Marijuana Law, Policy & Reform

"The Prevalence of Misdemeanor Marijuana Possession Records in Columbus, Ohio"

I am pleased to spotlight another recent research paper from the Drug Enforcement and Policy Center at The Ohio State University.  This new paper, which shares the title of this post, is authored by Alex Fraga and Jana Hrdinova.  Here is its abstract:

In the United States, an estimated 1 in 3 adult Americans have some sort of a criminal record.  Yet, there is a dearth of research that examines the prevalence of particular types of criminal history.  Identifying the prevalence of particular types of criminal history is necessary not only for the design of efficacious rights restoration mechanisms, but also to facilitate the review and assessment of the functioning of these mechanisms once in place. 

Efforts to legalize or decriminalize marijuana in many jurisdictions have often included discussion of the importance of providing enhanced relief mechanisms for those with records for low-level marijuana offenses.  But these discussions often lack details on how many individuals, and the composition of individuals, who might benefit from such record relief.  In this report, we estimate the prevalence of misdemeanor marijuana possession charges and conviction records among adult residents of Columbus, Ohio based on data drawn from the Franklin County Municipal Court and provide policy recommendations for implementing localized government-initiated record sealing initiatives.

Reviewing just some of the dynamic marijuana reform stories from the states

The stories of marijuana reform in the United States are still mostly dynamic state stories, and here is just a handful of state stories from big states making headlines in just the last few days:

From California, "The casualties of California legalizing pot: Growers who went legal"

From Florida, "Florida Gov. DeSantis wants pot companies to pay more"

From Michigan, "Marijuana growing moratorium?: Supply and demand could lead to changes in Michigan"

From New York, "New Yorkers with pot convictions will now be the first to get to sell it"

From Virginia, "Inside the ‘wild, wild west’ of Virginia’s marijuana market"

And, of course, there are at least a half-dozen additional states with marijuana reform initiatives on the ballot this fall.  This Hill article provides an overview of these state stories under this full headline: "Voters in these states may soon decide whether to legalize marijuana: Six states could have ballot measures up for vote in the November midterm elections, and should they pass, will join 19 others in legalizing recreational marijuana."

Highlighting all we do not know about marijuana-infused drinks

This lengthy New York Times article, headlined "Weed Drinks Are a Buzzy Alcohol Substitute. But Are They Safe?", provides a useful overview of "weed drinks" with an emphasis what we do not know about a growing consumer product sector.  I recommend the piece in full, and here are a few excerpts:

According to BDSA, a market research firm in Colorado that specializes in legal cannabis, dollar sales of marijuana beverages are up by around 65 percent from 2020 to 2021 in the 12 states they track. In California, the state with the largest market for weed drinks, the number of cannabis beverages available nearly doubled from 2020 to 2021, growing to 747 distinct products, according to Headset, a company that collects and analyzes data on cannabis....

Cannabis-infused beverages are often branded as a healthier alternative to alcohol — “No painful days after drinking or regrets,” a tagline on Cann’s site reads. These kinds of drinks carry a connotation of health, said Emily Moquin, a food and beverage analyst at Morning Consult. They tout themselves as “hangover-free” and without the high calories of alcohol; they claim to help you feel “focused,” balanced, relaxed. One cannabis beverage company even suggests pairing their drinks with a spa day.

But experts worry that products like weed drinks are becoming more popular than health research can keep up with, leaving big questions about how best to consume them and what impacts they may have on the brain and body....

“It’s really a Wild West of products out there,” Dr. MacKillop said. Some drinks contain just THC, or CBD or both, and drinks on the market vary vastly in how many milligrams of these compounds they contain.

While there is no standard unit for THC product potency, Dr. MacKillop said, most experts in the field consider five milligrams of THC to be a typical single dose, and the National Institute on Drug Abuse sets it as standard unit of research.

According to Headset, over half of cannabis beverage units sold in the U.S. in 2021 contained 100 milligrams of THC, an amount that could significantly intoxicate or impair the average person....

Because weed drinks are so new, they are “an incredibly understudied class of cannabis products,” Dr. MacKillop said. There aren’t yet robust studies on how drinkable cannabis products affect the body long term, Dr. Vandrey added, and it’s unclear how the health effects — positive or negative — of marijuana translate into a drinkable beverage.

“The cannabis industry has evolved much faster than the data,” he said. “This is just another great example of that.”

