Friday, August 29, 2014
As Americans continue to embrace pot—as medicine and for recreational use—opponents are turning to a set of academic researchers to claim that policymakers should avoid relaxing restrictions around marijuana. It's too dangerous, risky, and untested, they say. Just as drug company-funded research has become incredibly controversial in recent years, forcing major medical schools and journals to institute strict disclosure requirements, could there be a conflict of interest issue in the pot debate?
VICE has found that many of the researchers who have advocated against legalizing pot have also been on the payroll of leading pharmaceutical firms with products that could be easily replaced by using marijuana. When these individuals have been quoted in the media, their drug-industry ties have not been revealed.
Take, for example, Dr. Herbert Kleber of Columbia University. Kleber has impeccable academic credentials, and has been quoted in the press and in academic publications warning against the use of marijuana, which he stresses may cause wide-ranging addiction and public health issues. But when he's writing anti-pot opinion pieces for CBS News, or being quoted by NPR and CNBC, what's left unsaid is that Kleber has served as a paid consultant to leading prescription drug companies, including Purdue Pharma (the maker of OxyContin), Reckitt Benckiser (the producer of a painkiller called Nurofen), and Alkermes (the producer of a powerful new opioid called Zohydro)....
Other leading academic opponents of pot have ties to the painkiller industry. Dr. A. Eden Evins, an associate professor of psychiatry at Harvard Medical School, is a frequent critic of efforts to legalize marijuana. She is on the board of an anti-marijuana advocacy group, Project SAM, and has been quoted by leading media outlets criticizing the wave of new pot-related reforms. "When people can go to a ‘clinic’ or ‘cafe’ and buy pot, that creates the perception that it’s safe,” she told the Times last year.
Notably, when Evins participated in a commentary on marijuana legalization for the Journal of Clinical Psychiatry, the publication found that her financial relationships required a disclosure statement, which noted that as of November 2012, she was a "consultant for Pfizer and DLA Piper and has received grant/research support from Envivo, GlaxoSmithKline, and Pfizer." Pfizer has moved aggressively into the $7.3 billion painkiller market. In 2011, the company acquired King Pharmaceuticals (the makers of several opioid products) and is currently working to introduce Remoxy, an OxyContin competitor.
Dr. Mark L. Kraus, who runs a private practice and is a board member to the American Society of Addiction Medicine, submitted testimony in 2012 in opposition to a medical marijuana law in Connecticut. According to financial disclosures, Kraus served on the scientific advisory panel for painkiller companies such as Pfizer and Reckitt Benckiser in the year prior to his activism against the medical pot bill. Neither Kraus or Evins responded to a request for comment.
These academic revelations add fodder to the argument that drug firms maintain quiet ties to the marijuana prohibition lobby. In July, I reported for the Nation that many of the largest anti-pot advocacy groups, including the Community Anti-Drug Coalitions for America, which has organized opposition to reform through its network of activists and through handing out advocacy material (sample op-eds against medical pot along with Reefer Madness-style videos, for example), has relied on significant funding from painkiller companies, including Purdue Pharma and Alkermes. Pharmaceutical-funded anti-drug groups like the Partnership for Drug-Free Kids and CADCA use their budget to obsess over weed while paying lip-service to the much bigger drug problem in America of over-prescribed opioids.
Thursday, August 28, 2014
Does an increase in marijuana seizures in Colorado mail mean more Coloradan's are mailing marijuana? Not necessarily.
There's a new law enforcement report out saying postal inspectors saw a big spike in marijuana seizures from Colorado mail headed to other states between 2010 and 2013.
The amount of Colorado marijuana being seized en route to other states through the U.S. mail has more than quadrupled since 2010 and was destined for more states than before, according to a new report by a federally funded drug task force.
Postal inspectors seized more than 493 pounds of pot from packages in 2013, up from 57 pounds in 2010, the year after medical marijuana dispensaries proliferated in Colorado, according to the figures released this month by the Rocky Mountain High Intensity Drug Trafficking Area.
Just 15 packages were bound for 10 states in 2010, compared to the 207 parcels destined for 33 states in 2013. Top destinations were Florida, Maryland and Illinois, the report states.
Does this news mean Coloradans are actually sending more marijuana to other states than they used to? No, not necessarily.
The increase in seizures could just as easily be the result of more vigilant enforcement as the result of more Coloradans mailing marijuana to friends. Perhaps inspectors have started to look more closely at Colorado packages in response to the state's marijuana reforms. Similarly, it is not incoceivable that legalization opponents are pushing to up enforcement to try and boost numbers to give legalization a black eye (certainly, it seems like this HIDTA report was released with that in mind.)
On this point, it is worth recalling that marijuana arrests more than doubled between 1990 and 2002. Did marijuana use double during that same period? Not at all. The numbers were the result of increased law enforcement attention to small marijuana cases (broken windows, stop and frisk style enforcement, etc.).
To be sure, the numbers could reflect a real increase in Coloradans sending marijuana out of state. (Or, it could be a mixture of both causes.)
But the only thing this data tells us is that more marijuana is being seized, not what caused the jump in seizures.
As reported in this notable new FoxNews piece, headlined "Marijuana compound may slow, halt progression of Alzheimer's," some more interesting marijuana research has produced some more reason to hope that marijuana reform could be a real boon for public health. Here are the details:
Neuroscientists found that extremely low doses of a compound found in marijuana may slow or halt the progression of Alzheimer’s disease. A study published in the Journal of Alzheimer’s Disease reported that neuroscientists using a cellular model of Alzheimer's found low doses of delta-9-tetrahydrocannabinol (THC) reduced the production of amyloid beta, and prevented abnormal accumulation, which is one of the early signs of the memory-loss disease.
