Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Wednesday, July 31, 2019

Could legalization vote in 2020 help make Florida a tipping point state for marijuana reform nationwide?

Smoking-medical-marijuana-is-now-legal-in-floridaThe question in the title of this post is my first thought in reaction to this local news piece headlined "With Petition Milestone, Recreational Marijuana Is One Step Closer in Florida."  Here are the details:

[W]ith activists pushing to get recreational weed on the 2020 ballot in Florida, the possibility of legalization now seems likelier than ever.  Yesterday the advocacy group Regulate Florida announced its petition to legalize pot has gathered more than 76,632 verified signatures — enough to trigger a review by the Florida Supreme Court.

"We have a long way to go to get it on the ballot, but we will GET IT DONE TOGETHER!!!" the organization wrote in an email newsletter. "TODAY IS THE 1st VICTORY OF MANY TO COME!!!"

Next, the Florida Supreme Court will review the language of the prospective ballot item, which would regulate weed like alcohol in that marijuana would be legal "for limited use and growing" for anyone 21 years or older. Even if the language is approved, Regulate Florida would still need 766,200 signatures to put the amendment before voters.

The Florida Supreme Court review represents a significant milestone, but Regulate Florida still must hit several other targets to get recreational marijuana on the ballot. According to the group's chairman, Michael Minardi, the state has 90 days after the court's certification to complete a financial impact statement on the economic effects of legalizing recreational marijuana.  State statutes also call for the Florida secretary of state to send the proposed amendment to Florida's attorney general, who has 30 days to give an advisory opinion and potentially challenge the validity of the petition....

Last month, a poll by Quinnipiac University showed that 65 percent of Florida voters support "allowing adults to legally possess small amounts of marijuana for personal use."  However, as the Miami Herald recently pointed out, that support doesn't guarantee the amendment's success on Election Day.

There has been talk of marijuana legalization initiatives in states ranging from Arizona to Arkansas to Montana to North Dakota.  But, for various reasons, Florida would be the most significant state for a legalization vote in 2020.  For starters, it is a big state and a swing state.  In addition, because a 60% vote is needed for approval, a ballot win in the state would reveal just how potent support for full legalization can be.

July 31, 2019 in Campaigns, elections and public officials concerning reforms, Initiative reforms in states, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Tuesday, July 30, 2019

Is hemp really now going to become the number three crop in Ohio and can marijuana stay illegal if it does?

83b51efd-e309-441e-9f11-e3ada1158628-CBD_SeltzerI do not blog all that much about hemp reforms, even though I find them quite interesting and important, largely because I do not know that much about agriculture or about all the different ways the hemp plant might be used.  But this local article concerning Ohio hemp developments prompted both the question in the title of this post and some broader thoughts about the relationship between help developments and marijuana reform.  First, some excerpts from the article:

Gov. Mike DeWine signed Ohio's hemp legalization bill, Senate Bill 57, into law on Tuesday at the Ohio State Fair. The law takes effect immediately, freeing all embargoes on CBD inventory and moving hemp-derived cannabidiol off Ohio’s controlled substances list. It also means Ohio State University and other colleges can grow the state's first hemp this summer....

The law immediately allows hemp-derived CBD to flow into the state, but it will be a while before hemp can be commercially grown or processed in the Buckeye State. The U.S. Department of Agriculture plans to issue federal rules for hemp cultivation and processing in the coming weeks. In addition to CBD from hemp flowers, the plant is also harvested for its fiber and seed.

Ohio agriculture officials have six months to draft Ohio’s rules and regulations, which will then be submitted to the feds for approval. The goal: Have everything in place so farmers can get seeds in the ground next spring.... Ohio Department of Agriculture Director Dorothy Pelanda said the agency does not plan to limit the number of licenses issued to cultivate or process hemp.

Pelanda said the agency plans to craft regulations to ensure farmers plant seeds that are certified to be low in THC – hemp is defined as cannabis containing less than 0.3% THC. “We want to make sure that Ohio has the very best hemp program in the nation,” Pelanda told The Enquirer.

Ohio is the 46th state to allow hemp farming. A big part of Ohio’s program will be research, which will begin right away. Ohio State University plans to buy about 2,000 hemp plants in the next week. Gary Pierzynski, associate dean for research and graduate programs at OSU's College of Food, Agricultural and Environmental Sciences, said it’s too late to plant with the goal of harvesting. But Pierzynski hopes this first crop at four locations will position them for good research on growing methods, plant diseases, pests and more next year.

Industry analysts predict the U.S. hemp market will grow from about $4.6 billion to more than $26 billion by 2023. The Ohio Farm Bureau Federation has said hemp has the potential to be Ohio's No. 3 crop behind corn and soybeans.

The bill leaves the details of Ohio’s hemp program – like who can grow it and how much licenses will cost – to the Ohio Department of Agriculture. Those rules will be shaped by experts, lobbyists and public comment periods. Hours after Senate Bill 57 passed, a new hemp industry lobbying group was announced. Backing the group: Ian James and Jimmy Gould, who led the unsuccessful 2015 effort to legalize recreational marijuana in Ohio. Since Issue 3 failed, James and Gould have invested in hemp, in addition to obtaining licenses for medical marijuana businesses here.

Statehouse lobbyist Neil Clark, who has been tapped to lead the organization, said the association will serve businesses who are involved at several levels of the industry and who have “big ideas.” “Our goal is to make sure those restrictions aren’t prohibitive,” Clark said. “There’s a lot of farmland in Ohio and there has to be opportunities for everyone.”

The group joins others that pushed the bill along including the U.S. Hemp Roundtable, which largely represents CBD businesses, and the Ohio Hemp Association, comprised of Ohio businesses and entrepreneurs that want to grow hemp or manufacture hemp products.

Queen City Hemp has been gearing up to put its CBD Seltzer water back on the shelves at local retailers, including Hemptations and Clifton Natural Foods.  A large part of the Cincinnati-based manufacturer’s inventory of CBD-infused seltzer water was confiscated from those retailers and destroyed by the local health department during their crackdown in February, according to president and co-founder Robert Ryan.

