Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Saturday, June 30, 2018

"Marijuana Revenue Competition — Look Out Below"

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

Beyond the ever-present illegal market, a more subtle threat to marijuana revenue lurks: Tax competitors (think: tax havens) threaten subnational jurisdictions that can’t or don’t control their borders.

This article presents a framework for looking at threats to marijuana revenue:

1.  The illegal market can be marginalized by law enforcement or low taxes.

2.  Only low taxes can defeat legal tax competitors.

3.  Tax competition threatens local retail taxes more than state retail taxes.

4.  Tax competition threatens local producer taxes much more than state producer taxes.

5.  Federal legalization would ipso facto expose state taxes to daunting competition.

June 30, 2018 in Federal Marijuana Laws, Policies and Practices, Taxation information and issues | Permalink | Comments (0)

Thursday, June 28, 2018

Highlighting how extraordinary the approval of medical marijuana was in Oklahoma

OK-Yes-788Over at Marijuana Moment, Kyle Jaeger has this terrific new piece reflecting on the extraordinary dynamics surrounding the vote on Tuesday in Oklahoma approving a medical marijuana initiative. I recommend the piece in full, and here are excerpts:

Voters in one of the reddest states in the nation approved one of the most far-reaching marijuana ballot measures on Tuesday, making Oklahoma the 30th state to legalize medical cannabis.

And while advocates and pro-legalization organizers in the state will tell you they weren’t necessarily surprised by the results — with polls consistently showing majority support in the lead-up to Tuesday’s vote, for example — the initiative’s passage by a wide margin (57 percent to 43 percent) is still extraordinary.

In part, that’s because of the political landscape of Oklahoma. The state hasn’t voted for a Democratic presidential candidate since 1964, and its marijuana laws have historically reflected a staunch, prohibitionist mindset. Just four years ago, getting caught consuming cannabis in public twice could land you in prison for up to a decade.

But perhaps even more impressively, the initiative was decisively approved—during a midterm primary election—in spite of the fact that committees in support of State Question 788 were outspent by committees opposed to the measure six-to-one. According to the latest campaign finance records, Oklahomans for Health, which played a leading role in support of the initiative, and Yes On 788 spent a total of about $155,000 during their campaigns based on the latest campaign finance disclosure statements submitted June 26.

Committees opposed to the initiative, Oklahomans Against 788 and SQ Is NOT Medical spent a total of about $920,500 on their anti-legalization campaigns, some of which was used for television advertising against the measure. Supporters, on the other hand, did not have enough funds to go on the air with their message.

Chip Paul, chairman of Oklahomans for Health, told Marijuana Moment that the group’s minimal spending “speaks volume for liberty, freedom, unity… because Oklahoma united around this and made it happen.”...

Unlike pro-legalization campaign committees advancing reform bids in many past state-level elections, Oklahomans for Health did not receive financial contributions from national advocacy groups such as Marijuana Policy Project or the Drug Policy Alliance. Paul said it was better that way because “it means more if we do this for $0 or $10,000.”

Another element of the group’s campaign efforts involved strategically avoiding divisive, partisan politics. While the initiative itself has been characterized as “liberal” because it doesn’t include a list of limited medical conditions that qualify individuals for cannabis, the issue at hand is increasingly bipartisan. A recent survey from the progressive think tank Center for American Progress found a record 68 percent of Americans favor recreational legalization, including 57 percent of Republicans. Support for medical marijuana legalization is even higher, with 93 percent of Americans in agreement that patients should be able to legally access the plant. “For the most, we’ve managed to rise above things that would divide us,” Paul said.

June 28, 2018 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Initiative reforms in states, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

"Time Trends Matter: The Case of Medical Cannabis Laws and Opioid Overdose Mortality"

The title of this post is the title of this notable new paper now available via SSRN authored by R. Vincent Pohl.  Here is its abstract:

Mortality due to opioid overdoses has been growing rapidly in the U.S., with some states experiencing much steeper increases than others.  Legalizing medical cannabis could reduce opioid-related mortality if potential opioid users substitute towards cannabis as a safer alternative.  I show, however, that a substantial reduction in opioid-related mortality associated with the implementation of medical cannabis laws can be explained by selection bias.  States that legalized medical cannabis exhibit lower pre-existing mortality trends.  Accordingly, the mitigating effect of medical cannabis laws on opioid-related mortality vanishes when I include state-specific time trends in state-year-level difference-in-differences regressions.

June 28, 2018 in Medical Marijuana Data and Research, Recreational Marijuana Data and Research | Permalink | Comments (0)

Wednesday, June 27, 2018

With Justice Kennedy now retiring and precedents being reversed, is it time for marijuana advocates to urge SCOTUS to reconsider Raich?

The Supreme Court generated a lot of news today, in part by reversing a significant precedent concerning labor unions and in part through Justice Antony Kennedy's retirement announcement.  So what does this have to do with marijuana law, policy and reform you might ask?  And I would answer with one case cite: Gonzales v. Raich, 545 U.S. 1 (2005) (opinion here, wikipedia entry here). 

Raich is the case in which all the liberal members of the Supreme Court all rejected the claim by Angel Raich that the federal government should not have the constitutional power to criminalize her backyard cultivation and use of medical marijuana in compliance with California law.   Of course, the liberal members of the Court were not the only ones who rejected Raich's claim that the Commerce Clause should not be read to allow the federal government to criminalize what she grows in her own backyard: joining the liberals voting in favor of broad federal power here were Justice Antonin Scalia (now deceased) and Justice Anthony Kennedy (now about to retire).

Based on a number of his opinions to date, there are lots of reasons to suspect that new Justice Neil Gorsuch, who replaced Justice Scalia, would be a vote for the Angel Raiches of the world against broad federal power.  In addition, there are lots of reasons to suspect that whomever Prez Trump selects to replace Justice Kennedy will also be an advocate for limited federal legislative powers.  (This accounting alone does not make obvious that Raich could be overturned, as Justice Samuel Alito might be more a fan of broad federal criminal powers than was the Justice he replaced, Justice Sandra Day O'Connor.  It is also unclear where Chief Justice John Roberts would come out on these issues, too.)

Personnel change is the main reason I am inclined to suggest a "new" Supreme Court might be inclined to reconsider Raich, but I am also eager to highlight how changing political, social and medical knowledge may also incline the Court to reconsider a past ruling.  Changes circumstances are always a formal and informal influence on the strength of stare decisis, and gosh knows there have been a whole lot of changed circumstances in the marijuana space since Raich was decided in 2005.

So, put simply in the form of a call to Raich's lawyer, where is Randy Barnett when marijuana reformers need him?

June 27, 2018 in Court Rulings, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (1)

Senate minority leader Charles Schumer introduces "Marijuana Freedom and Opportunity Act"

220px-Chuck_Schumer_official_photoAs reported in this press release, "Senate Democratic Leader Chuck Schumer (D-NY) today formally introduced new legislation to decriminalize marijuana at the federal level."  Here is more from the press release, with its links to the proposed legislation:

Specifically, the Marijuana Freedom and Opportunity Act removes marijuana from the list of scheduled substances under the Controlled Substances Act, effectively decriminalizing it at the federal level.  The legislation allows states to continue to function as laboratories of democracy and ultimately decide how they will treat marijuana possession.  The legislation, however, does not change federal authorities’ ability to prevent trafficking from states where marijuana is legal to states where is not.  The bill also preserves the federal government’s ability to regulate marijuana advertising -- just as it does tobacco -- so that advertisers cannot target children.  Schumer has long advocated for states’ rights when it comes to medical marijuana.

