Marijuana Law, Policy & Reform

"Buzz Kill for Pot Farmers: Lower Prices"

The title of this post is the headline of this Wall Street Journal article reporting on the modern economic realities of the marijuana marketplace moving from black to gray. Here are excerpts:

From Washington to Colorado, wholesale cannabis prices have tumbled as dozens of states legalized the drug for recreational and medicinal uses, seeding a boom in marijuana production. The market is still tiny compared with the U.S. tobacco industry’s $119 billion in annual retail sales, but the nascent cannabis business has grown to more than $6 billion a year at retail, according to data from Euromonitor International Ltd. and Cowen & Co..

For marijuana smokers, the price drop is sweet news. Recreational users and those prescribed cannabis for health reasons have seen prices decline as wholesale prices have fallen, though some retailers have pocketed part of the difference, according to New Leaf Data Services LLC, which researches the U.S. cannabis market....

But for growers—ranging from high-tech warehouse operations to back-country pot farmers gone legit—the price drop has been painful. Since peaking in September 2015 at about $2,133 a pound, average U.S. wholesale cannabis prices fell to $1,614 in July, according to New Leaf. That is the sort of market decline that hit Midwestern corn and soybean growers in recent years after a string of record-breaking crops. “There is an increasing recognition, on the part of the industry and those that grow and dispense, that this market is a commodity,” said Jonathan Rubin, New Leaf’s chief executive.

In response, some producers are taking a page from the food industry, where farmers and food companies increasingly appeal to health- and environment-conscious consumers. Growth in organic food products for years has outpaced conventional grocery sales, and products made without genetically modified crops, gluten and artificial flavorings can command premium pricing and shelf space....

Because cannabis remains illegal under federal law, growers can’t get their crops certified as organic, a label that can only be bestowed by the U.S. Department of Agriculture. Cannabis farmers instead have turned to alternative labels such as SunGrown Certified, which requires that growers use sunlight and water-conservation practices. They hope such labels will entice smokers and secure shelf space in the 29 states where marijuana is legal in some form....

That push to differentiate is splitting pot farmers into rival camps. Indoor-grown cannabis, where climate controls and high-powered lights allow several crops per year, typically is of a more consistent quality, industry officials say. Its dense, often bright-green buds catch consumers’ eyes, often fetch a higher price and can be costlier to produce.

Proponents of marijuana grown outdoors and in greenhouses say indoor facilities rely on synthetic fertilizers and heavily consume electricity. They point to a 2012 paper by University of California Senior Scientist Evan Mills, which estimated that indoor cannabis production accounted for 1% of national electricity use, though some growers have been adopting LED lights, which consume less electricity.

Jeremy Moberg, owner of Riverside, Wash.-based CannaSol Farms and head of the Washington Sungrowers Industry Association, says marijuana smokers will come to care about the environmental cost of their high. “The socially conscious, premium customer is going to want us because we’re sustainable,” he said. “It only takes me 30 seconds to convert somebody wearing Patagonia and driving a Prius that they should never smoke indoor weed again.”

At Hashtag Cannabis in Seattle, Ms. Pillert said customers occasionally ask for pesticide-free or sun-grown varieties. Smokers’ main fixation, she said, is the potency rating for the key active ingredient, tetrahydrocannabinol, or THC: “They want to make sure they are getting the biggest bang for their buck.”

Many in the emergent industry expect marijuana to eventually resemble the beer business, where pricier craft brews have built followings in the shadow of cheaper mass-market beers like Budweiser and Busch. While high-quality strains and specialty brands may secure premium prices, more low-quality marijuana will be processed into oil used in vaporizer cartridges or adult-oriented baked goods like brownies and cookies, growers and retailers said.

New SAM report, asserting legalization states "​have ​not ​fulfilled ​the ​requirements ​of ​the ​Cole Memo," urges federal law enforcement to target big players in marijuana industry

Smart Approaches to Marijuana, the leading public policy group advocating against most state-level marijuana reforms, has released today this new  report titled "The​ ​Cole​ ​Memo:​ ​4​ ​Years​ ​Later: Status Report on State Compliance of Federal Marijuana Enforcement Policy." Here are parts of this SAM report's introduction and conclusion:

On ​August ​29, ​2013, ​the ​U.S. ​Department ​of ​Justice ​(DOJ) ​issued ​guidelines ​to ​Federal prosecutors ​and ​law ​enforcement ​officials ​regarding ​where ​to ​focus ​their ​drug ​enforcement efforts ​in ​states ​that ​have ​passed ​laws ​legalizing ​the ​retail ​sales ​of ​marijuana. ​The ​so-called “Cole ​Memo” ​directs ​enforcement ​officials ​to ​focus ​resources, ​including ​prosecutions, ​“on persons ​and ​organizations ​whose ​conduct ​interferes ​with ​any ​one ​or ​more ​of ​[eight] ​priorities, regardless ​of ​state ​law.”...

According ​to ​the ​Department ​of ​Justice, ​the ​Federal ​“hands-off” ​approach ​to ​marijuana enforcement ​enumerated ​in ​the ​Cole ​Memo ​is ​contingent ​on ​its ​expectation ​that ​“states ​and local ​governments ​that ​have ​enacted ​laws ​authorizing ​marijuana-related ​conduct ​will ​implement strong ​and ​effective ​regulatory ​and ​enforcement ​systems ​that ​will ​address ​the ​threat ​those state ​laws ​could ​pose ​to ​public ​safety, ​public ​health, ​and ​other ​law ​enforcement ​interests. ​A system ​adequate ​to ​that ​task ​must ​not ​only ​contain ​robust ​controls ​and ​procedures ​on ​paper, ​it must ​also ​be ​effective ​in ​practice.”

Unfortunately, ​since ​Colorado ​and ​Washington ​became ​the ​first ​states ​to ​legalize ​the recreational ​sale ​of ​marijuana ​in ​2012, ​evidence ​has ​emerged ​that ​regulations ​intended ​to control ​the ​sale ​and ​use ​of ​marijuana ​have ​failed ​to ​meet ​the ​promises ​made ​by ​advocates ​for legalization. ​For ​example, ​states ​with ​legal ​marijuana ​are ​seeing ​an ​increase ​in drugged ​driving crashes ​and youth ​marijuana ​use. ​States ​that ​have ​legalized ​marijuana ​are ​also failing ​to ​shore up ​state ​budget ​shortfalls ​with ​marijuana ​taxes, ​continuing ​to ​see ​a ​thriving ​illegal black ​market, and ​are ​experiencing ​an unabated ​sales ​of ​alcohol, ​despite ​campaign ​promises ​from ​advocates promising ​that ​marijuana ​would ​be ​used ​as ​a ​“safer” ​alternative ​instead.

Moreover, ​state ​regulatory ​frameworks ​established ​post-legalization ​have ​failed ​to ​meet ​each ​of the ​specific ​DOJ ​requirements ​on ​controlling ​recreational ​marijuana ​production, ​distribution, ​and use. ​While ​long-term ​studies ​and ​research ​on ​the ​public ​health ​and ​safety ​impacts ​of ​marijuana legalization ​are ​ongoing, ​this ​report ​provides ​a ​partial ​census ​of ​readily ​available ​information that ​demonstrates ​how ​Colorado, ​Oregon, ​and ​Washington ​State ​- ​the ​jurisdictions ​with ​the most ​mature ​regulatory ​markets ​and ​schemes ​- ​have ​not ​fulfilled ​the ​requirements ​of ​the ​Cole Memo....