A number of national chain stores are already selling CBD products across the country.  Kroger, the nation's largest grocery retailer, announced in June it would sell hemp-derived CBD creams, balms and other topical products in nearly 1,000 stores in 17 states – but not its home state of Ohio.  That will change with the new law, but a Kroger spokeswoman said it was too early to provide details.

As this article highlights for Ohio, many folks here and throughout the nation with an affinity for marijuana reform are involved with hemp reform and the hemp industry.  If (when?) this crop becomes a huge part of agriculture in Ohio and elsewhere, I suspect these these folks are likely to use their clout and their money to push for reforms regarding other types of cannabis plants.  Similarly, if folks in Ohio and throughout the nation get used to seeing CBD sodas on many store shelves and CBD creams when shopping for soap, it seems ever more likely that they will start to view many forms of cannabis more benignly. 

July 30, 2019 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States | Permalink | Comments (0)

Monday, July 29, 2019

"Cannabis Has Big Law Seeing Green, but the Am Law 50 Are Skipping the Party"

The title of this post is the title of this notable lengthy American Lawyer article, which has this subheadline: "Law firms are rushing to open cannabis practices as the industry booms, including many among the Am Law 200. Why is the top tier taking a pass?". Because I am a lawyer and law professor who teaching on cannabis law, I am very interested in any and all stories at the intersection of the cannabis industry and the legal industry. Here are excerpts from this one:

Jonathan Robbins starts his day early. By 6 a.m., he’s on his home office computer scanning emails, and then he hits the hot sheets—dozens of newsletters from attorneys, advocacy groups, legislators and associations focused on the cannabis business. And there is a lot to read.

Robbins, who chairs the cannabis practice at Akerman, believes that when he began to collect clients in the industry back in 2013, he was one of the first Big Law attorneys to practice cannabis law in the United States. “Back when I first started practicing, I went to a conference in Vegas called MJBizCon,” he says. “At the time, it was just a bunch of guys selling nice bongs. This year, there were 28,000 people there.”

One thing has remained consistent through that time, however, even as state after state has legalized marijuana in some form, fueling an estimated $10 billion industry: According to the U.S. government, cannabis is a Schedule I narcotic, putting it in the same ­category as heroin, cocaine and methamphetamines. It is a controlled substance and is illegal on a federal level.

That presents a series of problems for law firms seeking to advise and profit from clients that are involved in a criminal enterprise — at least as far as the federal government is concerned. While more than two dozen Am Law 200 firms have launched formal cannabis practices in the last decade, no Am Law 50 firms are among them. Those that publicly embrace the practice tend to have a clientele consisting largely of midmarket companies — and Wall Street law firms are still conspicuously absent.

Cannabis clients have one concern above all others, Robbins says: “banking and merchant services.” The drug’s complex legal status has created a paradox. It is both driving the growth of cannabis practices within law firms and holding them back from reaching their full potential....

Most major U.S. law firms have done some work in the cannabis space at this point, and according to Morgan Fox, media relations director at the National Cannabis Industry Association, the stigma around having a cannabis practice is virtually gone—at least for small to medium firms. But the largest firms still don’t advertise it. Searching their websites reveals snippets of work done but nothing that could be considered a formalized practice.

Robbins believes there is still a more conservative bent to larger firms, which have more to lose if a client skirts legality or something goes sideways as a result of regulatory changes. Akerman did a great deal of due diligence on the potential exposure of dealing with plant-touching clients. The firm concluded it was a risk worth taking, he says....

From Robbins’ perspective, it may be a good thing that larger firms aren’t suddenly pushing ahead. “Bigger firms dipping their toes into it without having the regulatory expertise could cause problems both for the firm and the client,” he says.

There are some firms just outside the Am Law 50, like Sheppard, Mullin, Richter & Hampton, which announced a formalized 70-attorney practice in May, that are actively looking to raise the profile of their cannabis practices. But they are doing it slowly. Sheppard Mullin’s practice head, Whitney Hodges, says that although the firm made the effort to formalize its practice, it isn’t in a position to discuss financial expectations.

Some smaller firms are quite happy with the fees generated by the industry. Joshua Horn, partner and co-chair of the cannabis practice at Fox Rothschild, says that in the three years since his firm formalized its practice after dabbling in the space for years, it has gone from zero cannabis-related revenue to a multimillion-dollar practice that he expects to keep growing.

Seth Goldberg, a partner at Duane Morris and team lead of its cannabis practice, concurs. He expects the practice to expand, bolstered by the constellation of practice areas the industry touches and projections that the market could grow to $50 billion in the next decade. His firm has been pleased with its revenue results since formalizing the practice in January 2017, though he declined to share them.

Zane Gilmer, a partner in the cannabis practice at Stinson, believes the industry will grow, but his firm does not have an accounting system that measures the exact amount of money the practice is bringing in. The firm’s practice, he says, is more about servicing existing clients that have started to do business with entities dealing with cannabis. His own work focuses, in part, on advising financial institutions that are planning on dealing with companies in the cannabis space. It’s a bit of a gray area.

Although Gilmer says he has been doing work that relates to the cannabis industry since his arrival at Stinson in 2014, the firm didn’t formalize its official practice until last year, and he still sees a lot of room for maturity both in the emerging industry and those who service it. But there’s enough business to necessitate its own practice arm.

July 29, 2019 in Business laws and regulatory issues, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Tuesday, July 23, 2019

Senate hearing on marijuana industry banking issues reveals continued challenges for federal reforms

Many folks seemed quite excited by the Senate Banking Committee's decision to hold this hearing today, titled “Challenges for Cannabis and Banking: Outside Perspectives,” to discuss the SAFE Banking Act and related issues concerning the banking problems that face the marijuana industry. But just the headlines of two press reports on the hearing suggest my persistent pessimism about the short-term prospects for federal marijuana reforms remains justified:

From The Hill: "Pot banking bill supporters seek path to passage in skeptical Senate"

From CNBC: "Senate cannabis hearing shows challenges to rewriting pot laws despite growing support in Congress"

Both articles provide a helpful review of the hearing, and here is how the CNBC piece gets started:

A much-hyped congressional hearing on easing cannabis banking restrictions served as a reminder Tuesday that reforming pot laws remains an uphill battle in Congress despite growing bipartisan support among lawmakers.

