Marijuana Law, Policy & Reform

Reviewing a year of recreational marijuana sales in Colorado

The Denver Post has a notable series of articles taking stock of the experiences and perceptions of Colorado through the year-long experience with legalization recreational sales in the state.   This main article, headlined "Colorado's cannabis experiment puts it into a global spotlight," includes these excerpts:

Only one year in, Colorado's unprecedented jump into marijuana legalization has become the stuff of legend.  For opponents and supporters, the state comes up repeatedly in the evolving discussion about marijuana.  It is perhaps the most underappreciated consequence of legalization.  By becoming the first place in the world to actually legalize commercial sales of marijuana to anyone over 21, Colorado made the worldwide debate over pot more vibrant than it has ever been.

Those in favor of legalization now think of Colorado — and, to a lesser extent, Washington state, which debuted a smaller marijuana market later in the year — as a kind of political homeland.  The states' campaigns and resulting industries were the inspiration for pro-pot successes in two more states this fall and are the blueprints for coming 2016 campaigns in as many as a half-dozen states.  They helped foment never-before-seen congressional rebellion against federal enforcement of marijuana laws....

Those opposed to legalization, though, see Colorado as a cautionary tale — hard evidence of the kinds of dangers that they previously had been able to warn of only in the abstract.  In speeches in states and countries considering legalization, marijuana opponents now talk about accidental pot ingestions, lower-than-predicted tax revenue, gaudy industry advertising and even deaths. They cite examples of each from Colorado's first year of legalized sales....

The on-the-ground reality, of course, has been less stark than either side's version. Marijuana legalization has changed Colorado.  It's just tough to say exactly how.

Marijuana is more available in Colorado than ever before, but it's unclear whether marijuana consumption has risen as a result.  Teens are less likely to think that marijuana is harmful, and marijuana arrests at Denver schools are up, but that hasn't yet translated into measurably increased use.  More people may be driving stoned, but traffic fatalities are down....

Tourism to the state hit record levels this year. But how much of that has to do with marijuana?

 After a full year, legal marijuana sales are an experiment still very much in progress. "People are trying to jump to conclusions much faster than the data allows," said Andrew Freedman, the man in charge of coordinating Colorado's policy efforts on marijuana legalization.

The jumps are even bigger because of Colorado's data-collection woes.  The state lacks systems for quick, accurate measurements of youth use, marijuana-related incidents at schools, stoned driving and many other questions.  State officials this year commissioned a 74-page report titled "Marijuana Data Discovery and Gap Analysis" just to address the problem.  One person in the Department of Public Safety is now in charge of coordinating data-collection efforts for 2015....

Even when there are numbers to measure legalization's impacts, they often tell unexpected tales. For instance, state tax revenues from recreational marijuana once were predicted to top $100 million in the current fiscal year. They're on pace for a little more than half that. And, aside from the dollars constitutionally mandated to go to school construction, state officials haven't seen the revenue as a budgetary windfall. They've instead proposed the money all go toward marijuana-related issues.

In 2014, police said marijuana legalization would cost more for them to enforce than marijuana prohibition. Employers tightened their drug-testing policies, even though it was legal for their employees to use marijuana. More people became registered medical marijuana patients, despite the presence of a less-restrictive recreational market. "The big assumption here was that human behavior is a light switch," said Skyler McKinley, Freedman's deputy, "that you legalize marijuana and everything changes overnight."

That resiliency of old ways proved a boon to state regulators trying to implement legalization. Because Colorado already had a robust medical marijuana industry — and because the recreational marijuana industry initially was restricted to people who already owned a dispensary — the transition into legal sales was more of an evolution than a revolution....

Toni Savage, the owner of 3D Cannabis Center, said the most she ever grossed in a single year operating a medical marijuana dispensary was $400,000. This year, she's on track to top $3.5 million in sales — with more than half of those coming from out-of-state tourists.

But bigger sales means bigger tax bills. Not only is she paying nearly $100,000 a month in state and local taxes, she also expects to have a $500,000 federal tax bill because she can't deduct business expenses in the same way that stores that aren't illegal under federal law can. "I made a ton of money," she said, "but I owe more than I have."

The situation could get even tougher in 2015 because the state has started to allow newcomers into the recreational marijuana business. Savage said stores fear a glut of marijuana, which could drive down prices that have budged only slightly since the beginning of 2014. "If you're in the business, it's going to get really ugly," she said.

It's the change in the amount of attention Colorado has received from outside the state that defines the first year of legal marijuana sales. This was the year a New York Times columnist got stoned in a Denver hotel room, hallucinated that she had died, then wrote about the whole experience. Snoop Dogg recorded a theme song for a Colorado gubernatorial candidate, and Bill O'Reilly, upset over legalization, mused about running for the same office.

Will Charles Koch invest in marijuana reform along with broader criminal justice reform?

The question in the title of this post is prompted by this Wichita Eagle article, headlined "Charles Koch’s views on criminal justice system just may surprise you."  Here are a excerpts from a lengthy article which suggests at least one of the Koch brothers may be supportive of marijuana reform efforts:

Of all the contentious history between Koch Industries and the U.S. government, the Corpus Christi, Texas, case from 1995 is the one that Charles Koch remembers most vividly. A federal grand jury indicted his company on 97 felonies involving alleged environmental crimes at an oil refinery.

Prosecutors dropped all but one of the charges six years later, after the company spent tens of millions of dollars defending itself. Ultimately, Koch Petroleum Group agreed to pay a $10 million settlement.

“It was a really, really torturous experience,” said Mark Holden, Koch’s chief counsel. “We learned first-hand what happens when anyone gets into the criminal justice system.” Holden said Charles Koch wondered afterward “how the little guy who doesn’t have Koch’s resources deals with prosecutions like that.”

No one at Koch wants to re-litigate the Corpus Christi case, Holden said. But it prompted Charles Koch to study the justice system — both federal and state — wondering whether it has been over-criminalized with too many laws and too many prosecutions of nonviolent offenders, not only for him but for everybody. His conclusion: Yes, it has.

Ten years ago, he began giving money to support efforts by the National Association of Criminal Defense Lawyers to help train defense lawyers and reverse what some see as a national trend to get tough on crime, which has resulted in the tripling of the incarceration rate since the 1980s and has stripped the poor of their rights to a legal defense. He’s going to give more to that effort, he said.

