Marijuana Law, Policy & Reform

Welcoming Ohio Representative Juanita O. Brent to marijuana law seminar class at Moritz College of Law

I am extraordinarily excited that my (always exciting) Marijuana Law and Policy seminar at The Ohio State University Moritz College of Law is now entering its student presentation phase. This means in the coming weeks I will be blogging about the topics that students have researched and presenting here materials they have assembled providing background readings and information.

Adding to my excitement for the start of student presentations is the fact that the first student has arranged for a special visitor to come speak to our class next week.  Here are the details about the speaker at the focal point for the planned class discussion:

Cleveland Heights native Representative Juanita O. Brent from District 12 is set to speak with The Ohio State University, Moritz College of Law’s marijuana law seminar class regarding her sponsored bill – House Bill 60 – and, more generally, marijuana law in the State of Ohio on March 3, 2022.   The class looks forward to asking Representative Brent questions about her legislative work relating to treating autism spectrum disorder with medical marijuana and hearing her  views on the future of medical marijuana and recreational marijuana in the State of Ohio.

On January 25, 2022, Representative Brent announced the committee passage of House Bill 60 – a bipartisan bill that would authorize medical marijuana for autism spectrum disorder.  House Bill 60 was introduced by the 134th General Assembly during the Regular 2021-2022 Session by Representative Brent and Bill Seitz, a Republican Representative from District 30.  The goal of the bill is “[t]o amend section 3796.01 of the Revised Code to authorize the use of medical marijuana for autism spectrum disorder.”  “Autism spectrum disorder” is to be included under Subsection (6)’s “Qualifying medical condition[s],” permissible under Section 3796.01 of the Ohio Revised Code. Today, Section 3796.01 of the Ohio Revised Code continues to read without including autism as a qualified medical condition for medical marijuana use until its official vote on the House floor.

Representative Brent is in her second term as a legislator.  In the 133rd General Assembly, Representative Bill helped author House Bill 285, which established a driver’s license reinstatement fee.  This bill became law in 2020 and has helped thousands of Ohioans remove suspended driver’s licenses because of Representative Brent’s efforts. Representative Brent is the Frist Vice-President of the Ohio Legislative Black Caucus.  In her position as a legislator, she also serves as a Ranking Member of the Agriculture and Conservation Committee, as well as sits on the Transportation and Public Safety and Commerce and Labor Committees.  Representative Brent prides herself on representing District 12 and prioritizing justice and equity in her work, including adult-use cannabis.

Background resources:

"Rep. Brent applauds committee passage of her bill to legalize medical marijuana for autism spectrum disorder"

Text of Ohio H.B. No. 60, 134th General Assembly, Reg. Sess. 2021-22 

Webpage for House Bill 60 to "Authorize medical marijuana for autism spectrum disorder"

Juanita O. Brent Biography  and Juanita Brent background 

New Leafly report concludes "legal cannabis now supports 321,000 full-time American jobs"

The folks at Leafly have this notable new report seeking to address this basic question: "How many jobs are in America’s legal cannabis industry?" Here is part of the answer:

The 2022 Leafly Jobs Report found 428,059 full-time equivalent jobs supported by legal cannabis as of January 2022.  In the second year of the Covid-19 pandemic, America’s cannabis industry sold nearly $25 billion in products and created more than 107,000 new jobs — enough to fill the Rose Bowl and then some.

That’s a 33% increase in jobs in a single year.  And it marks the fifth year in a row of annual job growth greater than 27%. No other industry in America can match that.  Last year, America’s legal cannabis industry created more than 280 new jobs every day.  In 2021, someone was hired for a cannabis-supported job about every 2 minutes of the work day....

Those 428,059 jobs include direct cannabis jobs like cultivation and retail sales — what are often called “plant-touching jobs” — as well as indirect ancillary jobs that serve licensed companies or depend on legal cannabis sales. Ancillary jobs include work in accounting, human resources, legal affairs, regulatory compliance, security, maintenance, and construction.  Also included are indirect jobs in cannabis media, technology platforms, public relations, lobbying, non-cannabis product suppliers, and industry associations....