The Senate Committee on Banking, Housing and Urban Affairs hosted a hearing titled “Challenges for Cannabis and Banking: Outside Perspectives.” Lawmakers, industry executives and advocates testified on the challenges cannabis companies face trying to get basic banking services in states where medical or recreational marijuana is legal. They urged lawmakers to change federal laws to give the budding industry access to traditional financial services.

One piece of legislation, the Secure and Fair Enforcement (SAFE) Banking Act, would allow banks, credit unions and other financial institutions to work with the cannabis industry. Some think it could pass because it’s narrowly focused on banking and not other sticky issues like decriminalizing or legalizing pot.

But Tuesday’s hearing showed just how hard getting the bill through the Senate would be. Aside from committee chairman Mike Crapo, R-Idaho, none of the Republican committee members attended the hearing.

July 23, 2019 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

New Marijuana Opportunity Reinvestment and Expungement Act envisions creating a Cannabis Justice Office

Download (5)I was pleased to hear reports about, and then see an email describing, a notable new federal marijuana reform bill being proposed by notable federal officials.   The email from the House Judiciary Democratic Press was titled "Nadler & Harris Introduce Comprehensive Marijuana Reform Legislation."  Here are excerpts:

Today, U.S. Representative Jerrold Nadler (D-NY-10), Chairman of the House Judiciary Committee, and U.S. Senator Kamala D. Harris (D-CA)  introduced the Marijuana Opportunity Reinvestment and Expungement Act, one of the most comprehensive marijuana reform bills ever introduced in the U.S. Congress.

“Despite the legalization of marijuana in states across the country, those with criminal convictions for marijuana still face second class citizenship. Their vote, access to education, employment, and housing are all negatively impacted,” said Chairman Nadler. “Racially motivated enforcement of marijuana laws has disproportionally impacted communities of color. It’s past time to right this wrong nationwide and work to view marijuana use as an issue of personal choice and public health, not criminal behavior. I’m proud to sponsor the Marijuana Opportunity Reinvestment and Expungement Act to decriminalize marijuana at the federal level, remove the needless burden of marijuana convictions on so many Americans, and invest in communities that have been disproportionately harmed by the war on drugs. I want to acknowledge the partnership in developing this legislation with my colleagues, Rep. Barbara Lee and Rep. Earl Blumenauer, Co-Chairs of the Congressional Cannabis Caucus, as well as the contributions of Rep. Hakeem Jeffries and Rep. Nydia Velazquez.”

“Times have changed — marijuana should not be a crime,” said Sen. Harris. “We need to start regulating marijuana, and expunge marijuana convictions from the records of millions of Americans so they can get on with their lives. As marijuana becomes legal across the country, we must make sure everyone — especially communities of color that have been disproportionately impacted by the War on Drugs — has a real opportunity to participate in this growing industry. I am thrilled to work with Chairman Nadler on this timely and important step toward racial and economic justice.”

The Marijuana Opportunity Reinvestment and Expungement Act aims to correct the historical injustices of failed drug policies that have disproportionately impacted communities of color and low-income communities by requiring resentencing and expungement of prior convictions.  This will create new opportunities for individuals as they work to advance their careers, education, and overall quality of life.  Immigrants will also benefit from the Marijuana Opportunity Reinvestment and Expungement Act, as they will no longer be subject to deportation or citizenship denial based on even a minor marijuana offense. The Marijuana Opportunity Reinvestment and Expungement Act also ensures that all benefits in the law are available to juvenile offenders.

The Marijuana Opportunity Reinvestment and Expungement Act:

  • Decriminalizes marijuana at the federal level by removing the substance from the Controlled Substances Act. This applies retroactively to prior and pending convictions, and enables states to set their own policy.
  • Requires federal courts to expunge prior convictions, allows prior offenders to request expungement, and requires courts, on motion, to conduct re-sentencing hearings for those still under supervision.
  • Authorizes the assessment of a 5% sales tax on marijuana and marijuana products to create an Opportunity Trust Fund, which includes three grant programs:
    • The Community Reinvestment Grant Program: Provides services to the individuals most adversely impacted by the War on Drugs, including job training, re-entry services, legal aid, literacy programs, youth recreation, mentoring, and substance use treatment.  
    • The Cannabis Opportunity Grant Program: Provides funds for loans to assist small businesses in the marijuana industry that are owned and controlled by socially and economically disadvantaged individuals.
    • The Equitable Licensing Grant Program: Provides funds for programs that minimize barriers to marijuana licensing and employment for the individuals most adversely impacted by the War on Drugs.
  • Opens up Small Business Administration funding for legitimate cannabis-related businesses and service providers.
  • Provides non-discrimination protections for marijuana use or possession, and for prior convictions for a marijuana offense:
    • Prohibits the denial of any federal public benefit (including housing) based on the use or possession of marijuana, or prior conviction for a marijuana offense.
    • Provides that the use or possession of marijuana, or prior conviction for a marijuana offense, will have no adverse impact under the immigration laws.
  • Requires the Bureau of Labor Statistics to collect data on the demographics of the industry to ensure people of color and those who are economically disadvantaged are participating in the industry.