Leader Schumer’s new legislation also takes steps to help communities that have been disproportionally affected by our current marijuana laws.  The bill includes authorization of grant programs designed to encourage states and local governments to allow individuals to seal or expunge marijuana possession conviction records, and it creates a new funding stream to help ensure that women and minority entrepreneurs have access to the new marijuana industries in their states.  The bill also makes new investments in research to fully understand the effect of THC on both driving and public health – particularly in adolescents.  

Leader Schumer’s Marijuana Freedom and Opportunity Act is cosponsored by Senators Bernie Sanders (I-VT), Tim Kaine (D-VA) and Tammy Duckworth (D-IL).... 

A fact sheet on the Marijuana Freedom and Opportunity Act can be viewed here. The full text of the Marijuana Freedom and Opportunity Act can be viewed here. A section-by-section summary of the Marijuana Freedom and Opportunity Act can be found here.

Specifically, Leader Schumer’s new legislation would:

  • Decriminalize Marijuana: The legislation would decriminalize marijuana at the federal level by descheduling it, which means removing marijuana from the list of scheduled substances under the U.S. Controlled Substances Act of 1970;
  • Respect States’ Rights: The legislation would maintain federal law enforcement’s authority to prevent marijuana trafficking from states that have legalized marijuana to those that have not;
  • Level The Economic Playing Field: The legislation would establish dedicated funding streams to be administered by the Small Business Administration (SBA) for women and minority-owned marijuana businesses that would be determinant on a reasonable estimate of the total amount of revenue generated by the marijuana industry;
  • Ensure Public Safety: The legislation would authorize $250 million over five years for targeted investments in highway safety research to ensure federal agencies have the resources they need to assess the pitfalls of driving under the influence of THC and develop technology to reliably measure impairment;
  • Invest In Public Health: The legislation would invest $500 million across five years for the Secretary of Health and Human Services to work in close coordination with the Director of National Institutes of Health (NIH) and the Commissioner of Food and Drug Administration (FDA) in order to better understand the impact of marijuana, including the effects of THC on the human brain and the efficacy of marijuana as a treatment for specific ailments;
  • Protect Children: The legislation would maintain the Department of Treasury’s authority to regulate marijuana advertising in the same way it does tobacco advertising to ensure the marijuana businesses aren’t allowed to target children in their advertisements. The bill also allows the agency to impose penalties in the case of violations;
  • Incentive sealing and Expungement programs: The legislation authorizes grant programs to encourage state and local governments to administer, adopt, or enhance expungement or sealing programs for marijuana possession convictions. The bill provides $100 million over five years to the DOJ to carry out this purpose. 

This is big news not only because it provides still further evidence that "establishment Democrats" are now fully behind federal marijuana reform, but also because Senator Schumer is positioned to be the House majority leader if Democrats retake control of the Senate in either 2018 or 2020. If that happens, Senator Schumer presumably would be most interesting in having his version of marijuana reform considered first among all the competing bills now floating about.

June 27, 2018 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Tuesday, June 26, 2018

Oklahoma voters resoundingly pass medical marijuana initiative

OK-Yes-788

As reported by Tom Angell at Forbes, "Voters in Oklahoma approved a ballot measure making the state the 30th in the nation to allow broad access to medical marijuana."  Here is more:

The proposal, which was leading by a 57% to 43% margin with more than 98% of precincts reporting on Tuesday night, would allow doctors to recommend cannabis for any medical condition they see fit.  Most other state medical marijuana laws delineate a specific list of diseases and disorders for which physicians can authorize patients' participation.

The approval of such a far-reaching marijuana proposal in a deeply red state like Oklahoma -- during a midterm primary election, no less -- is a clear sign of the mainstream political support that cannabis reform now enjoys....

Under the new Oklahoma law as drafted, legal patients will receive state ID cards and be allowed to possess three ounces of cannabis in public, and store up to eight ounces at home.

Home cultivation of six mature plants and six seedlings is allowed, as is possession of up to one ounce of cannabis concentrates and 72 ounces of marijuana-infused edible products.  Patients could also designate a caregiver to purchase or grow medicine for them.

The new law would also add some level of protection for medical cannabis patients who don't go through the step of getting a state-issued identification card.  People who are caught with 1.5 ounces or less of marijuana and can "state a medical condition" would face a misdemeanor offense punishable by no more than a $400 fine.

The state would issue licenses for medical cannabis cultivation, processing, transportation and dispensing businesses, and a 7% retail tax would be applied to medical cannabis sales.  Revenue would first go toward covering implementation and regulation costs, with the remainder funding education as well as drug and alcohol rehabilitation programs.

Any of these provisions are subject to change, however, and there are indications that they may be amended soon. Gov. Mary Fallin (R) said last week that she was prepared to call lawmakers into a special legislative session this summer to address provisions which, in her view, essentially allow "recreational marijuana in the state of Oklahoma."

And in a statement on Tuesday night, the governor said she "respect[s] the will of the voters in any question placed before them to determine the direction of our state" but that "it is our responsibility as state leaders to look out for the health and safety of Oklahoma citizens."

"I will be discussing with legislative leaders and state agencies our options going forward on how best to proceed with adding a medical and proper regulatory framework to make sure marijuana use is truly for valid medical illnesses [said] Governor Mary Fallin...

In the lead up to the vote, the measure faced vocal opposition from Fallin and from other popular officials like U.S. Sen. James Lankford (R), who appeared in a television ad urging voters to reject medical marijuana.  Groups like the Oklahoma State Medical Association, the Oklahoma Sheriffs’ Association and the Oklahoma District Attorneys Association also campaigned against legalization.

I thought there was a real chance that this Oklahoma initiative might fail because state leaders seemingly did an effective job of conveying the message that the proposal was tantamount to approving recreational marijuana, and it also seemed more resources were spent in the campaign against the initiative than for it. But despite these forces, a significant form of marijuana reform passed by a very wide margin in a very red state. Too bad representatives in Washington DC have still not yet fully come to understand the depth and strength of voter interest in ending blanket marijuana prohibitions.

June 26, 2018 in Initiative reforms in states, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

SCOTUS provides a good new First Amendment precedent for doctors interested in recommending marijuana

Supreme-court-marijuanaThe modern state medical marijuana laws owe part of their structure to critical lower federal court rulings about the First Amendment's protection of doctors who wish to discuss marijuana use with patients.  In the late 1990s after California voters passed the nation's first medical marijuana law, the federal government threatened physicians who recommended or prescribed a Schedule I drug with possible revocation of DEA registration and exclusion from Medicare and Medicaid reimbursements.   But this threat was thwarted through litigation which culminated in a ruling by the U.S. Court of Appeals for the Ninth Circuit holding that physicians’ First Amendment freedom of speech rights under the privileged doctor-patient relationship permitted them to issue medical marijuana recommendations.  The Ninth Circuit's ruling in Conant v. Walters, 309 F.3d 629 (9th Cir. 2002), has provided a key foundation for modern medical marijuana regimes, but the firmness of that foundation could be questioned because the US Supreme Court has never addressed this issue directly.

