Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Thursday, April 14, 2022

Student presentation on marijuana reform and the Fourth Amendment

Marijuana1I 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) 

April 14, 2022 in Assembled readings on specific topics, Criminal justice developments and reforms, Medical Marijuana Commentary and Debate | Permalink | Comments (0)

Wednesday, April 13, 2022

Student presentation on expunging marijuana records effectively in Ohio

ImagesAs 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)

April 13, 2022 in Assembled readings on specific topics, Criminal justice developments and reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Student presentation on licensing schemes for marijuana reform in Ohio

6a00d8341bfae553ef0282e11483be200bThe 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

April 13, 2022 in Assembled readings on specific topics, Business laws and regulatory issues, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Tuesday, April 12, 2022

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

Images (4)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"

April 12, 2022 in Assembled readings on specific topics, Federal Marijuana Laws, Policies and Practices, Food and Drink, History of Marijuana Laws in the United States, International Marijuana Laws and Policies, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

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

Immigration-and-Marijuana-2-1024x683A 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"

April 12, 2022 in Assembled readings on specific topics, Federal Marijuana Laws, Policies and Practices, Political perspective on reforms, Who decides | Permalink | Comments (0)

Wednesday, April 6, 2022

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

Oklahoma1As 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

April 6, 2022 in Assembled readings on specific topics, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Monday, April 4, 2022

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” 

April 4, 2022 in Assembled readings on specific topics, Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)

Sunday, April 3, 2022

Student presentation on native tribes exploring marijuana marketplaces

Download (24)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:

April 3, 2022 in Assembled readings on specific topics, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Tuesday, March 29, 2022

Student presentation exploring marijuana records and broader record clearing realities

351dc15d54632a749235Students 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 
 

March 29, 2022 in Assembled readings on specific topics, Criminal justice developments and reforms | Permalink | Comments (0)

Tuesday, March 22, 2022

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"

March 22, 2022 in Assembled readings on specific topics, Business laws and regulatory issues, Employment and labor law issues | Permalink | Comments (0)

Saturday, March 19, 2022

Student presentation exploring "Expansion of Medical Marijuana in Ohio and its Impact on the Opioid Crisis"

Medical-marijuana-in-fight-against-opiodsAfter a Spring Break break, students in my Marijuana Law, Policy & Reform seminar are back to taking over my class through presentations on the research topics of their choice.  As I have mentioned, before their presentations, students are expected to provide in this space some background on their topic and links to some readings or relevant.  The first of this coming week's presentation is title "Solving A Drug Epidemic with More Drugs: A Discussion on the Expansion of Medical Marijuana in Ohio and its Impact on the Opioid Crisis."  Here is how the student describes the topic and provided readings:

Summary:

Ohio’s current Medical Marijuana Control Program has identified 25 qualifying conditions for the recommendation of medical marijuana.  Ohio Senate Bill 261 proposes to expand that list of qualifying conditions to include “opioid use disorder.”

Ohio declared a public health emergency in 2010 due to the rising opioid overdose deaths and currently ranks as one of the top states with a high opioid death rate.  At the root of the opioid epidemic is the proliferation of over-prescription methods to treat chronic pain with opioid pain killers.  The question emerges — if medical marijuana may be recommended to treat chronic pain and opioid use disorder, could medical marijuana provide a solution to the opioid crisis?

Other states have gone before Ohio to add “opioid use disorder” as a qualifying condition for medical marijuana. There may be hope medical marijuana can serve as a form of treatment for those struggling with opioid addiction and an alternative for managing the disease and pain.  From a policy perspective, the idea seems hopeful, but further research is needed to ensure any potential relationship between medical marijuana and the opioid crisis.

The goal is to work through some of the research available on this relationship and develop a comprehensive discussion on the potential benefits and risks of using medical marijuana in the realm of opioids.

Background Reading:

News Article: "Legal marijuana either eases opioid crisis or makes it worse. The evidence is split."