America now has three times as many cannabis workers as dentists.  Cannabis workers outnumber insurance salespeople. There are more people employed in the cannabis industry than there are hair stylists, barbers, and cosmetologists—combined....

While legal cannabis now supports 428,059 jobs, the total employment potential in a mature US legal cannabis market is approximately 1.5 million to 1.75 million workers.  The economic and employment potential for legal cannabis remains quite bright for many years to come.

Interesting review of what has become of Amsterdam's famous "coffee shops" in the COVID era

In the next few weeks, my Marijuana Reform seminar will be discussing different models for marijuana legalization.  One model we will discuss is the so-called "Dutch coffee shop model" which allows only the retail sale of cannabis, but also the on-site consumption. (Most US state models of legalization allow for fully commercialized cultivation, distribution and sale, but also bars any on-site or other public consumption.)  With these matters in mind, this new CNN article, headlined "What's happened to Amsterdam's cannabis coffee shops during Covid," caught my eye.  I recommend the full piece, and here are excerpts:

Dutch coffee shops never closed completely during the pandemic as they were classed as essential businesses, unlike restaurants, cafes and nightclubs.

But the cannabis cafes have been dealt a catastrophic blow due to a lack of the international tourists who were responsible for a large share of their revenue.  And while some have adapted to a new way of life, there are fears from those who work in them that they're in danger of vanishing....

Pre-pandemic, the cafe was usually full during the week, noisy and buzzing with atmosphere as people socialized with each other while smoking a marijuana cigarette or eating a cannabis brownie. but on a Thursday afternoon in early February, there's just one person sitting inside, working on a laptop while sipping a cup of coffee and smoking a cannabis joint.

"In my coffee shop it's been very empty and boring," says Nick.  "But other coffee shops [outside the center] are busier than ever due to takeaway demand. During coronavirus, everybody is sitting at home and smoking."

Over half of the capital's 167 coffee shops are in the center and heavily reliant on tourism, says Joachim Helms of the coffee shop owners' association BCD.  "The coffee shops in the center were really in survival mode [during the past two years]," he says. Government financial aid allowed them to stay afloat, but this only covered their rent and furlough for staff, and they struggled to make any revenue, Helms says.

When coronavirus overwhelmed Europe in March 2020, the Dutch government announced a strict lockdown and ordered all hospitality to close, including coffee shops. This decision was reversed almost immediately after people started buying cannabis illegally. "The government worried that if they kept the coffee shops closed, people would turn to the streets and illegal dealers," says Helms. The shops were allowed to stay open, even during the strictest lockdowns, for takeaway service....

"The takeaway business has been really good," says Maeve Larkin, who works in Hunters coffee shop in the center. "People tend to buy bigger amounts [than when they consume it in the cafe]."...

Even though the lockdown has ended, strict rules remain in place for the entire Dutch hospitality sector. All customers must show a vaccination pass, in the form of a QR code on their phones, to buy cannabis in a coffee shop, maintain a 1.5-meter distance while inside and wear masks while ordering. Coffee shops must stop serving at 10 p.m., but are allowed to stay open until midnight for takeout. These rules make it difficult for coffee shops to accommodate a large number of customers and encourage people to stay inside, instead of buying takeout.

Helms says that lockdown restrictions have changed the culture of Amsterdam's coffee shops. "The foundation of the coffee shop policy is that there are places where you can consume cannabis in a responsible and safe way and where you can meet people from all around the world," he says.

"The whole point of coffee shops in Amsterdam is the relaxed vibe and the culture of it. That's gone now," says Larkin, adding that the current situation reminds her of the US model, where in certain states people can buy cannabis from dispensaries. "Now there's two people at a table and there's no spontaneity anymore. This cafe and the surrounding area used to be packed all the time, now it's just dead."

Notable Code for America paper on "Automatic Record Clearance Policies in Legalization and Decriminalization Legislation"

I just saw this recent 18-page report from the folks at Code for America.  The full title of the report highlights the goals and essential contents of this notable new document: "Recommendations for Automatic Record Clearance Policies in Legalization and Decriminalization Legislation: 11 best practices for creating high-impact, implementable policies that clear conviction records — automatically."   Long-time readers know I have long been particularly interested in criminal justice impacts of marijuana reform and especially record clearance efforts.  (I wrote one of the first big explorations of this topic in my 2018 article, "Leveraging Marijuana Reform to Enhance Expungement Practices," and more recently co-authored another piece titled "Ensuring Marijuana Reform Is Effective Criminal Justice Reform.")