Federal ​resources ​should ​target ​the ​big ​players ​in ​the ​marijuana ​industry. ​Individual ​marijuana users ​should ​not ​be ​targeted ​or ​arrested, ​but ​large-scale ​marijuana ​businesses, ​several ​of ​which now ​boast ​of ​having ​raised ​over ​$100 ​million ​in ​capital, ​and ​their ​financial ​backers, ​should ​be ​a priority. ​These ​large ​businesses ​are ​pocketing ​millions ​by ​flouting ​federal ​law, ​deceiving Americans ​about ​the ​risks ​of ​their ​products, ​and ​targeting ​the ​most ​vulnerable. ​They ​should ​not have ​access ​to ​banks, ​where ​their ​financial ​prowess ​would ​be ​expanded ​significantly, ​nor should ​they ​be ​able ​to ​advertise ​or ​commercialize ​marijuana....

These ​large ​marijuana ​operations, ​which ​combine ​the ​tactics ​of ​Big ​Tobacco ​with ​black marketeering, ​should ​form ​the ​focus ​of ​federal ​law ​enforcement, ​not ​individual ​users. ​At ​the same ​time, ​the ​federal ​government ​along ​with ​non-government ​partners ​should ​implement ​a strong, ​evidence-based ​marijuana ​information ​campaign, ​similar ​to ​the truth® ​campaign ​for tobacco, ​which ​alerts ​all ​Americans ​about ​the ​harms ​of ​marijuana ​and ​the ​deceitful ​practices ​of the ​marijuana ​industry.

"Marijuana Legalization and Nosy Neighbor States"

The title of this post is the title of this notable new paper authored by Alex Kreit now available via SSRN. Here is the abstract:

As more states proceed with marijuana legalization laws, questions have arisen about how to accommodate those states that wish to retain prohibition.  For instance, in 2014, Oklahoma and Nebraska unsuccessfully sued Colorado based on the spillover effects that Colorado’s marijuana legalization law had on its neighboring states.  This article asserts that there are several reasons why state marijuana legalization laws are unlikely to have a large effect on neighboring states.

First, marijuana is not a previously unobtainable good being introduced into the stream of commerce, as it is already available through the black market inexpensively. Second, legalization laws have a number of restrictions that make it very difficult for sellers to profit from exporting legally produced marijuana across state lines. Prohibition states may have reason to worry, however, that illegal marijuana growers will be better able to hide their operations in legalization states that allow residents to grow small amounts of marijuana for personal use, which in turn may increase illegal marijuana exports to neighboring prohibition states.  Prohibition states can minimize this risk of increased marijuana flow by lobbying the federal government to establish rules that protect their interests.

"A Conservative Approach to Smarter Federal Marijuana Policy"

The title of this post is the title of this notable Cato Institute Capitol Hill Briefing slated for September.  Here is how the event is described from the Cato website:

Featuring Tom Garrett (R-VA-05), U.S. Congressman; Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University; Trevor Burrus, Research Fellow, Center for Constitutional Studies, Cato Institute; moderated by Jonathan Blanks, Research Associate, Project on Criminal Justice, Cato Institute.

The legal sale of recreational marijuana remains limited to a handful of states, but 29 states plus the District of Columbia allow the prescription and distribution of medical marijuana.  Ten of those states — which represent 115 electoral votes — went for President Trump in the 2016 election.  National polling shows that just over half of Americans favor marijuana legalization, but a much larger majority want the federal government to leave marijuana alone in states where it is legal.

While candidate Trump promised to protect medical marijuana on the campaign trail, President Trump’s Justice Department wants to be more aggressive against state-legal marijuana under the Controlled Substances Act (CSA).  Ultimately, Congress holds the reins on the Department of Justice’s ability to enforce particular provisions of the CSA and determines which substances should be under federal control.

While marijuana decriminalization is often thought to be a Democrat-friendly topic, some of the best arguments for federal recognition of state marijuana policy rest in traditional Republican values of federalism, deference to local policy choices, and a limited federal government.  Moreover, businesses that have no direct ties to cannabis cultivation or distribution like banks and financial institutions can benefit from clear federal rules that tolerate state-legal marijuana transactions.

Join us for a lunchtime discussion to explore several ways Congress can reshape federal marijuana policy in a manner that is more consistent both with public opinion and the conservative values of limited government, federalism, and local policymaking.

"Here's Why Trump Can't Beat Pot"

In this post from way back in December 2016, I suggested it could prove legally and practically difficult for the incoming Trump Administration to go aggressively after state-level marijuana reforms.  The post was titled "why I seriously doubt future AG Sessions will start a foolish new weed war federal offensive," and it outlined some challenges that might arise were the Trump Department of Justice to try to bring back an era of national federal pot prohibition enforcement by executive fiat.  This post's title, which is much more catchy than my Dec 2016 title, comes from the headline of this lengthy BuzzFeed News piece by Dominic Holden.  This BuzzFeed piece covers more effectively and systematically some of the issues and forces I had in mind back in December, and here are highlights:

Donald Trump said three times while campaigning that pot legalization should be left “up to the states.” But after five weeks in the White House, his former press secretary, Sean Spicer, announced that recreational marijuana — which was legalized by eight states without resulting in a crackdown by the Obama administration — has zero leeway under federal law. “I do believe you’ll see greater enforcement of it,” Spicer told the press corps.

Since then, lots of conventional wisdom says the White House can — and probably will — try to shut down America’s pot experiment. That wisdom looked particularly valid given that Trump’s chief law enforcement officer, Attorney General Jeff Sessions, has sharpened the attacks. He said in February that distributing pot remains illegal “whether a state legalizes it or not,” and turned the screws in March by warning federal prohibition “applies in states where they may have repealed their own anti-marijuana laws.”...

How, exactly, the Trump administration will approach this is TBD.  The Justice Department is currently considering its options. At any time, though, Sessions and Trump could begin raids in Alaska, Colorado, Oregon, Nevada, and Washington state — where thousands of state-licensed pot businesses are already operating in the open. The administration could then argue in court that even issuing pot licenses is superseded by federal law.

Raiding farms and stores may seem simple, at first, but unlike federal pot busts in past years, targeting regulated state systems would present new legal disputes over states' rights.  BuzzFeed News' interviews with law enforcement, former federal prosecutors, state officials, and conservative leaders show a crackdown would give rise to a hydra that pulls Trump into logistical, political, and legal traps — replicating his most humiliating setbacks like the travel ban (legal) and Obamacare (political).

Not only is legalization unprecedentedly popular, a crackdown has grown even more unpopular — and Trump would be destroying jobs in rural districts that voted for him. Possibly most damaging for Trump, though, is that he can’t fully win, because state decriminalization of marijuana cannot be completely stopped.  “They have very limited tools, and I think none of them would be successful,” Jenny Durkan, who served as US attorney in Washington state in 2012 when legalization took hold there, told BuzzFeed News. “I just don’t think they can stick the genie back in the bottle.”

There are several paths Trump could take if he wanted to try anyway. Here's why each one would be difficult, or even impossible.