“Over the next year, we are going to be pushing the issues key to this, which need a lot of work in this country,” Koch said. “And that would be freedom of speech, cronyism and how that relates to opportunities for the disadvantaged.” The nation’s criminal justice system needs reform, “especially for the disadvantaged,” Koch said, “making it fair and making (criminal) sentences more appropriate to the crime that has been committed.”

It has long been my understanding that at least some members of the very wealthy Koch family have libertarian leanings, and thus I have long thought some of the Koch monies spent on political concerns might go to marijuana reform efforts. If Charles Koch becomes more even vocal and active in his criminal justice reform efforts in 2015, it will be interesting to watch for any comments about marijuana reform efforts.

NAACP advocating for full legalization of marijuana ASAP in Nevada

As reported in this local article, headlined "NAACP jumps into Nevada marijuana debate," a notable leader is making a notable pitch for marijuana legalization in a notable state. Here are the details:

Jeffery Blanck, the president of the Reno-Sparks chapter of the National Association for the Advancement of Colored People, has jumped into the legislative debate over the legalization of recreational marijuana in Nevada. Blanck has sent a letter to all legislators, urging them to legalize recreational use of marijuana during the 2015 Legislature.

Nevada lawmakers have the first 40 days of the 2015 Legislature to legalize recreational use. If that doesn't happen, the measure will be placed on the 2016 general-election ballot, since the Nevada Cannabis Industry Association has already collected enough signatures on a petition to do that.

In his letter, Blanck noted that the federal government has wasted millions of dollars on its "war on drugs." And when it comes to marijuana, that war in Nevada has been waged more against black citizens than white citizens. "The use of marijuana by blacks and whites is approximately the same," Blanck wrote in his letter to lawmakers. "Yet, if you are black and live in Nevada, you are four-and-a-half times more likely to be arrested for marijuana possession than if you are white.

"This is the 11th-worst disparity in arrest rates for marijuana possession in the country," Blanck wrote. "This is nothing to be proud of, seeing how we have historically been referred to as the 'Mississippi of the West.' "

Blanck told lawmakers that prisons populations have sky-rocketed because of drug possession laws and that the current system of punishment for low-level drugs crimes disproportionally hits blacks harder than whites. "It is time to end the failed war on marijuana," Blanck wrote. "Nevada needs to legalize its use and our federal government needs to repeal its listing as a dangerous drug. We need to stop wasting our hard-earned tax dollars on a program that provides no benefit and disproportionately impacts our black residents."...

Washoe County District Attorney Dick Gammick, who is set to retire on Jan. 4, continues to see any form of legal marijuana – medical or recreational – as a bad thing....

Gammick was asked if it would be better for Nevada to wait on the legalization of recreational marijuana, and see how issues surrounding recreational marijuana are handled in Colorado and Washington....

Gammick replied: "I have in my office a 150-page report out of the Office of Justice on Colorado and all of the issues they are dealing with," Gammick said. "They are having children OD (overdose) on this stuff. They are having children steal it from their grandparents and they're taking it to school and selling it. They are having all kinds of problems, not to include all the robberies and all of the other stuff going on."

Gammick continues to oppose legal marijuana of any kind. "As far as I'm concerned, let's never do it (legalize it) because it is a dangerous drug," he said. "But you can't seem to get that across. Everybody seems to want to toke – not everybody – but there are enough people who want to toke up and sit around and be blown out of their brains…I keep asking folks, do you want that to be your pilot in an airplane?"

Legalization leading to increased marijuana use (or just admissions of use?) in Colorado

This Denver Post article reports on some new marijuana use data that suggests Colorado marijuana consumption has gone up considerably in recent years.  But, as the title of this post highlights, I cannot help but wonder if legalization has really led to marijuana use spiking up or just honest reporting of use going up.  Here are the data:

As marijuana legalization took hold in Colorado, the estimated percentage of regular cannabis users in the state jumped to the second-highest level in the country, according to new federal data.  When asked, roughly one out of every eight Colorado residents over the age of 12 reported using marijuana in the previous month. Only Rhode Island topped Colorado in the percentage of residents who reported using marijuana as frequently.

The results come from the National Survey on Drug Use and Health and represent the average of estimates gathered in 2012 and 2013.

The numbers are among the first measurements of marijuana use in Colorado to be released after it became legal in late 2012 for people over 21 to use and possess marijuana in the state.  But because they do not include data from this year, the numbers aren't able to answer the question experts have watched Colorado closely for: How will widespread commercial sales of marijuana impact use?

"This is not surprising, given what's going on on the medical side," Mark Kleiman, a University of California-Los Angeles professor who studies marijuana policy, said of the increase, referring to the uptick in medical marijuana patients in Colorado in the same period.  "I don't think this tells us about the long-term impacts of legalization."

State-specific data from the survey are averaged over two-year periods to compensate for relatively small sample sizes.  For the 2011-12 period, 10.4 percent of Coloradans 12 and older reported using marijuana in the month prior to being surveyed.  That placed Colorado seventh in the country for monthly marijuana use.  Monthly use in Colorado jumped to 12.7 percent — a 22 percent increase — in the 2012-13 data.  The result means the survey estimates about 530,000 people in Colorado use marijuana at least once a month.

Nationally, monthly marijuana use by people 12 and older nudged upward by about 4 percent to 7.4 percent.  In Washington state — which, like Colorado, in 2012 legalized marijuana use and limited possession for adults — monthly marijuana use rose by about 20 percent to 12.3 percent....

Monthly marijuana use increased across all age groups in Colorado, according to the new survey numbers.  The number of people who reported using marijuana in the past year also increased in Colorado in the 2012-13 data, but the state ranked only sixth nationally in the measurement. Measurements for alcohol consumption and illicit drug use increased, as well.

This month, a different federally funded survey found that teen marijuana use had not increased nationally, despite marijuana legalization.  A Colorado survey released this year found no increase in marijuana use by high schoolers in 2013.

"Who Shares In Marijuana Taxes? The Surprising Answer"

The title of this post is the headline of this notable new Forbes piece by Robert Wood.  Here are excerpts:

Taxes on marijuana are big, and it’s easy to see why. A discussion about legalizing marijuana often segues into one about tax revenues. Marijuana for medical use is legal in 23 states and the District of Columbia. Recreational marijuana is legal in DC and in four states, Colorado, Washington, Oregon and Alaska. More states will be coming.