Law Review Article: "From Opioids to Marijuana: Out of the Tunnel and into the Fog"

Study: "Medical cannabis laws and opioid analgesic overdose mortality in the United States, 1999-2010"

Study: "Association between medical cannabis laws and opioid overdose mortality has reversed over time"

Study: "Association between fatal opioid overdose and state medical cannabis laws in US national survey data, 2000-2011

March 19, 2022 in Assembled readings on specific topics, Medical Marijuana Commentary and Debate | Permalink | Comments (0)

Monday, March 7, 2022

Reviewing the need for, and barriers to, additional medical marijuana research

Students in my Marijuana Law, Policy & Reform seminar are continuing to "take over" my class through presentations on the research topics of their choice, and are continuing to provide in this space some background on their topic and links to some readings or relevant materials. The second of our presentations taking place this week will focus on medical marijuana research, and here is how my student has described his topic along with background readings:

Medical Marijuana and the federal government have a long, complicated history.  By complicated, I mean not complicated at all.  Marijuana has been illegal at the federal level ever since the Controlled Substances Act was signed into law.  Medical marijuana research in the U.S. has so far been limited, although two FDA approved, marijuana-derived drugs have been on the market since the 1980’s.  The overwhelming consensus is that the research space is not nearly as large as it could be, given the large user base, and that potential therapeutic effects of marijuana are largely unknown.

Even though its medicinal use goes back millennia.  Even today, many users self-report more managed symptoms from a variety of diseases and ailments; nausea and vomiting, chronic pain, and spasticity.  Researchers in the United States would like to further study some of these self-reported medicinal benefits of marijuana, but they claim that the federal government makes marijuana research too hard to be worth the effort.

This paper and my accompanying presentation begin by discussing the brightest research areas for medical marijuana consumption, and why those are not enough.  Then I will explore why marijuana has not received as much attention as the scientific community would like to give it.  Finally, I will discuss potential legislative fixes.

Sources and Background Reading

N.I.D.A., What is the scope of cannabis (marijuana) use in the United States? (2022).

Nat’l Academies of Sciences, Eng’g, and Med., Health and Med. Div., The Health Effects of Cannabis and Cannabinoids: The Current State of Evidence and Recommendations for Research (2017)

U. of Mississippi, Marijuana Research (2022)

21 U.S.C. § 811

Michael H. Andreae et al., An Ethical Exploration of Barriers to Research on Controlled Drugs, 16 Am. J. Bioeth. 36 (2016).

Caleb Hellerman, Scientists Say the Government’s Only Pot Farm Has Moldy Samples – and no Federal Testing Standards (2017)

March 7, 2022 in Assembled readings on specific topics, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research | Permalink | Comments (1)

Friday, March 4, 2022

Student presentation exploring "marijuana advertising and professional sports"

CBD-Policies-for-Professional-Sports-Leagues-Current-NBA-NFL-MLB-NHL-MLS-and-WNBA-RulesAs long-time readers 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 taking place this week will focus on professional sports and advertising, and here is how my student has described her topic along with background readings she has provided for her classmates (and the rest of us):

For decades, the NFL and other leagues amongst the Big Four professional sport leagues have embraced alcohol, specifically beer, in league and team sponsorships and advertisements. The NFL even has Bud Light as its “Official Beer of the NFL.” Before that, it was tobacco companies who provided the professional sport leagues with millions of dollars in advertising revenue. While tobacco faded out of the sport scene, alcohol emerged and has since held a strong presence despite policymakers’ concerns about promoting and connecting a harmful substance to athletic achievement, on a national stage reaching children.

The professional sport leagues have shied away from letting players use marijuana for any purpose despite its legality in state marketplaces. This has long been a fight for the leagues’ athletes, who want and should be able to have access to cannabis for pain management. But it then comes as no surprise that the leagues have also prevented cannabis advertising from infiltrating the leagues, their teams, and players.

It is with this background, as well as prior research in players’ use of cannabis (stay tuned for its posting to the DEPC Student Paper Series), that I turned to explore another potential connection between marijuana and professional sports — this time through advertising.

This paper and presentation starts out by discussing the long history of alcohol and tobacco advertising in professional sports. It then turns to current federal and state restrictions on marijuana advertising, looking to the legal limitations that leagues must abide by. To make it easier to digest, this section makes connections to existing alcohol and tobacco advertising laws. Subsequently, this paper looks to the current league policies for marijuana advertising, highlighting the NFL’s approach. Finally, this paper looks to the future of marijuana advertising, it’s implications on the sport industry, and makes recommendations for cannabis advertising in professional sports.

For the most part, there are still a lot of unanswered questions that sport industry professionals will have to deal with. While the law provides some guidelines and can help predict league behavior, there are a lot of opportunities available for both leagues, teams, and athletes in this space. Those options are explored in this paper and presentation.