Split First Circuit panel holds dormant Commerce Clause applies to federally illegal marijuana businesses

In a notable ruling today in Northeast Patients Group v. United Cannabis Patients and Caregivers of Maine, No. 21-1719 (1st Cir. Aug. 17, 2022) (available here), a split First Circuit panel applied the dormant Commerce Clause to a provision of Maine's Medical Marijuana Act. Here is how the majority opinion gets started:

This appeal concerns whether the Maine Medical Use of Marijuana Act, 22 M.R.S. §§ 2421-2430 (2009) ("Maine Medical Marijuana Act"), violates what is known as the dormant Commerce Clause of the United States Constitution by requiring "officers" and "directors" of medical marijuana "dispensar[ies]," id. § 2428(6)(H), operating in Maine to be Maine residents.  The United States District Court for the District of Maine held that Maine Medical Marijuana Act's residency requirement does violate the dormant Commerce Clause, notwithstanding that Congress enacted the Controlled Substances Act ("CSA"), 21 U.S.C. § 801 et seq., to "eradicate the market" in marijuana, see Gonzalez v. Raich, 545 U.S. 1, 19 n.29 (2005).  The District Court concluded that is so, because the residency requirement is a facially protectionist state regulation of an interstate market in medical marijuana that continues to operate even in the face of the CSA.  We affirm.

Here is how the dissent by Judge Gelpi starts:

I respectfully dissent from the affirmation of the district court's opinion. I agree that Maine's residency requirement, that "[a]ll officers or directors of a dispensary must be residents of this State" set forth at 22 M.R.S. § 2428(6)(H), incontestably constitutes protectionist legislation. Indeed, at oral argument, counsel for Defendant-Appellant Kristen Figueroa conceded as much. Moreover, Figueroa does not assert that the measure could meet the strict scrutiny standard to which protectionist legislation is ordinarily subject. Indeed, the Supreme Court and this court have routinely invalidated similar protectionist legislation in markets ranging from liquor store licensing to egg products. See, e.g., Tenn. Wine & Spirits Retailers Ass'n v. Thomas, 139 S. Ct. 2449, 2457 (2019); United Egg Producers v. Dep't of Agric., 77 F.3d 567, 57172 (1st Cir. 1996). Following this caselaw, the majority affirms the district court by concluding that Maine's measure fails under the dormant Commerce Clause, because defendants have not satisfactorily demonstrated Congress's "unmistakably clear intent to allow otherwise discriminatory regulations," United Egg Producers, 77 F.3d at 570 (citing Wyoming v. Oklahoma, 502 U.S. 437, 458 (1992)), or demonstrated that Congress has otherwise consented to such protectionist legislation.  In the ordinary course, in an ordinary market, I would agree that such a measure is unconstitutional under well-trodden dormant Commerce Clause principles and caselaw.

But the national market for marijuana is unlike the markets for liquor licenses or egg products in one crucial regard: it is illegal. Congress in 1971 enacted the Controlled Substance Act (CSA) pursuant to its Commerce Clause powers, designating marijuana a Schedule I controlled substance. See 21 U.S.C. § 841; id. § 812(c)(Schedule I)(c)(10); Gonzales v. Raich, 545 U.S. 1, 22 (2005). Under the CSA, it is a crime "to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." 21 U.S.C. § 841(a)(1). It is here that I part ways with the majority, because I disagree that the test we have developed for the mine-run of dormant Commerce Clause cases apply automatically or with equal vigor when the market in question is illegal as a matter of federal law. As such, I do not believe that the United Egg Producers test -- which, prior to today, we have only ever applied in cases involving legal markets -- extends to national markets that Congress has expressly made illegal.  Instead, I start from the premise that we should vindicate the principles that animate the dormant Commerce Clause -- and I conclude that the same constitutional precepts that led us to articulate the United Egg Producers test counsel against its application here.

Notable new Gallup polling on marijuana attitudes and use

The folks at Gallup are reporting here some intriguing new polling data under the headline "Americans Not Convinced Marijuana Benefits Society." Here is part of the write up of the results of new Gallup polling:

Americans are evenly split in their views about marijuana's effect on society, with 49% considering it positive and 50% negative. They are slightly more positive about the drug's effect on people who use it, with 53% saying it's positive and 45% negative.

People's own experience with marijuana is highly related to their views on both questions. Large majorities of adults who say they have ever tried marijuana -- which is nearly half of Americans -- think marijuana's effects on users (70%) and society at large (66%) are positive.  Conversely, the majority of those who have never tried marijuana think its effects are negative: 72% say this about its effect on society and 62% about its effect on users....

Also, although Americans have not reached a consensus on whether marijuana benefits people or society, they see it far more positively than they do alcohol. As Gallup reported previously, the same poll finds three in four adults believing alcohol negatively affects society, and 71% think it is harmful to drinkers.  These results are from Gallup's July 5-26 Consumption survey, conducted annually each July....