Along with Nadler and Harris, co-sponsors of the Marijuana Opportunity Reinvestment and Expungement Act include U.S. Senators Cory Booker (D-NJ), Jeff Merkley (D-OR), and Ron Wyden (D-OR); in the U.S. House of Representatives, cosponsors Barbara Lee (D-CA) and Earl Blumenauer (D-OR), Co-Chairs of the Congressional Cannabis Caucus, and Hakeem S. Jeffries (D-NY) and Nydia M. Velazquez (D-NY), were particularly instrumental in developing this bill.  Other House cosponsors include Matt Gaetz (R-FL), David Cicilline (D-RI), Steve Cohen (D-TN), J. Luis Correa (D-CA), Madeleine Dean (D-PA), Theodore E. Deutch (D-FL), Veronica Escobar (D-TX), Sheila Jackson Lee (D-TX), Pramila Jayapal (D-WA), Henry C. “Hank” Johnson, Jr. (D-GA), Ted Lieu (D-CA), Zoe Lofgren (D-CA), Jamie Raskin (D-MA), Eric Swalwell (D-CA), Dwight Evans (D-PA), Tulsi Gabbard (D-HI), Debra A. Haaland (D-NM), Ro Khanna (D-CA), James P. McGovern (D-MA), Eleanor Holmes Norton (D-DC), Ayanna Pressley (D-MA), Maxine Waters (D-CA), and Bonnie Watson Coleman (D-NJ). 

The Marijuana Opportunity Reinvestment and Expungement Act has the support of a broad coalition of civil rights, criminal justice, drug policy, and immigration groups, including: the Drug Policy Alliance, Center for American Progress, 4thMVMT, ACLU, California Minority Alliance, Center for Law and Social Policy (CLASP), Human Rights Watch, Immigrant Legal Resource Center, Law Enforcement Action Partnership, Leadership Conference on Civil and Human Rights, National Council for Incarcerated and Formerly Incarcerated Women and Girls, National Organization for the Reform of Marijuana Laws (NORML), Sentencing Project, Students for Sensible Drug Policy, UndocuBlack Network, Washington Office on Latin America (WOLA).

The full text of the Marijuana Opportunity Reinvestment and Expungement Act is available at this link, and I especially what to note that Section 5 of the bill includes a provision for establishing within the federal Office of Justice Programs a new office call the "Cannabis Justice Office."  In my 2018 article, "Leveraging Marijuana Reform to Enhance Expungement Practices," I make the case for using marijuana revenues to help build an institutional infrastructure for helping to remediate the various harms from the war on drugs.  Though this proposed Cannabis Justice Office is not exactly what I had in mind, I am really excited to see any major reform bill focus on creating a justice infrastructure for continued emphasis on justice and equity issues.

July 23, 2019 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)

Saturday, July 20, 2019

Two notable new stories of marijuana's still notable criminal justice footprint

Throughout most of the Unites States, millions of Americans are able to "legally" buy and sell marijuana for medical or recreational purposes.  (Of course, I put "legally" in quotes because all these activities are violations of federal law, but the laws and practices of states and localities define enforcement realities.)  Given all the "legal" marijuana activity, it can be dangerously easy to forget that the criminalization of marijuana is still a significant criminal justice reality for a significant number of individuals.  But these two new stories about arrests in two states provides an important reminder of this reality:

From the Washington Post, "Marijuana arrests in Va. reach highest level in at least 20 years, spurring calls for reform."  An excerpt: 

Nearly 29,000 arrests were made for marijuana offenses in Virginia last year, a number that has tripled since 1999, according to an annual crime report compiled by the Virginia State Police. Marijuana busts account for nearly 60 percent of drug arrests across Virginia and more than half of them were among people who were under 24, according to the data. The vast majority of cases involved simple possession of marijuana....

The Virginia Crime Commission found that 46 percent of those arrested for a first offense for possession of marijuana between 2007 and 2016 were African Americans, who represent about only 20 percent of Virginia’s population....

In Virginia, a first conviction for possessing marijuana is a misdemeanor that can result in up to 30 days in jail and a $500 fine. Subsequent arrests can result in up to 12 months in jail and a $2,500 fine. A defendant’s driver’s license is also revoked for six months for a drug conviction. The Virginia Crime Commission study found that only 31 people were in jail in July 2017 solely for a conviction of possessing marijuana in the state. The libertarian Cato Institute estimated Virginia spent $81 million on marijuana enforcement in 2016.

From Wisconsin Watch, "Blacks arrested for pot possession at four times the rate of whites in Wisconsin." An excerpt:

Almost 15,000 adults in Wisconsin were arrested in 2018 for marijuana possession, a 3% increase from 2017, according to data from the state Department of Justice.  Prison admissions in Wisconsin for marijuana also were higher in 2016 for black individuals than for whites, according to the state Department of Corrections. Some experts believe this disparity can be attributed to policing practices in low-income neighborhoods that tend to have more residents of color....

Under state law, possession of marijuana of any amount for a first-time offense can lead to up to six months in jail and a fine of up to $1,000. Any offense after that is classified as a felony and can result in a sentence of three and a half years in prison with a maximum fine of $10,000. 

I want to believe that recently increases in marijuana arrests are mostly a product of increased marijuana activity and not an extra focus on marijuana enforcement. But whatever the reason, I sincerely wonder if anyone sincerely believes that all of the time, money and energy expended for all these marijuana arrests serves to enhance justice or safety in these jurisdictions.

Cross-posed at SENTENCING LAW AND POLICY.

July 20, 2019 in Criminal justice developments and reforms, Race, Gender and Class Issues | Permalink | Comments (0)

Thursday, July 18, 2019

Spotlighting the key congressional gatekeepers controlling path for federal marijuana reform

With new marijuana-related hearings taking place this summer in both the House and Senate and with new bills being proposed and reform talk afoot, it might seem like significant federal marijuana reform could occur any day now.  But, usefully, this new Rolling Stone article provides an oft-needed reminder of who really decides whether and when any legislative proposals will advance.  The piece is headlined "Three Republicans Stand in the Way of Federal Weed Legalization: There’s finally bipartisan support for cannabis legislation — but unless it can get past a small group of Republican senators, the bills will continue to fizzle," and here are excerpts:

Democrat lobbyist... Saphira Galoob was [at lunch] to talk about cannabis legalization with Republican lobbyist Don Murphy. Over sweet potato fries, Murphy — a former GOP state representative in Maryland who has been working in marijuana policy for over 15 years — and Galoob traded war stories about advocating for cannabis on Capitol Hill, where, as Murphy explains, public opinion only goes so far....  [P]ublic and bipartisan support are not enough for full marijuana legalization, says Galoob. “We are still in a situation where the temperature within the Republican Party conference — within the leadership — is not yet signaling that it’s OK.”