“Decreased levels of amyloid beta means less aggregation, which may protect against the progression of Alzheimer’s disease. Since THC is a natural and relatively safe amyloid inhibitor, THC or its analogs may help us develop an effective treatment in the future,” said lead author Chuanhai Cao, a neuroscientist and PhD at the Byrd Alzheimer’s Institute and the University of South Florida College of Pharmacy.
Neuroscientists also found THC enhanced mitochondrial function which is needed to supply energy, transmit signals and maintain a healthy brain. “THC is known to be a potent antioxidant with neuroprotective properties, but this is the first report that the compound directly affects Alzheimer’s pathology by decreasing amyloid beta levels, inhibiting its aggregation, and enhancing mitochondrial function,” Cao said.
The research noted that the therapeutic benefits of THC at low doses appear greater than the associated risks of toxicity and memory impairment....
As many as 5 million Americans suffer from Alzheimer’s disease, with the numbers projected to reach 14 million by 2050, according to the Centers for Disease Control and Prevention (CDC).
Wednesday, August 27, 2014
Although California passed the first modern medical marijuana law in 1996 and saw the first wave of medical marijuana dispensaries, the legal status of dispensaries in the state is still somewhat unsettled. While government officials in places like Oakland have backed large scale retail outlets, in other parts of the state a handful of District Attorney's offices have argued that retail marijuana stores are illegal under state law. San Diego, where I live, has arguably been ground zero for this view--with one Deputy District Attorney going so far as to write a lengthy law review article (PDF) on why medical marijuana sales are actually illegal under California law.
For the most part, appellate courts have held that retail medical marijuana outlets are permitted under California law (though the state Supreme Court has yet to weigh in.) Last week saw another decision reaffirming the legality of retail medical marijuana sales in CA v. Baniana (PDF).
Here are a few relevant excerpts:
[California's Medical Marijuana Program Act (MMPA)] permits qualified patients and their designated primary caregivers to join together “in order collectively or cooperatively to cultivate marijuana for medical purposes” without being subject to “state criminal sanctions under Section 11357, 11358, 11359, 11360, 11366, 11366.5, or 11570.” (§ 11362.775.)
In 2010, the Legislature added section 11362.768 to the MMPA. (Stats. 2010, ch. 603, § 1.) This section implicitly recognizes the lawfulness of a “marijuana cooperative, collective, dispensary, operator, establishment or provider who possesses, cultivates, or distributes medical marijuana pursuant to” the MMPA, but prohibits such entities from operating “within a 600-foot radius of a school.” (§ 11362.768, subd. (b).) “This section shall apply only to a medical marijuana cooperative, collective, dispensary, operator, establishment, or provider that is authorized by law to possess, cultivate, or distribute medical marijuana and that has a storefront or mobile retail outlet which ordinarily requires a local business license.” (§ 11362.768, subd. (e).)
The prosecutor argued defendant was not entitled to the defense because the MMPA did not legalize the sale of medical marijuana. He asserted that while it may be lawful for a qualified patient unable to take part in the actual tending to the plants, or to devote time and effort on behalf of Herbal Run, to support the organization strictly through monetary contributions, the prosecutor argued any monetary contribution could not be contemporaneous with an exchange of marijuana. According to the prosecutor, such an individual would have to make his or her monetary contribution prior to the planting of the marijuana the patient would eventually be given.
The MMPA does not impose this limitation on qualified patients. First, the purpose of the MMPA is to ensure the promise of the CUA is fulfilled and qualified patients have safe access to affordable medical marijuana. We do not think the Legislature intended a seriously ill individual whose physician has recommended use of medical marijuana, and who is physically or otherwise unable to participate in the acts involved in cultivating medical marijuana, cannot simply pay money to his or her collective in exchange for the recommended medicine. It would be cruel for those whose need for medical marijuana is the most dire to require that they devote their limited strength and efforts to the actual cultivation of the marijuana, and then wait months for it to grow so they can use it, or to require that they make their monetary contribution and then wait months for the marijuana to be planted, grown, and harvested before they may lawfully be provided medical marijuana. Moreover, for some the cultivation and processing would not be completed until it was too late to provide any relief. The MMPA does not anticipate a patient who has received a physician’s recommendation must thereafter wait months to lawfully acquire medical marijuana.
Of course, the MMPA did not make lawful all sales of marijuana. The defense it provides is limited to those qualified patients and primary caregivers who associate together in a collective or cooperative. (§ 11362.775.) Additionally, sales for profit remain illegal. However, given the MMPA’s purpose, one provision in the MMPA implicitly recognizes the legality of store front dispensaries, collectives or cooperatives (§ 11362.768), and another provision specifically provides a defense to violation of sections 11360 (sale or transportation of marijuana) and 11359 (possession of marijuana for sale), we conclude a member of a collective or cooperative may purchase medical marijuana from the collective or cooperative so long as the sale is not for profit. The district attorney’s limited interpretation of section 11362.775 defeats the stated purpose of the MMPA to make access to medical marijuana easier for patients, and is contrary to a fair reading of the section. Section 11362.775 was written to provide a defense to a charge of selling marijuana in appropriate circumstances. Were this not the Legislature’s intent, there would have been no need to list section 11360 or section 11366 [opening or maintaining a place for the purpose of selling or giving away marijuana] as statutes to which the defense applies.
It is getting harder and harder for recalcitrant prosecutors to argue that California law does not permit retail medical marijuana dispensaries. But, as this opinion suggests, there are still other ways that California's horribly vague law can be a trap for the unwary in the hands of a drug war-style prosecutor. The particulars of the non-profit operation requirement remain almost entirely unclear, for example. A Los Angeles-area appellate decision from the spring highlights some of the problems. (Frankly, I think the "collective and cooperative" statute would almost certainly be found unconstitutionally vague if it were not for the fact that a vagueness holding would presumably mean striking down the defense entirely, which would obviously be of no help to defendants. I'm fairly certain this is why the issue is never raised in these cases.)