In the meantime, cannabis — even for medical use — remains illegal under federal law. That leads to numerous legal woes for operations that are legal under state law. One sweet spot among legislators is tax revenue. It is a boon for the states. It could be a boon for the feds too.

The proposed Marijuana Tax Equity Act (H.R. 501), if passed, would end the federal prohibition on marijuana and allow it to be taxed. Growers, sellers and users would not to fear violating federal law. But dealing with taxes would be another story. The bill would impose an excise tax of 50% on cannabis sales and an annual occupational tax on workers in the field of legal marijuana.

Even if passed, one wonders if such high taxes could be collected. In the meantime, Colorado has trumpeted its tax revenues, though perhaps prematurely. It turned out that the $33.5 million Colorado projected to collect in the first six months of 2014 was too optimistic. When the smoke cleared, Colorado was missing $21.5 million in pot taxes! Yet the math isn’t difficult.

There’s a 2.9% sales tax and a 10% marijuana sales tax. Plus, there is a 15% excise tax on the average market rate of retail marijuana. If you add them up, it’s 27.9%. But much of the volume goes to black market buys where sales taxes aren’t paid. But that could change.

In fact, Colorado is making some marijuana businesses happy with its rebate program. Sales tax applies to marijuana sales and vendors are required to collect and remit the tax to the state. However, Colorado rewards all businesses with a rebate for the prompt payment of taxes, letting businesses keep a percentage each month. Calling it a ‘vendor fee,’ Colorado allows businesses to keep 3.3 percent of the 2.9 percent state sales tax.

According to estimates by the Denver Post, Colorado’s medical and recreational marijuana stores have collected — and kept — over $447,000 in sales taxes in the 10 months ended October 31, 2013. That could mean more than 400 marijuana stores in the state will end up clearing approximately $575,000 for all their trouble. It is what has allowed pot shops to keep more than $500K in sales tax.

That’s not bad, and at least it is something for their trouble. The idea that retailers should get a little sweetener for collecting sales tax is nothing new. But in the marijuana context, it can be especially attractive precisely because it would otherwise be hard to collect.

Already, with typically higher taxes for recreational than medical use, there is a clear incentive to resort to the illegal market. The Marijuana Policy Group suggested that only 60% of purchases in Colorado may be made through legal channels. One reason is price, another is taxes....

The 2.9% medical marijuana tax compared with 27% on the recreational variety is a big spread. Some patients could be reselling their 2.9% medical stock to the public. But the sales tax rebate may be one of the few places marijuana businesses feel fairly treated.

Massachusetts already seeing job impacts from its nascent medical marijuana industry

This Boston Globe article, headlined "Schools offering courses on sale of marijuana: New Mass. schools are offering programs on what is likely to be a fast-growing business," highlights some notable economic echoes of medical marijuana legalization in Massachusetts.  Here are some details:

The new Northeastern Institute of Cannabis, or NIC [is] a two-classroom school in an office park that prepares people for positions ranging from dispensary workers to medical marijuana educators.   In advance of the expected opening of the first Massachusetts dispensaries next year, the for-profit NIC has graduated about 12 students and has 64 more enrolled.

Keith Saunders, a sociology professor who oversees the curriculum at NIC, said help-wanted ads for medical marijuana workers already are appearing on the jobs website Monster.com. He figures each of the state’s 15 provisionally approved dispensaries will immediately need 35 to 40 workers, and then continue to hire.  “When [dispensaries] roll out, it will happen quickly,” he said.

The institute is not the only school of its kind in Massachusetts.  The New England Grass Roots Institute in Quincy caters to medical marijuana patients, and the Cannabis Career Institute, a national company, periodically offers marijuana business training sessions in Boston.

Although it is difficult to project how many jobs medical marijuana might create statewide, it could be significant, said Amanda Reiman, manager of marijuana law and policy at the Drug Policy Alliance, a drug law reform group with headquarters in New York City.

The jobs do not just entail growing and selling marijuana, she said. Think commercial kitchens cooking marijuana-laced foods, manufacturers providing packaging, and marketing firms promoting brands.  “There’s all of these ancillary businesses that are involved in the industry,” Reiman said.

The curriculum at Northeastern Institute of Cannabis is based on discussions with dispensary operators in other states — including California, Colorado, Maine, and Rhode Island — producers of cannabis medicine, state legislators, and industry specialists, according to school officials.  They have applied for state certification as an occupational trade school.

To receive a certificate, students must complete 12 four-hour courses, including medical marijuana 101, which covers the basics of marijuana as a medicine, cannabis law New England, an overview of state marijuana laws, and cannabis cultivation, about the art and science of growing marijuana.  (It’s all strictly academic: The school cannot have marijuana on site). Students also must pass a two-hour exam by scoring at least 70 percent on each of 12 sections and 75 percent overall.

The cost of the program, which typically takes four to six weeks to complete, will increase to $2,000 from $1,500 on Jan. 1. Students range in age from their 20s to 60s and come from a variety of backgrounds. They include chefs, mechanics, and business owners....

[Jeanne] Ficcardi-Sauro, a 56-year-old mother of two grown children, said she has had difficulty finding full-time employment, so she is giving the medical marijuana industry a try. She also is a cancer patient and smokes marijuana to manage pain and fall asleep. Her goal: to educate and counsel other patients. “It can just help so many people in so many ways,” she said....

The school has amenities found at other trade schools and community colleges, including a student lounge, movie nights, and a store that sells T-shirts and sweatshirts emblazoned with the NIC logo. Along with textbooks, students can buy medical marijuana cookbooks, vaporizers, and glass pipes.

Mickey Martin, a longtime advocate for reform of marijuana laws, founded the school earlier this year. He said the school plans to host its first job fair in March. Launching the school posed several challenges, said Martin, who is from Oakland, Calif. It took months to find a location because landlords were reluctant to rent to a school specializing in marijuana, which is still illegal under federal law. The school’s insurance rates are double that of an average trade school, and the school’s bank account was canceled.