1.  Trump can’t bust all the legal pot businesses because there are way too many already. ...

2.  If Trump were to even threaten pot businesses, he would still end up in brutal court battles. ...

3.  Even if Trump only makes a few busts, the states will get involved and fight Trump, too. ...

4.  Trying to overturn state legalization laws themselves would be difficult and time-consuming — and could still fail. ...

5.  Fighting long legal battles would be unpopular for Trump, and it would grow more toxic by the day. ...

6.  Trump could never stop people from using and growing pot with impunity, even if he won in court. ...

The reporting and analysis in this article merits considerable attention, but I want to put a bit of extra emphasis and spin on the key final point.   Though aggressive enforcement actions and successful lawsuits would not enable federal officials to fully "beat pot," the feds still could bring down much of the modern commercial marijuana industry.  (And, importantly, there are even some folks supportive of marijuana reform who are not so supportive of the modern commercial marijuana industry.)  I continue to believe a new federal weed war remains unlikely, but I also believe there will be notable casualties is such a war still gets waged in some capacity in the coming months.

Interesting look at job-creation aspects of Arkansas medical marijuana reform (with a notable developing national story)

This local new article form Arkansas, headlined "Medical marijuana industry expected to bring new jobs to Arkansas," provides an effective and thorough accounting of an important economic development element of marijuana reform. For that reason, I recommend the piece in full, and the excerpt below includes a bit of extra national news highlighted below that strikes me as especially notable:

A one-man testing lab in Greenbrier is poised to add up to seven employees, spend more than $1 million on equipment and buy several vehicles to capitalize on the coming sale of medical marijuana in Arkansas.  Kyle Felling, the owner of F.A.S.T. Laboratories, is one part of a burgeoning medical marijuana industry that's expected to create hundreds of jobs in Arkansas, according to industry experts and representatives....

In-state dispensaries and cultivation facilities are expected to provide the bulk of the jobs.  However, other services, like lab testing, are essential for the medical marijuana market to function.  Storm Nolan, president of the Arkansas Cannabis Industry Association, said he expects between 500 and 600 people to be employed where marijuana is grown and sold in the near term....

David Couch, the Little Rock lawyer who sponsored the Arkansas Medical Marijuana Amendment that was approved by voters in November, said he eventually expects 1,500 jobs or more in dispensaries and cultivation facilities.  Nolan and Couch said hundreds more jobs are expected in ancillary businesses, like F.A.S.T. Laboratories....

The accuracy of job estimates is expected to improve with time.  The federal Bureau of Labor Statistics will begin releasing data Sept. 6 under an updated jobs classification system that details marijuana wholesalers, stores and grower employment, David Hiles, an economist with the bureau, said in an email. ...

Specialty companies will be needed to ship, test, market, enforce, track, insure, construct, lobby, inspect, secure and bank in the industry.  However, it's an open question whether many of the businesses will be locally owned.  While the Arkansas Medical Marijuana Commission mandated that dispensaries and cultivation facilities be majority owned by Arkansans, there's no similar requirement for the businesses that will serve them.

James Yagielo, chief executive of Florida-based HempStaff, said many end up being from out of state.  "There are always some ancillary businesses," he said.  "A lot of them -- like us -- are national, but you do get some that pop up."  Nolan said he expects more ancillary businesses to enter the market as the Arkansas Medical Marijuana Commission develops licenses for transportation, distribution and processing.  Those licenses remain on the to-do list of the commission, which currently is taking applications for dispensaries and growers....

Michael Pakko, chief economist at the Arkansas Economic Development Institute at the University of Arkansas at Little Rock, said the nature of the marijuana business -- highly regulated with dispensaries and cultivation facilities required to each have unique ownership -- is costly, but can also provide additional employment....

Entry-level jobs include trimming marijuana at around $10 an hour.  Assistant growers, who plant and nourish marijuana, will earn $15 to $20 per hour.  Master growers, who manage operations, will make between $40 to $60 per hour....  Most dispensaries start with around five employees....  Each store's general manager will earn around $20 per hour. Dispensary agents, who interact with patients, will make $12 to $15 per hour.

While hundreds of jobs are expected to be created in the medical marijuana industry -- on par with a large state economic development project -- Arkansans may not feel the same impact because the jobs will be spread throughout the state, Pakko said.  "Five hundred to 600 jobs -- that would be a pretty good economic development project, but in the overall scheme of things, that's not a very large percentage of Arkansas' workforce or employment base," he said.  "Now in the local communities where those jobs are going to be, it can be a big deal.  It can be a significant impact."

In this MassRoots posting back in February, Tom Angell reported that the "U.S. Bureau of Labor Statistics (BLS) revealed to MassRoots that it will soon begin tracking cannabis sector employment ... [but] added that it won’t necessarily release any numbers."  It would now appear that BLS has data it is prepared to release in only a matter of weeks.  That strikes me as a very interesting and important development that will, among other things, make it much easier for the mainstream media to see and report on the seemingly significant job-creation realities of the emerging marijuana industry.

"Traffic fatalities linked to marijuana are up sharply in Colorado. Is legalization to blame?"

The title of this post is the headline of this big long article Denver Post article exploring marijuana reform's impact on roadway safety.  Here are excerpts:

The number of drivers involved in fatal crashes in Colorado who tested positive for marijuana has risen sharply each year since 2013, more than doubling in that time, federal and state data show.  A Denver Post analysis of the data and coroner reports provides the most comprehensive look yet into whether roads in the state have become more dangerous since the drug’s legalization.

Increasingly potent levels of marijuana were found in positive-testing drivers who died in crashes in Front Range counties, according to coroner data since 2013 compiled by The Denver Post.  Nearly a dozen in 2016 had levels five times the amount allowed by law, and one was at 22 times the limit.  Levels were not as elevated in earlier years.

Last year, all of the drivers who survived and tested positive for marijuana use had the drug at levels that indicated use within a few hours of being tested, according to the Colorado Department of Transportation, which compiles information for the National Highway Traffic Safety Administration’s Fatality Analysis Reporting System.

The trends coincide with the legalization of recreational marijuana in Colorado that began with adult use in late 2012, followed by sales in 2014.  Colorado transportation and public safety officials, however, say the rising number of pot-related traffic fatalities cannot be definitively linked to legalized marijuana.  Positive test results reflected in the NHTSA data do not indicate whether a driver was high at the time of the crash since traces of marijuana use from weeks earlier also can appear as a positive result.

But police, victims’ families and safety advocates say the numbers of drivers testing positive for marijuana use — which have grown at a quicker rate than the increase in pot usage in Colorado since 2013 — are rising too quickly to ignore and highlight the potential dangers of mixing pot with driving....

Estimates vary for how much marijuana use has increased in Colorado since legalization.  Surveys by the federal Substance Abuse and Mental Health Services Administration found that use within 30 days rose from about 12 percent of Colorado adults in 2013 to 17 percent in 2015, a 42 percent increase.  But the Colorado Department of Public Health and Environment published a survey last year putting adult use at 13 percent in 2015, indicating a slower rate of growth.

The number of drivers involved in fatal crashes testing positive for marijuana rose 88 percent from 2013 to 2015, FARS data show.  The numbers are not strictly comparable as the usage estimates would take into account Colorado’s population growth rate of roughly 1.8 percent a year....