This recent holding is good news for medical marijuana advocates in California. But unless and until the legislature gets their act together and passes comprehensive statewide regulations, a steady stream of appeals attempting to make sense of the mess in place now will almost surely continue.
Tuesday, August 26, 2014
In my last two posts, I’ve highlighted the emerging struggle between state and local governments for control of marijuana policy. My latest article tries to provide some guidance on whether states should give local governments the option of banning marijuana sales.
This Part of the article discusses the theory of local control. It illuminates the competing considerations that help determine whether local control over marijuana (or any other issue) is normatively desirable. (I’ve eliminated the footnotes for this post, but they’ll be available once I post the completed draft on SSRN.)
A. The case for local control
Local control is supposed to promote economic efficiency. In particular, empowering local governments to tackle divisive issues is supposed to enable more people to get the policy they desire. The reason is that minorities in statewide contests sometimes comprise majorities in local communities; there are, after all, more than 3,000 counties and 15,000 municipalities sprinkled throughout the 50 states. These residents would be happier if they were allowed to pursue the policy they prefer through these local communities, rather than live under the policy the state as a whole would choose. Mobility of the population arguably enhances the efficiency of local control. The idea is that residents who are dissatisfied with the policy espoused by one local government can relocate to a community with a more appealing policy. To be sure, residents could also relocate from one state to another, but the comparatively large number of local governments increases the chances that dissatisfied residents will find more appealing matches and it also lowers the cost of relocation.
August 26, 2014 in History of Alcohol Prohibition and Temperance Movements, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
The title of this post is the title of this terrific new Brookings research paper which takes a close look at Washington state’s early experience in legalization of recreational marijuana. Here is how the report is summarized on the Brookings website:
Voters in Washington state decided in November 2012 to legalize marijuana in their state, inspired by a campaign that emphasized minimizing the drug’s social costs and tightly controlling the legal recreational market. Joined to this drug policy experiment is a second innovative experiment that emphasizes knowledge: the state will fund and develop tools necessary to understand the impact of legalization on Washington’s law enforcement officials, communities, and public health.
This second reform, though less heralded than the attention-grabbing fact of legalization, is in many ways just as bold. Washington’s government is taking its role as a laboratory of democracy very seriously, tuning up its laboratory equipment and devoting resources to tracking its experiment in an unusually meticulous way, with lessons that extend well beyond drug policy.
Brookings’ Philip Wallach interviewed advocates, researchers, and government policymakers in Washington to learn about the state’s novel approach. In this report, he highlights several noteworthy features:
- Building a funding source for research directly into the law: a portion of the excise tax revenues from marijuana sales will fund research on the reform’s effects and on how its social costs can be effectively mitigated.
- Bringing to bear many perspectives on legalization by coordinating research efforts across multiple state agencies, including the Department of Social and Health Services, the Department of Health, and the Liquor Control Board.
- Mandating a cost-benefit analysis by the state’s in-house think tank, which will be nearly unprecedented in its scope and duration.
Wallach makes a number of suggestions to ensure that Washington’s knowledge experiment can be made to work, including:
- Ensure political independence for researchers, both by pressuring politicians to allow them to do their work and by encouraging the researchers themselves to refrain from making political recommendations
- Gather and translate research into forms usable by policymakers
- Counter misinformation with claims of confident uncertainty
- Have realistic expectations about the timeline for empirical learning, which means cultivating patience over the next few years
- Specify which reliable metrics would indicate success or failure of legalization
August 26, 2014 in History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (1)
Friday, August 22, 2014
The quote in the title of this post is drawn from this new Businessweek article headlined "Marijuana Law Mayhem Splits U.S. as Travelers Get Busted." Here is how the lengthy article gets started:
America is two nations when it comes to marijuana: in one it’s legal, in the other it’s not. The result is that people like B.J. Patel are going to jail. The 34-year-old Arizona man may face a decade in prison and deportation following an arrest in 2012. On a trip in a rented U-Haul to move his uncle from California to Ohio, he brought along some marijuana, which is legal for medicinal use in his home state.
Headed eastbound on I-44 through Oklahoma, Patel was stopped for failing to signal by Rogers County Deputy Quint Tucker, just outside Tulsa. He was about to get off with a warning when Tucker spotted a medical marijuana card in his open wallet. “‘I see you have this card. Where’s the marijuana?’” Patel recalled Tucker asking him. “I very politely and truthfully told him, ‘I’ll show you where it is.’” That’s where things started to go bad for Patel. He now faces trial next month on a felony charge.
Possessing pot for recreational use is legal in Washington and Colorado, and allowed for medicinal purposes in 23 states. The other half of the country, which includes Oklahoma, largely prohibits any amount for any purpose.
While challenges may land the issue before the U.S. Supreme Court, what exists now is a legal checkerboard where unwitting motorists can change from law-abiding citizens to criminals as fast as they pass a state welcome sign. The difference is especially clear in states like Idaho. Surrounded on three sides by pot-friendly Washington, Oregon, Nevada and Montana, Idaho State Police seized three times as much marijuana this year as in all of 2011.
“The manner in which a person acquires the drug is not relevant,” Teresa Baker, an Idaho police spokeswoman, said. “This is important to know for those who may purchase it legally elsewhere, believing that it will be overlooked.”
James Siebe, a lawyer in Coeur d’Alene, put it another way: “Come on vacation, leave on probation.”
Thursday, August 21, 2014
The title of this post is the title of this potent and provocative new Huffington Post piece by Jelani Hayes. The piece demands a full read, and here are excerpts:
Underlying marijuana prohibition is a familiar philosophy: to preserve social order and white supremacy and secure profits for an influential few, it is permissible, even advisable, to construct profit-bearing institutions of social control. Historically, this philosophy has been advanced by governmental action, guided by special interests. The traditional tactics: manufacturing mass fear, criminalizing the target or demoting them to a sub-citizen status, and profiting from their subjugation.