“There’s nothing illegal about what we’re doing,” Martin said. “But because we have cannabis in our name I’m forced to jump through the same hurdles as dispensary groups. It’s kind of insanity.” Still, Martin said, he has recruited high-quality faculty and administrators. Saunders, who developed the school’s curriculum, has taught drug policy courses at Northeastern University and the University of Massachusetts Lowell.

Bill Downing, a longtime business owner and activist for marijuana law reform, teaches classes in business management and the history of marijuana. Uma Dhanabalan, who teaches the medical marijuana 101 course, has a medical degree, is a fellow of the American Academy of Family Physicians, and holds a master’s in public health from Harvard University.

Dhanabalan said it was not until later in her career that she learned marijuana could help relieve chronic pain, nausea, and migraines, as well as treat diseases such as glaucoma. When she was asked to teach at the school, she said, it was easy to say yes. “This is history in the making,” she said.

Lots of commentary on states SCOTUS suit against Colorado marijuana reform

I am pleased to see that the notable lawsuit filed in the Supreme Court last week by Nebraska and Oklahoma (basics here; commentary here and here) has generated lots of commentary from all sort of perspectives.  Here are links to some of the commentary via various blogs:

• By Jonathan Adler, "Are Nebraska and Oklahoma just fair-weather federalists?"

• By Randy Barnett, "Nebraska and Oklahoma are misreading Raich"

• By Kent Scheidegger, "Pot, Prohibition, and Original Jurisdiction"

• By Ilya Solim, "Dangerous implications of the Nebraska-Oklahoma lawsuit against marijuana legalization in Colorado"

• By Frank Snyder, "Nebraska & Oklahoma v. Colorado: Not a Strong Claim, But Not Ridiculous" and "Why I May Very Well Be Wrong About Nebraska v. Colorado"

• By Eugene Volokh, "Some small observations about the new Nebraska & Oklahoma v. Colorado interstate marijuana lawsuit" and "A defense of the Nebraska & Oklahoma v. Colorado marijuana lawsuit"

Effective review of "The Year in Pot" via NBC News

Anyone and everyone eager to get up to speed on marijuana law, policy and reform developments should be sure to read this lengthy new article via NBC News headlined "The Year in Pot: Legal Sales and Anti-Marijuana Voices Boomed." Here are snippets form a piece that merits a full read:

Marijuana has never had a year like 2014.

The first aboveboard just-for-fun cannabis markets rose in Colorado and Washington. Voters in Oregon and Alaska passed ballot initiatives to create the same. And a consistent majority of Americans said they support plans to legalize the drug nationwide, according to polls by NBC News and others.

Yet 2014 also brought the first formidable anti-marijuana message in ages. The men and women of Smart Approaches on Marijuana, or Project SAM, might be the most potent voice of prohibition since Nancy Reagan's "Just Say No" tour three decades ago.

The result was a year of fierce cross currents.

The anti-drug crowd fought to protect people from marijuana, believing that sobriety is the ideal and indulgence dangerous. The reform side, meanwhile, fought to protect marijuana users from legal harm, believing that insobriety is normal and indulgence should not be a crime.

Here are five marijuana storylines that stood out amid all the smoke:

1. The First Legal Sales in Colorado and Washington...

2. The Savvy, Well-Funded Campaigns in Oregon, Alaska, and Nationwide...

3. The Rise of an Anti-Pot Establishment...

4. The Rise of Big Pot...

5. The More Things Changed, The More They Stayed the Same

In 2014, marijuana made some mainstream friends like never before.

First, in January, President Obama took a strikingly casual attitude toward a drug past presidents have tried to crush with billions of dollars in federal muscle. "I smoked pot as a kid," he said. "I view it as a bad habit and a vice, not very different from the cigarettes that I smoked as a young person up through a big chunk of my adult life." No, he added, "I don't think it is more dangerous than alcohol."

Next the New York Times editorial board came out in support of marijuana legalization, winking at Obama as it argued that 40 years of criminalization have come at the price of "inflicting great harm on society just to prohibit a substance far less dangerous than alcohol."

But with friends came enemies, notably casino mogul Sheldon Adelson. The chairman and CEO of Las Vegas Sands and America's 12th richest person, poured more than $6 million into Drug Free Florida, the organization that led a successful effort to block the legalization of medical marijuana in the Sunshine State.

It was his first foray into pot politics, and, advocates worry, it won't be pot's last broadside from the right. In December, in fact, the attorneys general of Nebraska and Oklahoma sued Colorado in the U.S. Supreme Court, arguing state-legalized marijuana from Colorado is improperly spilling across state lines.

"Yep," as Kevin Sabet put it earlier this year, spoiling for a broader fight over marijuana policy. "Game on."

Would US health improve (a lot) if many tobacco smokers shifted to marijuana?

The provocative question in the title of this post is prompted by this press report, headlined "Cigarette smoking costs weigh heavily on the healthcare system," on some notable new research about the health care costs attributed to tobacco use. Here are excerpts:

Of every $10 spent on healthcare in the U.S., almost 90 cents is due to smoking, a new analysis says. Using recent health and medical spending surveys, researchers calculated that 8.7 percent of all healthcare spending, or $170 billion a year, is for illness caused by tobacco smoke, and public programs like Medicare and Medicaid paid for most of these costs.

“Fifty years after the first Surgeon General’s report, tobacco use remains the nation’s leading preventable cause of death and disease, despite declines in adult cigarette smoking prevalence,” said Xin Xu from the Centers for Disease Control and Prevention (CDC), who led the study.

Over 18 percent of U.S. adults smoke cigarettes and about one in five deaths are caused by smoking, according to the CDC. Xu and colleagues linked data on healthcare use and costs from the 2006-2010 Medical Expenditure Panel Survey to the 2004-2009 National Health Interview Survey for a nationally-representative picture of smoking behavior and costs....

In [their] analysis, 9.6 percent of Medicare spending, 15.2 percent of Medicaid spending and 32.8 percent of other government healthcare spending by sources such as the Veterans Affairs department, Tricare and the Indian Health Service, were attributable to smoking.

Of the $170 billion spent on smoking-related healthcare, more than 60 percent was paid by government sources, they wrote in the American Journal of Preventive Medicine. Smoking-related healthcare costs affect most types of medical care, said Kenneth Warner at the University of Michigan School of Public Health. “Smoking infiltrates the entire body, through the blood stream, and causes disease in many of the body's organs,” he told Reuters Health in an email. Along with lung and heart problems, smoking can cause eye disease, skin problems and many cancers including pancreatic and bladder cancer, noted Warner, who was not involved in the new analysis.