Law enforcement officials, prosecutors and public policy makers concede there’s still too little information about marijuana and how it’s detected to understand just how much the drug is affecting traffic fatalities.  Even coroners who occasionally test for the drug bicker over whether to include pot on a driver’s death certificate.  “No one’s really sure of the broad impact because not all the drivers are tested, yet people are dying,” said Montrose County Coroner Dr. Thomas Canfield.  “It’s this false science that marijuana is harmless, … but it’s not, particularly when you know what it does to your time and depth perception, and the ability to understand and be attentive to what’s around you.”...

The trends in the state appear nearly identical in Washington state, where recreational marijuana was legalized at about the same time.  Officials there have been tracking the drug’s impact on driving much more carefully and for a longer period, statistics show. What Washingtonians have been seeing is starting to be revealed here: “Drug-impaired driving is now eclipsing alcohol, and that’s frustrating,” said Darrin Grondel, director of Washington’s Traffic Safety Commission, which is gathering and studying the data.

However, Colorado’s understanding is due to deepen.  The legislature last session passed House Bill 1315, which mandates a vigorous analysis of traffic fatalities statewide and the extent to which marijuana and other drugs are involved and prosecuted.  As part of that project, state police have re-analyzed about a third of blood samples taken from suspected drunk drivers in 2015 and, according to a person familiar with that project, found that more than three in five also tested positive for active THC.

Coroners and police say they have no idea just how many drivers – dead or alive – have active THC in their system because so few of them are tested for it in the first place.  Colorado’s Department of Public Safety in March 2016 said barely half of all drivers involved in fatal crashes were tested for drugs – and 81 percent of the ones tested were dead.  That has remained relatively unchanged since 2012, when 45 percent of all drivers in fatal crashes were tested.  That’s because Colorado’s DUI laws are such that a positive reading for alcohol impairment quickly results in a suspended license.  Not so for marijuana....

Transportation officials are concerned not only with pot-related fatalities but with the overall rise in traffic deaths.  While CDOT doesn’t see the number of drivers involved in fatal crashes as “a reliable measurement,” preferring metrics such as the number of actual crashes and fatalities, it does note that those are also on the rise. The reason, said CDOT’s Cole, is probably due in part to an increase in motorcycle fatalities, pedestrian deaths, cellphone use — and marijuana.

Colorado sends its forceful response to letter from AG Sessions about marijuana reform concerns

As noted in this prior post, last month US Attorney General Jeff Sessions sent letters to the leaders of states with recreational marijuana laws detailing troublesome data that, in the words of these letters, raised "serious questions about the efficacy of marijuana 'regulatory structures'."  And, as reported in this prior post, last week Washington set a forceful response to AG Sessions.  This week, as reported here by HuffPost, Colorado sent its response in the form of this detailed five-page missive.  (Alaska and Oregon have also responded forcefully to the Sessions latter, but Colorado and Washington seem to me the most important states to watch because they have the most mature marijuana industries and the longest-in-place regulatory regimes.)  Here is part of the HuffPost summary of the letter:

Colorado Gov. John Hickenlooper (D) and Attorney General Cynthia Coffman (R) mounted a vigorous defense of their state’s legalized and regulated marijuana program Thursday, replying to a critical letter from Attorney General Jeff Sessions that was directed at states that have legalized marijuana for recreational purposes.

Hickenlooper and Coffman, in a response letter dated Thursday, tell Sessions that their state’s numerous marijuana laws and regulations are “effective.” They said the regulations work smoothly to prevent diversion of the drug outside of the state, block marijuana use by minors and protect the public’s safety and health. The pair also encourage the federal government to work with the state to “fortify” the robust program that it has already built....

“The State of Colorado has worked diligently to implement the will of our citizens and build a comprehensive regulatory and enforcement system that prioritizes public safety and public health,” the Colorado letter reads. “When abuses and unintended consequences materialize, the state has acted quickly to address any resulting harms. While our system has proven to be effective, we are constantly evaluating and seeking to strengthen our approach to regulation and enforcement.”

The Colorado officials detailed statistics that the state provided to the Department of Justice in a report in July, a document HuffPost obtained and previously reported on earlier this month, to back up their argument that state-level legalization of marijuana is effective.

Prior related posts:

• Effective review of back-and-forth between AG Sessions and legalization states over marijuana policies
• Washington Gov and state AG respond forcefully to letter from AG Sessions about marijuana reform concerns

Interesting accounting and analysis of "America’s Marijuana Evolution"

The folks at Third Way have this notable new publication titled "America’s Marijuana Evolution." Regular readers of this blog will be familiar with the ground covered in this piece, but it still makes for an interesting read based on how legal and policy changes are discussed.  Here is one excerpt focused on state laws and political developments:

A detailed analysis of the ten states to most recently legalize medical marijuana legislatively finds that most bills passed with large majorities, regardless of the party controlling the chamber. In nine of those ten states, the measure passed with at least 60% of the vote in the lower chamber of the state legislature. And in all but Ohio, the upper house voted in favor of legalization with at least 58% of the vote. In several states, the bills passed with more than 80% or even 90% approval—making it clear that medical legalization on the state level has gained wide support across the ideological spectrum.

Marijuana is even less of a partisan issue on the state level than on the federal level, though Democratic policymakers at all levels of government remain more supportive of reform than Republicans. In every single one of the ten states to most recently legalize legislatively, the majority passing the bill through each chamber of the state legislature was bipartisan. And while in nine of those ten states the Governor signing the bill into law was a Democrat, in the three most recent — Ohio, Pennsylvania and West Virginia — both chambers of the state legislature were controlled by Republicans. In fact, in Ohio Republican Governor John Kasich signed his state’s bill into law, making it the first to enact marijuana legalization through a process that was Republican-controlled at every stage. And the Democratic Governor of West Virginia who signed his state's bill into law earlier this year — Jim Justice — has since announced he is switching party affiliation to be a Republican.

When Vermont became the first state in the nation to pass a recreational legalization bill this spring, it did so with healthy majorities as well—20-9 in the Senate and 79-66 in the House. Though only a handful of Republicans voted for the bill in each chamber, when Republican Governor Phil Scott vetoed it, he said that he is not philosophically opposed to marijuana legalization and has since been working with the legislature on a new bill that addresses some specific concerns he had raised.

Increasingly, marijuana reform is becoming a bipartisan issue in state legislatures, regardless of the party in power. That’s especially true for medical legalization, which is now the law of the land in the majority of states.

We analyzed the state legislative and gubernatorial elections immediately following legalization in each of the ten states that most recently legislated medical marijuana, and we couldn’t identify a single instance of negative political consequences for elected officials who supported legalization of medical marijuana.

We could find no state legislative races in which voting in favor of a medical marijuana bill was detrimental. Only two state senates flipped party control after legalization—New York and Minnesota—but in both the medical marijuana vote had been overwhelmingly in favor and bipartisan. Only two state lower chambers flipped party control as well — Minnesota and New Hampshire — but in neither state was marijuana a major campaign issue. Not a single Governor in any of these ten states lost a reelection campaign because he or she signed a medical marijuana bill into law — in fact, only one Governor lost their reelection at all (Democrat Pat Quinn of Illinois), and it was to an opponent who did not oppose medical marijuana legalization.