Cannabis prohibition did all three. The [New York] Times editorial board dedicated an entire article to explaining this phenomenon. Part 3of the series begins, "The federal law that makes possession of marijuana a crime has its origins in legislation that was passed in an atmosphere of hysteria in the 1930s and that was firmly rooted in prejudices against Mexican immigrants and African-Americans, who were associated with marijuana use at the time. This racially freighted history lives on in current federal policy, which is so driven by myth and propaganda that it is almost impervious to reason."...
The United States should legalize marijuana. It should also end the drug war, which would be a tremendous and beautiful accomplishment, but it would not be enough.
The war on drugs is a mechanism of social control — not unlike African slavery, Jim Crow, alcohol Prohibition, or the systematic relegation of immigrants to an illegal status or substandard existence. Different in their nature and severity, all of these institutions were tools used to control and profit from the criminalization, regulation, and dehumanization of minority communities. Legalizing marijuana will not alone rid society of the tendency to turn fear into hatred, hatred into regulation, and regulation into profit. To address this cycle, we must put cannabis prohibition (and the drug war) in its historical context and connect the dots where appropriate.
Already we have seen that the reality of legalization does not alone ensure justice or equality. As law professor and best selling author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness Michelle Alexander points out, thousands of black men remain in jail or prison in Colorado (where licit weed has been on the market since January) while white men make money from the now legal marijuana market -- selling the drug just as the incarcerated men had done. She warns that legalization without reparation is not sufficient, drawing the parallel to what happened to black Americans post-Reconstruction. "And after a brief period of reconstruction a new caste system was imposed — Jim Crow — and another extraordinary movement arose and brought the old Jim Crow to its knees...Americans said, OK, we'll stop now. We'll take down the whites-only signs, we'll stop doing that," she said. "But there were not reparations for slavery, not for Jim Crow, and scarcely an acknowledgement of the harm done except for Martin Luther King Day, one day out of the year. And I feel like, here we go again."
Alexander's historical perspective is warranted because despite the size and intensity of marijuana prohibition, of the drug war in its entirety, its purpose is not unlike that of Jim Crow or other structural forms of social control and oppression. The drug war was never about drugs. Therefore, our solution to it can't be either.
We must frame the campaigns for cannabis legalization across the states as civil rights movements — as institutional reform efforts — so that the public might demand justice oriented outcomes from the campaigns....
In order to undue the damage — to the extent that that is possible — that the criminalization of marijuana specifically and the war on drugs more broadly have caused, we must pay reparations and retroactively apply reformed drug laws. More importantly, we must undermine the philosophies that allow for the construction of institutional harm, and we must be able to identity them when they creep up again and be ready to take action against them, to arm our minds and our bodies against the next wave of social oppression — whatever and wherever it may be and to whomever it may be applied. This is my plea to make history matter so that it doesn't repeat itself — again, and again, and again.
Wednesday, August 20, 2014
Here's their current ad:
To my knowledge, there is not yet a formal opposition group to the measure (and there does not appear to be a Project SAM affiliate in the state.)
Although the Obama administration decided not to pursue a preemption challenge to Colorado and Washington's legalization laws, private parties and/or local officials can also raise the federal preemption issue in the right case. In Washington, a local ban on marijuana stores has prompted a lawsuit that looks likely to do just that.
The Seattle Times provides a summary of the dispute:
In July, the city of Fife approved an outright ban on marijuana businesses. A prospective pot store is suing the city in Pierce County Superior Court and hopes to overturn the ban.
The case could cement Washington’s pot law or unravel it, depending on the success of arguments from the State Attorney General’s office and the ACLU, who have both intervened in the lawsuit.
There are two key issues in the case: whether Fife and other municipalities are allowed to ban marijuana businesses under Initiative 502, the state law that legalized pot, and whether federal law banning pot trumps state law on the issue.
Yesterday, the Washington AG filed a brief in the case (PDF), which appears to be at the summary judgment stage. In it, the AG argues that Fife's ban on marijuana businesses is not preempted by the state's legalization law. If the court agrees with the AG on that point, then it won't need to reach the question of federal preemption. If it disagrees, however, then it will have to decide whether or not federal law preempts the state's law.
Here is the beginning of the AG's argument on federal preemption:
Because Congress made clear that it only intended to preempt state laws that create a “positive conflict” with the CSA, id., Congress did not “occupy the field” of regulating controlled substances. Field preemption is thus inapplicable under the CSA. Express preemption also effectively becomes irrelevant because it overlaps completely with conflict preemption here, i.e., the statute expressly preempts only state laws that create a “positive conflict.” See, e.g., County of San Diego v. San Diego NORML, 81 Cal. Rptr. 3d 461, 476 (Cal. Ct. App. 2008) (“numerous courts have concluded that . . . 21 U.S.C. § 903 demonstrates Congress intended to reject express and field preemption of state laws concerning controlled substances”) (copy attached). Moreover, as to conflict preemption, because the statute limits preemption to state laws where “there is a positive conflict between . . . [the CSA] and that State law so that the two cannot consistently stand together,” 21 U.S.C. § 903, many courts have held that obstacle preemption is irrelevant under the CSA, because the only form of conflict the CSA is concerned with “is a positive conflict,” id. See, e.g., San Diego NORML, 81 Cal. Rptr. 3d at 481; People v. Crouse, ___ P.3d ___, 2013 WL 6673708, at *4 (Colo. Ct. App. Dec. 19, 2013) (same) (copy attached). Indeed, other federal statutes specify that both impossibility and obstacle preemption apply, demonstrating that Congress knows how to write such a clause if that is its intent. See, e.g., 21 U.S.C. § 350e(e).
