Marijuana Law, Policy & Reform

"The Real War on Families – An Examination on American Child Welfare Law in the Shadow of Drug Prohibition"

As mentioned in a number of prior posts, the end of a busy semester becoming the start of summer means I am able to catch up on posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center.   The title of this post is the title of this paper authored by Karen Augenstein, a recent graduate of The Ohio State University Moritz College of Law.  Here is its abstract:

American law emphasizes the value of family whether that be through tax deductions on children or mandating child support.  However, when it comes to the War on Drugs, the importance of family seems to have been forgotten in favor of punishing those with substance abuse issues in the worst way possible: taking away their children.  Whether the intention of lawmakers or not, those who suffered the most tended to be minority and poor parents, the ones who struggled to have their voices heard.  Even today, America continues to punish victims of abuse by removing their children and imposing harsh, impossible requirements for reunification.

This paper is divided into three sections.  The first section examines the basis for child welfare in America, focusing primarily on three pieces of child welfare legislation that incorporated parental drug use into its mandates: Child Abuse Protection and Treatment Act of 1974, Adoption Assistance and Child Welfare Act of 1980, and the Adoption and Safe Families act of 1997.  The second section breaks down two areas of child welfare law: infants born testing positive for drugs and the explosion of the foster care system, and examine how drug laws, coupled with punitive, discriminatory action, broke apart families.  Finally, the third section recommends changes the American child welfare system could make in its approach to drug addicted parents, in an effort to reunify, rather than punish, parents who suffer from substance abuse issues.

"Legal-ish: An Analysis of Cannabis Law in Ohio and Recommendations for the Future of State Drug Reform"

Continuing to catch up on posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center means continuing to highlight great work by OSU law students and recent graduates.  The title of this post is the title of this paper authored by John Berk who just this month graduated from The Ohio State University Moritz College of Law.  Here is its abstract:

While bans on marijuana have been eliminated in a majority of states over the past several years, Ohio continues to be stuck in the past with a limited medical program that imposes strict limitations on cultivators, dispensaries and patients.  Full legalization in Michigan and Illinois have been hugely successful, but Ohio’s timid approach has had mixed results due to overregulation and outdated ideas about cannabis users.  It is time for Ohio to move boldly on drug reform in the cannabis space with full legalization, eliminating excessive regulation, creating aggressive criminal justice reform and possibly legalizing other substances before it is left behind by its neighbors.

Rhode Island becomes latest state to legalize adult use marijuana

As reported in this local article, "Rhode Island on Wednesday joined its two neighboring states and 16 others in legalizing the recreational use of marijuana." Here is more:

Less than 24 hours after lawmakers overwhelmingly passed the bill, Gov. Dan McKee signed the measure, which promises automatic expungement of past marijuana possession convictions and reserves a quarter of new retail store licenses for minority communities disproportionally hurt by the War on Drugs.

Speaking on the steps of the State House, awash in sunshine, McKee said the law was “equitable, controlled and safe” while establishing a regulatory framework that emphasizes public health and safety. “The end result is a win for our state both socially and economically.”

The law calls for retail sales beginning Dec. 1, but it will be a while before most of the stores are open. The state’s three currently operating medical marijuana dispensaries will be the first retailers of recreational marijuana as well, followed by six others in various planning stages.

Who wins 24 other retail licenses, and when, will be up to a new three-member cannabis control commission that will be appointed by the governor. Recreational marijuana will be taxed at 20% – a new 10% cannabis tax, a new 3% tax by the community where the marijuana is sold, and the current 7% sales tax....

Cannabis use would be banned anywhere where cigarette smoking is now banned. But if it’s legal to smoke a cigarette on Main Street in West Warwick right now, you'll be able to smoke cannabis, too. That could change. The law includes language that gives communities the power to adopt ordinances to restrict or ban the “smoking or vaporizing of cannabis in public places.”... The law allows people to have three growing plants and three dried plants. [and] it will be legal to have up to an ounce of marijuana in your possession. And possession of between one ounce and two ounces will be a civil violation. Previously up to an ounce was a civil violation, much like a parking ticket, and it was illegal to possess more than one ounce. [People with cannabis convictions] can request an expedited expungement through the courts and have any costs waived. But the law has given the courts until July 1, 2024, to provide automatic expungement to all who are eligible. Under the legislation, any prior civil violation, misdemeanor or felony conviction for possession of marijuana that would be decriminalized will be automatically erased from court record systems.

The new legislation allows for up to 33 retail licenses distributed in six zones statewide, including at the three current medical marijuana dispensaries and the six others in various planning stages.

