Marijuana Law, Policy & Reform

Student presentation exploring marijuana usage, parenting and custody disputes

Rounding out an exciting week of diverse student presentations in my Marijuana Law, Policy & Reform seminar, the fourth presentation scheduled for this week will look at marijuana use and parenting. Here is how my student has previewed her topic along with some background readings:

Law and practice regarding marijuana usage and regulation often proves helpful as a way to understand greater issues in our legal system.  This is true in many areas of law, but perhaps even more so in the the practice of family law.  When considering the effect of a parent's marijuana usage during a custody dispute, it becomes apparent just how much the unfettered discretion of judges in family law jurisprudence affects both parents' cases, but also the practice of family law as a whole.

So what causes such irregularity in child custody cases between two fit parents?  The ever malleable "best interest of the child" standard which not only allows, but seemingly encourages, unabashed discretion and therefore unabashed bias from family court judges.  In many states, morality is still a key factor in best interest determinations.  In a society where the definition of morality varies from person to person, state to state, and county to county, it is impossible to guess whether a judge will consider marijuana usage to be moral or amoral.  Or perhaps a judge will opt to compare marijuana usage to cigarette smoking which acts a "tie-breaker" between both parents.  Or a judge may completely ignore the usage as commonplace and not allow it to affect their decision-making.  The impossibility of knowing creates a dangerous gamble for parents who choose to use marijuana.

This is all made worse when we are confronted with the data drought surrounding marijuana and parenting, with outdated studies examining parental marijuana usage prior to more than 15 states legalized recreational usage.  Without updated statistics and evidence, parents will find it difficult to demonstrate that their marijuana usage is mainstream and does not affect their parenting. This lack of data further stigmatizes marijuana using parents to judges who may already have biased ideas regarding weed usage.  The stigma is perhaps furthered by the media narratives of the "cannamom," a polarizing depiction of white mothers who loudly proclaim that weed makes them better parents.  Sensationalized coverage of parents who do use marijuana will only push hesitant judges further away from parents who use marijuana and allow that bias to encroach upon their best interest analysis, and thusly, parents' rights to the care of their child.

Background readings:

By Jane C. Murphy, "Eroding the Myth of Discretionary Justice in Family Law: The Child Support Experiment" (1991)

Blevins v. Bardwell, 784 So. 2d 166 (Miss. 2001).

From USA Today, "More parents are smoking pot around kids; children inhaling second-hand smoke" (May 2018)

From the BBC, "The Cannamoms Parenting with Cannabis" (Nov 2021)

Student presentation on "Entheogenesis: The Hidden History of Ancient Psychedelic Drug Rituals"

Continuing to showcase the diversity of issues covered when students in my Marijuana Law, Policy & Reform seminar "take over" the with their presentations, the third presentation scheduled for this week will look at psychedelic rituals. Specifically, my student will explore "Entheogenesis" and here is how she has described her topic along with background readings:

Purpose: This is an investigation regarding the origins of the Christian church and the rituals that the founders drew inspiration from at the dawn of the new age.  As the church seized power, the ancient drug rituals were eradicated and along with the 75,000 female spiritual leaders who performed them.  There are some theories as to why these women were executed, however, the main purpose of this paper is to enlighten those who plan to vote in the upcoming election.

This Fall, it is anticipated that Ohioans will vote on abortion and marijuana legalization simultaneously.  Voters may consider legalization as a "liberal" voting issue and vote against it due to a false association with pro-choice support.  Voters who anticipate voting based on their moral or religious beliefs should feel assured that legalization is not against their biblical belief origins.  The purpose of this paper is to emphasize that ancient religions promoted safe drug use and why people in power wanted to prevent this from continuing.  My conclusion is that those voting based on their religious beliefs can feel more comfortable knowing that their religious institutions were founded on spiritual drug practices.  With the legalization of marijuana and other psychedelic substances, religious followers could be introduced to long-forgotten, mystical ceremonies that make them feel closer to their God(s), such as their ancestors and predecessors did before the demonization of these practices.

Background Citations:

Muraresku, B. C. (2020). The Immortality Key: The Secret History of the Religion with No Name. St. Martin's Press.

Harris, T. (2021, October 7). The eleusinian mysteries. Hellenic Museum. Retrieved March 7, 2023,

Gillis-Smith, P., & Chapel, M. (2022, May 12). Psychedelics, spirituality, and a culture of seekership. Harvard Divinity School

Student presentation exploring legality of gun possession and marijuana use

Students in my Marijuana Law, Policy & Reform seminar often focus on cutting-edge issues in their class presentations on the research topics of their choice.  The second presentation slated for this week could not possibly be more cutting edge, as my student will be discussing gun possession and marijuana use.  Here is how she has described her topic along with background readings she has provided for classmates (and the rest of us):

                Although individual states have not necessarily legislated that possessing a gun is unlawful for state compliant marijuana users, cannabis’s federal illegality seems to produce this result.  The process for obtaining a gun – regardless of what state the individual resides in – requires the individual to fill out the Federal Bureau of Alcohol, Tobacco, and Firearms’ Form 4473. Form 4473 question 21g states:

"Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?  Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreation purposes in the state where you reside."