I think the federal preemption argument is a weak one (I suspect that's a big part of why the federal government has never once brought a preemption lawsuit against a state medical marijuana law, even under Bush when there was no doubt about the DOJ's opposition to these laws.) But, this will certainly be a case to watch closely. The ACLU's page monitoring the case is here.
Tuesday, August 19, 2014
"Cannabis Quandary For Firms," the National Law Journal article which inspired this post is ancient [a week old] by the standards of the blogosphere. But in addition to my fascination with the "Bigs" that are eyeing the marijuana industry, I think it's worth pointing out because it relates to a topic near and dear to the readers of this blog, job creation for lawyers.
Here's an excerpt/ executive summary:
At least six small law firms in Colorado, California, Florida and Washington state have reorganized themselves around the industry. National firms like Akerman and Pillsbury Winthrop Shaw Pittman have jockeyed to do business with the industry. Many firms, with clients prodding them for help, are in early stages of deciding upon what to do. Yet other large firms, especially those that work with federal agencies that prohibit the drug, won't work with the industry.
Another reason for hesitation, according to the article, is that "the marijuana business isn't valuable enough yet." But, of course, the marijuana business is expected to boom and legal interest will continue to increase.
Now what courses should that big firm marijuana lawyer of the future take?
As promised, I’m going to dive into a new project evaluating the “local option” for marijuana: i.e., proposals to allow local governments (usually counties) to ban marijuana sales, notwithstanding state legalization of the drug.
I plan to post the project piecemeal. I'm still working on the language, ideas, and research, so I welcome feedback. I’ll start, naturally, with the Introduction (omitting footnotes) and follow with the Parts II and III to follow over the course of the next week. Here goes:
The states have largely prevailed in their struggle against the federal government for control over marijuana policy. More than 20 states have already legalized marijuana under state law and the number is sure to grow. Though the federal government has not yet repealed its own marijuana prohibition, it has largely ceded control of the issue to the states. As I wrote nearly five years ago,
[M]edical marijuana use has survived and indeed thrived in the shadow of the federal ban. The war over medical marijuana may be largely over, though skirmishes will undoubtedly continue, but contrary to conventional wisdom, it is the states, and not the federal government, that have emerged the victors in this struggle. Supremacy, in short, has its limits.
But the states are now facing growing opposition from within. Citing concerns over marijuana’s perceived harms, many communities in marijuana legalization states are seeking to re-instate marijuana prohibition at the local level. In Colorado alone, for example, more than 150 municipalities have passed ordinances banning marijuana shops outright.
These local ordinances raise one of the most important and unresolved questions surrounding marijuana law reforms: What power, if any, should states give local governments to regulate marijuana? How the states answer this question will determine just how quickly and broadly marijuana legalization spreads. The experience with alcohol control is instructive. Although national alcohol prohibition was repealed in 1933, and although Mississippi repealed the last statewide alcohol prohibition in 1966, hundreds of local communities – governing roughly 10% of the nation’s population -- continue to ban the sale of alcohol today, more than 80 years after the ratification of the 21st Amendment.
Despite the importance of the local authority question, there has been surprisingly little attention paid to it. Most marijuana legalization states failed to address local authority in their marijuana reform legislation, sparking dozens of lawsuits challenging local ordinances. In many states, the issue of local control remains unsettled. And while many scholars have weighed in on the federalism issues surrounding marijuana law reforms, they have all but ignored the important power battles now flaring up within the states.
This Article begins to fill the gap. It aims to provide lawmakers, jurists, scholars, and other interested parties insights into the desirability of enabling local communities to ban marijuana. It approaches this task in two ways. First, it discusses the theory of local control. The theory seeks to balance the interests of individual local governments against those of our broader society. On the one hand, local governments can tailor their policies to satisfy local tastes. What’s right for Last Vegas isn’t necessarily right for Reno. On the other hand, local policies can also affect outsiders who have no say over them. What happens in Vegas doesn’t necessarily stay there. The desirability of local control over any given issue hinges on the relative strength of these competing considerations.
Second, the Article attempts to gauge the strength of these competing considerations for marijuana. Would local control advance local policy interests? Would it harm outsiders? It is, of course, far too early to gauge the impact of local marijuana regulations. But we do have more than one century worth of experience with local alcohol regulations. I argue that this experience holds some valuable lessons for debates over local marijuana control. In particular, I find our experience with local alcohol control should temper enthusiasm for giving local government similar control over marijuana. The research on local alcohol control suggests that local alcohol regulations have effects beyond the boundaries of the jurisdictions that adopt them. A wet county might thwart a neighboring dry county’s effort to curb alcohol consumption and the harms that go along with it. Likewise, a dry county might shift some of the harms of alcohol consumption onto a neighboring wet county. The sobering experience with local alcohol control suggests that the state or even national governments might be better suited to controlling that substance and, by extension, marijuana as well.
The Article proceeds as follows. Part I discusses the current controversy over local marijuana regulation. Part II discusses the theoretical framework for evaluating the desirability of local control. Part III discusses the lessons of local alcohol control. Part IV then returns to draw some tentative conclusions about the desirability of local marijuana control.
August 19, 2014 in Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (1)
Monday, August 18, 2014
This local article from Florida, headlined "Ad war looms over medical marijuana: 'Compassion for sick' versus 'Devil in the details'," spotlights the developing terms of debate in the campaign for and against Florida's medical marijuana initiative being voted upon this November. Here are some of the details:
A burst of ads coming soon to TV screens in Florida will feature patients and doctors extolling the virtues of marijuana as a compassionate way to treat the sick and ease their pain. The soft-sell campaign, a laid-back variation on the usual political pitch, is designed to promote a constitutional amendment on November's ballot to legalize medical marijuana.