It seems clear that legalizing medical marijuana is not a political liability for Governors or state legislatures. In fact, given the overwhelming popularity of medical marijuana, just the opposite may prove to be true going forward, especially as more states legalize and those that don’t are left behind.

State policymakers have led the way on marijuana reform. More than half of the 29 states that have legalized medical marijuana did so legislatively, and more are likely to follow. The growing bipartisan nature of state reforms and the absence of any major political consequences for those policymakers who enacted them illustrate that policymakers can feel comfortable publicly supporting legalization, regardless of party affiliation.

Interesting Opportunity to Try to Shape the WHO’s Scheduling of CBD (and Possibly Domestic Law Too)

Cross posted at Marijuana Law, Policy, and Authority.

The World Health Organization (WHO) is apparently reviewing the scheduling of Cannabidiol (CBD) and 16 other drugs under the 1971 Convention on Psychotropic Substances. Prior to a meeting of the relevant WHO committee in early November, the WHO has asked member states (including the U.S.) for input. The Food and Drug Administration (FDA) is responsible for coordinating the United States’ response. To fulfill its responsibility, the FDA has issued a public call for comments “concerning abuse potential, actual abuse, medical usefulness, trafficking, and impact of scheduling changes on availability for medical use” of CBD (and the 16 other substances). The call for comments can be found here. Comments may be submitted electronically on the website (see upper right hand corner). Already more than 1,200 comments have been submitted.

I don’t know what sort of comments would convince the FDA to push for re-scheduling. As discussed in Chapter 5 of my book (pages 195-203), the FDA doesn’t put much stock in personal testimonials when making scheduling recommendations under domestic law (i.e., the CSA). For better or worse, it generally demands large scale, double-blind, well-controlled studies to demonstrate the medical efficacy of a drug—a demonstration that is needed to move a drug off of Schedule I (pages 200-201).

And if the WHO decides to reschedule CBD under the Convention, it’s not clear what impact (if any) it would have on scheduling under the CSA. The relationship between the CSA and the Convention is detailed 21 U.S.C. § 811. As discussed in the book (pages 272-275), the CSA seemingly requires the DEA to use the Convention as a floor, but not a ceiling, for purposes of regulating drugs. In other words, it seemingly requires the DEA to regulate drugs at least as stringently as called for by the Convention, but does not obligate the DEA to relax federal controls just because the Convention believes a softer approach is warranted (say, by medical utility).

So with those caveats, let me say that this might be an opportunity to shape the law – or at the very least, it might be an opportunity to teach about how to shape the law by submitting comments to a federal regulatory agency.

Hat tip to Vincente Sederberg, which sent an email earlier this week announcing the call and proposing to help coordinate comments. You can contact the firm here.

"Congress To Decide On State Marijuana Protections Soon"

The title of this post is the headline of this recent posting by Tom Angell at Massroots that provides a very helpful review of some coming opportunities for members of Congress to show whether they stand on various issues relating to marijuana reform.  I recommend the piece in full, and here are excerpts:

Here a some of the cannabis amendments that could be voted on in the House next month, if they are not blocked by leadership:

Protecting state medical cannabis laws: This is the big one. State-legal medical cannabis patients and providers have been protected from Justice Department interference since this rider was first enacted in late 2014. Since then it has been extended annually, and would almost certainly be approved by the House with a strong bipartisan margin again if allowed a vote. But even without a House vote, the language is already in the Senate bill and thus still alive for inclusion in the final spending legislation that will be sent to President Trump.

Protecting all state marijuana laws: In 2015, an amendment to broaden the medical cannabis protections to cover all state marijuana laws — including those allowing recreational use and sales — came just nine flipped voted shy of passing on the House floor. Since then, the number of states with legalization has doubled and a number of retiring prohibitionist lawmakers have been replaced by supporters. Advocates feel that if the measure is brought up this year it will likely pass. (The Senate has never voted on such a broad proposal, and that chamber’s Appropriations Committee did not consider it during their passage of 2018 Justice Department spending legislation.)

Letting Washington, D.C. legalize and regulate marijuana sales: In 2014, District of Columbia voters approved a ballot measure that legalized low-level cannabis possession and homegrow. But, thanks to Congressional meddling, they have no place to legally buy marijuana. Under annual amendments championed by Congressman Andy Harris (R-MD), D.C. government is prohibited from spending its own money to legalize and regulate cannabis sales. The bill coming to the floor next month continues a version of that rider that was expanded in scope by a spending bill signed into law by President Trump earlier this year....

Allowing marijuana businesses to access banks: Because of federal prohibition laws, many banks refuse to work with cannabis businesses. As a result, they often have to operate on a cash-only basis, which makes them targets for robberies....

"Regulating Marijuana Advertising and Marketing to Promote Public Health: Navigating the Constitutional Minefield"

The title of this post is the title of this notable new article authored by Leslie Gielow Jacobs that is available via SSRN. Here is the abstract:

   Marijuana legalization, at least to some extent, is now a reality in half of the United States.  This shift reflects the good reasons to decriminalize marijuana use and to legalize and regularize its cultivation, distribution and retail sale.  Legalization also introduces substantial public health dangers and injects the potent tool of advertising and marketing to promote marijuana into the struggle for persuasive influence between sellers aimed at increasing profits and regulators trying to minimize the damages to public health.  But limits on advertising and marketing to reduce adverse public health consequences are difficult to impose because of the increasingly aggressive interpretations of the protections for advertising articulated by the Supreme Court.  Regulators must understand the types of regulations that will provoke constitutional challenges, and how a court’s analysis of each type of regulation will proceed.

   This Article is the first to provide detailed analysis and concrete, step-by-step guidance for regulators seeking to balance the electoral mandate to provide access to marijuana products with their ongoing and urgent responsibilities to protect public health.  It provides regulators with the knowledge they need to understand the constitutional implications of a wide range of options, and to make choices that implement their public health objectives without provoking expensive legal challenges.

Notable review of major Philly firms now happy to talk up their marijuana practices

Only a couple of years ago, it seemed relatively rare to find lawyers in big firms with significant marijuana practices and rarer still to hear those lawyers actively discussing their marijuana work.  Against that backdrop, this new Philadelphia Inquirer article provides another example of the changing marijuana times.  The piece is headlined "Philly-area law firms bullish on cannabis despite grave legal risks," and here are excerpts:

Lawyers going into the marijuana business face potential arrest, disbarment, and even imprisonment. But they’re gambling that the smoke will clear, and the federal government will eventually legalize cannabis.  Many of Philadelphia’s biggest firms — Duane Morris, Fox Rothschild, and Cozen O’Connor among them — have set up practices recently to serve cannabis growers, dispensaries, and related entrepreneurs as the state aggressively gears up to make medical marijuana available to patients by early 2018.  Last month, Pepper Hamilton “formalized” its marijuana industry group.

“We saw it as a growth opportunity,” said Joseph C. Bedwick, partner at Cozen O’Connor. But the continuing disconnect between state and federal laws, and the Trump administration’s antipathy toward marijuana, has created what Bedwick calls “a big ball of uncertainty.”

“At any moment, theoretically, they can say, ‘We’re going to crack down on this,’ ” Bedwick said. And with so many attorneys getting into the cannabis game, some doubt there will be enough work to sustain those practices....