Here are the current demographic patterns for all three marijuana-related behaviors.

Gender: Men are more likely than women to say they have ever tried marijuana, but the two genders are similar in their self-reports of smoking marijuana and consuming marijuana edibles.

Age: The highest usage rates are reported by adults 18 to 34, with 30% of this group saying they smoke marijuana and 22% consuming edibles. These figures drop to 16% each for adults 35 to 54 and 7% each for those 55 and older.

Education: Unlike the strong educational relationship seen with tobacco, education is not a great discriminator in people's use of marijuana. Those with a college degree are about as likely as those with no college education to have ever tried it or to use it currently.

Party: Democrats and independents report similar levels of marijuana use, while Republicans are less likely to smoke or eat it. They are also less likely to have ever tried it.

How can we best answer this question: "Does marijuana legalization bring crime?"

Audacy News has this notable new piece headlined "Does marijuana legalization bring crime?  The data may surprise you."  Unfortunately, the piece does not provide a lot of new or sophisticated data on this important question, but the article still is a useful review of the debate over marijuana reform and public safety.  Here are short excerpts from the lengthy piece:

Looking back on a decade of data, did any of the dire predictions come true about weed mania? The short answer appears to be 'no.' If anything, states with legal weed have had declining rates of overall crime.

For the purposes of this study, Audacy used the numbers publicly available from the Federal Bureau of Investigation’s Crime Data Explorer website. Then we honed in on the year of legalization for all 17 states (and D.C.) and looked at the year prior and the year following legalization.

What we found: There wasn’t much change. Certainly not enough change was evident to warrant making it a key talking-point either for or against legalization.... It seems the definitive answer to this continuing question is that there isn’t one.

For a host of reasons, research on the relationships between marijuana reform and crime presents a host of challenges.  But, as highlighted in this post at my other blog, I am helping with an event that looks to explore and tackle some of these challenges.

Related posting:

Call for Papers: "Drugs and Public Safety: Exploring the Impact of Policy, Policing, and Prosecutorial Reforms" 

Nevada Supreme Court rejects claim that state's "lawful use" statute protects casino worker from discharge for off-duty marijuana use

Nearly a decade ago, a fascinating employment law case began working its way through the Colorado state court system following the termination of Brandon Coats by the Dish Network. Coats, who used medical marijuana following a car accident that left him a quadriplegic, claimed that Colorado state law protected him from discharge simply for having tested positive for marijuana since he used the drug only off-duty and lawfully under state law. The case involved sympathetic facts early in the modern marijuana reform era, and the case generated lots of amicus briefs and media attention when it reached the state's Supreme Court. In the end, the Colorado Supreme Court ruled in Coats v. Dish Network, 350 P.3d 849 (Colo. 2015) that "an activity such as medical marijuana use that is unlawful under federal law is not a "lawful" activity under" the applicable state employment law.

I was reminded of Coats and all the attention it generated when I tripped across this morning a very similar ruling handed down late last week by the Nevada Supreme Court.  In Ceballos v. NC Palace, No. 82797 (Nev. Aug 11, 2022) (available here), the underlying facts are a bit different: employee's termination comes after state-lawful recreational marijuana use and the language of the applicable state-law statutory employment protections are a bit different.  But the result is the same, as the start and end of the unanimous ruling reveals:

NRS 613.333 creates a private right of action in favor of an employee who is discharged from employment for engaging in "the lawful use in this state of any product outside the premises of the employer during the employee's nonworking hours."  The question presented is whether adult recreational marijuana use qualifies for protection under this statute.  We agree with the district court that it does not.  Although Nevada has decriminalized adult recreational marijuana use, the drug continues to be illegal under federal law.  Because federal law criminalizes the possession of marijuana in Nevada, its use is not "lawful ... in this state" and does not support a private right of action under NRS 613.333.  Further, because NRS 678D.510(1)(a) authorizes employers to prohibit or restrict recreational marijuana use by employees, an employee discharged after testing positive at work based on recreational marijuana use does not have a common-law tortious discharge claim.  We therefore affirm....