The circle of people on Capitol Hill who will decide if cannabis legislation passes is actually pretty small.  There are three names that are continually listed — by lobbyists, advocates, and lawmakers — as the gatekeepers to any federal cannabis legislation: Republican Senators Mike Crapo (ID), Lindsey Graham (SC), and Majority Leader Mitch McConnell (KY).  They make decisions about which cannabis bills — if any — the Senate in Congress will have opportunity to vote on this session.

“I used to think that in civics, in government, you need 50 percent plus one to pass legislation,” Murphy says.  “Not exactly. You need one, plus 50 percent.”  That one, says Murphy, is a committee chairman. In order to get a bill to the floor for a full Senate vote, it must first pass the House, then get seen by a Senate committee.  However, there are absolutely no guarantees that a committee will ever hear a bill.  That’s completely up to the committee chairman.

Senators Crapo and Graham are chairmen of the Senate Banking and Senate Judiciary committees, respectively — the two committees that have the highest chance of seeing standalone cannabis legislation in this congress.

Take, for example, the SAFE Banking Act, which is expected to pass the House by a strong margin.  But because the bill deals with banking, it will have to pass through the Senate Banking Committee, which has been led by Crapo since 2016....  Until very recently, the chairman and his office avoided taking a hard stance on the SAFE Banking Act by arguing that cannabis’ Schedule I status on the Controlled Substances Act should be dealt with first. But on July 16th, a hearing popped up on the Banking Committee calendar titled “Challenges for Cannabis and Banking: Outside Perspectives,” to be held in late July. Sen. Crapo’s Senate Banking committee, turns out, has scheduled a hearing on the SAFE Banking Act, officially pulling it into the Senate sphere of influence before it has even formally passed through the House of Representatives.

While that is good news for pro-SAFE Banking advocates and a big step forward for the bill itself, the story is far from over.  The bill still needs a vote — called a “markup” — scheduled, it needs to pass that committee vote, and then it moves on, most likely, to the Senate Judiciary Committee.

The situation in the Judiciary Committee, where Sen. Lindsey Graham is chairman, is similar to banking.  Most cannabis bills — not just the banking bill — would have to pass his committee before being considered in the full Senate, because they involve the Controlled Substances Act, which is overseen by the Department of Justice.

Sen. Graham’s track record on marijuana is mostly cold.  He co-sponsored the medical marijuana-focused CARERS Act of 2015, which would have re-scheduled marijuana and given added protections to states that legalized marijuana.  But since then, Graham has voted against other bills such as the SAFE Banking Amendment — which have been tacked onto different appropriations bills multiple times over the years.  Graham told Roll Call in April that he is “not very excited about” the SAFE Banking Act, and in 2016 told POLITICO Magazine he rejects recreational marijuana.  His scorecard on marijuana advocacy group NORML’s website gives him a “C” grade.

What he would do if cannabis legislation is sent to his committee is unclear.  Most advocates don’t think Graham is motivated to hear standalone marijuana legislation unless there was additional pressure on him from GOP leadership....  Even if a cannabis bill passes a Senate committee in this congress, though, that doesn’t necessarily mean it will make it to a vote. Majority Leader Mitch McConnell holds the keys to the Senate chamber, and he only brings bills to the floor that he personally wants passed.  Though he worked hard last year to legalize hemp – Kentucky has a long history of farming industrial hemp, and McConnell was looking for a way to help the state’s economy — he’s said he will not consider descheduling cannabis.... 

Some advocates believe that the majority leader could be swayed if a cannabis bill could also help the hemp industry.  Right now, some hemp farmers are still having issues opening bank accounts or accessing other programs that should be legal for them, because to the untrained eye, full-spectrum cannabis and hemp look incredibly similar.  The difference between legality and classification as a Schedule I drug is in how much CBD and THC the plant possesses, and banks don’t want to be held liable if a hemp company grows a crop with too much CBD or any THC.  So many banks and credit card companies are avoid working with the hemp industry entirely.  At a tour of a Kentucky hemp facility earlier this month, McConnel himself acknowledged the service gap, saying the banks “need to be convinced, and we hope to explain it to them.”

If the SAFE Banking Act was passed, it would arguably give hemp – which Sen. McConnell worked hard to make legal for his state – some breathing room.  Republican Cory Gardner, one of the more influential GOP members on this topic, is optimistic. “I think we’re making more progress than we’ve ever had,” he says.

When asked about the chances for cannabis legislation in the Senate, Senator Jeff Merkley of Oregon said he believes the SAFE Banking Act — and potentially other cannabis legislation — has the votes to pass. “It would help a lot to have the support of leadership in this chamber,” he says. “If there’s no obstruction, if we have a free chance to have a debate on the floor, I think we can get the sixty votes and pass it.”

If no cannabis legislation is passed by the time a new congress arrives in January of 2021, the whole process — introducing bills, committee hearings and votes, House votes, Senate votes, etc — will have to start over at square one.

July 18, 2019 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Tuesday, July 16, 2019

"Is Cannabis a Gateway Drug? Key Findings and Literature Review"

The title of this post is the title of this lengthy report published in November 2018 produced by the Federal Research Division of the Library of Congress in conjunction with the National Institute of Justice.  For some reason, I missed this notable report when it was first released and tripped across it just this past week.  Here are the three lead findings of the full report:

1. The existing statistical research and analysis show mixed results and do not clearly demonstrate scientific support for cannabis use leading to harder illicit drug use.  As a result, FRD has determined that no causal link between cannabis use and the use of other illicit drugs can be claimed at this time.