“You have a hatchet over your head with the federal government,” said Andrew B. Sacks, chairman of the medical marijuana and hemp department at Sacks Weston Diamond, which was among the first to represent marijuana-related businesses.

Joshua Horn, co-chair of the cannabis practice at Fox Rothschild, is optimistic.  He said it’s unlikely the feds would shut down state-legal medical marijuana operations, given the current status of the law, guidance from the DOJ, and budgetary constraints.  “They don’t have the manpower, they don’t have the budget, and popular will is strongly against it,” Horn said.  “More than 90 percent of the people in the commonwealth support the medical marijuana program, and Pennsylvania isn’t the most liberal state.”

Few attorneys have been prosecuted under federal or local laws. However, California attorney Jessica McElfresh — who has represented cannabis clients for more than seven years — was arrested at gunpoint in May.  The San Diego district attorney charged McElfresh on multiple felony counts, alleging she helped hide evidence of a hash oil manufacturing facility.  It seized her client files and issued a warrant for all of McElfresh’s cellphone location data for three years, along with her calendar, address book contacts, and internet searches.  “There have been attorneys that have been charged, but they participated more directly in the businesses,” McElfresh said last week. “There’s never been one like mine.”

Philadelphia attorney Steven Schain of the Hoban Law Group said he considers the San Diego case chilling.  “It represents a landmine in all our paths,” Schain said.  “Sizzle aside, marijuana remains 100 percent illegal under federal law.  Any real cannabis lawyer is exposed to massive federal and civil prosecution.  But we’re willing to take the risk.”

Boutique firms were the the first to represent aspiring cannabis clients in the state, said Sacks.  As trailblazers, they wrestled early on with the dilemmas created by the tension between the conflicting state and federal statutes....   Though the boutiques ... were the first to have a toehold in the state, large national firms soon appeared.  

Of the 12 companies chosen by the state Department of Health to grow cannabis, six were represented by out-of-state firms.  That hasn’t dampened the enthusiasm of attorneys wanting to get into the cannabis game. More than 145 lawyers have signed on to serve on marijuana committees run by the Pennsylvania and Philadelphia Bar Associations, said Sacks, who chairs those committees.

Hoban’s Schain doubts there’s enough work to warrant so many players.  “Legalized marijuana is suffused with irrational exuberance,” Schain said.  “Everyone is convinced that somebody is making loads of money and trying to get a piece of the action.  But if you’ve been in the industry more than 10 minutes, you know the reality is quite different.”

But Bedwick, of Cozen O’Connor, said that his firm was in for the long game and that many clients are related tangentially to the cannabis industry.  They’re real estate owners, investors, lighting manufacturers, builders, and security companies.  Those entrepreneurs are looking for advice on issues that include banking, taxation, intellectual property, and labor law.

"Probable Cause to Believe What? Partial Marijuana Legalization and the Role of State Law in Federal Constitutional Doctrine"

The title of this post is the title of this notable new article authored by Kevin Cole now available via SSRN. Here is the abstract:

When simple possession of marijuana was invariably illegal under state law, a dog alert or a police officer’s own perception of the scent of raw or burnt marijuana sufficed to permit a search for the source of the scent.  As states went beyond decriminalization to legalize possession, for medical or recreational use, the smell of marijuana became less probative on the question of whether the state’s laws were being violated.  

But even in legalization states, courts have upheld an officer’s right to search a car upon detecting the scent of marijuana.  The courts’ explanations have been analytically troubling. Analyzing the problem is complicated by more general phenomena: the Supreme Court’s reluctance to specify in greater detail the nature of the probable cause requirement, and the Court’s differing approaches to the significance of state law in federal constitutional doctrine.

NHTSA releases "Marijuana-Impaired Driving A Report to Congress"

Though dated July 2017, I believe the National Highway Traffic Safety Administration (NHTSA) has only just this week released this lengthy report titled "Marijuana-Impaired Driving A Report to Congress." The report's introduction explains that it "has been prepared in response to a requirement in Section 4008 (Marijuana-Impaired Driving) of the Fixing America’s Surface Transportation Act (FAST Act)," and it highlights the limited research on marijuana-impaired driving and continued challenges:

Unlike alcohol, marijuana is classified as a Schedule I substance under the Controlled Substances Act. A much smaller number of studies have looked at the impairing effects of marijuana use on driving-related skills.  Less is known about these effects due in part to the typical differences in research methods, tasks, subjects and dosing that are used. A clearer understanding of the effects of marijuana use will take additional time as more research is conducted.  The extra precautions associated with conducting research on a Schedule I drug may contribute to this relative lack of research. For example, these include the need for a government license to obtain, store and use marijuana, the security requirements for storage, and documentation requirements and disposal requirements.

While fewer studies have examined the relationship between THC blood levels and degree of impairment, in those studies that have been conducted the consistent finding is that the level of THC in the blood and the degree of impairment do not appear to be closely related.  Peak impairment does not occur when THC concentration in the blood is at or near peak levels.  Peak THC level can occur when low impairment is measured, and high impairment can be measured when THC level is low.  Thus, in contrast to the situation with alcohol, someone can show little or no impairment at a THC level at which someone else may show a greater degree of impairment....

There is a need to improve data collection regarding the prevalence and effects of marijuana-impaired driving.  NHTSA has collected some data on the prevalence of marijuana use by drivers on a national basis, though NHTSA has been prohibited from continuing to collect this information.  In contrast, there is little State level data about the prevalence of use of marijuana by drivers being collected.  As States continue to change their laws regarding marijuana use in general and as it relates to driving, this lack of State level data prevents evaluation of the effect of policy changes on driver behavior, including willingness to drive while under the influence of marijuana, as well as the effect of marijuana on crashes, deaths and injuries.

"Why a Drug Policy Organization Needs to Speak Out Against White Supremacy"

The title of this post is the title of this notable and provocative little commentary authored by Megan Farrington, who is the director of digital communications for the Drug Policy Alliance.  Here is what Megan has to say: 

The drug war is a tool of racial oppression.  We see this in racial disparities in arrest and incarceration rates for drug offenses that exist even though white people and people of color use and sell drugs at about the same rates.

We see it in the way stop-and-frisk policies have been used to target communities of color.  We see it in the way allegations of drug use were raised as cover for the police killings of Philando Castile, Terence Crutcher, Keith Lamont Scott, Sandra Bland, and Trayvon Martin.

And we see it in the legal marijuana industry now taking shape, which risks excluding the communities that have been most subjected to drug war enforcement by making people with past drug law convictions ineligible for licenses.

Sometimes the racial implications of drug war policies are overt, and sometimes they are more insidious.  But the bottom line is that when we work to dismantle the drug war, we are working to end a tool of oppression.

So when white supremacists chant Nazi slogans and our president defends them, we have to speak out.  If we fight the racism inherent in the drug war but allow it to go unchecked elsewhere, our work may take down one tool only to see it replaced with another.

We saw this when the drug war replaced Jim Crow last century, and must fight to keep it from happening again. The only way to ensure that our drug policy reforms truly end the harms of drug prohibition is to support the fight against white supremacy wherever it is taking place.

Washington Gov and state AG respond forcefully to letter from AG Sessions about marijuana reform concerns

As noted in this prior post, a few weeks ago US Attorney General Jeff Sessions sent letters to the leaders of states with recreational marijuana laws detailing troublesome data that, in the words of these letters, raised "serious questions about the efficacy of marijuana 'regulatory structures'."  An example of one such letter can be found here, addressed to Washington's Governor Jay Inslee and Attorney General Bob Ferguson.