Countering that message will be a rival set of ads warning that approval of the amendment would lead to widespread drug use, supplied by "pot docs" and "pot shops" at every turn.
The dueling ad campaigns will compete for attention amid political appeals from candidates for governor and other offices, adding to an expected deluge of election messages though late summer and early fall.
Neither side would say when its ads will start or how much it's planning to spend. But both sides are preparing to hit the airwaves with TV and radio spots while developing networks of campaign volunteers and delivering their messages on the Internet. It's not quite politics as usual.
"We're not in a partisan scrum. We're not in an attack-and-response mode," said Ben Pollara, campaign manager of United for Care, which is spearheading the marijuana amendment. "We're just going to go out there and have people share their stories about how medical marijuana has affected them, or could have affected them, and their loved ones." The testimonials, he said, will come from patients, doctors and nurses.
He said 10,000 volunteers have signed up to help convey the message through phone calls, in-person talks and social media. They will be pitching constitutional Amendment 2, which "allows the medical use of marijuana for individuals with debilitating diseases as determined by a licensed Florida physician."...
Early polls indicate overwhelming public support for medical marijuana — by 88 percent in a statewide Quinnipiac University poll — but analysts expect a close vote on Amendment 2, which requires 60 percent approval to become law.
Opponents, including law-enforcement groups and Republican leaders, say the amendment is full of loopholes that could allow unscrupulous "pot docs" to recommend the drug for recreational users. "The thing I would be concerned about is the ruse of medicinal marijuana for purposes of allowing people basically to buy a joint and smoke it," U.S. Sen. Marco Rubio, R-Fla., told Florida reporters this month.
Nonprofit groups that oppose the measure have banded together under the Don't Let Florida Go to Pot coalition, which provides speakers at public forums. A separate group known as Vote No on 2 will lead the ad campaign.
A sample ad already has popped up on the Internet. The video shows scenes of children walking past marijuana stores in California, big piles of pot and derelicts puffing on pipes. "They say they just want to help the sick, but that's not the whole story," a narrator intones. These scenes are interspersed with commentary from experts, such as lawyers and cops, who support the theme "The Devil is in the Details."
"A vote for Amendment 2 is a vote for legalization of marijuana forever in the state of Florida," Grady Judd, president of the Florida Sheriffs Association, tells viewers.
The coming air war will bring the debate into Floridians' living rooms. "There's certainly going to be enough spending to make it a salient issue, with both sides ramping up their ad buys," said Daniel Smith, political science professor at the University of Florida. He said this issue, highlighted by the ads, will prompt some voters to cast ballots who otherwise might not bother with a non-presidential election.
The Boston Globe has this intriguing new article discussing in the problems that face medical marijuana patients in university settings. The piece is headlined "In halls of academia, medical marijuana an unwelcome guest: Colleges, mindful of federal rules, draw ire by keeping stiff bans." Here are excerpts:
Thomas Burke Jr., a 25-year-old US combat veteran and Yale University grad student, has a physician’s permission to use medical marijuana in Connecticut to treat PTSD symptoms. Although medical marijuana has been legal in Massachusetts for nearly two years, many local colleges are putting out the message to students as the fall semester nears: You still can’t use it on campus, even if a doctor says it’s medicinal.
College administrators have reaffirmed policies banning the drug in all forms, and that includes for students who have a doctor’s recommendation. They say their hands are tied by federal regulations, which still classify marijuana as an illegal drug, and they worry that allowing cannabis use of any kind could lead to the loss of federal funding, including student financial aid....
But other medical marijuana patients and advocates say colleges are being overly cautious. Forbidding the use of a state-recognized, doctor-authorized medicine is unfair, unethical, and a detriment to students, faculty, and others who use the drug to treat ailments, they say. “We would like to see schools recognize, as many states and millions and millions of individuals and doctors have done, that marijuana is in fact valid medicine for the patients that are using it, and treating it differently than other medications is harmful to students and faculty who have chosen to use medical marijuana,” said Betty Aldworth, director of Students for Sensile Drug Policy, a national student network pushing for an overhaul of drug laws....
Some schools — including Boston University, Tufts University, and Amherst, Curry, Emerson, Hampshire, and Wheelock colleges — that ban medical marijuana on campus try to help students with certifications to find alternatives. One way is to allow the students to opt out of on-campus housing contracts and requirements so they can pursue treatment off-campus....
The Justice Department said in a memorandum last year that it focuses enforcement on the most serious marijuana-related violations, and it is “not an efficient use of federal resources to focus enforcement efforts on seriously ill individuals, or on their individual caregivers.”
However, in 2011, the White House Office of National Drug Control Policy and the Education Department wrote a letter warning campuses that deviating from federal rules could put their federal funding at risk. “The administration’s stance hasn’t changed since then,” drug control policy office spokeswoman Cameron Hardesty told the Globe last week.
Advocates, however, say it is unrealistic to believe the US government would cut off funding to colleges over the issue. “I understand not wanting to risk millions of dollars in federal funding, but no college has ever lost federal funding for changing their drug or alcohol policies,”said Connor McKay, a 22-year-old Northeastern University senior and president of the campus chapter of Students for Sensible Drug Policy. “Colleges could and should at least accommodate students who need to use it.”
Saturday, August 16, 2014
The Miami Herald has this interesting new article discussing comments by former Florida Gov Jeb Bush concerning marijuana law and policy and the competing tensions created by state reforms and federal prohibition. The full headline of the piece provide a summary of its themes: "Jeb Bush conflicted over feds role in medical-marijuana enforcement; Former Gov. Jeb Bush is conflicted over the federal government’s role in medical-marijuana states and refrains from criticizing President Barack Obama over the issue." Here are excerpts:
Former Gov. Jeb Bush opposes Florida’s medical-marijuana initiative, but the potential GOP presidential candidate said he’s not sure if the federal government should enforce federal cannabis laws if the Sunshine State proposal passes.