                Consequently, individuals that are fully in compliance with the marijuana laws in their home state are being stripped of their Second Amendment right, regardless of if the plant is being used for medicinal or adult use purposes.  Therefore, marijuana users who wish to possess a gun have three options: stop using marijuana entirely, stop using state compliant marijuana and instead obtain it from an illicit source, or lie.  Although ATF agents and prosecutors report that due to limited resources, they are not inclined to prioritize the nonviolent crime of lying on a form over more serious charges, lying on the form and obtaining a gun while being a marijuana user remains a federal felony offense. 

                In the wake of the 2022 Bruen holding, litigation on this matter seems to (so far) sway in favor of gun rights activists.  But there remain many unanswered questions in this area.  The implications of either a legitimization of state-legal marijuana use on the federal level (while the plant remains on Schedule I), or of an acknowledgement that the gun control/background check process can be changed, could be massive.

Links to Background Reading:

From the Washington Post, "Lying to ATF on gun-purchase form yields few prosecutions, data shows"

From the US Attorney's Office in the Western District of Oklahoma, "Federal Prosecutors Aggressively Pursuing Those Who Lie in Connection With Firearm Transactions"

From the Reason Foundation, "Medical Marijuana Patients Are Being Denied Gun Rights"

From US Congressman Alex Mooney, "There Are Two Sides Of The Fence, Use Marijuana And Give Up Gun Ownership Or Give Up Marijuana And Be A Gun Owner."

From CNN, "Gun form liars may go on to commit gun crimes, internal ATF research suggests"

Student presentation exploring "Cannabinoid Hyperemesis Syndrome"

As regular readers know, students in my Marijuana Law, Policy & Reform seminar are now in the midst of "taking over" my class through presentations on the research topics of their choice.  Before their presentations, students are expected to provide in this space some background on their topic and links to some readings or relevant materials.  The first of our presentations for next week will be looking at "Cannabinoid Hyperemesis Syndrome".  Here is how my student has described his topic along with background readings he has provided for his classmates (and the rest of us):

As more American states end cannabis prohibition, regulators and lawmakers are faced with the difficult task of implementing rules to govern the growth, sale, and use of a plant that we still seem to know very little about.  Empirically and anecdotally, moderate cannabis use looks to be less harmful than use of other legal regulated substances like alcohol and tobacco.  As with nearly all substances, however, excessive chronic use of cannabis can have negative health effects.  One such side effect is Cannabinoid Hyperemesis Syndrome (CHS), a relatively rare syndrome which was first reported in Australia in 2004 and is characterized by cyclical vomiting and nausea paired with compulsive hot bathing in heavy cannabis users.  Despite being first described nearly two decades ago, many questions remain as to the actual prevalence and exact causes of the syndrome. 

This paper will discuss current data surrounding CHS and the implications this condition has for the ever-growing post-prohibition world of cannabis.  More studies are certainly necessary to determine how to prevent and treat CHS so that we can form a responsible and common-sense cannabis policy.  There is a significant possibility that current data and studies about CHS will be used to argue for continued prohibition in states that have not yet legalized the plant.  However, based on what we currently know about the syndrome, the existence of CHS is not a reason to continue prohibition.  While extremely heavy high-THC cannabis users should be concerned with developing the adverse symptoms of CHS, moderate and infrequent users do not generally develop the condition.  Furthermore, CHS is relatively rare and, if diagnosed early, has a simple cure — upon ceasing cannabis use, symptoms recede quickly and do not return until the afflicted user re-ingests cannabinoids. 

After a review of the data, the discussion will turn to possible responses to CHS rates such as THC limits, education of cannabis users, and proactive moves the cannabis industry can make to lessen the likelihood that CHS is used as a scare tactic to continue prohibition. Rather than perpetuate a misguided prohibition scheme that unfairly punishes users of cannabis, a substance empirically less harmful than legal substances such as alcohol or tobacco, we should continue to study CHS, determine with relative certainty what causes it, and educate the public on harm-reduction methods that will prevent CHS.  

Background reading

From Leafy, "Is "scromiting" from smoking weed a thing?"

From Forbes, "Science Reveals The Cannabis Industry’s Greatest Lie: You’re Buying Weed Wrong (And So Is Everyone Else)"

From JAMA Open Network, "Changes in Emergency Department Visits for Cannabis Hyperemesis Syndrome Following Recreational Cannabis Legalization and Subsequent Commercialization in Ontario, Canada"

Student presentation exploring the relationship between parental marijuana use and child abuse/neglect

Highlighting yet again the diversity of issues covered when students in my Marijuana Law, Policy & Reform seminar "take over" the class by giving presentations, the third presentation scheduled for this week will look at parental marijuana use and the neglect/abuse of children.   Specifically, here is how my student has described her topic along with background readings:

Data surrounding the relationship between parental marijuana use and the neglect/abuse of children is severely limited.  Even so, parental marijuana use may be used to determine the outcomes of a Child Protective Services (CPS) investigation.  Marijuana is lumped under the “alcohol and substance abuse” check box on most CPS investigation assessment forms.  This presentation will explore the different ways that parental marijuana use may factor into a CPS investigation and what role racial biases play in determining whether parental marijuana use amounts to substance abuse for purposes of an investigation.

Ohio CPS Intra-Familial Assessment form

Ohio Child Welfare Data Portal

Sylia Wilson & Soo Hyun Rhee, "Causal Effects of Cannabis Legalization on Parents, Parenting, and Children: A Systematic Review," Preventive Medicine, Volume 156 (March 2022).