As of this morning, the Supreme Court still has not addressed this issue directly, but it has now ruled in National Institute of Family and Life Advocates v. Becerra, available here, that the First Amendment limits what states can tell doctors and other health professional to say or not say.  Here is part of a fascinating passage (which even mentions medical marijuana, with my emphasis added) extolling the importance of broad constitutional protections in this realm:

As with other kinds of speech, regulating the content of professionals’ speech “pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.” Turner Broadcasting, 512 U. S., at 641.  Take medicine, for example. “Doctors help patients make deeply personal decisions, and their candor is crucial.” Wollschlaeger v. Governor of Florida, 848 F.3d 1293, 1328 (CA11 2017) (en banc) (W. Pryor, J. concurring).  Throughout history, governments have “manipulat[ed] the content of doctor-patient discourse” to increase state power and suppress minorities:

“For example, during the Cultural Revolution, Chinese physicians were dispatched to the countryside to convince peasants to use contraception. In the 1930s, the Soviet government expedited completion of a construction project on the Siberian railroad by ordering doctors to both reject requests for medical leave from work and conceal this government order from their patients.  In Nazi Germany, the Third Reich systematically violated the separation between state ideology and medical discourse. German physicians were taught that they owed a higher duty to the ‘health of the Volk’ than to the health of individual patients.  Recently, Nicolae Ceausescu’s strategy to increase the Romanian birth rate included prohibitions against giving advice to patients about the use of birth control devices and disseminating information about the use of condoms as a means of preventing the transmission of AIDS.” Berg, Toward a First Amendment Theory of Doctor-Patient Discourse and the Right To Receive Unbiased Medical Advice, 74 B. U. L. Rev. 201, 201– 202 (1994) (footnotes omitted).

Further, when the government polices the content of professional speech, it can fail to “‘preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.’” McCullen v. Coakley, 573 U. S. ___, ___–___ (2014) (slip op., at 8–9).  Professionals might have a host of good-faith disagreements, both with each other and with the government, on many topics in their respective fields.  Doctors and nurses might disagree about the ethics of assisted suicide or the benefits of medical marijuana; lawyers and marriage counselors might disagree about the prudence of prenuptial agreements or the wisdom of divorce; bankers and accountants might disagree about the amount of money that should be devoted to savings or the benefits of tax reform.  “[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market,” Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting), and the people lose when the government is the one deciding which ideas should prevail.

Given the modern politics of marijuana reform, I was not that worried that the Ninth Circuit's work in Conant v. Walters would be undermined anytime soon. But it would not be too hard to imagine Attorney General Jeff Sessions or other state or federal officials resistant to marijuana reform trying to heavily regulate how medical professionals can talk to patients about marijuana. This new SCOTUS precedent would seem to limit such efforts.

June 26, 2018 in Court Rulings, History of Marijuana Laws in the United States, Medical community perspectives, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Monday, June 25, 2018

Formal FDA approval for Epidiolex means some part of the federal government finds some part of cannabis plant has "accepted medical use"

Download (1)This new CNN piece, headlined "FDA approves first cannabis-based drug," reports on the big news from the federal government concerning a very specific form of medical marijuana. Here are the details:

The US Food and Drug Administration approved a cannabis-based drug for the first time, the agency said Monday. Epidiolex was recommended for approval by an advisory committee in April, and the agency had until this week to make a decision.

The twice-daily oral solution is approved for use in patients 2 and older to treat two types of epileptic syndromes: Dravet syndrome, a rare genetic dysfunction of the brain that begins in the first year of life, and Lennox-Gastaut syndrome, a form of epilepsy with multiple types of seizures that begin in early childhood, usually between 3 and 5.

"This is an important medical advance," FDA Commissioner Dr. Scott Gottlieb said in a statement Monday. "Because of the adequate and well-controlled clinical studies that supported this approval, prescribers can have confidence in the drug's uniform strength and consistent delivery."

The drug is the "first pharmaceutical formulation of highly-purified, plant-based cannabidiol (CBD), a cannabinoid lacking the high associated with marijuana, and the first in a new category of anti-epileptic drugs," according to a statement Monday from GW Pharmaceuticals, the UK-based biopharmaceutical company that makes Epidiolex....

The FDA has approved synthetic versions of some cannabinoid chemicals found in the marijuana plant for other purposes, including cancer pain relief. Justin Gover, chief executive officer of GW Pharmaceuticals, described the approval in the statement as "a historic milestone." He added that the drug offers families "the first and only FDA-approved cannabidiol medicine to treat two severe, childhood-onset epilepsies."

"These patients deserve and will soon have access to a cannabinoid medicine that has been thoroughly studied in clinical trials, manufactured to assure quality and consistency, and available by prescription under a physician's care," Gover said. Epidiolex will become available in the fall, Gover told CNN.  He would not give any information on cost, saying only that it will be discussed with insurance companies and announced later....

It's an option for those patients who have not responded to other treatments to control seizures.  According to the Epilepsy Foundation, up to one-third of Americans who have epilepsy have found no therapies that will control their seizures. Shauna Garris, a pharmacist, pharmacy clinical specialist and adjunct assistant professor at the University of North Carolina's Eshelman School of Pharmacy, said the drug is effective and works somewhere between "fairly" and "very well." She has not used Epidiolex in her own clinical practice and was not involved in the development of the drug but said she's not sure it will live up to "all of the hype" that has surrounded it....

As part of the FDA's review of the medication, the potential for abuse was assessed and found to be low to negative, according to Gover. Still, this approval comes as the White House is said to be reconsidering federal prohibition of marijuana and as more and more states approve it for recreational and medicinal use. Gover said the approval signals "validation of the science of cannabinoid medication."

As the title of this post highlights, this news serves as still further proof of the misguided placement of marijuana as a Schedule I drug under the Controlled Substances Act defined as having "no currently accepted medical use in treatment in the United States." But, it should also be realize that this news serves as proof that the federal government, even without any reform to the CSA, can and will approve a cannabis-based medicine which has been "thoroughly studied in clinical trials [and] manufactured to assure quality and consistency."  Thus, the catch-22 comes from the fact that marijuana's placement on Schedule I precludes US-based companies from doing the types of clinical trials that the FDA demands.  (If we had a well-functioning federal government, marijuana surely would have been at least re-scheduled to Schedule II or III under the CSA many years ago.  But I digress....)

June 25, 2018 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical community perspectives, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

"IRS cracks down with §280E": Reviewing the latest major US Tax Court court ruling highlighting burdens for marijuana businesses

Download (16)Chris Nani, a student in my Marijuana Law & Policy seminar last year, has already had articles published at the Cannabis Law Report discussing federal tax treatment of cannabis businesses (see prior posts here and here).  Thus I was not surprised to hear from Chris in the wake of a significant US Tax Court ruling earlier this month, and I imposed upon him to author a review of the decision for the blog.  He titled his review ""IRS cracks down with §280E," and here is the account:

Altermeds, LLC, a medical marijuana dispensary near Boulder, Colorado, recently experienced the effects of § 280E after a tax audit found they had under-reported their taxes.  The ruling from the US Tax Court in Alterman v. Commisioner, TC Memo 2018-83, is already being widely discussed in the marijuana industry.

 In 2010 and 2011, Altermeds filed its taxes and applied normal tax deductions to its business.  The IRS audited Altermeds and found a deficiency of $157,821 in 2010 and $233,421 in 2011 holding Altermeds was not eligible for business expense deductions.  Additionally, the Internal Revenue Code (IRC) provides for a tax penalty of 20% the portion of the underpayment for under-reporting taxes. 