Background Resources:

Tobacco and Alcohol

Cannabis Advertising

Cannabis and Sport Leagues

March 4, 2022 in Assembled readings on specific topics, Business laws and regulatory issues, Sports | Permalink | Comments (0)

Friday, February 25, 2022

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

2883I am extraordinarily excited that my (always exciting) Marijuana Law and Policy seminar at The Ohio State University Moritz College of Law is now entering its student presentation phase. This means in the coming weeks I will be blogging about the topics that students have researched and presenting here materials they have assembled providing background readings and information.

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

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

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

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

Background resources:

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

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

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

Juanita O. Brent Biography  and Juanita Brent background 

February 25, 2022 in Assembled readings on specific topics, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Thursday, April 23, 2020

Student presentation on "Employers accommodating medical marijuana users"

One final student presentation in my Marijuana Law, Policy & Reform seminar focused on employment law.  Here is the student's description of her topic and some background readings she provided:

My presentation will explore how the legislative requirement that employers accommodate versus not accommodate medical marijuana use impacts the facial validity of medical marijuana statutes.  In doing so, I will analyze how state disability statutes interact with the federal Controlled Substances Act and the doctrine of preemption.  Ultimately, using language that specifically does not require employers to accommodate medical marijuana use best protects the interests of those who require such use by avoiding challenges to the statute’s validity. 

For some background reading on anti-discrimination provisions, preemption, and employment, take a look at the links below: 

April 23, 2020 in Assembled readings on specific topics, Employment and labor law issues | Permalink | Comments (0)

Wednesday, April 22, 2020

Student presentation on "Marijuana Reform and Gun Ownership"

This will be another exciting week as students in my Marijuana Law, Policy & Reform seminar are finishing up their presentations on research topics of their choice. The fourth presentation slated for this week will focus on how marijuana reforms intersect with gun ownership. Here is the student's description of his topic and some background readings he has provided:

My presentation will focus on the interaction between legal marijuana and gun ownership.  I will begin by analyzing federal firearms laws and their practical implementation by the Bureau of Alcohol, Tobacco, and Firearms (ATF). I then look through examples of the conflicts these laws present in states which have legalized marijuana, and how federal laws currently prohibit any individual from exercising both their right to consume marijuana in legal states and their right to own a firearm under the Second Amendment. For some background reading, here are some helpful links:

Paul Barach, Why Can’t Medical Cannabis Patients Own Guns?, PotGuide (Jan. 17, 2020). 

Open Letter to All Federal Firearms Licensees, Bureau of Alcohol, Tobacco, Firearms and Explosives (Sept. 21, 2011).

Aimee Green, Medical Marijuana Cardholders Can’t Be Denied Concealed Gun License Solely Because they Use Pot, Oregon Supreme Court Rules, OregonLive (May 19, 2011).

Mike Lowe, Mixed Legality of Marijuana on State, Federal Levels Leaves Gun Owners in Limbo, WGN9 (Jan. 9, 2020).

April 22, 2020 in Assembled readings on specific topics, Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Student presentation on "How Farm Bill's legalization of hemp-derived CBD products could impact federal marijuana reform"

As mentioned before, the semester is winding down and students in my Marijuana Law, Policy & Reform seminar, soldiering on via Zoom, are making presentations on research topics of their choice. The third presentation slated for this week will focus on the the Farm Bill and federal reforms. Here is part of the student's description of the issue and some background readings she has flagged:

My presentation and my paper focus on how the legalization of hemp-derived CBD products, through the Farm Bill, could have an impact on the federal legalization of marijuana.  A few sources I used to help with this research are:

Jeff Smith, What marijuana companies can learn from federal legalization of hemp, Marijuana Business Daily (Feb. 27, 2020).

Jeremy Burke & Skye Gould, States where marijuana is legal, Business Insider (Jan. 1, 2020).

Kimberly Holland, CBD v. THC: What's the Difference?, Healthline (May 20, 2019).

U.S. Department of Agriculture, Farm Bill

John Hudak, The Farm Bill, hemp legalization and the status of CBD: An explainer, Brookings Institute (Dec. 14, 2018).