Bush’s struggle with the state-federal split over medical marijuana reflects a broader struggle in the national Republican Party, where anti-drug hardliners are at odds with states-rights conservatives and libertarians over the issue.
Though a top Republican and frequent critic of President Obama, Bush refrained from repudiating the current White House’s position to de-emphasize enforcement of certain marijuana laws in the 20 states that have legalized medical cannabis, plus Washington D.C., and the two states that have completely legalized adult personal use of the drug, Colorado and Washington.
Asked Friday about the federal government’s role in prosecuting pot laws in medical-marijuana states, Bush said he’d have to give it more thought. “In medical marijuana states? I don’t know. I’d have to sort that out,” Bush said. “I think that states ought to have a right to decide these things. I think the federal government’s role in our lives is way too-overreaching.”
“But having said that,” he continued, “if you’re in Colorado and you can purchase marijuana openly, should people in Wyoming not be concerned about that? And I think there, maybe, the federal law needs to be looked at — interstate commerce.”
Bush made his comments in response to a reporter’s questions during a Homestead campaign stop for Gov. Rick Scott’s reelection. The day before, Bush issued a written statement urging Floridians to vote against the proposed constitutional amendment for medical marijuana. The amendment would allow physicians to recommend medical marijuana to people with “debilitating” medical conditions. Opponents say the measure is too broad; supporters say it’s designed to ensure that sick people get the care they need.
As a likely frontrunner for his party’s presidential nomination in 2016, Bush’s thoughts about marijuana have an added layer of significance because, if elected, his administration would have to decide whether it should continue the Obama policy in marijuana-decriminalization states.
“I think Jeb Bush is thinking about 2016 politics,” said Ben Pollara, director for the United for Care group that fought to get the medical-marijuana initiative, a proposed constitutional amendment, on the Florida ballot in November. Pollara pointed out that many of the big names who might run for president have nuanced views on medical marijuana.
“Rand Paul is more libertarian. Rick Perry has come out in favor of decriminalization. Chris Christie administers a medical-marijuana system in New Jersey,” Pollara said. “This is part of the more-libertarian strain. Jeb has presidential considerations to worry about.”...
Another potential GOP candidate, Florida Sen. Marco Rubio, also opposes the proposed constitutional amendment but said he supported low-THC medical marijuana therapy, which was called for in a bill that the Legislature passed this year and that Scott signed unexpectedly. The Legislature only took up that measure this year when the United for Care amendment was bound for the Florida ballot, where its chances of passage are good....
The medical marijuana constitutional amendment looks incredibly popular right now. Polls indicate that about 70 percent of voters back the proposed ballot language. It takes 60 percent voter approval to pass a constitutional amendment in Florida.
Support spans all demographic and partisan lines, but support is strongest among Democrats, including fundraiser and trial lawyer John Morgan, who employs Democratic gubernatorial frontrunner Charlie Crist and helped spearhead the United for Care initiative.
Friday, August 15, 2014
As I noted a few weeks ago, a new podcast called Marijuana Today has started up to take a weekly look at the latest in marijuana business and politics.
I had the chance to appear as a panelist on this week's episode alongside Taylor West (Deputy Director of the National Cannabis Industry Association), Adam Smith (drug policy reform movement veteran), and the show's host, Kris Lotlikar. Though I'm biased, I thought it was a great conversation and I had a lot of fun doing it. We talked about Colorado's new youth anti-marijuana ads, federal roadblocks to marijuana research, and Gavin Newsom's latest comments on marijuana legalization, among other things.
Thursday, August 14, 2014
The title of this post is the headline of this notable new AP article. Alex has done a terrific job on this blog keeping track of the intersection of America's favorite sport and America's favorite prohibited substance, and this AP article help highlight how dynamic that intersection can be. Here are excerpts:
Marijuana is casting an ever-thickening haze across NFL locker rooms, and it's not simply because more players are using it. As attitudes toward the drug soften, and science slowly teases out marijuana's possible benefits for concussions and other injuries, the NFL is reaching a critical point in navigating its tenuous relationship with what is recognized as the analgesic of choice for many of its players.
"It's not, let's go smoke a joint," retired NFL defensive lineman Marvin Washington said. "It's, what if you could take something that helps you heal faster from a concussion, that prevents your equilibrium from being off for two weeks and your eyesight for being off for four weeks?"
One challenge the NFL faces is how to bring marijuana into the game as a pain reliever without condoning its use as a recreational drug. And facing a lawsuit filed on behalf of hundreds of former players complaining about the effects of prescription painkillers they say were pushed on them by team trainers and doctors, the NFL is looking for other ways to help players deal with the pain from a violent game....
There are no hard numbers on how many NFL players are using marijuana, but anecdotal evidence, including the arrest or league discipline of no fewer than a dozen players for pot over the past 18 months, suggests use is becoming more common. Redskins offensive lineman Ryan Clark didn't want to pinpoint the number of current NFL players who smoke pot but said, "I know a lot of guys who don't regularly smoke marijuana who would use it during the season."...
Another longtime defensive lineman, Marcellus Wiley, estimates half the players in the average NFL locker room were using it by the time he shut down his career in 2006. "They are leaning on it to cope with the pain," said Wiley, who played defensive line in the league for 10 seasons. "They are leaning on it to cope with the anxiety of the game."
The NFL is fighting lawsuits on two fronts — concussions and painkillers — both of which, some argue, could be positively influenced if marijuana were better tolerated by the league.