"Capitalizing on Missed Opportunities: An Overview of Cannabis Fundraising Disparities"

I am continuing to catch up on posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center.  The title of this post is the title of this paper authored by Cam Wade, a rising 3L at The Ohio State University Moritz College of Law.  Here is its abstract:

Demanding state regulatory schemes render the operation of cannabis businesses an expensive endeavor and create an urgent need for reliable sources of cash.  Historically, the federal ban on cannabis has hindered the industry’s fundraising efforts, but larger cannabis companies have begun to make inroads toward friendlier deals with manageable interest rates.  This progress has not extended to smaller cannabis businesses, which has prevented many from effectively competing and contributed to a wave of intense industry consolidation around the largest companies in 2021.  This paper explores this fundraising disparity and its policy implications.  Proposed solutions at the state and federal level are also evaluated along with an overview of the limited fundraising options which are currently available to small cannabis businesses.

Ninth Circuit panel holds (in trademark dispute) that "delta-8 THC products are lawful under the plain text of the Farm Act"

In this post a few month ago, I noted the growth of so-called delta-8 THC products and all the legal uncertainty around them. Yesterday, in an important ruling, a Ninth Circuit panel directly address question about the legality of delta-8 products under federal law. In AK Futures LLC v. Boyd Street Distro, LLC, No. 21-56133 (9th Cir. May 19, 2022) (available here), a trademark dispute prompted the panel to fully engage the arguments surrounding whether the 2018 Farm Bill served to legalize cannabis products without the standard delta-9 THC, and the opinion ultimately embraces the claim that delta-8 THC products derived from hemp CBD are legal products under federal law.  Here are some key passages from the opinion:

[T]he parties dispute whether the possession and sale of delta-8 THC is permitted under federal law and, consequently, whether a brand used in connection with delta-8 THC products may receive trademark protection.  AK Futures argues that delta-8 THC falls under the definition of hemp, which was legalized by the 2018 Farm Act.  Boyd Street argues a contrary interpretation of the Act based on agency documents and congressional intent....

AK Futures argues the Farm Act’s definition of hemp encompasses its delta-8 THC products so long as they contain no more than 0.3 percent delta-9 THC.  Plain meaning supports this interpretation....  Importantly, the only statutory metric for distinguishing controlled marijuana from legal hemp is the delta-9 THC concentration level....

The Farm Act’s definition of hemp does not limit its application according to the manner by which “derivatives, extracts, [and] cannabinoids” are produced.  Rather, it expressly applies to “all” such downstream products so long as they do not cross the 0.3 percent delta-9 THC threshold....

Regardless of the wisdom of legalizing delta-8 THC products, this Court will not substitute its own policy judgment for that of Congress.  If Boyd Street is correct, and Congress inadvertently created a loophole legalizing vaping products containing delta-8 THC, then it is for Congress to fix its mistake.  Boyd Street’s intent-based argument is thus unsuccessful.  With that, neither of Boyd Street’s counterarguments dissuade us from the conclusion that AK Futures is likely to succeed on the merits of its trademark claim.

"Long Overdue, Cannabis Needs to Have a Place in Professional Sports"

I am so happy to be able to continue catching up on posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center.   To that end, the title of this post is the title of this paper authored by Caroline Rice, a rising 3L at The Ohio State University Moritz College of Law. Here is its abstract:

Although most professional sport leagues amongst the Big Four (National Football League, National Basketball Association, Major League Baseball, and National Hockey League) have restrictions on athletes’ use of cannabis, many professional athletes have spoken out about turning to cannabis as relief for the chronic pain caused by playing professional sports.  This paper explores how as a result of cannabis being wrongly classified as a Schedule I drug on the Controlled Substances Act, professional leagues followed suit restricting cannabis use and leaving athletes with rigid marijuana testing policies and an overuse of prescription painkillers.  This paper then analyzes the medicinal benefits of marijuana use for professional athletes, and subsequently argues for further use of cannabis in professional sports in the United States. 

"Not Easy Being Green: Unique Financial Challenges Faced by State-Legal Cannabis Businesses"

As mentioned in a prior post, the tail end of a busy semester means I can now catch up on posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center.  So, the title of this post is the title of this paper authored by Jake Avetisian, a rising 3L at The Ohio State University Moritz College of Law. Here is its abstract:

The relationship between cannabis and federal law has never been an amicable one.  However, the recent slew of state legislation legalizing cannabis (whether medical or adult-use) across the country has made things even messier at the federal level.  Although the federal government has attempted over the years (somewhat) to take up a policy of non-enforcement relative to states where cannabis is legalized, it is still a Schedule I drug in the United States under the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970 (the “CSA”).  This has various implications for legal cannabis businesses nationwide, but they aren’t the only ones effected by this classification – although they may be taking the brunt of those effects.  Retaining this classification for a drug that is legal at the state level has caused unintended issues in the context of its intersection with other federal legislation and codes, and the financial services that cannabis businesses need to survive.  Many entities who do business with legal cannabis enterprises are putting the well-being of their own business on the line, creating a chilling effect on financial institutions transacting with state legal cannabis businesses.  This paper will examine cannabis’s continued classification as a Schedule 1 drug, and how this classification adversely affects financial advisory industries that are essential to any successful business – not just a cannabis business.  Specifically, this paper will scrutinize the effects of the liabilities indirectly created by the Schedule 1 classification of cannabis on financial institutions participating in the industry, as well as the secondary consequences of these effects on cannabis businesses themselves and their consumers.  Additionally, this paper will look forward to potential solutions, including one that is already in motion, that could rectify some of these major issues for a quickly growing (no pun intended) industry in the United States.