Student presentation exploring "stoned drivers" and how marijuana impairs ability to drive

After a spring break week, we are back to student presentations in my Marijuana Law, Policy & Reform seminar.  The first presentation will be a carry-over on marijuana and mental health from an earlier class, and then the next presentation scheduled for this coming week will take a close look at "stoned drivers" and how marijuana can impair an individual's ability to drive.  Here is how my student has described her topic and some background reading:

As recreational marijuana is legalized in more states, the question of how cannabis causes impairment becomes more of a public safety concern. This is especially true in regard to "stoned drivers" and how marijuana can impair an individual's ability to drive. Alcohol can be tested through one's blood alcohol content/level (BAC), however, there still has yet to be a consistent way to test a cannabis users impairment while driving. This presentation will explore the impact of cannabis on driving and how it compares to the impact of alcohol. Here are some links for background reading: 

Institute of Living, "Marijuana vs. Alcohol: What's The Difference in Impaired Driving?"

New York Times, "Is Driving High as Dangerous as Driving Drunk?"

Student presentation on "The Role of Medical Cannabis Programs in a Society Moving Towards Adult-Use Regulation"

Rounding out an exciting first week of student presentations in my Marijuana Law, Policy & Reform seminar, the fourth presentation scheduled for the coming week will look at "The Role of Medical Cannabis Programs in a Society Moving Towards Adult-Use Regulation." Here is how my student has previewed his topic along with a bunch of background readings:

Over the last three decades, cannabis has slowly become an increasingly salient topic of debate in the United States – for a litany of different reasons.  As the plant began to shed the stigma placed on it by politicians and citizens alike, pioneering researchers in the 1980s and 1990s started to take a closer look at cannabis’ properties and effects on humans (based on hundreds of years of cannabis use as medicine in eastern cultures).  Beginning with California in 1996, states began to fulfill their purposes as laboratories of democracy with respect to cannabis through legalization of medical cannabis programs based on data collected by researchers.

However, as the debate over cannabis has progressed into more modern contexts, society has become increasingly perceptive to federal de-scheduling of the drug and implementation of adult-use policies in states across the country.  As state adult-use programs have continued to grow in numbers, there is a split in opinion as to a) how medical programs should be treated moving forward; b) whether they were ever really more than a trojan horse for the eventual full legalization of cannabis across the country; c) and whether resources should continue to be applied to their improvement and growth at all, if full legalization occurs. 

This research project will focus on addressing this debate through i) an examination of history behind medical cannabis and the data supporting cannabis’ viability as a medicine; ii) determining issues present in medical cannabis programs as adult-use programs continue to burgeon; iii) potential effects of federal de-scheduling of cannabis on medical markets; and iv) examining Ohio’s medical cannabis program as a case study on the law, policy, and politics underlying the debate -- and whether Ohio’s program is worth “fixing” with the growing imminence of an adult-use regime.

Suggested background:

Britannica ProCon.org, "Timeline on Medical Cannabis Progression" (Focus 1974 – Present) 

Antonio Waldo Zuardi, "History of cannabis as a medicine: a review" (published in 2006)

New York Times article on California’s Prop 215, "Medical Marijuana Use Winning Backing" (Oct. 1996)

Third Way Report, "America’s Marijuana Evolution" (Aug. 2017)

Hannah Carliner et al., "Cannabis use, attitudes, and legal status in the U.S.: A review" (published in 2017)

Mayo Clinic, "Medical Marijuana" 

National Academies of Sciences, Engineering, and Medicine, Chapter 4 on State of Evidence, "Therapeutic Effects of Cannabis and Cannabinoids" (published in 2017) 

News report on 'fixing' Ohio’s medical cannabis program, "Lawmakers look to solve issues with Ohio's medical marijuana program" (May 2022)

Student presentation exploring World Anti-Doping Agency’s approach to cannabis

Showcasing the diversity of issues covered when students in my Marijuana Law, Policy & Reform seminar "take over" the second half of the class by giving presentations, the third presentation scheduled for next week will look at sports.  Specifically, my student will explore "reconceptualizing WADA’s 'spirit of sport' criterion," and here is how she has described her topic along with background readings:

Reconceptualizing WADA’s “spirit of sport” criterion:

            In order to be placed on the World Anti-Doping Agency’s prohibited substance list, two out of three criteria must be met: (1) posing a health risk to athletes, (2) potentially enhancing performance or (3) violating the spirit of sport.  While the first two criterion are rooted in fact and science, the last criterion has raised controversy as a “catch-all provision” that is based on vague ideals with little operative force.

Last September, WADA announced that Cannabis would remain on the 2022 prohibited list.  Interestingly enough, WADA only cited to this third criterion, “the spirit of sport”, in their explanation as to why cannabis remains on the list.

This presentation briefly explores why cannabis does not meet the first two criterion, and then moves to attack the use of the third criterion as an overreach of WADA’s power.  After exploring the consistent drug use in sport dating back to 776 BCE, and then discussing the modern use of WADA’s therapeutic use exemption, it becomes clear that drug use is not the antithesis of “the spirit of sport”.  Finally, this presentation makes procedural recommendations to WADA and questions whether the spirit of sport criterion should be abolished, edited, or left as-is.