Now, as detailed in this local article, headlined "Gov. and AG to Sessions: You are blowing smoke on our marijuana law," there has now been at least one forceful official response to these letters.  Here are the basics:

Allegations by Sessions, in a recent letter on Washington's marijuana policy, "are outdated, incorrect, or based on incomplete information," the two state leaders wrote to Sessions. "We have twice requested an in-person meeting with you because we believe it will lead to better understanding than exchanging letters," Inslee and Ferguson wrote to the U.S. Justice Department on Tuesday.

"If we can engage in a more direct dialogue, we might avoid this sort of miscommunication and make progress on the issues that are important to both of us. " Inslee and Ferguson called for both a sit-down with Sessions, and "further appropriate meetings" between state and Dept of Justice officials....

Sessions, in his letter, stressed a 2016 Northwest Drug Trafficking Area report asserting that Washington marijuana has been diverted to "43 other states" and cites 17 explosions at THC extraction laboratories.

Inslee and Ferguson bluntly told Sessions he was blowing smoke. "Your letter fails to clearly acknowledge that this (43 state) statistic covers several years before our recreational sales even began, and reveals nothing about whether the sources of the marijuana were legal or illegal," they wrote. "Again, your intent is for our state-regulated marijuana market to displace and destroy illegal marijuana activity. "

Sessions made charges that Washington's medical marijuana market is "considered 'grey' due to lack of regulation and oversight." Inslee and Ferguson acknowledged that medical marijuana "was not well regulated or supervised" in Washington. Shortly before the 2016 report came out, however, the Legislature passed reform legislation.

"We realigned medical marijuana to bring it within the state's far more stringent recreational system," wrote the Governor and AG. In fact, they told Sessions, a subsequent 2017 report by the feds made clear that "as of July 1, 2016, the long-standing illegally operating dispensaries were shut down or became licensed retailers; sales are now subject to taxation and medical marijuana products now must pass strict packaging and testing requirements before being sold to patients." "Your letter, relying on the old . . . report, ignores this important development."...

"We encourage you to keep in mind why we are having this conversation," Inslee and Ferguson told Sessions. "State and federal prohibition of marijuana failed to prevent its widespread use, which was generating huge profits for violent criminal organizations. "The people of Washington State chose by popular vote to try a different path. Under Washington's system, responsible adults are allowed access to a highly regulated product that returns substantial tax revenues to the government even as it displaces illegal activity."

The full letter from Gov Inslee and state AG Ferguson can be found at this link, and I like that the letter included a request to discuss additional matters with federal officials including:

• Whether DOJ will support reasonable federal policies allowing financial institutions to provide service to licensed marijuana businesses, in order to avoid the public safety risks and transparency problems associated with all-cash businesses. 

• How state-regulated marijuana should be treated by the federal government following the President’s declaration that the opioid crisis constitutes a national emergency, and whether the federal government will support objective, independent research into the effects of marijuana law reform on opioid use and abuse.

US Justice Department reportedly blocking marijuana research requests supported by DEA

The Washington Post has this notable new article reporting that "The Justice Department under Attorney General Jeff Sessions has effectively blocked the Drug Enforcement Administration from taking action on more than two dozen requests to grow marijuana to use in research." Here is more:

A year ago, the DEA began accepting applications to grow more marijuana for research, and as of this month, had 25 proposals to consider.  But DEA officials said they need the Justice Department’s sign-off to move forward, and so far, the department has not been willing to provide it.  “They’re sitting on it,” said one law enforcement official familiar with the matter. “They just will not act on these things.”

As a result, said one senior DEA official, “the Justice Department has effectively shut down this program to increase research registrations.’’  DEA spokesman Rusty Payne said the agency “has always been in favor of enhanced research for controlled substances such as marijuana.’’  Lauren Ehrsam, a Justice Department spokeswoman, declined to comment....

[Attorney General Jeff] Sessions frequently speaks harshly about marijuana use, and Justice Department officials have been reviewing the policy of his predecessor when it comes to enforcing federal laws on marijuana in states where the drug is legal.  Sessions, too, has called medical marijuana “hyped, maybe too much,” and signaled that he is skeptical about benefits of smoking it.  “Dosages can be constructed in a way that might be beneficial, I acknowledge that, but if you smoke marijuana, for example, where you have no idea how much THC you’re getting, it’s probably not a good way to administer a medicinal amount.  So forgive me if I’m a bit dubious about that,” Sessions said earlier this year.

The DEA is no shrinking violet when it comes to marijuana enforcement.  Last year, Rosenberg declined to lessen restrictions on its use, maintaining its classification as a Schedule 1 controlled substance — which means it has no accepted medical use and a high potential for abuse.  But Rosenberg wrote at the time that the DEA would “support and promote legitimate research regarding marijuana and its constituent parts.”  The DEA, he wrote, already had approved such research, registering 354 people and institutions to study marijuana and related components, including the effects of smoked marijuana on humans.

The DEA indicated at the time it was willing to see those studies expand, asking for applications from people who wanted to grow marijuana to be used for research.  The only source of marijuana for researchers then was — and is — the University of Mississippi, which has permission to grow and distribute the drug for research.

One still-waiting applicant is Lyle Craker, a professor at the University of Massachusetts at Amherst.  Craker has spent years seeking approval to do research into whether other parts of marijuana plants have medicinal value.  “I’ve filled out the forms, but I haven’t heard back from them. I assume they don’t want to answer,’’ said Craker. “They need to think about why they are holding this up when there are products that could be used to improve people’s health . I think marijuana has some bad effects, but there can be some good and without investigation we really don’t know.’’  Craker submitted his latest application Feb. 14, and after getting additional questions from the DEA in March, supplied additional information in April.

Brad Burge, spokesman for the Multidisciplinary Association for Psychedelic Studies, said the federal government for years has prevented important research into marijuana.  “That’s a sad state of affairs,’’ he said, adding, “if the DEA is now asking for permission to say yes, then the resistance is now further up the chain of command.’’

Rosenberg indicated in a call with The Washington Post that he still would support more marijuana research.  “I stand by what I wrote,” he said.  Tension between Rosenberg and Trump is perhaps unsurprising.  Rosenberg was appointed during the Obama administration, and he had served as chief of staff and senior counselor to James B. Comey, who was the FBI director until Trump fired him earlier this year.

The Justice Department has not rejected any of the 25 people whose applications to grow marijuana the DEA is considering. Rather, the department is not taking any action at all, officials said.  Before approving such applications, DEA officials have to assess each applicant and determine whether their facility is secure and whether they had previously been complying with federal law.