“This study shows that, in addition to the human misery it inflicts, (smoking) imposes a substantial burden on the nation's health care institutions, especially those funded by the public's tax dollars,” he said.

The true cost of tobacco use may be even higher, Xu said. His study didn't include medical costs linked to other tobacco products like cigars and chewing tobacco.... “Smoking kills about 480,000 Americans each year and remains the leading cause of preventable death and disease in the United States. No matter what age, it is never too late to quit,” Xu said.

Of course, there are sure to be health risks and costs that will emerge if (and when) a lot more folks start smoking marijuana (especially if they become heavy users). But this research suggests that if a decent number of new marijuana smokers come from the ranks of tobacco users and that use of marijuana decreases tobacco use, there could be real health benefits and perhaps significant public health cost savings.

Could (and should) Colorado (or others) respond to attack on marijuana legalization by counter-attacking federal prohibition?

As detailed in this prior post, yesterday Nebraska and Oklahoma filed suit in the US Supreme Court seeking "a declaratory judgment stating that Sections 16(4) and (5) of Article XVIII of the Colorado Constitution [legalizing and regulating marijuana sales] are preempted by federal law, and therefore unconstitutional and unenforceable under the Supremacy Clause, Article VI of the U.S. Constitution."  I find this lawsuit fascinating for any number of reasons, and I am still trying to understand the procedures through which the Justices will consider this case and I am still thinking through some of the implications of the claims being made by Nebraska and Oklahoma.  And, as the title of this post suggests, I am wondering if this case might enable advocates for marijuana reform to bring complaints about federal marijuana prohibition directly to the Supreme Court. 

This thought occurred to me in part because the SCOTUS filing by Nebraska and Oklahoma relies so very heavily on the Controlled Substances Act (CSA) classifying marijuana as a Schedule I drug.  Here are passages from the filing to that end:

Congress has classified marijuana as a Schedule I drug.  21 U.S.C. § 812(c).  Schedule I drugs are those with a high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment. § 812(b)(1)....

Because Congress explicitly found that marijuana has no currently accepted medical use in treatment in the United States and had categorized marijuana as a “Schedule I” drug, the CSA was enacted in order to eradicate the market for such drugs. As such, the United States argued [in Gonzales v. Raich a decade ago], “the CSA makes it unlawful to manufacture, distribute, dispense, or possess any Schedule I drug for any purpose, medical or otherwise, except as part of a strictly controlled research project.”

There has been lots of litigation in the past attacking in the DC Circuit the rationality of marijuana's placement on Schedule I in light of scientific evidence that marijuana has medical potentials. But all that litigation took place before a majority of states (now numbering well over 30) had formally legalized medical marijuana in some form. In light of all the recent state reform supportive of medical marijuana, I think new claims could (and perhaps should) now be made that it is entirely irrational (and thus unconstitutional) for Congress in the CSA to keep marijuana as a Schedule I drug.

Consequently, it seems to me one possible way (of many) for Colorado to defend its marijuana reform would be to assert a new full-throated attack on federal marijuana prohibition in the Supreme Court in light of the "new evidence" that the majority of US jurisdictions recognize in law the potential value of marijuana as medicine.

I doubt that Colorado will seek to attack Congress or the CSA is defense of its marijuana reform efforts. But perhaps others who in the past have legally attacked the rationality of marijuana's placement on Schedule I will see the special opportunity provided by this notable new lawsuit as an opportunity to take their arguments directly to the Supreme Court.

Recent related post:

• Nebraska and Oklahoma sue Colorado in US Supreme Court over marijuana legalization

State versus State on marjiuana reforms

As Doug blogged, the states of Nebraska and Oklahoma just filed a suit in the United States Supreme Court (under its original jurisdiction) against Colorado. In a nutshell, they are seeking a declaration that Colorado’s Amendment 64 is preempted by federal law.

Not surprisingly, I think the suit lacks merit. As I’ve explained before, Congress can’t force states to criminalize marijuana. It follows that Congress also can’t stop states from legalizing marijuana; after all, legalization is just repeal of criminalization. It would be odd to say Congress can’t force a state to criminalize marijuana in the first instance, but it could force a state to keep a criminal prohibition on its books if it had already passed one. There are, of course, limits to this anti-commandeering principle. For example, Colorado probably couldn't open a state-run marijuana store. But nothing in the lawsuit remotely suggests that Colorado has yet exceeded those limits and done something that is preemptable.

To be sure, I sympathize somewhat with the plight of Nebraska and Oklahoma. They suspect that marijuana produced by private Colorado residents is finding its way into their states, and they want Colorado to do more to stop the flow. But under current constitutional doctrine, they cannot simply force Colorado join their fight (and neither can Congress).

Nebraska and Oklahoma sue Colorado in US Supreme Court over marijuana legalization

As reported in this local article, "Nebraska Attorney General Jon Bruning filed a lawsuit Thursday with the U.S. Supreme Court, seeking a declaration that Colorado’s legalization of marijuana violates the U.S. Constitution."  Here is more on the latest fascinating development in the world of marijuana reform law and policy:

At a press conference Thursday, Bruning said he was being joined in the case by Oklahoma Attorney General Scott Pruitt. "Federal law undisputedly prohibits the production and sale of marijuana," Bruning said. "Colorado has undermined the United States Constitution, and I hope the U.S. Supreme Court will uphold our constitutional principles."

Bruning said he placed a courtesy call to Colorado Attorney General John Suthers before filing the lawsuit. Suthers said in a news release he was not “entirely surprised” to learn of the lawsuit. “We believe this suit is without merit, and we will vigorously defend against it in the U.S. Supreme Court,” he said.

Some Nebraska law enforcement officers undoubtedly will welcome Thursday’s action. Anticipating that the attorney general planned to announce a lawsuit, Scotts Bluff County Sheriff Mark Overman said Thursday he supports the move. "This stuff is illegal here, it’s coming here and it’s had an adverse effect on our citizens and way of life," Overman said. "Nebraska, from highest elected officials on down, should do something about it."...

He blamed U.S. Attorney General Eric Holder for not enforcing federal drug laws in Colorado. "I am adamantly against the spread of marijuana across our country," Bruning said. He said he talked recently with a father who said marijuana was a "gateway drug" for his teen.