Suggested pre-reads:

From CBS News, "World Anti-Doping Agency rules that marijuana will remain on banned substances list"

From Athletes for Care, "It’s Time to Stop Demonizing Athletes for Using Marijuana"

From Leafly.com, "Cannabis in Sports: Unpacking Exemptions for Therapeutic Use"

From Scientific American, "Weed Shouldn’t Be Banned for Elite Athletes, Some Experts Say"

Student presentation exploring "Medical Marijuana and the Mental Health Crisis"

When students in my Marijuana Law, Policy & Reform seminar "take over" the second half of my class by giving presentations, they always cover a diverse array of cutting-edge topics.   So, this very first week of  presentations, a look at tax issues will be followed by a presentations focused on "Medical Marijuana and the Mental Health Crisis."   Here is how my student has described her topic along with background readings she has provided:

The mental health crisis in the United States is growing.  The stigmas surrounding mental health, as well as the barriers surrounding treatment, lead many individuals to self-soothe.  Drug use may be one method of choice. Medical marijuana could be an effective form of treatment, particularly for anxiety and panic disorders, but the lack of research and education about its efficacy and use make it an unrealistic option for many.

Though medical marijuana is growing in popularity as an alternative treatment method, it remains taboo throughout the world of practicing physicians.  Medical marijuana is not prescribed by a doctor – though it can be recommended (see Conant v. Walters, 309 F.3d 629 (9th Cir. 2002)) – and medical education does not present marijuana as a viable treatment option.  These limitations pose significant obstacles to both research and effective use, perpetuating a growing crisis with a limited number of answers.  This presentation will discuss the role of medical marijuana in treating mental illness, focusing on the systematic barriers that leave prescribers without authority and patients without aid.

Suggested Reading:

National Alliance on Mental Illness, "Mental Health By the Numbers"

Susan A. Stoner, Alcohol and Drug Abuse Institute, "Effects of Marijuana on Mental Health: Anxiety Disorders"

Anastasia Evanoff et. al, "Physicians-in-training are not prepared to prescribe medical marijuana," 180 Drug and Alcohol Dependence Volume 151 (Nov. 2017).

Student presentation exploring tax revenues raised and revenues spent after marijuana reform

As long-time readers know of this blog should know, students in my Marijuana Law, Policy & Reform seminar "take over" the second half of my class through presentations on the research topics of their choice.  Before their presentations, students are expected to provide in this space some background on their topic and links to some readings or relevant materials.  The first of our presentations take place next week and will be looking at state tax issues.  Here is how my student has described his topic along with background readings he has provided for  classmates (and the rest of us):

Marijuana is business.  Marijuana is revenue.  Even though recreational marijuana has only been legal for a handful of years, the United States Bureau of Economic Activity has been tracking illegal market activity in relation to generally legal market activity.   This required the BEA to attempt to track how drugs such as marijuana was impacting the economic activity within the United States.  The outcome?  The National nominal gross domestic product was raised by 0.2 percentage points.

It is clear that marijuana has had an effect on the national economy even though it is illegal.  The question now turns to; how have states who have legalized recreational use made their money through marijuana?  How much tax revenue are these states bringing in?  And, how is that money being spent in those states?

Many Americans wonder how their tax money is being spent on a day-to-day basis.  Where does the sales tax go when I go to the grocery store?  Where does twenty percent of my income go every paycheck?  Where does the tax money go after I spend money at an adult use dispensary?  Questions one and two are hard to answer.  Question three, on the other hand, is actually very easy to find out.  Many states have set up stringent tax structures relating to their adult use industry.  This may be laid out initially in their statutory plan, or the states may wait and see how much they actual earn to see how they should dispense those funds.

Either way, almost every state has a very strict dispense program.  Each state uses their marijuana tax revenue differently. Many states add some of the revenue to their general state fund.  Many divide the revenue between counties and municipalities who have a dispensary in their jurisdiction.  Many use the tax revenue for social justice programs.  A few give the money to public schools.  A few more give the money to their Department of Health for drug misuse education and programs. One is using the money to offset the now decades long decrease in tobacco tax revenue.

Marijuana has been a very profitable industry for those states who have legalized adult recreational use.  The amount of data on how states have shifted on the national pre- and post-legalization is very small. It is quite hard to see how well states are doing compared to how they could have been.  Despite this, many states have found that the illegal drug trade is not going away, so they might as well profit on the activity.  Alaska Reported more than 3% of their state revenue for fiscal year 2021 was from cannabis sales.  Colorado, Nevada, Oregon, and Washington also reported at least 1% of their total state revenue was from cannabis sales.  What does this mean? Marijuana IS BUSINESS. The question that remains, and is quite hard to answer, states who have yet to legalize recreational use have obviously seen these profits . . . how have they not legalized?

Interesting websites and articles for background

The Motley Fool, "Marijuana Tax Revenue: A State-by-State Breakdown"

Urban Institute, "State and Local Backgrounders: Cannabis Taxes"

Bureau of Economic Analysis, "Tracking Marijuana in the National Accounts"

Student presentation on marijuana reform and the Fourth Amendment

I mentioned previously that a big group of Marijuana Law, Policy & Reform seminar students are scheduled to present this week on the research topics of their choice. The fifth exciting (and excitingly different) topic for this coming week's presentations is to be focused on the Fourth Amendment. Here is how the student describes the topic and some background readings:

The Fourth Amendment protects the right to be free from unreasonable searches and seizures.  Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, but this protection has been watered down over the past 100 years.  The War on Drugs led to significant changes in Fourth Amendment law as police began using more intrusive tactics to enforce drug laws, in particular with a focus on marijuana law enforcement from the 1990s to the present.  Police use tactics such as the Terry stop and frisk, warrantless vehicle searches, and drug sniffing dogs are commonly used to detect even small amounts of marijuana, and as of 2018, 89.6% of marijuana arrests were for possession only.