The science, however, is slow-moving and expensive and might not ever be conclusive, says behavioral psychologist Ryan Vandrey, who studies marijuana use at John Hopkins. Marijuana may work better for some people, while narcotics and other painkillers might be better for others. "Different medicines work differently from person to person," Vandrey said. "There's pretty good science that shows marijuana does have pain relieving properties. Whether it's a better pain reliever than the other things available has never been evaluated."...
NFL Commissioner Roger Goodell has treaded gingerly around the subject. Before last season's Super Bowl he said the league would "follow the medicine" and not rule out allowing players to use marijuana for medical purposes. An NFL spokesman reiterated that this month, saying if medical advisers inform the league it should consider modifying the policy, it would explore possible changes.
A spokesman for the players union declined comment on marijuana, beyond saying the union is always looking for ways to improve the drug-testing policy. But earlier this year, NFLPA executive director DeMaurice Smith said the marijuana policy is secondary when set against the failure to bring Human Growth Hormone testing into the game. Some believe relaxing the marijuana rules could be linked to a deal that would bring in HGH testing....
The NFL drug policy has come under even more scrutiny this summer, after the NFL handed down a season-long suspension of Browns receiver Josh Gordon for multiple violations of the NFL substance-abuse policy. That suspension, especially when juxtaposed against the two-game ban Ray Rice received for domestic violence, has led some to say the league's priorities are out of whack.
In June, Harvard Medical School professor emeritus Lester Grinspoon, one of the forefathers of marijuana research, published an open letter to Goodell, urging him to drop urine testing for weed altogether and, more importantly, fund a crash research project for a marijuana-based drug that can alleviate the consequences of concussions. "As much as I love to watch professional football, I'm beginning to feel like a Roman in the days when they would send Christians to the lions," Grinspoon said. "I don't want to be part of an audience that sees kids ruin their future with this game, and then the league doesn't give them any recourse to try to protect themselves."
The league does, in fact, fund sports-health research at the NIH, to the tune of a $30 million donation it made in 2012. But the science moves slowly no matter where it's conducted and, as Vandrey says, "the NFL is in business for playing football, not doing scientific research."
With the NFL's new season kicking off in just a few weeks, Leafly and Americans for Safe Access have partnered on a new ad campaign on football, chronic pain, and medical marijuana. Last season, the topic generated a good deal of interest in the sports media, as both Super Bowl teams hailed from marijuana legalization states and HBO's Real Sports ran a story on how some players use medical marijuana as an alternative to opiate-based pain killers.
The Leafly/ASA ad campaign aims to keep this conversation going and kicked off with a spot in the USA Today's NFL Special Edition.
Wednesday, August 13, 2014
As reported in this new Washington Post article, "televangelist Pat Robertson has apparently changed his mind on the subject of legal marijuana." Here is why:
Just two years after Robertson said that he thinks the U.S. should “treat marijuana the way we treat beverage alcohol,” he and his 700 Club network went hard against Colorado’s legalization of the drug this week.
“The little kids are getting high,” Robertson said of the children of Colorado on his Wednesday show. He went on: “Do you want your little 8th grader to be stoned when he goes to school? Well, welcome to Colorado, where pot is legal.”...
Robertson now claims that he never supported the legalization of marijuana, only its decriminalization. However, in his 2012 interview with the New York Times, Robertson said that he “absolutely” supported the two ballot measures – Colorado’s Amendment 64 and Washington Initiative 502 – that legalized the substances in those states. Robertson criticized the criminalization of marijuana as early as 2010....
Now, the evangelical preacher believes that the Colorado law encourages “the full-scale spread of this stuff, and it is not good for people’s health, it is destroying their minds and it is destroying their lungs and the addiction is pretty heavy.”...
Robertson hasn’t completely abandoned H.M.S. Marijuana Reform, however. He reiterated his longstanding position on Wednesday that current law imposes penalties for possession that are too strict. “I have been one that has been very much against the incredible incarceration rate in the United States,” he said, adding, “What are we doing? We’re locking up people for the possession of marijuana. What I have wanted, and I think it’s the right cause, is the decriminalization of marijuana. But apparently the next step is the legalization of it, which is a totally different matter.”
I haven’t blogged for a while, but I’ve been enjoying Doug’s and Alex’s and Rebecca’s posts over the summer.
After starting up several new projects over the summer, I’m finally able to begin blogging again. In my first few posts, I’m actually going to focus on one of the projects that consumed my summer time -- a symposium paper I’m writing tentatively called The Local Option for Marijuana. The paper asks whether states should allow local governments to ban marijuana sales, notwithstanding state legalization of the drug. Doug, Alex, and I have debated the merits of the local option before – see posts and comments here, here, and here. I think we identified most of the major arguments both for and against local control. But it also became clear to me that many of our arguments depended on contested assumptions about the effects of local control. For example, local control looks a lot less appealing if it simply displaces – rather than reduces – the harms associated with marijuana distribution (DUIs, etc.). But it’ll probably be decades before we can know with any certainty what happens when local communities ban vs. allow marijuana distribution. And that will simply be too late for most states, which must decide now whether to grant local governments the option of banning marijuana sales.
Fortunately, we do have decades of experience with local control of alcohol that could prove instructive. Since the mid-to-late 1800s, states have delegated power to local governments to control – even ban -- the distribution of alcohol. Indeed, hundreds of counties inhabited by roughly 10% of the nation’s population remain “dry” today. Social scientists have exploited county-by -county variations to test the effects of various local controls on alcohol consumption, cirrhosis, traffic fatalities, etc. In this article, I’m poring through that research for lessons about local control over marijuana. I have a few tentatively formed conclusions that I’ll share in the coming days. As always, I’m open to comments, critiques, and suggestions – sources, avenues of inquiry, etc.
August 13, 2014 in Current Affairs, History of Alcohol Prohibition and Temperance Movements, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (1)