280E states:  "No deduction or credit shall be allowed for any amount paid or incurred during the taxable year in carrying on any trade or business if such trade or business (or the activities which comprise such trade or business) consists of trafficking in controlled substances (within the meaning of schedule I and II of the Controlled Substances Act) which is prohibited by Federal law or the law of any State in which such trade or business is conducted."

Essentially, § 280E provides no cannabis business (because cannabis is a Schedule I drug) will receive deductions or credits for any of their business related activates. Normally, businesses can deduct their ordinary business expenses under § 162 of the IRC.  However, § 280E limits § 162 and theoretically was meant to deter drug dealers from writing off their business expenses.  (The opposite may have occurred by giving drug dealers even less incentive to report their income.)

The origins of § 280E are slightly comical.  In 1982, Jeffrey Edmondson, a drug dealer, was able to write off his business expenses under § 162.  Edmondson wrote off traveling, his scale he used to measure drugs, and his rent.  When Congress found out Edmondson was writing off his drug dealing expenses, they enacted § 280E.

The majority of businesses know when entering into the state legalized cannabis market they will still pay federal taxes without being able to deduce business expenses.    Non-cannabis related expenses such as the sale of t-shirts are eligible for § 162 tax deductions even while selling cannabis, cannabis-infused edibles, or pipes are not deductible because of their relation with cannabis.  The tax court is more likely to permit deductions the clearer the line is between a cannabis and non-cannabis business.

When Altermeds was audited, they claimed they had multiple businesses.  One of their businesses sold their non-cannabis merchandise, but the tax court did not find the business to be distinct enough from their cannabis dispensary.  To prove a business is distinct, Altermeds would have to show there is a separate bank account and business.  The tax court held that the non-cannabis products sold by Altermeds (pipes and other cannabis paraphernalia) were sold to complement selling cannabis and were not eligible for any deductions.  Lastly, the court was willing to deduct the amount for the non-cannabis business as well, but Altermeds’ brief failed to follow the court rules and the court was precluded from even contemplating the deductions.

The tax court did allow for the cost-of-goods-sold allowances that the IRS had stipulated prior in the litigation, but Altermeds was still forced to pay its overdue taxes along with the 20% penalty.  With this most recent tax decision taking a hard line approach to deductions associated with cannabis businesses, participants in the industry need to be careful about, and cognizant of the tax consequences that can result from, intermingling cannabis and non-cannabis products.

UPDATE: I just noticed that Bryan Camp over at TaxProf Blog has this long posting on the Altermeds decision under the heading "Lesson From The Tax Court: Into The Weeds on COGS."  Here is his concluding "Lesson" concerning the case: "Get your accounting straight and be sure to hire tax counsel who have the specialized knowledge needed for the job of representing you before both the IRS and Tax Court." 

June 25, 2018 in Business laws and regulatory issues, Taxation information and issues , Who decides | Permalink | Comments (0)

Friday, June 22, 2018

"Age Differences in Daily and Nondaily Cannabis Use in the United States, 2002–2014"

Download (1)The title of this post is the title of this recently published article in Journal of Studies on Alcohol and Drugs.  Here is its abstract:

Objective:

Adult cannabis use has increased in the United States since 2002, particularly after 2007, contrasting with stable/declining trends among youth.  We investigated whether specific age groups disproportionately contributed to changes in daily and nondaily cannabis use trends.

Method:

Participants ages 12 and older (N = 722,653) from the 2002–2014 National Survey on Drug Use and Health reported past-year cannabis use frequency (i.e., daily = ≥300 days/year; nondaily = 1–299 days/year; none).  Multinomial logistic regression was used to model change in past-year daily and nondaily cannabis use prevalence by age group (i.e., 12–17, 18–25, 26–34, 35–49, 50–64, ≥65), before and after 2007.  Multinomial logistic regressions estimated change in relative odds of cannabis use frequency over time by age, adjusting for other sociodemographics.

Results:

Daily cannabis use prevalence decreased in ages 12–17 before 2007 and increased significantly across adult age categories only after 2007.  Increases did not differ significantly across adult ages 18–64 and ranged between 1 and 2 percentage points.  Nondaily cannabis use decreased among respondents ages 12–25 and 35–49 before 2007 and increased across adult age categories after 2007, particularly among adults 26–34 (i.e., 4.5 percentage points).  Adjusted odds of daily versus nondaily cannabis use increased after 2007 for ages 12–64.

Conclusions:

Increases in daily and nondaily cannabis use prevalence after 2007 were specific to adult age groups in the context of increasingly permissive cannabis legislation, attitudes, and lower risk perception.  Although any cannabis use may be decreasing among teens, relative odds of more frequent use among users increased in ages 12–64 since 2007.  Studies should assess not only any cannabis use, but also frequency of use, to target prevention efforts of adverse effects of cannabis that are especially likely among frequent users.

June 22, 2018 in Recreational Marijuana Data and Research | Permalink | Comments (0)

Thursday, June 21, 2018

NORML releases report on local marijuana decriminalization efforts

Download (1)As reported in this posting, headed "NORML Releases Comprehensive Report Summarizing Local Decriminalization Laws," a major marijuana reform group has produced a new report on some major local marijuana reform efforts. Here is part of the posting:

Even though recreational marijuana remains criminalized in a majority of US states, more and more municipalities are moving ahead with local laws decriminalizing the possession of cannabis within city limits. For the first time, NORML has released a comprehensive breakdown of these citywide and countywide decriminalization policies.

Efforts to liberalize municipal marijuana possession penalties in states where cannabis remains criminalized have become increasingly popular in recent years. Since 2012, over 50 localities, such as Albuquerque, Milwaukee, New Orleans, Philadelphia, and St. Louis in a dozen states — including Florida, Georgia, Michigan, Pennsylvania, and Texas — have enacted municipal laws or resolutions either fully or partially decriminalizing minor cannabis possession offenses. Today, over 10.5 million Americans reside in these localities.

Here is part of the NORML report's "Executive Summary":

The decriminalization of cannabis, as first recommended by the US National Commission on Marihuana and Drug Abuse in 1972, is a public policy that calls for replacing criminal sanctions for minor marijuana-related offenses with the imposition of civil fines. 

Under full decriminalization, minor offenses are defined by statute as either non-criminal violations or infractions.  Violators are not subject to arrest.  Instead, they are cited and mandated to pay a small fine.  Violators are not subject to a court appearance nor are they saddled with a criminal conviction or record. 

Under partial decriminalization policies, minor marijuana offenses may remain classified as misdemeanor offenses.  However, violators are issued a summons in lieu of a criminal arrest.  Violators may still be required to appear in court and, if found guilty, will likely have to participate in community service or some other diversionary program instead of jail.  First-time offenders may or may not receive a criminal record depending on the jurisdiction.

Beginning with Oregon in 1973, 21 states and the District of Columbia have enacted versions of marijuana decriminalization.  (Eight of these states: Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, and Vermont) have since replaced their decriminalization statutes with statewide adult use legalization legislation.)