Giving police officers significantly lead way to decide when a search is appropriate has arguably led to racial profiling and consequently, contributed to the racial disparities we see in marijuana law enforcement today.  From 2001 all the way through 2018, a Black person was almost four times as likely to be arrest for marijuana possession as a white person, despite studies showing these groups use marijuana at substantially equal rates.  Further, a Black person is also more likely to be stopped by police for alleged traffic violations and more likely to be searched during a stop.

With the passage of marijuana legalization (decriminalization, medicinal legalization and recreational legalization) we have began to see some of these police practices, restoring some of the Fourth Amendment rights lost due to the war on drugs.  In particular, my project will focus on whether the scent of marijuana is still sufficient to prove probable cause for a search under these various regimes, and whether a drug sniffing dog that is trained to detect marijuana can likewise provide probable cause for a vehicle search.  The hope is that by eliminating these intrusive tactics (saying they do not provide probable cause), we will regain the Fourth Amendment rights lost due to the war on drugs, particularly for those who have been the most affected, people of color, and that racial disparities in marijuana law enforcement will begin to decline.

Background:

Please watch this video explaining police procedures (and misconduct) in the traffic stop of Tae-Ahn Lea. Audit the Audit, Officers Sued for Searching Vehicle During Traffic Stop, YouTube, (Sept. 30, 2019) .

Oklahoma Municipal Assurance Group (OMAG) piece analyzes the application of the Fourth Amendment in legal states. Matt Love, How Other States Apply the Fourth Amendment to Medical Marijuana (Oct. 15, 2019)

ACLU Report: A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform (2020) 

Student presentation on expunging marijuana records effectively in Ohio

As students in my Marijuana Law, Policy & Reform seminar are continuing to "take over" my class through presentations on the research topics of their choice, I continue to post here background on their topic and links to relevant materials.  The fourth of this coming week's presentation is focused on record clearing, and here is how the student describes the topic and provided readings:

Effective cannabis law reform cannot occur without also addressing the harm caused to those who have obtained criminal records due to harsh drug laws.  For decades, people throughout Ohio and the rest of the country have been punished by the criminal justice system due to non-violent cannabis offenses.  Thankfully, many states have legalized, or are in the process of legalizing cannabis.  Cannabis legalization is an important step in cannabis law reform because it means people will no longer be charged for cannabis related offenses.  However, legalization alone does nothing to help those who have already obtained cannabis related charges and convictions.  The issue with having cannabis-related convictions is not just the fines or jail time that may come with it, but also the negative consequences of having a criminal record, which continues to affect offenders long after the case is closed.  Cannabis legalization, therefore, must be accompanied by expungement reform in order to help put an end to the negative consequences that those with cannabis related criminal records are experiencing.

Thus, my presentation focuses on analyzing different expungement provisions that have been included in cannabis legalization laws.  Although many states that have legalized cannabis have included provisions on expungement reform, some of these provisions are not as effective as they could be.  Based on my research, I make the following recommendations for Ohio lawmakers to take into consideration when drafting laws on cannabis expungement.  First, I recommend lawmakers to create an individual bill focused solely on cannabis expungement to avoid conflict with Ohio’s “One Subject” rule.  Second, I recommend that cannabis records should be automatically expunged for any non-violent cannabis offenses as well as other offenses that can be tied to cannabis, such as paraphernalia and loitering offenses.  Third, I recommend that there should be no waiting period for the expungement— all cannabis records should start to be expunged as soon as the law is passed.  Lastly, I recommend that the bill should create an independent committee to carry out the expungements to avoid overburdening prosecutors and court staff.

Recommended reading:

J.J. Prescott & Sonja B. Starr, Expungement of Criminal Convictions: An Empirical Study 133 Harv. L. Rev. 2460 (2020).

Akua Amaning, Advancing Clean Slate: The Need for Automatic Record Clearance During the Coronavirus Pandemic, Center for American Progress (Jun. 25, 2020),

Mark Gillspie, Cleveland Seeks to Expunge 4k Minor Marijuana Convictions, Associated Press (April 7, 2022)

50-State Comparison: Marijuana Legalization, Decriminalization, Expungement, and Clemency, Collateral Consequences Resource Center (last updated Jan. 2022)

Student presentation on licensing schemes for marijuana reform in Ohio

The third of this week's presentations put on by my Marijuana Law, Policy & Reform seminar students will be focused on how Ohio might approach how setting up a licensing scheme for the marijuana industry.  Here is how the student describes this topic and some background readings:

Summary

In a regulated industry, licensing is the key that unlocks the door for (legal) opportunity.  The ever-expanding cannabis industry is no exception.  Those who hold licenses in this industry enjoy the benefit of legally-sanctioned conduct, while others assume the risks of operating in the black market. 

Ohio is currently faced with the question of whether an adult-use cannabis market should be established within the state.  As a part of answering this question, policymakers need to consider how to set up a licensing scheme for any potential industry.  There are several different considerations that need to be made in approaching such a scheme.  First, there is the issue of responding to different operators within the market and establishing different licenses for these various operators.  Next, there is the debate over whether to establish a limited license market, and how to respond to concerns over monopolization and social equity.  Lastly, policymakers must decide what qualifications will be necessary in order to obtain a license, and which actors will be excluded from such a privilege.