"Let It Grow: Why More Law Schools Should Teach Cannabis Law"

The title of this post is the title of this new Jurist commentary that I had the honor of co-authoring with Jana Hrdinová.  Here are excerpts:

California’s 1996 ballot initiative protecting medical marijuana users from state criminal prosecution kicked off the modern marijuana reform era in the United States.  In part due to federal prohibition, state medical marijuana laws prompted an array of interesting and intricate legal questions.  Some issues concerned the reach of federal law after state reforms.  Could doctors be punished by federal authorities for recommending marijuana to patients consistent with state law?  Could groups providing marijuana to patients raise a medical necessity defense if subject to federal prosecution?  Other issues arose at the intersection of novel drug laws and other state laws.  Could an employer lawfully fire an employee with a valid medical recommendation simply for testing positive for marijuana?  Could police officers lawfully search a car based simply on the smell of marijuana?

Lawyers and courts have been grappling with these and countless other legal questions across the nation as an ever-growing number of states have legalized marijuana for various uses. Many constitutional questions about potential conflicts between federal and state authority and individual rights have occupied federal courts all the way up the US Supreme Court. A wide array of state law issues have not just occupied state courts, but state administrative bodies and legal ethics panels as well, all seeking to sort out just when and how lawyers can advise or even play a role in the developing marijuana industry.

A full quarter century after California’s first state-level reform, three dozen states have now joined California in legalizing marijuana for a range of medical uses, representing over 70 percent of the US population.  And 18 states plus the District of Columbia, representing over 40 percent of the US population, have also legalized cannabis for recreational use. A large, new cannabis industry has come with a number of complex regulatory and policy issues.  State policymakers and public lawyers now confront the challenge of developing licensing schemes and regulatory rules to protect public health and safety, designing effective tax rates and business structures, and advancing equitable goals ranging from expunging old convictions to helping disadvantaged communities participate in the industry.  Private lawyers helping marijuana businesses must figure out how to raise capital, navigate licensing requirements, and structure acquisitions in the face of diverse state laws and persistent federal prohibition.  Lawyers are also called to review and revise workplace rules about marijuana use, to advise landlords, hospitals, and other venues concerning marijuana use on their properties, and to address myriad other novel issues in this dynamic field.

And yet, with so many new legal questions to grapple with and such rich policy areas to debate, remarkably few law schools are cultivating a modern curriculum by offering courses on cannabis law and policy for the next generation of lawyers.  Beginning in 2018, our center (the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law) has conducted an annual survey of law school curriculum to trace the evolution of teaching in the area of cannabis law and policy.  We have surveyed law schools’ online course schedules and contacted registrar offices by email.  We were surprised initially that barely one in ten law schools offered even a single class in this arena; during the academic year 2018-2019, only 21 out of 201 accredited law schools offered 24 cannabis-specific courses to their students.  This number grew to 29 schools offering 33 courses in 2019-2020, and growth continued with 35 schools offering 35 courses in 2020-2021 and finally 37 schools offering 38 courses in our most recent accounting in 2021-2022.  But even though the number of offered courses has grown over the last four years, law schools still lag significantly behind the fast-moving pace of cannabis legalization.  While now close to 75 percent of US states have some form of legalized marijuana, less than 20 percent of law schools in the US offer instruction on cannabis law.

"Reimagining U.S. Drug Policy Post-Pandemic"

As mentioned in a prior post, the tail end of a busy semester means I can now catch up on posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center. To that end, the title of this post is the title of this paper authored by Samuel DeWitt, a third-year student at The Ohio State University Moritz College of Law. Here is its abstract:

The COVID-19 pandemic caused increased drug use and a widespread decline in mental health throughout American society.  Yet, despite the unprecedented pandemic, society as a whole has shown an impressive ability to adapt to new ways of living, suggesting that a dramatically different version of America is not only possible, but achievable.  Domestic drug policy, which has needlessly prohibited and criminalized a vast array of drugs since the early 1900s, is an area ripe for a similar dramatic change.  This paper explores how the pandemic, combined with concurrent events including a change in Federal Administration and nationwide protests against systemic racism, presents an opportunity for our country to rethink its long-standing drug prohibition on a national scale.