Colorado’s legalization of pot use has had a significant impact on Nebraska law enforcement agencies. Many departments, particularly in western Nebraska counties along Interstate 80, have seen spikes in their marijuana-related arrests tied to legally purchased pot that transforms into contraband once it crosses the border. At the western tip of the Oklahoma Panhandle, authorities regularly apprehend travelers coming from southeast Colorado with marijuana.

During a September hearing on the issue in Ogallala, Nebraska, a panel of lawmakers heard law enforcement authorities express concern about the flow of high-potency pot into Nebraska and increasing numbers of impaired drivers and possession by teens as young as 14. "Nebraska taxpayers have to bear the cost," Bruning said Thursday. "We can’t afford to divert resources to deal with Colorado’s problem."

Via the Denver Post, the 83-page SCOTUS filing can be found at this link.

Highlighting that marijuana (law) is coming to more law school classrooms

The National Law Journal has this lengthy new article headlined "Law Schools Firing Up Marijuana Law Classes."  I was pleased to have been interviewed by the author of the piece, and here are excerpts discussing some of the activity going on in this space:

Who has legal authority to establish marijuana law and regulations — the federal, state or local government? How should the law treat motorists who drive while high? Should employers test workers for marijuana use in jurisdictions where the drug is legal?

Those are a few of the questions Vanderbilt University Law School students will tackle in professor Robert Mikos' marijuana law and policy seminar next semester — one of a growing number of law school classes focused on marijuana. "For most students, this is an inherently interesting topic," Mikos said. "They read about it in the media all the time, and so many are curious about it. As more states confront this issue, the interest will only grow."...

Besides Vanderbilt's program, at least two additional marijuana-specific classes will debut next spring. At University of Denver Sturm College of Law, professor Sam Kamin will teach "Representing the Marijuana Client." David Ball, a professor at Santa Clara University School of Law, will preside over a "mini think tank" about the legal matters California will face if the state legalizes marijuana for recreational use. Students in Ball's class will research topics including whether and how the state might restrict marijuana advertising and how the drug could be taxed. They will share their research with an American Civil Liberties Union panel investigating the implications of marijuana legalization. Ball sits on the panel, which is led by California Lt. Gov. Gavin Newsom. A ballot initiative to legalize could come as early as 2016, according to the ACLU.

"When I was appointed to the panel, I thought, 'This is a good opportunity for my students to write on something that will be of immediate interest to people in California,' " Ball said. His class will maintain a blog to publish students' research and marijuana law news. Ball hopes his course will help students adapt in an ever-changing legal landscape.

Kamin believes his course is the first designed specifically to prepare students to represent marijuana clients — whether growers and retailers or government regulators. "Almost every lawyer in the state needs to know something about this," Kamin said. "There are people in Denver and Colorado who practice marijuana law, but there are many others in real estate law, administrative law and other areas who deal with it as well. I've had people asking me to teach this class for a while. They're hungry for this knowledge."...

The subject is ideal because it touches so many different areas of law, said Franklin Snyder, a professor at Texas A&M University School of Law who in September founded the Cannabis Law Prof Blog. For example, he said, the large amount of energy required to produce marijuana raises environmental and agricultural law questions, and it remains unclear what kinds of corporate and bankruptcy protections marijuana businesses enjoy.

"Too often in law school, we teach in silos — we teach contract law, tax law and corporations law," Snyder said. "In the real world, clients don't have 'tax problems.' They have problems that are all interconnected. Marijuana law allows you to bring it all together and demonstrate how every decision you make impacts all these other things."

Hilary Bricken, an attorney in the cannabis practice of Seattle boutique firm Harris Moure, expressed surprise that law schools are starting to discuss marijuana given that they typically don’t teach courses on alcohol law or the adult entertainment industry, for example. Still, she said, local and state marijuana regulations could make for an interesting law course. "I would love to see a clinic where students could interact with clients," Bricken said. "I think it would really send home the reality of the difficulty of practicing in this era of prohibition."...

Mikos is scheduled to publish a marijuana law textbook in 2016. "I think we're going to see more law schools offer these classes," he said. "There's a big focus right now on teaching students about the types of cases they might actually handle after graduation. This is very practical."

Holiday PSA-SSDP Sets Up Student Job Board for Cannabis Jobs

 Students for Sensible Drug Policy has created a soon to be up and running job board to match students with cannabusiness employers and advocacy groups.  You can read more about this program in this Marijuana Business Daily interview with SSDP's Executive Director Betty Aldworth.  What better gift for that favorite law student than sharing the job board link and helping them find a job!

Interesting debate in Anchorage over proposed (and now rejected) local marijuana sales ban

The Alaska Dispatch News has this new and notable article about a local legislative hearing that took place earlier this week. The extended article is headlined "Assembly kills proposal to ban marijuana sales in Anchorage," and here are excerpts:

An ordinance that would have banned commercial marijuana in Anchorage failed after four hours of public testimony and debate in Assembly chambers Tuesday night.  The Assembly voted 9-2 just after 10 p.m. to kill the measure.  Only members Amy Demboski and Paul Honeman supported the measure.

Demboski introduced the proposal last month, hoping the city would take a “wait and see approach" as state lawmakers craft marijuana regulations.  But several Assembly members expressed concern that a ban would disconnect them from conversations regarding marijuana regulations at the state level.

“I’m fearful the message on ‘opt out’ will send key legislators in Anchorage to the sidelines,” said Assemblyman Bill Starr.  “That will make my work harder.”

Demboski said her goal in bringing the legislation forward was not to stifle pot in Anchorage, but to begin to move the conversation forward on big topics dealing with the substance, including potential issues at the federal level.  She noted it will especially be important to engage with Alaska’s congressional delegation on how to mitigate potential federal impacts. “It’s bringing the conversation forward,” Demboski said.

Bruce Schulte, with the Coalition for Responsible Cannabis Legislation, said he was surprised to see the Assembly kill the measure, noting that co-sponsor Dick Traini ultimately voted against it.  Still, he said, it was good to get the public talking about potential impacts of marijuana legalization. “The most resounding message is that we still have a lot of work ahead,” Schulte said.