Today, nine states — Connecticut, Delaware, Illinois, Maryland, Mississippi, Nebraska, New Hampshire, New York, and Rhode Island — have fully decriminalized activities specific to the private possession of small amounts of cannabis by adults.  Four additional states — Minnesota, Missouri, North Carolina, and Ohio — have partially decriminalized marijuana possession offenses.  In these latter jurisdictions, cannabis remains classified as a misdemeanor under state law, but the offense does not carry the penalty of jail time.  In New York, marijuana possession 'in public view' remains punishable as a criminal misdemeanor.

Numerous counties and municipalities have moved to decriminalize marijuana offenses locally in jurisdictions where state lawmakers have refused to make any statutory changes in the criminal classification of cannabis.  As public support in favor of marijuana law reform has grown, so too have local efforts by legislators and voters to address the issue at the municipal level.

Since 2012, nearly 60 local jurisdictions in various marijuana prohibition states — including Florida, Georgia, Michigan, Pennsylvania, and Texas — have enacted regional reforms removing the threat of either arrest and/or jail time for those who violate local cannabis possession laws.  The following report, while not intended to be all inclusive, highlights the growing number of cities and counties in marijuana prohibition that have moved forward with regionalized cannabis liberalization policies — policies which now govern over 10.5 million Americans. 

June 21, 2018 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Wednesday, June 20, 2018

"Canada just legalized marijuana. That has big implications for US drug policy."

Legalize-canada-flag-redThe title of this post is the headline of this effective new Vox article that reports on the big marijuana reform news from the big country up north and details some of the likely echoes for Canada's neighbor and the rest of the world. I recommend the entire piece, and here are excerpts:

Canada has become the first wealthy nation in the world to fully legalize marijuana.  The Senate approved Bill C-45, also known as the Cannabis Act, on Tuesday.  The measure was already approved by the House of Commons, so the Senate’s approval means it’s now set to become law.

The measure legalizes marijuana possession, home growing, and sales for adults.  The federal government will oversee remaining criminal sanctions (for, say, selling to minors) and the licensing of producers, while provincial governments will manage sales, distribution, and related regulations — as such, provinces will be able to impose tougher rules, such as raising the minimum age.  The statute largely follows recommendations made by a federal task force on marijuana legalization. Canadian and provincial governments are expected to need two to three months before retail sales and other parts of the law can roll out.

None of this may seem too shocking in the US, where already nine states have legalized marijuana for recreational use and 29 states have allowed it for medicinal purposes.  What sets Canada apart, though, is it’s doing this as a country.  Previously, the South American nation of Uruguay was the only one that legally allowed marijuana for recreational purposes.

Canada, like the US, is part of international drug treaties that explicitly ban legalizing marijuana.  Although activists have been pushing to change these treaties for years, they have failed so far — and that means Canada will be, in effect, in violation of international law in moving to legalize.  (The US argues it’s still in accordance with the treaties because federal law still technically prohibits cannabis, even though some states have legalized it.)...

In moving forward, the Canadian government is now walking a fine line: It’s hoping to legalize marijuana to clamp down on the black market for cannabis and provide a safe outlet for adults, but it’s risking making pot more accessible to kids and people with drug use disorders.  It is taking a bold step against outdated international drug laws, but it could upset countries like Russia, China, and even the US that have historically adopted a stricter view of the treaties.  And while Canadian lawmakers may feel marijuana legalization is right for their country, there’s a risk that legal Canadian pot will spill over to the US — perhaps causing tensions with Canada’s neighbor and one of its closest allies.  Whether Canada is successful in its legalization attempts will depend on how it strikes a balance between these concerns. And depending on how it pulls this off, it may provide a model to other countries interested in legalization — including the US....

Legalization carries risks too.  It could lead to more use and misuse by making pot cheaper and more available.  Mark Kleiman, a drug policy expert at New York University’s Marron Institute, estimates that in the long term a legal marijuana joint will cost no more to make than, say, a tea bag — since both products come from plants that are fairly easy to grow.  It would also be available to anyone (of legal age) in retail outlets after legalization — meaning it would no longer require a shady or secretive meeting with a drug dealer.  Those are benefits for people who use marijuana without problems, to be sure, but easier access could also pose a risk for people who can’t control their cannabis consumption.

Although marijuana isn’t very dangerous compared to some drugs, it does carry some risks: dependence and overuse, accidents, nondeadly overdoses that lead to mental anguish and anxiety, and, in rare cases, psychotic episodes.  Still, it’s never been definitively linked to any serious ailments — not deadly overdoses, lung disease, or schizophrenia.  And it’s much less likely — around one-tenth so, based on data for fatal car crashes — to cause deadly accidents compared to alcohol, which is legal....

Canada is striking a balance unlike that of the US’s legalization experiments so far. So far in the US, the eight states that have legalized pot sales have done so with a model similar to alcohol.  (Vermont has only legalized possession, not retail sales.)  Basically, they’re setting up their systems to allow a for-profit pot industry to flourish, similar to the alcohol industry.

Drug policy experts, however, often point to the alcohol industry as a warning, not something to be admired and followed for other drugs.  For decades, big alcohol has successfully lobbied lawmakers to block tax increases and regulations on alcohol, all while marketing its product as fun and sexy in television programs, such as the Super Bowl, that are viewed by millions of Americans, including children.  Meanwhile, alcohol is linked to 88,000 deaths each year in the US.

If marijuana companies are able to act like the tobacco and alcohol industries have in the past, there's a good chance they’ll convince more Americans to try or even regularly use marijuana, and some of the heaviest users may use more of the drug.   And as these companies increase their profits, they’ll be able to influence lawmakers in a way that could stifle regulations or other policies that curtail cannabis misuse.   All of that will likely prove bad for public health (although likely not as bad as alcohol, since alcohol is simply more dangerous).

There are policies that can curtail this, some of which Canada’s plan will allow.  For example, Canada’s measure restricts marketing and advertising. In the US, this is generally more difficult because the First Amendment protects commercial free speech.  (Tobacco marketing is largely prohibited due to a massive legal settlement.)  But in Canada, the restrictions could stop marijuana companies from marketing their product in a way that targets, say, children or people who already heavily use cannabis....

Canada’s bill also lets provinces entirely handle the distribution and sales of marijuana — up to letting provincial governments directly manage and staff all pot stores by themselves. While state-run liquor stores aren’t unheard of in the US when it comes to alcohol, it’s widely seen as risky in America with marijuana: Since cannabis is illegal at the federal level, asking state employees to run marijuana shops would effectively ask them to violate federal law.  But since Canada is legalizing marijuana nationwide in one go, it can do this — and several provinces are expected to take up this option.

The promise of government-run marijuana shops is that they could be better for public health.  In short, government agencies that run shops are generally going to be more mindful of public health and safety, while private companies are only going to be interested in maximizing sales, even if that means making prices very low or selling to minors and people with drug use disorders.  Previous research found that states that maintained a government-operated monopoly for alcohol kept prices higher, reduced youth access, and reduced overall levels of use — all benefits to public health.

June 20, 2018 in History of Marijuana Laws in the United States, International Marijuana Laws and Policies, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Tuesday, June 19, 2018

Lots of big marijuana reform news emerging from the Big Apple

DownloadThis local article sums up some developing marijuana reform news from New York that seems likely to have national ripples:

Mayor Bill de Blasio and Police Commissioner James O’Neill are expected to announce a new plan Tuesday on how police deal with people caught with marijuana. Sources tell CBS2 that police will soon issue a summons instead of making an arrest. It applies to people smoking or in possession of less than 25 grams of marijuana, CBS2’s Jenna DeAngelis reported.