April 22, 2020 in Assembled readings on specific topics, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Student presentation on "Producing a Better Marijuana Tax Scheme"

Students in my Marijuana Law, Policy & Reform seminar are continuing to complete their presentations on research topics of their choice, and the second presentation slated for this week will focus on marijuana tax issues. Here is the student's description of his topic and some some "light" reading selected to help set the stage for his presentation.

In my paper, I set out to find a tax scheme that gives greater weight to the public health concerns of legalization while balancing the desire for revenue and fairness.  In doing so, I analyze the three primary tax bases that may be chosen by a legislature: (1) Price, (2) Weight, and (3) Potency, pausing a moment to describe just how complex the concept of marijuana "potency" really is.  In doing so, I lay out the benefits and disadvantages of each tax base and use Illinois' tax scheme to illustrate these pros and cons.  I also consider whether medical marijuana should be taxed on a separate scheme, exempted from tax, or treated the same as product intended for adult use.  Finally, I make a case for a hybrid tax base: tax flower and bud by weight, and edibles and concentrates by potency (as measured by THC). 

In making my case, I recognize that there is no perfect marijuana tax scheme.  The science is too young, marijuana is too complex a substance (both scientifically and by dint of being both "fun" and medicine), and these factors serve to amplify the push-pull between social goals, revenue, simplicity, and fairness inherent in any tax.  I have thus included in my proposal a five-year sunset provision that will force legislators to return to the table and incorporate new science (along with the previous five years of data what worked and did not work in the original law) and hopefully produce a better tax scheme.

BOTEC Analysis LLC, Cannabis Potency Tax Feasibility Study (Oct 2019)

NPR, Highly Potent Weed Has Swept The Market, Raising Concerns About Health Risks (May 2019)

BOTEC Analysis Corp., Testing for Psychoactive Agents (Aug 2013)

Tax Foundation, How High Are Recreational Marijuana Taxes in Your State? (Apr 2019)

Pat Oglesby, Laws to Tax Marijuana (How To Tax It) (June 2012)

April 22, 2020 in Assembled readings on specific topics, Business laws and regulatory issues, Recreational Marijuana Commentary and Debate, Taxation information and issues | Permalink | Comments (0)

Tuesday, April 21, 2020

Student presentation on "Key arguments against legalization of recreational marijuana"

Students in my Marijuana Law, Policy & Reform seminar are finishing up their presentations on research topics of their choice. The first presentation slated for this week will focus on certain arguments made against recreational marijuana reform. Here is the student's description of his topic and some background readings he has provided:

For my project, I examined some of the arguments that opponents of the legalization of recreational marijuana often stress.  My research gave particular attention to the external "costs" of the legalization of recreational marijuana.  The three arguments that I will be focusing on for class discussion are (1) the cost of car accidents both fatal and non-fatal, (2) the cost of employee productivity, and (3) the cost of high school dropout rate.  I will examine these arguments, discuss some of their strengths and weaknesses, and finally talk about how they can be used in inform better policy in the marijuana space.

Here are some useful articles that I used when researching:

"Does Marijuana Increase the Risk of Vehicle Crashes?"

"Prevalence of Marijuana Involvement in Fatal Crashes: Washington, 2010-2014"

"Impact of smoking status on workplace absenteeism and productivity"

"The Causes and Costs of Absenteeism"

"Marijuana use and high school dropout: the influence of unobservables"

"Cause and Effect: The High Cost of High School Dropouts"

April 21, 2020 in Assembled readings on specific topics, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Thursday, April 16, 2020

Student presentation on "Transportation of Hemp and Marijuana"

With the semester winding down, numerous students in my Marijuana Law, Policy & Reform seminar are scheduled for presentations on research topics of their choice this week.   The fourth presentation slated for this week will focus on the transportation of cannabis.  Here is part of the student's description of the issue and some background readings he has flagged:

For all the discussion that has been had about the legalization of marijuana, we have not sufficiently discussed how these products should be moved around. The goal of my presentation is to explore this issue by looking at cases that have unfolded and the policies of institutional players. For some background, please see:

Hemp Suppliers at Odds With Hazy Regulations” 

The Great American Cannabis Experiment” 

Inability To Ship Across State Lines Hurts Cannabis Businesses, Especially Small Operators” 

Travelers caught with weed in Chicago airports won’t be busted, police say” 

April 16, 2020 in Assembled readings on specific topics, Business laws and regulatory issues, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)