In hours of testimony in the Assembly chambers at Z.J. Loussac Public Library, most people spoke in opposition to the ordinance.  Medical marijuana cardholders wept at the struggle of trying to get their medicine illegally.  Many worried about city finances and said the Assembly should not shy away from new revenue in the form of taxable marijuana sales.  Some mentioned distrust of officials for considering circumventing Alaska voters' wishes....

In November, Alaskans by a margin of 53 to 47 percent voted to approve Ballot Measure 2, an initiative legalizing recreational marijuana in the state. Just weeks after the measure passed, Assembly member and mayoral candidate Demboski introduced the ordinance that would allow Anchorage to take advantage of the “opt out” provision of the measure, which allows communities to ban commercial marijuana. Assembly members Traini and Paul Honeman also backed the measure....

Deborah Williams, who served as a spokesperson for the campaign opposing Ballot Measure 2, said in testimony Tuesday that she sensed hypocrisy in proponents of the measure, who emphasized the local option for communities but seemed to back away from it during the ordinance debate.  “There were lots of promises during the campaign,” she said, noting rhetoric about regulation of things like marijuana advertising, edibles and butane hash oil.  “This gives you bargaining power for the Legislature,” she said of the proposed city ban.

Jeff Jessee, who also worked on the campaign, worried that there’s so much unknown with regulations that it makes sense to stop marijuana before it gets going.  “We need to temper expectations that it will be open season for this industry in Anchorage,” Jessee testified.

But June Pittman-Unsworth, one of several medical marijuana patients who ended up in tears while testifying, said she has no legal way to get it and has no ability to grow it herself.  “The state failed me -- don’t let the city fail me,” Pittman-Unsworth said. “This ordinance is premature and open-ended. There’s no date on when to comply.  I want you to think about that.”

Rev. Michael Burke of Common Sense on Marijuana in Alaska, a group of business and faith leaders looking to have a voice in the regulatory process, asked the city to hold off on the ordinance, saying it did not pass the “red face” test and said he worries voters will be cynical of leaders because the ordinance is coming so soon after the initiative was passed.  Burke said his group and others would work to make sure that responsible regulation is enacted, including addressing issues with treatment, safety and keeping businesses small.  “There is a lot at stake here in getting the regulations right,” Burke said.

"Survey: Teen marijuana use declines even as states legalize"

The title of this post is the headline of this notable new USA Today article reporting on new data that seems likely to be trumpted by those advocating for continued reform of marijuana laws.  Here are the basics:

Marijuana use among teens declined this year even as two states, Colorado and Washington, legalized the drug for recreational use, a national survey released Tuesday found. University of Michigan's Monitoring the Future study, now in its 40th year, surveys 40,000 to 50,000 students in 8th, 10th and 12th grade in schools nationwide about their use of alcohol, legal and illegal drugs and cigarettes.

"There is a lot of good news in this year's results, bu the problems of teen substance use and abuse are still far from going away," Lloyd Johnston, the study's principal investigator, said.

After five years of increases, marijuana use in the past year by students in all three grades declined slightly, from 26% in 2013 to 24% in 2014. Students in the two lower grades reported that marijuana is less available than it once was, the survey found. Among high school seniors, one in 17, or 5.8%, say they use marijuana almost daily this year, down from 6.5% in 2013.

Synthetic marijuana, chemical concoctions meant to simulate a marijuana high and sold at convenience stores and gas stations, have also fallen out of favor. In 2011, when the survey first asked about the drugs, known as K2 and Spice, 11% of 12th graders said they had used the drugs in the past year. In 2014, that number had dropped to 6%. "Efforts at the federal and state levels to close down the sale of these substances may be having an effect," Johnston said.

Abuse of all prescription drugs, including narcotic painkillers, sedatives and amphetamines, declined from 16% in 2013 to 14% in 2014 among 12th graders, the survey found. Narcotic painkiller use, in decline since 2009, dropped again from 7% in 2013 to 6% in 2014. Heroin use, which has grown among adult populations, remained stable for teens.

Teens considered narcotic pain relievers, such as OxyContin and Vicodin, safer than illicit drugs such as heroin and cocaine, because they are prescribed by doctors, Nora Volkow, director of the National Institute on Drug Abuse, said. "There's a very strong and aggressive campaign about educating the public on the risk of opioid medications as it relates to overdoses and deaths," Volkow said. "That has made teenagers aware that they are not so safe as they thought they were."

Teen use of both alcohol and cigarettes dropped this year to their lowest points since the study began in 1975, the survey found. Teens may be trading conventional cigarettes for e-cigarettes. In 2014, more teens used e-cigarettes than traditional tobacco cigarettes or any other tobacco product, the study found. "E-cigarettes have made rapid inroads into the lives of American adolescents," Richard Miech, a senior investigator of the study, said....

Alcohol use and binge drinking peaked in 1997, when 61% of the students surveyed said they had drunk alcohol in the previous 12 months. In 2014, 41% reported alcohol use in the previous year, a drop from 43% in 2013, the survey found. Since the 1997 peak, "there has been a fairly steady downward march in alcohol use among adolescents," Johnston said....

"Even though the indicators are very good news, at the same time we cannot become complacent," Volkow said. "This is a stage where their brains are most vulnerable. We need to continue our prevention efforts."

Helpful and informative marijuana reform updates and analysis from Jacob Sullum

The state and fate of marijuana reform in Washington DC (as well as elsewhere) was frequently a topic of debate and discussion in Congress as it worked through its recent funding/budget deal.  Helpfully, Jacob Sullum has this array new pieces up at Reason convering some of this action, as well as discussing some other notable recent marijuana reform discussions and developments:

• Rider Aimed at Stopping Marijuana Legalization in Washington, D.C., Reflects Prohibitionist Weakness

• Did Congress Stop Marijuana Legalization in D.C.?

• DOJ Gives Yellow Light to Pot Shops on Indian Reservations

• Marijuana Kills!  But Not Very Often.  Especially When Compared to Alcohol and Tobacco.

•  

"The 'Legal' Marijuana Industry's Challenge for Business Entity Law"

The title of this post is the title of this notable paper authored by Luke Scheuer that I just noticed via SSRN. Here is the abstract:

In recent years many states have legalized the use and sale of marijuana for medical or even recreational purposes.  This has led to the booming growth of a “legal” marijuana industry.  Businesses openly growing and selling marijuana products to the consuming public are faced with some unusual legal hurdles.  Significantly, although the sale of marijuana may be legal at the state level, it is still illegal under federal law.