An Act to Control and Regulate Adult-Use Cannabis is a ballot initiative which seeks to introduce an adult-use market in Ohio, and it proposes a detailed framework for licensing this market.  This project analyzes the licensing scheme that would be established in the state, should this initiative eventually be signed into law, and evaluates how this proposed scheme responds to the policy concerns that are inherent in licensing.

Background

Full Text of Ohio 2020 Marijuana Reform Ballot Initiative

Local press article on law enforcement seizure of assets from black-market cannabis operations 

Primer on “plant-touching” cannabis businesses 

Cato Institute blog post on corruption associated with limited licensing

New Jersey Policy Perspective blog post on social equity issues associate with limited licensing

Reason Foundation report examining issues surrounding criminal conviction restrictions in marijuana licensing

Student presentation: "Putting Marijuana Back in the Bottle: FDA’s Role in Future Marijuana Regulation"

Continuing the Marijuana Law, Policy & Reform seminar students presenting on research topics of their choice. the second topic for this coming week's presentations will be focused on the role of the FDA.  Here is how the student describes her take on the topic and some background readings:

So far, FDA has been fairly hands-off when it comes to the state-driven marijuana market even though marijuana falls under many of the agency’s statutory domains.  “Marijuana” is a hot commodity as consumers can attest from the plethora of products purporting to contain marijuana derivatives.  Many, if not all, of these products fall under FDA’s regulatory regime.

Although FDA has issued some warning letters regarding company actions within the marijuana space, the agency has not developed a consistent theme for regulation.  Once it does, some state regulations may be preempted.  This would throw the current regulatory landscape into question.  Such entry may also change the dynamic of the marijuana industry.  For example, as companies face federal regulation, entry into the marijuana space may become more expensive and push small sellers out of the market.  Conversely, a dual marijuana marketplace may be established — one that establishes itself nationwide and another that attempts to maintain the current system by only selling intra-state.

FDA does not need to completely reinvent the wheel when it comes to marijuana regulation, although it statutorily may have to consider factors unique to current state regulations.  However, given the history of introducing more robust regulations onto new industries, as FDA did with tobacco industry, systems states are already finding successful, and other nations’ marijuana schemes, there are many avenues for FDA to ensure the American public is protected from unsafe products without overly disrupting the current market.

Every year that the federal government declines to implement a regulatory scheme for marijuana products, states are creating their own processes — some more and some less permissive.  This paper describes the statutory basis for FDA to regulate marijuana.  It also describes how future FDA regulation might interplay with current state regulation or be preempted.  Next, it analyzes possible industry challenges as federal regulation becomes more prominent.  Finally, it recommends how FDA may enter the regulatory space in tandem with state regulation and avoid stifling an already robust market.

Background Reading

Law review article: "The Surprising Reach of FDA Regulation of Cannabis, Even after Descheduling"

Law review article (by own own Prof Zettler): "Pharmaceutical Federalism"

US Food & Drug Administration webpage: "FDA Regulation of Cannabis and Cannabis-Derived Products, Including Cannabidiol (CBD)"

Government of Canada webpage: "Health products containing cannabis or for use with cannabis: Guidance for the Cannabis Act, the Food and Drugs Act, and related regulations"

Student presentation examining application of immigration laws in wake of marijuana reforms

A big group of Marijuana Law, Policy & Reform seminar students are scheduled to present this week on the research topics of their choice.   As I often mention, before their presentations, students are expected to provide in this space some background on their topic and links to some readings or other relevant materials.  The first new topic for this coming week's presentations is to be focused on immigration laws .   Here is how the student describes the topic and some background readings:

Abstract:

This project attempts to raise the profile of and build solidarity among disparate groups on the issue of considering how immigration law should be amended or enforced in the wake of the move towards legalization, whether on a state-by-state or federal level.  The final product will consist of a paper that goes into detail on perspectives and policy rationales for amending the INA to remove marijuana from disparate political perspectives -- those who are already committed to immigrants' rights, those who are already committed to marijuana legalization, and those who are hostile to both. 

For the first group, it's fairly self-explanatory: marijuana use is a deportable offense for immigrants whether or not it is legal, which makes little sense in the era of marijuana reform.  For legalization supporters, I focus on economic developments and social justice.  Allowing immigrants into the group of people who could purchase and use marijuana would both bring more revenue into the market and create a new group of folks who could work in both agricultural and retail ends of the business. Further, given the divisive history of the connections between marijuana criminalization and immigration, noncitizens should be a key consideration in legalization legislation and regulation just as social equity programs are now for women and other minoritized people.  Finally, for those who aren't familiar or amiable to either perspective, the paper dives into arguments about job creation, notions of justice and fairness, and the assertion that supporting minoritized individuals such as immigrants and people of color is beneficial for all members of the U.S. 

After writing the paper, I will be developing a series of issue factsheets based on the arguments and categories above to garner support for solutions to the above issues, such as encouraging readers to support certain bills, state and district level reforms to the criminal justice process, organizations doing work on this issue. 