“The goals are to reduce unnecessary arrests, which is something we’ve been doing overall — 100,000 fewer arrests overall in 2017 than 2013, crime going down consistently in that time frame. We want to build on that,” de Blasio said on NY1. But sources say there will exceptions, which include if the person is on parole or probation or behind the wheel and an arrest would be at the discretion of the officer.

The announcement comes as the New York State Health Department is also set to issue a recommendation to legalize marijuana state-wide, six months after Gov. Andrew Cuomo asked the department to study the effects of legalizing marijuana. “We have neighboring states that have legal marijuana. When those facts change, we need to look at things differently,” Health Commissioner Howard Zucker said. “That’s the decision, at this point, to have a regulated legal marijuana program for adults.”

While the report has not yet been finalized, Zucker said its authors reached their conclusion after a thorough review of the legal, medical and social implications of legalization. “We looked at the pros, we looked at the cons,” Zucker said. “When we were done we realized that the pros outweighed the cons.”

Though a new NYC arrest policy could have a real impact real quickly, I see the forthcoming report by the New York State Health Department to be especially notable and perhaps quite consequential.  I would be inclined to expect a state health department to be concerned about the public health consequences of legalization and to see potential health "cons" to generally outweigh other "pros."  I think that if the New York State Health Department articulates the pros and cons of full legalization in a powerful way that really speaking to public health and safety issues, this forthcoming report could become a template for marijuana reform advocacy in a lot of areas beyond New York.

June 19, 2018 in Criminal justice developments and reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Monday, June 18, 2018

Interesting review of the "footprint" of marijuana prohibition and expungement prospects in Michigan months before full legalization vote

RMLA-MichiganThe Detroit Free Press has this notable new article that includes interesting data on the bite of marijuana prohibition in the Wolverine State. The piece is headlined "Some marijuana convictions could disappear if voters approve legal pot," and here are excerpts:

Untold thousands of Michiganders could be in line for a second chance if voters decide to legalize the recreational use of marijuana in the Nov. 6 election.

In some other states where recreational use of marijuana has been legalized, voters or lawmakers have decided to make it easier for people convicted of marijuana crimes to get their records expunged or sealed. And Michigan could be on the same path if a bill introduced last week by state Rep. Sheldon Neeley gets a hearing and is passed.

“I hope we will listen to the will of the people. If the November vote is loud and clear, we should take a good look at it and balance the playing field on the usage of marijuana in the state of Michigan,” said the Flint Democrat. “We definitely don’t want people to have a criminal record for a nonviolent crime that is now legal if it passes in November.”

His bill would only deal with misdemeanor convictions, such as use or possession of small amounts of marijuana as well as some cannabis growing. But under the legislation, judges “shall grant” requests for expungement of criminal convictions if the proposal is passed by voters and the convictions are no longer considered a crime under the legalization....

In the past five years, 117,123 Michiganders have been arrested and charged with misdemeanor marijuana offenses and 49,928 of those people have been convicted, according to statistics compiled by Michigan State Police from records supplied by county prosecutors and courts.

Nationally, according to figures compiled by the American Civil Liberties Union (ACLU), 8.2 million people were arrested for marijuana offenses between 2001 and 2010. African-Americans were three times more likely to be arrested for marijuana crimes as whites, according to the data, compiled from the FBI’s annual crime statistics.

Altogether, 3,670 people are either in prison, jail or on probation for felony marijuana convictions, according to the Michigan Department of Correction’s 2016 annual report of its inmate population. Some of those convictions are for high-level marijuana distribution charges, but others are for possession or use of marijuana. Neeley’s bill would allow some of those people to request an expungement of their conviction, but judges wouldn’t be required to grant those requests.

Not many marijuana offenders are locked up in county jails in metro Detroit. In Wayne County, 25 of the 1,725 inmates in the county jail are there on felony marijuana charges and no one is locked up on a misdemeanor pot charge, according to Undersheriff Dan Pfannes. Others may be there on marijuana crimes, but have other charges pending as well, he said. In Oakland County, seven of the 1,300 inmates are in jail on misdemeanor marijuana charges and four for felony crimes, said Undersheriff Mike McCabe....

The Coalition to Regulate Marijuana Like Alcohol, which spearheaded the petition drive that got the marijuana legalization on the November ballot, considered adding a clause that would have allowed for expungement of criminal convictions. California did the same thing in 2016 when voters there passed a referendum to legalize weed by a 57 percent to 43 percent margin.

But there was a fear that because the proposal would deal with more than one state law that it could become vulnerable to a legal challenge. “Expungement is a separate issue than legalization,” said Josh Hovey, spokesman for the coalition. “Our first draft included expungement, but our attorneys strongly recommended pulling it or risk the whole thing.”

Neeley hopes his bill will get a hearing before the November election, but that’s unlikely in the Republican-controlled Legislature. “I’d like to see it taken up before the November election so people will have a clearer vision of what’s going to happen going forward,” he said, noting he hasn’t made up his mind on how he’ll vote on the ballot proposal.

But he will have support from some of the candidates running for statewide office. All the Democratic gubernatorial candidates — former Senate Minority Leader Gretchen Whitmer, former Detroit Health Department Director Abdul El-Sayed and retired businessman Shri Thanedar, as well as attorney general candidate Dana Nessel — favor the pot legalization proposal and allowing for the expungement of low-level marijuana convictions.

All of the Republican candidates for governor — Attorney General Bill Schuette, Lt. Gov. Brian Calley, state Sen. Patrick Colbeck and Saginaw Township doctor Jim Hines, as well as Speaker of the House Tom Leonard, R-Dewitt, and Sen. Tonya Schuitmaker, R-Lawton, who are running for attorney general, oppose legalizing marijuana, but they have said they would respect the will of the voters if the measure passes. Schuitmaker said it would make sense to expunge low-level convictions, but she would want to check with prosecutors first to see whether the original charge was more severe and pleaded down. None of the other GOP candidates were willing to address the expungement issue before the legalization vote is taken.

In addition to California, Colorado, Maryland, New Hampshire and Oregon have taken steps to make it easier for people to get their convictions sealed or expunged. Gov. Brian Sandoval, a Nevada Republican, vetoed a bill last year that would have made clearing those convictions easier, saying that the bill didn’t differentiate enough between low-level and more serious crimes.

Regular readers likely know I am very interested in these discussions because of my recent work on a recent article, "Leveraging Marijuana Reform to Enhance Expungement Practices,"  which calls for jurisdictions to take an expansive approach to expungement when moving forward with marijuana prohibition reforms.   And I have blogged a lot about these issues here, as this partial sampling of some recent postings reveals:

June 18, 2018 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Incomplete but sober accounting of "7 Reasons Marijuana Won't Be Legalized in the U.S."

For lots of reasons there is lots of enthusiasm these days about the prospects for federal marijuana reform.  But this recent commentary, fully headlined "7 Reasons Marijuana Won't Be Legalized in the U.S.: Despite growing public support, cannabis is unlikely to get a green light from Congress anytime soon," throws some appropriate cold water on anyone getting too hot about the prospects of Congress passing a major marijuana reform bill anytime soon.  Here are the stated seven reasons, and readers are recommended to click through to see accompanying explanation): 

1. Lawmakers worry about adolescent access

2. Clinical data has been mixed

3. Driving under the influence laws aren't concrete

4. Congress doesn't have room on its docket for reform

5. Republicans have a mixed to negative view of marijuana

6. Keeping the current scheduling has an economic benefit

7. Rescheduling could be a nightmare

As I see it, this commentary's discussion of policy and political challenges to marijuana reform really only scratches the surface. Of particular importance for any major criminal justice reform is the serious commitment of key congressional leadership.  My sense is that key congressional leaders, especially in the Senate which seems likely to stay in GOP hands through at least 2020, have little or no interest in broad marijuana reforms.