This article explores the conflict between state and federal marijuana laws from a business entity law perspective.  For example, managers owe a fiduciary duty of good faith to their businesses and equity holders.  One of the ways in which managers can violate this duty is by causing their business to intentionally violate the law.  This is a problem for the marijuana industry because its managers constantly and intentionally violate federal law and therefore violate their fiduciary duties by growing and selling marijuana.

This article concludes that the industry’s ability to attract professional stakeholders is harmed by marijuana business stakeholders’ inability to take advantage of key business law protections, such as limited liability.  This article proposes a state law exception that allows for marijuana businesses to operate normally under state business entity law, with normal business entity law protections, despite their continuing violation of federal law.

Political deal in works for Congress to deal with DC marijuana legalization issues

The Huffington Post has this notable new report on recent Capitol Hill activity to deal with the District of Columbia's recently-passed marijuana legalization initiative.  The piece is headlined "Congress Looking To Block D.C.'s Marijuana Legalization Initiative," and here are excerpts:

Congress is looking to stifle the District of Columbia's marijuana legalization initiative, multiple sources have told The Huffington Post.

According to those sources, congressional negotiators have struck a deal to interfere with D.C.'s marijuana legalization measure.  That's after nearly 70 percent of voters in the nation's capital approved Initiative 71, which was set to legalize possession of small amounts of marijuana for personal use while still banning sales.  The deal would allow the District to continue its marijuana decriminalization policy enacted by the D.C. Council, but would ban the city from using funds to enact legalization.

One congressional source said the deal would actually allow the initiative to take effect, while preventing the D.C. Council from passing any new laws to set up a scheme for regulating retail sales of marijuana -- something D.C. Mayor-elect Muriel Bowser (D) has said she wanted the council to do before legalization takes effect.   Democrats are rumored to be cutting a deal with Republicans "where they can save face by claiming that they protected D.C.'s marijuana decriminalization law from elimination, even if they failed to protect legalization," according to Drug Policy Alliance.

"Democrats had the opportunity to protect the will of the voters in D.C. and they have decided to cut a deal in an effort to protect decriminalization.  However, 70 percent of voters support this [initiative]. It's incredibly problematic," Dr. Malik Burnett, policy manager at the Drug Policy Alliance and vice chairman of the D.C. Cannabis Campaign, told The Huffington Post.  "And in light of recent events in Ferguson and New York, it is particularly disturbing that Congress would choose to overturn the will of the voters in a majority black city. D.C. voters chose to reform their marijuana laws, which have a direct impact on how communities of color interact with police.  Congress is poised to undermine that."...

In November, D.C. voters approved Initiative 71, which would legalize adult marijuana use, possession of up to 2 ounces and home cultivation of up to six marijuana plants for personal use. Under the measure, the sale of marijuana would remain illegal, but the D.C. Council is considering a separate bill that would allow for the regulation and taxation of marijuana sales, similar to laws on the books in Colorado and Washington state.

The ballot measure built on several recent moves to remove restrictions on marijuana in Washington. The District legalized medical marijuana in 2010, and its first medical marijuana dispensary opened last year. Earlier this year, the D.C. Council decriminalized the possession of an ounce or less of marijuana.

While supporters praised the measure as a step toward resolving the racial disparity in the District's marijuana arrest rates, some Republicans had been working toward blocking the measure for months. Rep. Andy Harris (R-Md.) has vowed to put a stop to the progression of the bill in Congress....

Robert Capecchi, deputy director of state policies for the Marijuana Policy Project, a pro-legalization advocacy group, said it wasn't clear exactly how Congress would go about thwarting the legalization initiative.  Federal lawmakers oversee how the District spends money, but the initiative isn't expected to have a cost.  "The way I read I71 the District doesn't have to spend any money in order to implement it," Capecchi said.

As is true with all legislative issues and is especially true with marijuana reform, a lot of the devil here will be in the details. Especially because the DC Initiative did not directly call for the establishment of a full-scale regulated commercial marijuana industry, it would not be obviously disrespectful for Congress to merely put some limits on whether and how DC can set up a full-scale legal marijuana marketplace. But it would be troublesome if Congress were to somehow require local DC police to persist in making arrests and bringing prosecutions for small-scale marijuana cultivation, possession and use.

Project SAM and Heritage event to separate "scientific facts from popular fiction" concerning marijuana reform

Today in Washington DC, Project SAM and the Heritage Foundation are co-hosting a notable event titled "Marijuana Policy: Separating Scientific Facts from Popular Fiction."  The event is to include keynote remarks by two Republican members of Congress who are both doctors (and I believe ardent opponents of any prohibition reform): Andy Harris (R-MD) and John Fleming (R-LA).

Via this webpage at Heritage, I believe the full event will be webcast starting at 11am EST. (I am hoping the event will be archived there, too, for later viewing.) Here is the description of the event appearing on the Heritage page:

Today, 17 states and the District of Columbia have decriminalized marijuana, four states have legalized the drug, and 23 states have passed so-called “medical marijuana” laws – despite the fact – that it is properly listed as a Schedule I controlled dangerous substance and the FDA does not recognize marijuana as a drug.  Big marijuana is big business and has added Libertarians and some small government conservatives to its traditional liberal base.  Public support for legalization has skyrocketed over the decades, from 12% in the 1970s to 51% today, down seven points from last year.

But just as public support has grown, so has the scientific understanding of the real dangers of marijuana. Scores of peer-reviewed studies published in the last two decades show how marijuana affects the brain, heart, lungs and mental health; how marijuana has become more potent and addictive; and how it is nothing like alcohol. Join us as our distinguished experts discuss the pot business, the science behind today’s marijuana, and why Americans should oppose legalization.

UPDATE at 12noon: I am in the midst of watching the Heritage event, and it is terrifically interesting. I will have some follow-up posts once the event is over with some generally commentary. But while the event is on-going, I feel compelled to note and lament that it appears that there is not a single person of color speaking among the eight scheduled speakers. I have been persistently concerned that much of the current debate and discussion of marijuana reform has not included diverse voices and perspectives, and this Heritage event (while otherwise first-rate in lots of respects) is aggravating this concern.