This new document is a great primer on this enduring topic, and this two-pager provides the particulars of the 11 recommendations in the full report.  But I would urge everyone to take the time to check out the full report, and here is part of its text:

Our recommendations are presented in three categories.  First are recommendations about the process of automatically clearing records.  They include an advisory against relying on petition-based record clearance, a statement on the importance of the process being initiated and coordinated by a state-level agency, and an explanation about why there need to be deadlines attached to every major milestone of the automatic record clearance process.  These recommendations are very important for implementation, but are also important to maximizing impact.  In order to build public trust in automatic record clearance, we close this section with a recommendation that government study and publicize findings on the impact of automatic record clearance, especially as it relates to equity-related metrics such as racial disparities.

Next are recommendations about who should be eligible for automatic record clearance.  In order to maximize impact, legislation needs to provide eligibility that is as expansive as possible.  The recommendations explain that, at a bare minimum, all records should be cleared for conduct that is no longer criminalized or can no longer be charged.  We advise against including conditions that disqualify people from eligibility because they reduce impact and also make implementation more challenging. Expansive eligibility must be anchored in the law, so we offer an advisory to be as specific as possible when drafting legislation — leave nothing open to interpretation because that causes challenges for implementation.  We also recommend that after a bill is passed, no system actors (e.g. judges, prosecutors) should have discretion over who gets relief in the process of automatically clearing records because it leads to inequity and is nearly impossible to implement.

Finally, we offer recommendations about who should have access to and jurisdiction over cleared records.  People living with convictions should be able to access confidential documentation about their criminal case histories, whether their records are cleared or not, and there is a big opportunity for government to offer this as a human-centered, trauma-informed digital service.  We recommend that courts maintain confidential documentation of records that have been affected by record clearance rather than having all traces of records completely destroyed.  We also recommend that courts maintain jurisdiction over these records so that people can continue to exercise their legal rights to pursue any other post-conviction relief remedies besides automatic record clearance, and so that people can access the information about their cleared records should they need it in the future.

Looks like Brock Ollie will have to generate buzz without a Super Bowl appearance

The intersection of sports and marijuana reform always intrigues me, and Super Bowl week often takes this story to new heights. And this Adweek piece, headlined "Why This Broccoli Is Fed Up With Cannabis Censorship: Weedmaps, whose Super Bowl ad was rejected, uses 'Brock Ollie' to call out lingering stigmas," spotlights the first amusing headline-making development this week. Here are the basics: 

On a typical day for a character named Brock Ollie, he eats breakfast, hails a ride, goes to work and chats with his colleagues. So why does everyone keep bombarding him with clumsy references to getting high?

Because Brock Ollie, with his lanky body and flowery head, is the broccoli emoji come to life, but he’s not just the physical embodiment of a cruciferous superfood.  He’s a visual stand-in for cannabis, often used as shorthand between friends or code between sellers and buyers.

But in 2022, when 37 states have now legalized marijuana for medical use or recreational sales, this kind of subterfuge shouldn’t be necessary anymore, according to Weedmaps. The brand created the walking, talking veggie as the star of his own short film to make a point about censorship in cannabis marketing. And executives chose the timing strategically, dropping the 90-second spot today just ahead of Super Bowl 56, a commercial extravaganza it tried — and failed — to buy time in.

“It’s a message we feel is relevant for a national stage,” Chris Beals, CEO of Weedmaps, told Adweek. “It’s just regrettable and sad to not get the ad on network TV.” The rejection strikes Beals as hypocritical, he said, as high-profile spots for regulated categories like alcohol and sports betting are readily accepted during The Big Game, airing Feb. 13 on NBC, and other televised sports events.

An NBC spokesman said the network does not accept ads “for cannabis or cannabis-related businesses” on any of its platforms....