2. The current state of research on this topic is very limited and existing studies suffer from difficulties in gathering information and applying the findings to a larger population.

3. While many of the studies reviewed in this report did find statistically significant associations between cannabis use and one’s later use of other illicit drugs, there is not yet conclusive evidence to assert that cannabis is a gateway drug. Moreover, the practical significance of these findings was limited.

July 16, 2019 in Medical Marijuana Data and Research, Recreational Marijuana Data and Research | Permalink | Comments (1)

Thursday, July 11, 2019

Recapping big congressional hearing on marijuana reform and wondering what is next

Yesterday was an interesting and perhaps historic day inside the Beltway as the  Crime, Terrorism and Homeland Security Subcommittee of the Committee of the Judiciary of US House of Representatives conducted a hearing titled "Marijuana Laws in America: Racial Justice and the Need for Reform."  The full two-hour+ hearing, along with the written testimony submitted by the official witnesses, can all be found at this official webpage.   If one is looking for a summary, this High Times piece provides recap under the headline "What Was Said at Today’s Congressional Hearing on Federal Marijuana Law Reform."  And the headline of this Marijuana Moment recap, headlined "Lawmakers And Witnesses Clash On Strategy During Congressional Hearing On Ending Federal Marijuana Prohibition," highlights that there was considerable consensus on the problems with blanket federal marijuana prohibition, but considerable dissensus concerning how reform might best move forward.

I have been fairly pessimistic about federal marijuana reforms before 2020 primarily because, as I noted in this MJBiz Daily piece, I do not think Senate Majority leader Mitch McConnell has any interest in moving  any significant reforms forward these days (especially after he got hemp reforms passed late last year).  But this congressional hearing provides yet another reminder of why federal marijuana reform is likely to remain so very challenging in the months and years ahead.  Even when there is broad agreement as to the need for reform, we still seem to be a very long way from agreement as to the best form of reform.  And experiences over the last year in New Jersey and New York highlight that even a strong political will for reform among key official can still be thwarted by squabbles over which of various forms reform could take.

For this reason, as I wonder about what is next in Congress on this front, I remain inclined to say "probably nothing."  

A few related recent prior posts:

July 11, 2019 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)

"Tribal Cannabis: Balancing Tribal Sovereignty and Cooperative Enforcement"

The title of this post is the title of this new paper recently posted to SSRN authored by Patricia Danielle Cortez, a recent graduate of The Ohio State University Moritz College of Law.  This paper is the eighth in an on-going series of student papers supported by Drug Enforcement and Policy Center.  (The first seven  papers in this series are linked below.)  Here is this latest paper's abstract:

The cannabis industry remains a difficult space to navigate for Native Americans both because of the continued federal ban on cannabis and the extra layer of laws and regulations on tribal land, as well as the potential for continued stigma arising from their involvement in an industry that was until recently considered illegal at all levels of government.  Because of the complex jurisdictional circumstances which arise within tribal land, tribes are left with pioneering strategies on implementing a successful cannabis business alone – whether that be growing, wholesaling, selling on tribal land, or all three.  At the same time, Native American tribes have many competitive advantages – they have water rights and access to power, they own land, and they have a historical and cultural tie to cannabis and natural healing. 

This article discusses several short term and long term steps that Native American tribes should undertake once a state in which a tribe is located legalizes medical marijuana in order to ready themselves to take advantage of an economic opportunity in the form of a cannabis industry should it arise including gaining community support and amending tribal codes, establishing a compact and setting up protections from outside investors, and seek long term legislative fixes such as opt-out provisions in the CSA.

Prior student papers in this series:

July 11, 2019 in History of Marijuana Laws in the United States, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Wednesday, July 10, 2019

On eve of congressional marijuana reform hearing, major policy groups form new Marijuana Justice Coalition

6a00d8341bfae553ef0223c85155dc200c-320wiAs reported in this Marijuana Moment piece, headlined "ACLU And Other Groups Form Coalition To Push Justice-Focused Marijuana Legalization Model," a notable new alliance has come together to press for federal marijuana reform.  Here are the basics:

Ten leading civil rights and criminal justice reform groups announced on Tuesday the formation of a coalition to advocate that marijuana legalization legislation must be comprehensive and include wide-ranging social equity provisions.

Members of the Marijuana Justice Coalition (MJC) include the ACLU, Center for American Progress, Center for Law and Social Policy, Drug Policy Alliance, Human Rights Watch, Immigrant Legal Resource Center, Lawyers’ Committee for Civil Rights Under Law, Leadership Conference on Civil & Human Rights, NORML and Students for Sensible Drug Policy.

Noting that the congressional conversation around cannabis has shifted from whether to legalize to how to legalize, MJC said in its announcement that any reform effort should include a series of measures that focus on investing in communities disproportionately harmed by prohibition, encouraging participation in the industry by impacted individuals, expunging the records of those with prior marijuana convictions and ensuring that work in a legal market doesn’t impact citizenship applications.

“Ending prohibition on the federal level presents a unique and desperately needed opportunity to rightfully frame legalization as an issue of criminal justice reform, equity, racial justice, economic justice, and empowerment, particularly for communities most targeted by over-enforcement of marijuana laws,” MJC wrote. “As Congress considers the end of marijuana prohibition, the Marijuana Justice Coalition believes that any legislation that moves forward in Congress should be comprehensive.”

That comprehensive approach should involve descheduling cannabis and advancing criminal justice reform provisions such as expungements and resentencing, MJC said. The group also called for “eliminating barriers to access to public benefits (e.g. nutrition assistance, public housing, etc.) and other collateral consequences related to an individual’s marijuana use or previous arrest or conviction” and “eliminating unnecessarily discriminatory elements for marijuana use, arrests and convictions, including drug testing for public benefits or marijuana use as a reason for separating children from their biological families in the child welfare system.”