The interplay between adult recreational marijuana use and employment law, moreover, is one the Legislature has addressed in NRS 678D.510(1)(a) and, to a lesser extent, in NRS 613.132.  Palace Station terminated Ceballos for failing a workplace drug test after engaging in adult recreational marijuana use before his shift.  NRS 678D.510(1)(a) specifically authorizes employers to adopt and enforce workplace policies prohibiting or restricting such use.  If the Legislature meant to require employers to accommodate employees using recreational marijuana outside the workplace but who thereafter test positive at work, it would have done so.  Cf. NRS 678C.850(3) (requiring employers to accommodate the medical needs of employees who use medical marijuana unless certain exceptions exist).  It did not.  It also did not extend the protections afforded by NRS 613.333 and NRS 613.132 to reach the circumstances giving rise to Ceballos's termination.  See supra Section II.A. (discussing the limits the Legislature has set on the protections NRS 613.333 and NRS 613.132 afford).  This court declined to allow the employees in Chavez and Sands Regent to pursue common-law tortious discharge claims to redress the discrimination they alleged, because doing so would intrude on the prerogative of the Legislature, which had enacted statutes addressing the same subject matter.  See Chavez, 118 Nev. at 294, 43 P.3d at 1026; Sands Regent, 105 Nev. at 440, 777 P.2d at 900.  Doing so would be even less appropriate here.

Effective coverage of federal government's efforts to defend federal gun prohibition for medical marijuana users

The folks at Marijuana Moment now have two lengthy posts discussing the recent filings in a lawsuit challenging the federal gun prohibitions applicable to medical marijuana users.  Here are links to the stories and excerpts:

"Biden DOJ Says Medical Marijuana Patients Are Too ‘Dangerous To Trust’ In Motion To Dismiss Lawsuit On Gun Rights"

The Department of Justice asked a federal court on Monday to dismiss a lawsuit that seeks to overturn a policy blocking medical marijuana patients from buying or owning guns. The filling is partly premised on the government’s position that it would be too “dangerous to trust regular marijuana users to exercise sound judgment” with firearms.

In making its case for dismissal, DOJ also drew eyebrow-raising historical parallels to past gun bans for groups like Native Americans, Catholics, panhandlers, those who refuse to take an oath of allegiance to the government and people who shoot firearms while drunk....

At a top level, the Justice Department said the gun rights are generally reserved for “law-abiding” people. Florida might have legalized medical cannabis, but the department said that doesn’t matter as long as it remains federally prohibited.

"Florida Ag Commissioner Blasts ‘Insulting’ Biden DOJ Response To Medical Marijuana Patients’ Gun Rights Lawsuit"

The Justice Department’s characterization of medical marijuana patients as uniquely dangerous and unfit to possess firearms in its new response to a lawsuit exposed an “insulting” and antiquated perspective, Florida Agriculture Commissioner Nikki Fried told Marijuana Moment on Tuesday....

The Biden administration’s Justice Department didn’t just hold the line by denying the therapeutic benefits of marijuana, it also made the case that people who use cannabis would be too “dangerous to trust” to possess firearms. The memo’s reefer madness-era rhetoric has dismayed advocates and amplified frustrations over the president’s unfulfilled promises to enact modest cannabis reforms.

“I find it very insulting,” Fried said of the DOJ’s response. “You’re calling patients that have cancer that are using medical marijuana dangerous. You’re telling veterans who are using medical marijuana [that they’re] dangerous. I think that they missed the ball here — and it’s very disconcerting that this is the direction that they took.”

“There’s so many of us for years — for decades — who have been fighting against this stereotype of marijuana users,” the commissioner, who is running in a Democratic gubernatorial primary for a chance to challenge incumbent Gov. Ron DeSantis (R) in November, said. “To see the Department of Justice put it down in a 40-page memo defending their motion to dismiss is very disappointing.”

"Synthetic cannabinoid poisonings and access to the legal cannabis market: findings from US national poison centre data 2016–2019"

The title of this this post is the title of this notable new research just published in the journal Clinical Toxicology.  Here is its abstract:

Aim

To investigate trends in synthetic cannabinoid exposures reported to United States (US) poison control centres, and their association with status of state cannabis legalisation.

Methods

A retrospective study of National Poison Data System (NPDS) data from 2016 to 2019 identified and associated synthetic poisoning reports with annual state cannabis law and market status. State status was categorised as restrictive (cannabis illegal or limited medical legalisation), medical (allowing THC-containing medical cannabis use) and permissive (allowing non-medical use of THC-containing cannabis by adults).  We categorised a subset of states with permissive policies by their implementation of legal adult possession/use and opening retail markets, on a quarterly basis.  Mixed-effects Poisson regression models assessed synthetic exposures associated with legal status, first among all states using annual counts, and then among states that implemented permissive law alone using quarterly counts.