“The answer was a hard no — they wouldn’t even entertain the conversation,” Juanjo Feijoo, Weedmaps COO and CMO, told Adweek. “We see ourselves as trying to be trailblazers in the industry and making new inroads where others haven’t gone before in cannabis advertising. So it was disappointing.”

I have embedded the video here, as I clearly do not have the same standards as NBC:

Guest post: "First Circuit Splits with Ninth Circuit Over Meaning of Rohrabacher-Farr Amendment"

I was very pleased to have received this morning following terrific guest post content from Professor Scott Bloomberg of the University of Maine School of Law about a notable recent federal circuit court ruling:

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Since December 2014, Congress has included a rider in its annual appropriations acts that prohibits the Department of Justice (“DOJ”) from expending funds to prevent states from “implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, § 537, 133 Stat. 13, 138 (2019).  The rider — most commonly known as the Rohrabacher-Farr Amendment — is an important source of protection from federal prosecution for medical marijuana businesses and users.

Until recently, the only federal circuit court to interpret the Rohrabacher-Farr Amendment was the Ninth Circuit.  In 2016 in United States v. McIntosh, the court held that the amendment only prohibited the DOJ from prosecuting marijuana businesses that strictly complied with their states medical marijuana rules.  This strict compliance standard meant that if a business stepped out of line — including, in theory, if it only extended a toe over the line — the DOJ could prosecute the business for federal drug crimes.

I have never been a fan of the McIntosh court’s strict compliance standard.  I don’t think it is workable in practice and I find it to be a rather unsound interpretation of the Rohrabacher-Farr Amendment.  So, when the First Circuit had an opportunity to interpret the Amendment in United States v. Bilodeau, I decided to submit an amicus brief arguing as much.

The brief explains that the strict compliance standard offers little real protection for marijuana businesses given the complex state regulatory codes with which they must comply. What’s more, even if the compliance standard were loosened (say, companies only had to remain in “material compliance” rather than “strict compliance” to avoid the risk of prosecution) tethering the DOJ’s ability to prosecute medical marijuana businesses to a business’s non-compliance with state law creates an inherent problem.  Under a standard that bases the DOJ’s authority to prosecute businesses on whether that business has complied with state medical marijuana rules, the best way for a state to shield its medical marijuana businesses from federal prosecution is to not have any medical marijuana rules.  The more carefully a state regulates medical marijuana, the more likely its businesses are to be subject to federal prosecution.  That incentive structure may not only prevent states from “implementing their own State laws that authorize” medical marijuana, it also flies in the face of the DOJ’s Cole Memo, which instructs states to regulate marijuana closely.

The McIntosh court’s strict compliance standard also relies on an artificial distinction between a state’s “laws that authorize” medical marijuana and a state’s enforcement of such laws.  According to the court, when the DOJ prosecutes medical marijuana businesses that fail to comply with a state’s medical marijuana rules, the DOJ does not prevent the state from implementing the “laws that authorize” medical marijuana because the business’s conduct was not authorized by those laws. But laws authorizing states to enforce violations of their “laws that authorize” medical marijuana cannot be so easily divorced from the underlying laws.  Enforcement rules are intertwined with the underlying laws for many reasons. Most significantly, a looming threat of federal prosecution would deter many businesses from ever entering the state’s marketplace.  The threat would also undermine the state’s enforcement authority over those businesses that do—after all, what rational business would admit to even the most menial of regulatory violations if doing so would open a risk of federal prosecution?

In light of these problems with the strict compliance standard, my amicus brief urged the First Circuit to adopt a more expansive interpretation of the Rohrabacher-Farr Amendment. I argued that the Amendment creates a blanket prohibition on the DOJ’s authority to prosecute state-licensed medical marijuana businesses for marijuana-related offenses (with some limited exceptions).

The First Circuit last week handed down its opinion in Bilodeau, which departed from the McIntosh court’s strict compliance standard but did not go quite as far as I urged.  As Judge Kayatta explained, the Ninth Circuit’s strict compliance standard affords the DOJ more power to undermine states’ medical marijuana laws than Congress could have intended.