Federal district court in Connecticut rejects preemption claims by employer sued after rescinding employment offer to medical marijuana user

I noted in this post last month the significant ruling of the Massachusetts Supreme Judicial Court in Barbuto v. Advantage Sales and Marketing, LLC, No. SJC 12226 (Mass. July 17, 2017) (available here) allowing a state-law-based civil discrimination lawsuit to proceed after an lawful medical marijuana user has been fired for a positive drug test.  This past week, as detailed in this helpful opinion summary, a similar type of decision was handed down by a federal district judge in Connecticut in Noffsinger v. SSC Niantic Operating Co, LLC, No. 3:16-cv-01938 (D. Conn. Aug 8, 2017) (available here).  Here are the basics:

In an issue of first impression, a federal district court in Connecticut found an implied private right of action under Connecticut’s Palliative Use of Marijuana Act (PUMA) and further held that federal law did not preempt the PUMA discrimination claim of a registered medical marijuana user whose job offer was rescinded after she tested positive, even though she explained to the employer that she only took synthetic cannabis at bedtime and was not under the influence at work. In finding no preemption, the court explained the federal Controlled Substances Act (CSA) does not regulate the employment relationship and that the ADA does not regulate non-workplace activity.

Here is how the opinion in Noffsinger gets started, along with a key passage from the heart of the ruling:

Connecticut is one of a growing number of States to allow the use of marijuana for medicinal purposes. Connecticut likewise bars employers from firing or refusing to hire an employee who uses medical marijuana in compliance with the requirements of Connecticut law.  By contrast, federal law categorically prohibits the use of marijuana even for medical purposes.

This lawsuit calls upon me to decide if federal law preempts Connecticut law.  In particular, I must decide if federal law precludes enforcement of a Connecticut law that prohibits employers from firing or refusing to hire someone who uses marijuana for medicinal purposes.  I conclude that the answer to that question is “no” and that a plaintiff who uses marijuana for medicinal purposes in compliance with Connecticut law may maintain a cause of action against an employer who refuses to employ her for this reason.  Accordingly, I will largely deny defendant’s motion to dismiss this lawsuit....

Although most cases dealing with the CSA’s preemption of state medical marijuana statutes have come out in favor of employers, these cases have not concerned statutes with specific anti-discrimination provisions; courts and commentators alike have suggested that a statute that clearly and explicitly provided employment protections for medical marijuana users could lead to a different result.  Indeed, one court recently held that the CSA does not preempt the anti-discrimination-in-employment provision of Rhode Island’s medical marijuana statute. See Callaghan v. Darlington Fabrics Corp., 2017 WL 2321181, at *13–14 (R.I. Super. 2017).

Silly(?!?) talk of marijuana reform as a "flash point" in the far-off 2020 Prez campaign

As of this writing in mid-August 2017, we still do not really know the marijuana reform position of the current President of the United States.  But that reality has not prevented the folks at Politico from putting forth this new article about the 2020 Prez campaign headlined "Marijuana politics emerge as 2020 flash point: The debate over legalization is about to receive a full airing on the presidential campaign trail."  Though I think it silly to try to discuss too seriously the 2020 Prez campaign with still 15 months to go before the mid-term election of 2018, I cannot resist highlighting some notable passages in this Politico piece:

Marijuana legalization just moved from the fringes of the last presidential campaign to center stage in 2020.  Between a sweeping new package of legislation introduced last week by one of the top Democratic presidential prospects and, on the other end of the spectrum, Attorney General Jeff Sessions’ vigorous opposition to recreational use of marijuana, the debate over legalization of cannabis is about to receive a full airing on the presidential campaign trail.

While Bernie Sanders also supported medicinal use of marijuana and the decriminalization of recreational marijuana, drug policy stayed on the outskirts of the 2016 presidential debate, and growing action at the state level was barely acknowledged.

Tom Angell, chairman of Marijuana Majority, a bipartisan nonprofit advocacy group, said New Jersey Sen. Cory Booker’s introduction of “the farthest-reaching bill ever proposed” will have a catalytic effect on the politics of legalized marijuana and the myriad criminal justice issues related to it.  “Booker is getting a ton of fantastic press about this,’’ he said. “And other candidates will notice that and will want to say, 'I agree — and I want to introduce a bill of my own.'”

Booker’s rollout of the Marijuana Justice Act — introduced to a wide audience via Facebook Live — was more than just a call for legalizing marijuana at the federal level. The measure also addresses withholding federal funds for the construction of jails and prisons from states whose pot laws are shown to disproportionately incarcerate minorities; expunging federal convictions for cannabis use; and mandating sentencing hearings for prisoners now serving time for pot offenses.  “You see these marijuana arrests happening so much in our country, targeting certain communities — poor communities, minority communities — targeting people with an illness,” Booker, the former mayor of Newark, said.

With Republicans in control of the House and Senate, the ambitious legislation is viewed as unlikely to pass.  But its attachment to a top prospective 2020 candidate — and the growing action on marijuana legalization at the state level — all but guarantees presidential contenders will need a fully formed position.

Several possible Democratic presidential candidates — including Booker and New York Sen. Kirsten Gillibrand — have already signed on to a separate bipartisan medical marijuana bill.  In Massachusetts, where voters approved a ballot measure last year legalizing recreational marijuana, Sen. Elizabeth Warren has addressed the issues of creating legal and secure banking for the cannabis industry.

On the Republican side, Republican Sen. Rand Paul of Kentucky has called for a repeal on the pot prohibition — making him popular with young libertarians — and won some conservative backing with his strong stand for states’ rights on the issue....

Already, in the two governors races on the ballot in 2017 — New Jersey and Virginia — the Democratic nominees have staked out clear positions in favor of decriminalization.... 

After California officially became the largest legal cannabis market in the world last November with approval of Proposition 64, Nevada — a key Western swing state — followed last month to become the fifth state to legalize recreational use of the drug.  States are hungrily eyeing tax revenues from the cannabis market, where revenues topped $5.8 billion in 2016 and are expected to reach at least $7 billion by 2020, experts say.

Willie Brown, the former California House speaker and San Francisco mayor who successfully carried one of the nation’s first cannabis-related reform bills to decriminalize the drug in 1973, says the political climate has shifted markedly from the days when “we couldn’t talk legalization — hell no.” But he said Booker wasn’t the first Democrat to understand how deeply the issue of legal recreational cannabis resonated, especially with millennial voters.

“Gavin Newsom was the first,” he said, saying that the California Democratic lieutenant governor stepped out in front and backed legalization of recreational pot in the nation’s most populous state nearly two years ago.  Newsom’s strong endorsement and campaigning helped pass Proposition 64 — and set the stage for him to take the front-runner spot in the 2018 governor’s race, Brown noted.

In recent days, Newsom’s rival Antonio Villaraigosa, the former Los Angeles mayor, has edged toward a more liberal stance, saying at a public forum that “cannabis is going to be the new alcohol business.” State Treasurer John Chiang, another California gubernatorial candidate, has been holding statewide hearings on cannabis banking issues.

Even California Sen. Kamala Harris, a former prosecutor who has taken a more cautious stance on the issue, is on board for marijuana decriminalization. Harris, a first-term senator who is frequently mentioned as a prospective presidential candidate in 2020, told a progressive group last month: “While I don’t believe in legalizing all drugs ... we need to do the smart thing, the right thing, and finally decriminalize marijuana.”

This article's brief mention of marijuana reform in the 2017 races for Gov in New Jersey and Virginia merits, in my view, a lot more attention than the far-off 2020 Prez race. As I understand matters, I believe the Democratic candidate in New Jersey has endorsed full legalization of marijuana and the GOP candidate supports decriminalization. That reality, as well as Senator Booker's bold bill, highlights how mainstream significant marijuana reform has already become well before we get to gaming out who might be running against Prez Trump in 2020.