Queen Adesuyi, policy coordinator at the Drug Policy Alliance’s national affairs office, said the coalition was formed “with the goal of reforming federal marijuana laws, but doing so in a way that gives back to the communities most impacted by the war on drugs.”...

“Since the scheduling of marijuana as a Controlled Substance in 1970, over 20 million Americans have been unjustly arrested or incarcerated,” Justin Strekal, political director of NORML, told Marijuana Moment. “Entire communities have lost generations of citizens to cyclical poverty and incarceration that resulted from the collateral consequences of having a cannabis-related conviction on their record.”...

Tuesday’s announcement from MJC and its influential members is especially timely. On Wednesday, the House Judiciary Crime, Terrorism and Homeland Security Subcommittee will hold a hearing on marijuana reform that’s expected to explore many of the social equity and racial justice issues identified in MJC’s priority list. While the panel may well consider the bipartisan Strengthening the Tenth Amendment Through Entrusting States (STATES) Act among other bills, it seems unlikely MJC will be inclined to offer its support for that specific legislation because it lacks social equity provisions.

The full "Statement of Principles on Federal Marijuana Reform" from this coalition can be found at this link. Here are a few paragraphs from that two-page statement before it turns to specifics:

Ending prohibition on the federal level presents a unique and desperately needed opportunity to rightfully frame legalization as an issue of criminal justice reform, equity, racial justice, economic justice, and empowerment, particularly for communities most targeted by over-enforcement of marijuana laws.

As Congress considers the end of marijuana prohibition, the Marijuana Justice Coalition believes that any legislation that moves forward in Congress should be comprehensive. The provisions set forth below are agreed upon by the undersigned criminal justice, drug policy, civil rights, and anti-poverty groups as principles that should be considered as a part of any moving marijuana reform efforts in Congress.

Relatedly, Kyle Jaeger at Marijuana Moment also has this lengthy preview of today's congressional hearing on marijuana reform headlined "The Debate Over How, Not Whether, Congress Should Legalize Marijuana Is Heating Up."

Related prior post:

US House Subcommittee hearing scheduled on "Marijuana Laws in America: Racial Justice and the Need for Reform"

July 10, 2019 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Notable new data run suggest marijuana reform not (yet?) resulting in increase in teen marijuana use

Earlier this week, the journal JAMA Pediatrics published this notable "Research Letter" titled "Association of Marijuana Laws With Teen Marijuana Use: New Estimates From the Youth Risk Behavior Surveys."  This AP article reports on its findings and why the research is garnering attention:

New research suggests legalizing recreational marijuana for U.S. adults in some states may have slightly reduced teens’ odds of using pot. One reason may be that it’s harder and costlier for teens to buy marijuana from licensed dispensaries than from dealers, said lead author Mark Anderson, a health economist at Montana State University.

The researchers analyzed national youth health and behavior surveys from 1993 through 2017 that included questions about marijuana use. Responses from 1.4 million high school students were included.

Thirty-three states have passed medical marijuana laws and 11 have legalized recreational use — generally for ages 21 and up, many during the study years. The researchers looked at overall changes nationwide, but not at individual states. There was no change linked with medical marijuana legislation but odds of teen use declined almost 10% after recreational marijuana laws were enacted....

Previous research has found no effect on teen use from medical marijuana laws, and conflicting results from recreational marijuana laws. The new results echo a study showing a decline in teen use after sales of recreational pot began in 2014 in Washington state. The results “should help to quell some concerns that use among teens will actually go up. This is an important piece when weighing the costs and benefits of legalization,” Anderson said.

But Linda Richter, director of policy research and analysis at the nonprofit Center on Addiction, questioned the new findings. The center is a drug use prevention and treatment advocacy group. “It sort of defies logic to argue that more liberal recreational marijuana laws somehow help to dissuade young people from using the drug,” Richter said.

Other studies have found that, in states where use is legal, fewer teens think it is risky or harmful than the national average, she said. And teens in those states still have access to marijuana. “There is plenty of research showing that the black market for marijuana is alive and well in states that have legalized recreational use,” Richter said.

As the title of this post suggest, I think it is still way too early to reach any clear conclusions about how marijuana reform laws are impacting marijuana use among any and all populations. I am glad there is a robust effort to keep a close eye on these teen use data, and lots of factors surely impact use patterns locally and nationally.  So this seems to me another bit of data in a story that we must keep watching for many years to come (along with teen use of alcohol and other drugs in a modern marijuana reform era).

July 10, 2019 in History of Marijuana Laws in the United States, Medical Marijuana Data and Research, Recreational Marijuana Data and Research | Permalink | Comments (0)

Monday, July 8, 2019

US House Subcommittee hearing scheduled on "Marijuana Laws in America: Racial Justice and the Need for Reform"

WashingtonDC-Capitol-MarijuanaI am quite intrigued and pleased that this week the US House of Representatives has scheduled a hearing titled "Marijuana Laws in America: Racial Justice and the Need for Reform."  The official notice of the hearing is here, and the event will be conducted by the Crime, Terrorism and Homeland Security Subcommittee of the Committee of the Judiciary and will take place on Wednesday, July 10, 2019 at 10:00am in Room 2141 of the Rayburn House Office Building in Washington DC.

Based solely on the title given to this hearing, I would expected it to be focused principally on racial disparities in arrests and on other racialized aspects of the enforcement of marijuana prohibitions.   But the official witness list for the hearing shows that two of the four scheduled witnesses are doctors while another is the CEO of the Cannabis Trade Federation.   One scheduled witness who does work in the criminal justice, Marilyn Mosby, the chief prosecutor for Baltimore City, surely can and will speak to racial justice issue in the application of marijuana laws.  But I am not entirely sure the other witnesses will be focused on racial justice specifically or just the need for reform generally.

Kyle Yeager at Marijuana Moment has this helpful review of what we might expect from the witnesses and the significance of this event.  Here are excerpts:

Given the backgrounds of these individuals, it seems apparent that committee members will be discussing not whether the U.S. should end federal cannabis prohibition, but will focus primarily on how to do it.