With federal prosecution hanging as a sword of Damocles, ready to drop on account of any noncompliance with Maine law, many potential participants in Maine's medical marijuana market would fasten fearful attention on that threat.  The predictable result would be fewer market entrants and higher costs flowing from the expansive efforts required to avoid even tiny, unintentional violations.  Maine, in turn, would feel pressure to water down its regulatory requirements to avoid increasing the risk of noncompliance by legitimate market participants.

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[Moreover, Maine’s medical marijuana] rules were not drafted to mark the line between lawful activity and cause for imprisonment.  Rather, as with most every regulated market, Maine declined to mandate severe punishments (such as, for example, the loss of a license) on participants in the market for each and every infraction, no matter how small or unwitting….  To turn each and every infraction into a basis for federal criminal prosecution would upend that decision in a manner likely to deter the degree of participation in Maine's market that the state seeks to achieve.

After departing from the strict compliance standard, the court declined to clearly demarcate when the DOJ can (and cannot) prosecute medical marijuana businesses.  Instead, the court reasoned that, under the facts of this case, the DOJ could subject the defendants to federal criminal punishment because their alleged conduct also constitute a crime under Maine’s marijuana laws.

The First Circuit’s interpretation of the Rohrabacher-Farr Amendment in Bilodeau should bring some comfort to medical marijuana businesses in the First Circuit.  The interpretation gives the DOJ less discretion to prosecute medical marijuana businesses than does the Ninth Circuit’s strict compliance standard.  This increased protection could become all the more important if a Presidential administration less friendly to marijuana takes power.  (And, for marijuana law professors, Bilodeau and McIntosh present an excellent opportunity for a class exercise on statutory interpretation!)

Mississippi becomes latest state to legalize medical marijuana

As reported here by Marijuana Moment, the "governor of Mississippi on Wednesday signed a bill to legalize medical marijuana, making the state the 37th to enact the policy change in the country." Here is a bit more:

The legislature approved the measure last week with solid margins, advancing the reform more than one year after voters approved medical cannabis legalization at the ballot. That initiative was struck down by the state Supreme Court for procedural reasons, prompting lawmakers to take it up legislatively.

In a social media post, Gov. Tate Reeves (R) said that there’s “no doubt that there are individuals in our state who could do significantly better if they had access to medically prescribed doses of cannabis.” However, he reiterated concerns that there are “also those who really want a recreational marijuana program that could lead to more people smoking and less people working, with all of the societal and family ills that that brings.”

More details and context can be found in this MJBizDaily piece headlined "Mississippi governor signs medical cannabis legalization bill into law." Here is an excerpt:

The law is effective immediately, and the market could launch before year-end....

The measure, Senate Bill 2095, calls for license applications to be accepted within 120 days, or 150 days in the case of dispensaries. But the bill, passed by lawmakers last week, is more restrictive than what voters approved at the ballot box in 2020....

Alabama and Louisiana are the other two states in the Deep South that have legalized medical cannabis. MJBizDaily has its own definitions of what constitutes a medical cannabis state, and by that definition, Mississippi becomes the 39th to legalize such a program.

"Bigger is Not Better: Preventing Monopolies in the National Cannabis Market"

The title of this post is the title of this notable new paper available via SSRN and authored by Shaleen Title.  (Shaleen Title served as one of five inaugural commissioners of the Massachusetts Cannabis Control Commission from 2017 to 2020, and has been serving as the Distinguished Cannabis Policy Practitioner in Residence at the Drug Enforcement and Policy Center.)  Here is the abstract for this paper:

It is a crucial and vulnerable moment for the future of the cannabis market.  While states are making historic progress creating paths for small businesses and disenfranchised groups, larger companies are expanding, consolidating, and lobbying for licensing rules to create or maintain oligopolies.  Federal legalization will only accelerate the power grab already happening with new, larger conglomerates openly expressing interest.  Left unchecked, this scramble for market share threatens to undermine public health and safety and undo bold state-level efforts to build an equitable cannabis marketplace.  This paper argues for intentionally applying well-developed antitrust principles to federal cannabis reform now, before monopolization of the market takes place, and offers eight concrete policy recommendations.