussed below, the phrase “[l]aws pertaining to smoking or ingesting cannabis” (ibid.) is broad enough to encompass statutes that criminalize possession. Moreover, there is no law that makes it a crime to smoke, ingest or use cannabis (or any other form of drug) in prison. Instead, the Legislature has taken a “ ‘ “prophylactic” ’ ” approach to the problem of drug use in prison by criminalizing only the possession of such drugs. (People v. Low (2010) 49 Cal.4th 372, 388.) Thus, under defendants’ interpretation, section 11362.45, subdivision (d)’s carve-out provision would fail to preserve any preexisting law regulating cannabis in prisons from being “amend[ed], repeal[ed], affect[ed], restrict[ed], or preempt[ed]” (§ 11362.45), and would instead render the possession and use of up to 28.5 grams of cannabis in prison entirely lawful. It seems unlikely that was the voters’ intent. Stated differently, it seems implausible that the voters would understand the requirement that Proposition 64 does not “amend, repeal, affect, restrict, or preempt” any “[l]aws pertaining to smoking or ingesting cannabis” (§ 11362.45, subd. (d)) to convey that, as of the date of the initiative’s enactment, possessing and using up to 28.5 grams of cannabis would now essentially be decriminalized in prisons. In our view, the more reasonable interpretation of section 11362.45, subdivision (d) is that the statute is intended “to maintain the status quo with respect to the legal status of cannabis in prison.” (People v. Perry (2019) 32 Cal.App.5th 885, 893.) Thus, possession of cannabis in prison remains a violation of Penal Code section 4573.6.
Kyle Jaeger at Marijuana Moment has this helpful article about developing drug reform ballot initiatives under the headline "These States Could Have Marijuana And Psychedelics Legalization On The Ballot In 2022." I recommend the full piece, and here are the highlights (with links from the original):
Marijuana reform has advanced in numerous state legislatures in the first half of 2021, with lawmakers enacting four new legalization laws so far this year. Now, activists in roughly a dozen states are moving to put cannabis legalization proposals directly before voters in 2022.
Across the country, advocates are in the early stages of drafting proposals, collecting signatures and engaging in public outreach to build support for medical and recreational cannabis legalization measures that they hope to see voted on next year. In at least one state, activists are working to qualify a measure to legalize psychedelic mushrooms for next November’s ballot. And in others, lawmakers may take it upon themselves to put cannabis referendums up for the general election without the need for citizen petitions....
Here’s a breakdown of where cannabis legalization and other drug policy reforms could be decided by voters in 2022, as well as a look at a handful of local efforts to enact marijuana policy changes via municipal ballot initiatives this year.
Arkansas activists are collecting signatures to place adult-use marijuana legalization on the state’s 2022 ballot....
California psychedelics activists recently filed a petition for the 2022 ballot to make the state the first in the nation to legalize psilocybin mushrooms for any use....
Advocates in Idaho are working to advance separate measures to legalize possession of recreational marijuana and to create a system of legal medical cannabis sales....
Maryland’s House speaker recently pledged that lawmakers will pass legislation to put the question of marijuana legalization before voters as a referendum on the 2022 ballot....
No initiatives have been filed for the 2022 ballot so far, but advocates say it’s possible a campaign could launch if the legislature fails to enact medical cannabis legalization during a special session this year or ends up passing a bill that has less robust patient protections than they want....
A group of Missouri marijuana activists recently a number of separate initiatives to put marijuana reform on the state’s 2022 ballot, a move that comes as other advocacy groups are preparing separate efforts to collect signatures for cannabis ballot petitions of their own....
Nebraska marijuana activists are gearing up for a “mass scale” campaign to put medical cannabis legalization on the state’s 2022 ballot after the legislature failed to pass a bill to enact the reform this session....
After a House-passed bill to legalize marijuana in North Dakota was rejected by the Senate in March, some senators hatched a plan to advance the issue by referring it to voters on the 2022 ballot....
Oklahoma advocates are pushing two separate initiatives to legalize marijuana for adult use and overhaul the state’s existing medical cannabis program....
South Dakota activists recently filed four separate legalization measures with the state Legislative Research Council — the first step toward putting the issue before voters next year if the state Supreme Court upholds a lower court ruling that overturned the legal cannabis measure that voters approved last November....
Activists are seeking to put separate measures to legalize medical cannabis and decriminalize adult-use marijuana before voters next year — and the secretary of state’s office recently approved the latest version of their proposed ballot language, freeing up advocates to gather a requisite 100 signatures per initiative in order to proceed to the next step.
Monday, August 9, 2021
The title of this post is the title of this effective new piece by Julie Werner-Simon at Cannabis Business Times. The subheadline highlights one theme of the piece: "The answer depends on how we define 'legalized'." Here are excerpts:
There is one cannabis question that is regularly searched across a variety of Internet platforms: How many states have legalized adult recreational use of cannabis as of today? As a cannabis law professor and a legal analyst for emerging cannabis businesses, I often am asked that very question. My response is always the same, no matter the date or the year: “It depends on how legalization is defined.”
State-based cannabis legalization can happen in two ways. One way is evidenced by those states which permit voters to place topics on the ballot for a vote. The other way is through the legislature, when a state’s assembly writes and passes legalization legislation which is ultimately signed off by that state’s chief executive.
When defined like that, Connecticut became the 19th U.S. state to legalize adult recreational use when, on June 22, 2021, Connecticut governor Ned Lamont signed into law a bill passed by the Connecticut legislature....
But these numbers will fall like dominos and change with those passed this year each reverting back one number depending on what happens in the highest court of South Dakota. That state was one of five that had cannabis initiatives on the ballot in the November 2020 election (the others were Arizona, Mississippi, Montana, and New Jersey).
Every cannabis ballot measure in those states prevailed with gusto. Voters overwhelmingly supported legalizing adult recreational usage in Arizona, New Jersey, and Montana; medical cannabis usage in Mississippi; and both medical and adult recreational use in South Dakota. But, once the voters made their wishes known, in two of the states, South Dakota and Mississippi, there was a backlash by government officials and the courts.
Some of South Dakota’s elected representatives (including that state’s governor) started a campaign to undermine the will of the voters and invalidate both the medical and adult recreational initiatives passed by a significant majority of South Dakota’s voters. The same thing played out in Mississippi where government officials challenged, in court, the enactment and enforcement of that state’s voters’ legalization plans....
On February 8, 2021, a South Dakota state court judge ruled against the voters and invalidated South Dakota voters’ passage of an adult recreational cannabis ballot initiative. Recreational legalization proponents appealed the decision to the South Dakota Supreme Court. The highest state court in South Dakota heard oral arguments (for and against) on April 28, 2021. The parties’ presentations and the justices’ commentary did not give a clear indication of what the high court decision will be. As of publication time, it is not clear how the South Dakota justices will decide.
So, how many states have legalized adult-use cannabis?... Under the definition of legalization in this article, since South Dakota’s adult recreational program is on appeal but voters in South Dakota approved the initiative, it is more than appropriate that South Dakota remains (precariously) on our voters-have-legalized-adult-rec list.
The “how many states have legalized adult recreational use” question will be decided by the five justices who comprise the South Dakota Supreme Court. It is expected to happen soon as their summer break ends with the beginning of the South Dakota Supreme Court’s September term. If that court tosses the recreational use legalization measure, and South Dakota comes off the adult recreational legalization list, Connecticut will no longer be the 19th adult-use state, it will become the 18th. New Mexico then would follow suit and revert to number 17, Virginia to number 16, and New York to number 15.