In addition, as we have seen recently in federal sentencing reform debates, even once there is broad interest in some kinds of reforms, there can often be significant fights over exactly what kind of reform will be adopted.  In the marijuana space, figuring out which of a wide variety of reforms should be embraced even among supporters of reform presents significant political and practical challenges.

June 18, 2018 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (6)

Saturday, June 16, 2018

"High on Crime? Exploring the Effects of Marijuana Dispensary Laws on Crime in California Counties"

The title of this post is the title of this notable new research now available via SSRN authored by Priscillia Hunt, Rosalie Liccardo Pacula and Gabriel Weinberger. Here is its abstract:

Regulated marijuana markets are more common today than outright prohibitions across the U.S. states.  Advocates for policies that would legalize marijuana recreational markets frequently argue that such laws will eliminate crime associated with the black markets, which many argue is the only link between marijuana use and crime.  Law enforcement, however, has consistently argued that marijuana medical dispensaries (regulated retail sale and a common method of medical marijuana distribution), create crime in neighborhoods with these store-fronts.

This study offers new insight into the question by exploiting newly collected longitudinal data on local marijuana ordinances within California and thoroughly examining the extent to which counties that permit dispensaries experience changes in violent, property and marijuana use crimes using difference-in-difference methods.  The results suggest no relationship between county laws that legally permit dispensaries and reported violent crime.  We find a negative and significant relationship between dispensary allowances and property crime rates, although event studies indicate these effects may be a result of pre-existing trends.  These results are consistent with some recent studies suggesting that dispensaries help reduce crime by reducing vacant buildings and putting more security in these areas.  We also find a positive association between dispensary allowances and DUI arrests, suggesting marijuana use increases in conjunction with impaired driving in counties that adopt these ordinances, but these results are also not corroborated by an event study analysis.

June 16, 2018 in Criminal justice developments and reforms, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Thursday, June 14, 2018

Maine Supreme Court rules federal prohibition preempts effort to make employer subsidize an employee’s medical marijuana

Mmm[1]_0As reported in this AP article, "Maine employers don’t have to pay for medical marijuana under the state workers’ compensation system because federal law supersedes state law, the state supreme court ruled Thursday."  Here is more on this state court ruling and some national context:

The court concluded in a 5-2 decision that federal law takes precedence in a conflict between the federal Controlled Substances Act and the state medical marijuana law. Existing case law demonstrates that an individual’s right to use medical marijuana under state law “cannot be converted into a sword that would require another party” to engage in conduct that violates current federal law, Justice Jeffrey Hjelm wrote for the majority.

The legal case focused on whether a paper mill must pay for medical marijuana prescribed for a worker who was disabled after being hurt on the job in 1989. Madawaska resident Gaetan Bourgoin won an appeal to the Workers’ Compensation Board after arguing that marijuana is cheaper and safer than narcotics. But the Twin Rivers Paper Co. argued that it shouldn’t be required to cover the cost of medical marijuana and that doing so put it in violation of federal law.

The Supreme Judicial Court concluded that the Maine Legislature’s exemption of medical marijuana patients from prosecution under state law “does not have the power to change or restrict the application of federal law that positively conflicts with state law.”

Two dissenting justices wrote that the compelling story of how the injured worker was weaned from opioids by use of medical marijuana justified requiring the reimbursement. “The result of the court’s opinion today is to deprive (the worker) of reimbursement for medication that has finally given him relief from his chronic pain, and to perhaps force him to return to the use of opioids and other drugs...,” Justice Joseph Jabar wrote....

At least five states — Connecticut, Maine, Minnesota, New Jersey and New Mexico — have found medical marijuana treatment is reimbursable under their workers’ compensation laws, according to the National Council for Compensation Insurance. Florida and North Dakota, meanwhile, passed laws last year excluding medical marijuana treatment from workers’ compensation reimbursement.

The full 50-page Maine Supreme Judicial Court ruling is available at this link.  Here is how the majority opinion gets started:

After sustaining a work-related injury, Gaetan H. Bourgoin was issued a certification to use medical marijuana as a result of chronic back pain.  He successfully petitioned the Workers’ Compensation Board for an order requiring his former employer, Twin Rivers Paper Company, LLC, to pay for the medical marijuana.  On this appeal from the decision of the Appellate Division affirming that award, we are called upon for the first time to consider the relationship between the federal Controlled Substances Act (CSA) and the Maine Medical Use of Marijuana Act (MMUMA).  We conclude that in the narrow circumstances of this case — where an employer is subject to an order that  would require it to subsidize an employee’s acquisition of medical marijuana — there is a positive conflict between federal and state law, and as a result, the CSA preempts the MMUMA as applied here. See 21 U.S.C.S. § 903 (LEXIS through Pub. L. No. 115-181). We therefore vacate the decision of the Appellate Division.

June 14, 2018 in Court Rulings, Employment and labor law issues, Medical Marijuana State Laws and Reforms, State court rulings, Who decides | Permalink | Comments (1)

"The Politics of Passing and Implementing Medical Marijuana in Ohio"

The title of this post is the title of this notable new paper just posted to SSRN authored by A. Lee Hannah.  Here is its abstract:

Why did the state of Ohio adopt a medical marijuana policy? And why did it do so in 2016?  This article addresses these questions by examining the diffusion of medical cannabis policy across the U.S., by describing the evolution of images related to the policy, and by exploring the content of the law.

Using evidence from legislators’ remarks on the floor of the Ohio General Assembly and interviews with activists and analysts, I show that the direct initiative helped push members of the Ohio General Assembly to write and adopt a medical marijuana law (MML) when they were unlikely to do so. Next, I analyze trends in media coverage of medical marijuana to demonstrate that the spread of the policy has also been aided by shifting images related to the beneficiaries of medical cannabis programs.  Turning to the content of the law, I find that Ohio’s MML is written similarly to later adopters in the Midwest – where laws are more restrictive and medicalized. Finally, I assess how the characteristics of the law and looming elections will affect the implementation of Ohio’s Medical Marijuana Control Program.

June 14, 2018 in History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Wednesday, June 13, 2018

"Meet the Mother Teresa for Pot Prisoners"

Meet-mother-teresa-pot-prisoners-heroIn part because of the headline and in part because of the focal point, I could not resist linking to this effective High Times article with the headline that serves as the title of this post.  The piece merits a full read, and here are only some of the good parts (with links from the original):

Beth Curtis used to fill her days playing tennis with friends and attending community board meetings in her rural home of Zanesville, Ohio, a small coal country city on the outskirts of Appalachia. But in the past decade, the social calendar of the 76-year-old widow and mother of three has all but disappeared. Instead, she spends her time corresponding with incarcerated people, sending mailers to cannabis companies, talking to the media, and updating her website, LifeForPot.com — all exercises dedicated to advocating for nonviolent offenders serving life sentences without the possibility of parole on marijuana convictions.  Called the “Mother Teresa for Pot Prisoners,” Curtis is lauded as a crucial voice in criminal justice circles for her work calling attention to those who remain incarcerated on marijuana charges as the plant becomes legal across the country.