Witnesses [will] include Malik Burnett, a physician at Johns Hopkins Bloomberg School of Public Health who previously served as the Washington, D.C. policy manager at the Drug Policy Alliance’s Office of National Affairs, where he helped lead a successful ballot initiative campaign to legalize cannabis in the nation’s capital in 2014.

Baltimore State’s Attorney Marilyn Mosby, who announced in January that her office would no longer prosecute cannabis possession cases and would work to clear the records of certain individuals with prior marijuana convictions, is also being invited to testify.

David Nathan, a physician and board president of the pro-legalization group Doctors for Cannabis Regulation (DFCR), will also appear before the committee. He told Marijuana Moment that he looks “forward to discussing the evidence-based health effects of cannabis, the failure of prohibition, the inadequacy of decriminalization, and the public health and social justice benefits of effective regulation.”...

Finally, Neal Levine, CEO of Cannabis Trade Federation, will be the minority witness—which is noteworthy in and of itself, as Levine advocates for legalization, while one might expect the minority Republican party to invite someone who shares an opposing perspective on ending prohibition. “I cannot comment on what has not been announced publicly by the committee, but I would welcome the opportunity to share the perspective of our members,” Levine, who previously served as a staffer for the Marijuana Policy Project, told Marijuana Moment. “We are especially well positioned to discuss the challenges arising from the inconsistency between state and federal cannabis laws.”...

While lawmakers aren’t expected to vote on any particular bill at the hearing, it will nonetheless be one of the most significant congressional developments on marijuana reform to date.

July 8, 2019 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Race, Gender and Class Issues, Who decides | Permalink | Comments (1)

"Cannabis and Insurance"

The title of this post is the title of this new article available via SSRN authored by Francis Joseph Mootz and Jason Horst. Here is its abstract:

Although many states have decriminalized or legalized cannabis, it remains a Schedule 1 drug under the federal Controlled Substances Act.  The conflict between federal and state law presents many complicated issues, including significant problems relating to insurance coverage.  Insurance law seeks to balance competing policy interests.  On one hand, public policy supports reading insurance policies broadly to indemnify policyholders for their losses.  On the other hand, public policy counsels against permitting insurance to indemnify (federally) illegal activity. 

In this Article, we explore some of the pressing problems arising out of the conflict between these policy considerations in the context of liability, property, and employment-related insurance.  We also explore emerging cannabis insurance policy options in states where cannabis is legal and discuss the advantages, but ultimate inadequacy, of those options.  We conclude that policyholders are likely to find that their reasonable expectations of insurance coverage are unmet at this point in the emerging market.

July 8, 2019 in Business laws and regulatory issues | Permalink | Comments (0)

Friday, July 5, 2019

Holiday week news and notes, with an emphasis on freedom from marijuana convictions

I have seen a number of notable marijuana-related stories this past week, and regular readers know my eye is always drawn to the criminal justice pieces in this space.  So, as we wind down an Independence Day holiday week, I figured I would do a wrap-up of worthwhile reading with an emphasis of freedom-enhancing news at the end:

A few general interest pieces of note:

From The Hill, "Marijuana policies are changing, but they are not always based on scientific knowledge"

From the New York Times, "Marijuana, Reefer, Weed: How Language Keeps Evolving for the Devil’s Lettuce"

From Vice, "How a Bogus Anti-Weed Stat Seeped into the Mainstream"

A few criminal justice pieces of note:

From California, "Monterey Co. DA to determine whether 1,415 marijuana convictions qualify for clemency"

From Illinois, "Illinois set to expunge nearly 800,000 marijuana convictions"

From New York, "DA reducing low-level marijuana charges ahead of governor's signature"  AND "More than 5,000 Capital Region marijuana convictions to be sealed"

From Texas, "This year, Texas passed a law legalizing hemp. It also has prosecutors dropping hundreds of marijuana cases."

July 5, 2019 in Criminal justice developments and reforms, History of Marijuana Laws in the United States | Permalink | Comments (0)

"Use of Cannabis to Relieve Pain and Promote Sleep by Customers at an Adult Use Dispensary"

Ujpd20.v051.i02.coverThe title of this post is the title of this notable new research authored by Marcus Bachhuber, Julia Arnsten and Gwen Wurm and published in the Journal of Psychoactive Drugs.  Here is its abstract and concluding paragraph:

Medical cannabis patients consistently report using cannabis as a substitute for prescription medications; however, little is known about individuals accessing cannabis through adult-use markets.  A survey at two retail stores was conducted in Colorado, United States.  Between August 2016 and October 2016, store staff asked customers if they wanted to participate and, if so, provided an electronic survey link.  All customers reporting medical certification were excluded.  Of 1,000 adult-use only customer respondents, 65% reported taking cannabis to relieve pain and 74% reported taking cannabis to promote sleep. 

Among respondents taking cannabis for pain, 80% reported that it was very or extremely helpful, and most of those taking over-the-counter pain medications (82%) or opioid analgesics (88%) reported reducing or stopping use of those medications.  Among respondents taking cannabis for sleep, 84% found it very or extremely helpful, and most of those taking over-the-counter (87%) or prescription sleep aids (83%) reported reducing or stopping use of those medications.  De facto medical use of cannabis for symptom relief was common among adult-use dispensary customers and the majority reported that cannabis decreased their medication use.  Adult use cannabis laws may broaden access to cannabis for the purpose of symptom relief.....

In summary, we found that de facto medical cannabis use is common among adult use customers at a cannabis dispensary.  Both pain relief and sleep promotion are common reasons for cannabis use, and the majority of respondents who reported using cannabis for these reasons also reported decreasing or stopping their use of prescription or over-the-counter analgesics and sleep aids.  While adult-use laws are frequently called “recreational,” implying that cannabis obtained through the adult use system is only for pleasure or experience-seeking, our findings suggest that many customers use cannabis for symptom relief.

July 5, 2019 in Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research | Permalink | Comments (0)