Background reading:

Law Review Student Comment (2015): "Nonserious Marijuana Offenses and Noncitizens: Uncounseled Pleas and Disproportionate Consequences"

Law Review Student Note (2021): "The Impact of Marijuana Decriminalization on Legal Permanent Residents: Why Descheduling Marijuana at the Federal Level Should Be a High Priority"

Press article providing historical context (2019): "The Surprising Link Between U.S. Marijuana Law and the History of Immigration"

Advocacy group report detailing the personal harm of the current deportation laws and scale of the issue (2015): "A Price Too High - US Families Torn Apart by Deportations for Drug Offenses"

Student Presentation Analyzing Ohio Senate Bill 261 and Oklahoma’s Free Market Experiment in Medical Marijuana

As my Marijuana Law, Policy & Reform seminar continues with student presentations on their research topics, the third of this coming week's presentations is focused on what the student calls the "free market" approaches to medical marijuana.   Here is how the student describes the topic along with background materials:

Presentation Summary

Ohio Senate Bill 261 seeks to improve Ohio’s existing Medical Marijuana Control Program.  If passed, Senate Bill 261 would multiply the number of licensed dispensaries, increase the number of qualifying conditions, enable physicians to remotely recommend medical marijuana via telehealth, and create the Division of Marijuana Control, which would divest the Board of Pharmacy of its current responsibilities.  While not expressly stated, Senate Bill 261 would embrace a free-market approach to medical marijuana in a similar fashion to Oklahoma, which has often been described the “Wild Wild West of Weed.”  The overarching theme of this presentation is the public perception of such a medical marijuana regime and whether Senate Bill 261 is giving the patients what they want.

Creating more competition in Ohio’s medical marijuana industry is a chief concern among many patients, who often argue that further competition is needed to lower prices.  The vast majority of Ohio patients agree that products sold by dispensaries are currently too high.  The expansion of the number of licensed dispensaries and provisions aiming at improving cultivators are likely to create more competition and lead to lower prices.  But will the expansion of up to 300 licensed dispensaries in Ohio lead to market saturation and thus make it hard for dispensaries to make any money?  This presentation argues that this is an overblown concern in Ohio, unlike it is in Oklahoma.

This presentation also analyzes the qualifying condition provisions, as well as scrutinizing the bill for things that it lacks, such as proscribing standards for doctors or expunging the past criminal records of licensed patients.  Overall, the presentation finds that Senate Bill 261 was carefully crafted to pass the Ohio legislature by focusing on market-oriented and patient-driven concerns and concludes by suggesting that the result will positively transform Ohio’s medical marijuana industry from a market perspective.

Background materials:

Background information about Senate Bill 261: Summary of S.B. 261 from Ohio Legislative Service Commission

Local press article about the Bill: “Marijuana bill could cut prices, increase access”

Great local press article on medical marijuana in Oklahoma: “How Recreational Is Oklahoma’s Medical Marijuana Market?”

Text of Oklahoma medical marijuana initiative: Oklahoma’s State Question 788

Student presentation exploring patent protection for marijuana plants

My Marijuana Law, Policy & Reform seminar continues with student presentations on the research topics of their choice.   The second of this coming week's presentations is focused on patent protection for marijuana plants.   Here is how the student describes the topic and the provided readings:

Presentation Summary

Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. Intellectual properties are one of the most valuable assets for the companies and there are multiples ways one can protects this asset.  And how would businesses in Cannabis go about protecting it’s IP rights under current law, and how much would it effect federal reforms and how would reforms effect IP industries?

Different IP requires different protections, like trademark, copyright, and patent.  And the one I will be focusing on will be patent protection.  Patent protection is most desired of all IP protections as it grants 20 years of monopoly from date of filing.  However, for marijuana related IP to be protected under patent, there are multiple hoops to overcome.  As a plant, it is very difficult to claim a patent.  Furthermore, patents are exclusively governed by federal law, and under federal law marijuana is still illegal, as a Schedule 1 drug under the Controlled Substances Act.   With patent, could provide incentives for researching marijuana and to be able to have enough scientific data to remove it form schedule 1 drug.

This does not mean that getting patent for marijuana is impossible.  There are multiple ways to get over the barriers.  And there are some successful examples of marijuana patent.  This include government owned marijuana patent.  And this patents not only provide economic benefits to patentees but also to the public as it will provide incentive to have more research done on the marijuana.

Background

Background information about marijuana patent law: “Basics of Marijuana Patent law” 

Examples and introduction to obstacles of marijuana patent and examples of marijuana patent: “Twelve Cannabis Plant Patents and Counting”

Information about plant patents in general: “General information about 35 U.S.C. 161 plant patents” 

News report of government owned marijuana patent: “Feds patented medical pot…while fighting it” 

Student presentation on native tribes exploring marijuana marketplaces

My Marijuana Law, Policy & Reform seminar is in its homestretch, and there are scheduled for the coming weeks a host of student presentations on the research topics of their choice.   As I often mention, before their presentations, students are expected to provide in this space some background on their topic and links to some readings or other relevant materials.  The first of this coming week's presentations is focused on native tribes involved in marijuana activities.   Here is how the student describes the topic and the provided readings:

Summary:

Native Americans have the highest poverty rate in the United States and the percentage of American Indians and Alaska Natives living in poverty is nearly twice the rate of the nation.  In addition, the U.S. Commission on Civil Rights “reported that -- due to things like historical discriminatory policies, insufficient resources, and inefficient federal program delivery -- Native Americans continue to rank near the bottom of all Americans in terms of health, education, and employment.”  Some tribes have begun to look towards the marijuana marketplace as a different way to generate revenue for their tribe and to encourage economic development.