Curtis, who worked briefly as a social worker in the 1960s, spent the majority of her life raising her three sons and volunteering on various boards. That changed when her brother, John Knock, was given two life sentences plus 20 years without the possibility of parole for his involvement with a marijuana distribution ring. During the 1970s and early ‘80s, Knock, who had moved to San Francisco, spent most of his time out of the country as part of a group that imported marijuana into Europe, Canada, and the northwest.

He left the group in the late ‘80s to spend time with his family and son, moving to Hawaii. Knock was indicted in 1994, picked up in Paris in 1996, and extradited to the United States in 1999, where he stood trial at a federal district court in Florida. He was convicted of conspiracy to import and distribute marijuana and money laundering. Nine years later, when Knock’s legal team had exhausted all of his appeals, his loved ones were left in disbelief of the future that awaited him.

“Our family was shocked because we really didn’t understand the justice system and thought it couldn’t be right,” said Curtis....

Curtis, who was 66 at the time, had honed her skills on the internet investing in small pension plans in the early ‘90s.  She started searching government websites looking for people who had similar sentences for marijuana. She looked for cases that appeared to involve people who were incarcerated solely for marijuana offenses and wrote letters to them in prison in hopes they’d be willing to share more.  “It wasn’t that easy, at that time there weren’t a lot of people who were advocating for them,” Curtis said. “When a stranger writes to you in federal prison I think it’s very logical they were afraid it would be someone who would be an outside confidential informant trying to get information about them that would do harm.”

 Once she earned their trust, Curtis drew on the conversations to write profiles for her entirely self-funded website in a bid to raise awareness for people like her brother who were condemned to spend the rest of their lives behind bars for marijuana.   “It’s pretty satisfying to be able to give them some kind of the story on the outside,” she said. “Every story is a tragedy.”...

Curtis’ reputation has grown over the years and with that, she’s become a regular source for media navigating the sometimes intricate world of marijuana lifers and commutations. She regularly offers her expertise for articles, helps reporters fact check confusing court documents, and connects them with incarcerated people for interviews.  Curtis doesn’t know how many nonviolent drug offenders are now serving life sentences for marijuana but says there aren’t as many as people would expect. The website currently lists 29 people, separated into age categories of “inmates over 62” and “inmates under 62.”...

Amy Povah, a formerly incarcerated person and founder of the CAN-DO Foundation, an organization that advocates for clemency for all nonviolent drug offenders, christened Curtis as the “Mother Teresa for Pot Prisoners,” alluding to the Roman Catholic Saint known for her charitable work. CAN-DO works closely with Life For Pot and has taken over some advocacy work for pot lifers in recent years. Povah credited Curtis’ work vetting cases as a boon to many other advocates as “many people, myself included, have benefited from her body of work.”

At least five pot lifers who Curtis has advocated for have received commutations, but Cox and Knock were among the more than 3,000 cases denied commutations or pardons by former president Barack Obama before he left office in January 2017. Curtis had been helping families of pot lifers prepare complicated clemency petitions to be processed through Obama’s Clemency Project 2014, or CP14, which then Attorney General Eric Holder said could shorten the sentences of more than 10,000 incarcerated people behind bars for nonviolent offenses.

“It was pretty devastating. I honestly could not believe it,” Curtis said. “It was all very hard because everybody who didn’t receive mercy contacted me and they needed reassurance there’s still hope and frankly there still is.”...

Curtis pointed out that clemency is now especially relevant as marijuana is increasingly decriminalized and legalized while a bill to end the federal ban is gaining momentum.

But the policy shifts are bittersweet for those still behind bars for their own roles in harvesting and distributing the plant. In an effort to build support from people benefiting from the new regulations, Curtis has amassed a database of cannabis business enterprises, conglomerates, and venture capitalists to whom she sends mailings urging them to advocate for those serving life sentences for cannabis. There aren’t many in the industry doing so, Curtis said—a surprising revelation, given that the plant is now part of a $9 billion industry projected to employ 292,000 people by 2021.

Curtis talks to her brother a few times a week but has passed on work like communicating regularly with pot prisoners to other advocacy groups such as CAN-Do and Families Against Mandatory Minimums (FAMM), whose president, Kevin Ring, heralded her as an inspiration.

“When advocates say, ‘When a person goes to prison, the whole family serves the time,’ you just have to look at Beth’s life. I don’t think she’s breathed a free breath since her brother went to prison,” he said. 

June 13, 2018 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Detailing the growth (and growing pains) of Alaska's recreational marijuana regime in its largest city

Marijuana_retail_sales_taxesThis local article, headlined "Anchorage considers increasing marijuana sales tax as consumers clamor for cannabis," provides an effective report on the continued development of the marijuana regime in the biggest city of the only deep-red state that has legalized recreational marijuana use.  Here are excerpts:

The Municipality of Anchorage is looking to bump up its marijuana sales tax, citing a "tremendous" amount of resources it has spent working with the city's fledgling cannabis industry.  Meanwhile, consumers have shelled out tens of millions of dollars on legal weed in Anchorage since stores opened in December 2016.

Alaska's largest city has a 5 percent cannabis sales tax in place.  An ordinance introduced at the Anchorage Assembly meeting on Tuesday evening would increase that to 7 percent.  At its current rate, Anchorage's sales tax is expected to bring in $3.5 million this year.  If the 2 percent tax increase passes, an additional $1.4 million in revenue is expected each calendar year, according to the municipality.

A gram of legal marijuana averages around $18 in Anchorage, according to the municipality.

Chris Schutte, director of Anchorage's Office of Economic and Community Development, said the city is requesting the tax increase for two reasons: City departments are spending more money working with the industry than anticipated, and the city has a limited time frame in which to raise taxes.

Schutte said various departments were spending "tremendous resources" to work with marijuana business applicants, some of whom are "brand-new entrepreneurs in a brand-new industry."

"We didn't realize that there would be a lot of (pre-application work) done with the industry … nor did we fully think through all of the things that have to occur after that's done," Schutte said.  More money from taxes would help recoup those costs, Schutte said. He said there are 22 pot shops paying taxes to the city.

The second factor is that the deadline to tweak the tax is July 1, Schutte said.  After that, the city would need to wait two years to seek an increase in taxes.

Anchorage's first marijuana shop opened in late December 2016. In the next 14 months — from January 2017 to March 2018 — consumers spent $36.8 million at Anchorage pot shops, according to municipality data.  The city collected $1.8 million in sales taxes for the same time frame.  In March, the most recent month for which data is available, the municipality collected $216,715 in sales taxes from roughly $4.3 million worth of marijuana products.

Since legal marijuana sales began in Alaska in Oct. 2016, consumers have spent upwards of $100 million at pot shops statewide, according to the Alcohol and Marijuana Control Office....

The state of Alaska has a flat-rate excise tax of $50 per ounce of bud or flower, and $15 per ounce of trim (parts of the plant like leaves or stems).  Growers pay the state tax.

Some local municipalities — like Fairbanks, Juneau and Anchorage — have put an additional sales tax on top, which is levied on the retail side.  Anchorage is allowed to increase its tax rate every two years by up to 2 percent.  The tax rate is capped at 12 percent.

June 13, 2018 in Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)