Results

A total of 7600 exposures were reported during the study period.  Overall, reported synthetic exposures declined over time.  Most reported exposures (64.8%) required medical attention, and 61 deaths were documented.  State implementation of medical cannabis law was associated with 13% fewer reported annual exposures.  Adoption of permissive state cannabis policy was independently and significantly associated with 37% lower reported annual synthetic exposures, relative to restrictive policies (IRR: 0.63, 95% CI: 0.50–0.79).  Among states with permissive law during the period, implementation of legal adult possession/use was associated with 22% fewer reported quarterly exposures.  Opening of retail markets was associated with 36% fewer reported exposures, relative to states with medical cannabis only.

Conclusions

Adoption of permissive cannabis law was associated with significant reductions in reported synthetic cannabinoid exposures.  More permissive cannabis law may have the unintended benefit of reducing both motivation and harms associated with use of synthetic cannabis products.

Effective review of the state of new state marijuana reforms in 2022

With lots of bills being introduced and debated at the federal level, it is dangerously easy to overlook the fact that marijuana reform in the US has been almost exclusively a state story for a quarter century and is likely to remain mostly a state story even if some federal bills actually become law in coming months and years.  Thus, it is especially useful that Politico recently produced this effective round up of some recent state developments under the full headline "Where cannabis legalization efforts stand across the country: Gains in state legislatures slowed down in 2022, but advocates still have the ballot."  I recommend the full piece, and here is how it gets started:

With most legislative sessions across the country already wrapped up for the year, the results are clear: “Elected officials remain far behind the times,” said Karen O’Keefe, state policy director for Marijuana Policy Project. If it were left up to voters, O’Keefe believes, every state would have some form of legal cannabis by now.

As it stands, 19 states have embraced full legalization, while 19 others have enacted medical marijuana programs. But many of the remaining holdouts are staunchly conservative states where legalization skepticism runs deep among lawmakers.

Perhaps the biggest setback for industry advocates this year was Delaware, where a bill to remove penalties for possession passed with supermajorities in both chambers, only to be vetoed by the Democratic governor, John Carney. Recreational legalization efforts also came up short in Ohio, Hawaii and New Hampshire, while medical bills failed in Kansas, South Carolina, Tennessee and Kentucky.

Some legislative efforts were doomed from the outset, particularly Democratic-sponsored adult-use bills introduced in GOP-dominated state legislatures such as Louisiana, Wisconsin and Indiana.

But not all hope is lost for pro-legalization advocates. At least a half dozen states could have legalization questions on their November ballots. If all of those campaigns succeed, half of the states in the country would allow adults to possess — and eventually purchase — weed legally.

Notable new report urges notable new messaging about marijuana use and driving

As reported in this press release, "the Governors Highway Safety Association (GHSA), Responsibility.org and the National Alliance to Stop Impaired Driving [last week] released a new report that provides guidance on how State Highway Safety Offices can better communicate with cannabis consumers about safe driving and offers recommendations about the types of messages that do and don’t work."  Here is more from the release about the report:

The report, Cannabis Consumers and Safe Driving: Responsible Use Messaging, comes as SHSOs face a rapidly changing cannabis landscape that includes the legality, prevalence and social norms about its use. In 2011, no state had legalized recreational cannabis. Just 10 years later, 18 states have done so, and more states will have legalization on the ballot this November. Cannabis use has increased alongside the spread of state legalization....

“As legal cannabis use becomes more widespread in the U.S., motorists need to know the dangers of driving under the influence,” said GHSA Executive Director Jonathan Adkins. “But that message won’t be heard if it’s outdated, irrelevant or insulting to cannabis consumers. This new report offers a playbook to help states develop messaging that resonates with cannabis users and prompts them to refrain from driving for their own safety and the safety of everyone else on the road.”

The report highlights lessons learned from outreach efforts in Colorado and Washington, the first states to legalize cannabis, as well as more recent efforts in Connecticut and Wyoming. It also discusses promising practices that all SHSOs should consider utilizing to create the most effective messages and offers the following recommendations:

• Encourage dedicated funding for traffic safety programs derived from a portion of cannabis sales tax revenue so that states and their partners can deliver timely and relevant information to the public.

• Form partnerships with the cannabis industry, which can help states gain insights on consumer motivations and behaviors, develop and deliver impactful messaging, and legitimize safety efforts.

• Enlist trusted advisors to serve as messengers. Have people and institutions that cannabis users trust – rather than government representatives – convey factual safe driving messages. Diverse and non-traditional messengers can improve message reception with cannabis consumers.

• Use language that resonates with cannabis consumers, so they hear the safe driving message instead of tuning it out because it has outdated terminology. Avoid using unflattering or alienating stereotypes of cannabis consumers.