Tribes that have been able to build successful marijuana enterprises have seen great benefits.  The Las Vegas Paiute in 2017 opened a 15,800 square foot dispensary called NuWu Cannabis Marketplace which has since been deemed a blueprint for the industry and brings in over $5 million in sales per month.  A designated amount of the profits from the company goes to the Paiutes’ general fund to support things like medical and educational expenses of tribe members.  However, some tribes have faced extensive legal barriers to their attempts to tap into this potential financial gain.  Federal raids and threatened state intervention has left some Native American communities weary of even thinking about entering into this realm.

Marijuana is still illegal under federal law and the federal government is in charge of regulating tribes.  However, Congress can transfer its jurisdiction over tribes to the states if it chooses and in some states it has given them exclusive jurisdiction, through Public Law 280, over all crimes committed on reservations.  The interaction between state and federal law and the overall lack of clarity often leaves tribes to make tough decisions in this space with little guidance.  This presentation explores the legal issues implicated with tribal marijuana and discusses what has happened when tribes have entered or tried to enter the market.

Background Reading:

• Student Note, "Indian Country Complexities and the Ambiguous State of Marijuana Policy in the United States"
• GAO Issue Summary, "Tribal and Native American Issues"
• From The Guardian, "‘The tribe has taken over’: the Native Americans running Las Vegas’s only cannabis lounge"
• From Ask Growers, "Native American Tribes Create Financial Empires in Booming Cannabis Industry"
• From Marijuana Moment, "Senators Urge Biden Attorney General to Respect Indian Tribes’ Marijuana Policies"
• From the AP, "Flandreau: Tribal medical pot cards leading to arrests"

Student presentation exploring marijuana records and broader record clearing realities

Students in my Marijuana Law, Policy & Reform seminar are continuing to "take over" my class through presentations on the research topics of their choice.   As I have mentioned,  students first provide in this space background on their topic and links to some readings or relevant materials.  This coming week's presentation is focused on record clearing, and here is how the student describes the topic and provided readings:

As we inch closer and closer to full marijuana legalization, we should all be asking an important question: what happens to the people with criminal records for doing the very things that will soon be legally a-ok?

 

In recent years, record clearing has gained a lot of steam, and not just in the marijuana space. This is probably in large part because we know that a clear criminal record makes someone a more attractive job applicant, tenant, and more. Prior drug convictions may also prevent someone from accessing public housing and other benefits. 

 

As a primer to understanding the complex world of record clearing, I am delighted to invite Hannah Miller into our class. Ms. Miller is the Program Manager for Opportunity Port, a new initiative started by Columbus City Council last year that streamlines the record clearing process for individuals in central Ohio. Opportunity Port is not specific to clearing marijuana-related records. But, in Ohio, the record sealing process generally applies the same way to most types of non-violent offenses, whether they involved marijuana or not. 

 

I look forward to hosting Ms. Miller, as she will be able to provide a local twist on the story of record clearing for our class.

Background reading:

 

A study of recent state efforts to expunge or seal marijuana records: "Marijuana Legalization and Expungement in Early 2021"

 

A Vox article surveying importance of record sealing in the marijuana space: He was Arrested for Marijuana 17 years ago. Now It’s Legal. So Why Is He Still Guilty of a Crime?"
 

A local news story about Opportunity Port: "New Columbus Tool Sealing Criminal Convictions"

 

Link to Opportunity Port's website (please explore before class): Opportunity Port 

 

Student presentation to explore labor laws and labor rights in the marijuana industry

The second student presentation this week in my Marijuana Law, Policy & Reform seminar is focused on labor issues in the marijuana industry.  Here is how the student describes the topic and provided readings:

On Thursday, February 3, 2022, cannabis workers employed at the Herbology dispensary in Newark voted 8-2 to become the first unionized dispensary in Ohio.  The Sunnyside dispensary in Cincinnati followed soon after, voting to unionize on February 9, 2022.  Not only is there new interest in unionization in the Ohio cannabis industry, but recreational marijuana legalization is gaining momentum and the national cannabis market is growing rapidly.  The legal cannabis industry currently supports 428,059 workers nationally, and it is predicted that a mature cannabis market would support 1.5 million to 1.75 million workers.

The right for workers to unionize is protected by the National Labor Relations Act (“NLRA”).  However, the NLRA does not protect agricultural workers.  In addition, it is unclear whether the National Labor Relations Board will consistently exert jurisdiction over retail workers in a federally prohibited recreational marijuana industry.

To cover this gray area, six states have laws that encourage or require licensed cannabis businesses to adopt labor peace agreements (“LPA’s”) with their employees, and Ohio is considering implementing a similar requirement. However, the effectiveness of LPA’s is contested, as they may impose too many restrictions upon business owners while not providing the full scope of protection that employees would enjoy under the NLRA.  The validity of these LPA’s has not yet been contested in court, but in the interim, they may provide some level of union protection for otherwise unprotected workers.  This paper will evaluate the policy concerns surrounding the use of LPA’s in the cannabis industry, as well as what widespread unionization could mean for a quickly growing sector of the economy.

Background Reading:

Economic Policy Institute, "The Cannabis Industry Could be a Model of Good Jobs — if Policymakers Strengthen Works’ Right to Unionize"

UFCW, "NEW REPORT: Cannabis Workers Unionizing Leads to Higher Quality Jobs and Increases Standards in Fast-Growing Industry"

MJBizDaily, "Marijuana Union Organizing Surging Amid Pandemic, Uptick in Labor Peace Requirements"

Leafly, "Jobs Report 2022"