Friday, November 10, 2023
The title of this post is the title of this notable new R Street policy study authored by Chelsea Boyd. Here is its executive summary:
Historically, cannabis has been used for medical purposes for millennia. Cannabis was introduced into western medicine in the mid-1800s but began to decline in use by the early 1900s. It was made a Schedule I substance under the Controlled Substances Act of 1970, which effectively prevented research on its potential medical uses and benefits. Nevertheless, since 1996, more than three-quarters of states have legalized the medical use of cannabis in some form. This policy study explores what is known about medical cannabis patients’ use patterns and preferences; describes marketplace trends and medical relevance of cannabinoid content; and suggests policies that promote the availability of safe, effective and accessible medical cannabis products for patients.
Because there is limited research on cannabis as a therapeutic treatment, it is hard to make conclusive statements about effective dosing and use patterns for specific conditions or patient populations. Nevertheless, compared to non-medical users, medical cannabis patients tend to use daily, via multiple routes of administration, and do not report a desire to experience cannabis’ psychotropic effects. Medical patients also seem to prefer different cannabinoid profiles than non-medical users. Keeping in mind that, for many patients, finding the most effective use pattern is a process of trial and error, ensuring a wide variety of products with different cannabinoid ratios is one policy that can enable patients to find the most beneficial product combinations for their conditions. Similarly, because medical patient preferences are different from non-medical users, insulating medical markets from the potential pressures of the adult-use market can ensure that patients have access to products they prefer, even after a state legalizes adult use.
Additionally, when states legalize medical cannabis, they have a duty to ensure that any markets that emerge are safe. Because cannabis is regulated at the state level, there is notable variability in cannabis markets and product standards. Ensuring that each state has accurate, comprehensive and (when possible) evidence-based labeling standards can help patients make informed decisions about the products they use. States can also protect patients by regulating contaminants appropriately. Practical medical cannabis policies are necessary to ensure patient safety and allow the greatest accessibility.
November 10, 2023 in Business laws and regulatory issues, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)
Friday, October 6, 2023
The title of this post is the title of this new paper now available via SSRN and authored Shaleen Title and Bruce Barcott. Here it is abstract:
As the legal cannabis sector grows and state markets mature, small businesses within the industry are struggling. Now is an opportune time to examine the role of small businesses in the cannabis reform landscape. With federal legislation on the horizon, policymakers require reliable information. Unfortunately, research on the issue of small cannabis businesses remains sparse.
In this paper, we argue that small cannabis businesses foster local economic growth and contribute to the public good. Additional research is necessary, particularly to compare findings from states that are already taking measures to safeguard and financially support specific types of small businesses. In the interim, we recommend the exploration of immediate solutions, beginning with (1) access to SBA loans, (2) systematic data collection and potential expansion of state measures such as fee waivers and licensing prioritization, and (3) consideration of lower-cost regulations for small businesses. Various relevant federal bills are listed and briefly analyzed in the Appendix.
Wednesday, September 27, 2023
As reported here by Marijuana Moment, the "Senate Banking Committee has approved a bipartisan marijuana banking bill with amendments, sending it to the floor." Here are some details:
On Wednesday, members voted to pass the Secure and Fair Enforcement Regulation (SAFER) Banking Act, sponsored by Sens. Jeff Merkley (D-OR) and Steve Daines (R-MT), in a 14-9 vote. This comes one week after it was filed with revisions that were meant to bolster its bipartisan buy-in....
Sen. Steve Daines (R-MT), the lead GOP sponsor of the SAFER Banking Act, emphasized that he does not view the legislation as a step toward legalization, which he opposes. But “the current all cash model of legal cannabis businesses makes him targets for theft, for tax evasion and for organized crime,” he said. “The key to addressing this risk is by ensuring that all legal businesses have access to the banking system,” Daines said....
The road to Wednesday’s vote has been bumpy. While the House has passed earlier versions of the legislation several times, this marks the first time the Senate has taken the lead—and bipartisan negotiations have proved trying.
Leadership aimed to move the bill through committee in July, but disagreements over provisions related to broad banking regulations shot that timeline down. Then, over the August recess, lawmakers drafted a revised version, with a slightly updated title and new language that earned some praise from both sides of the aisle.
But the amended SAFER Banking Act that was finally released last week is likely not in its final form. Beside amendments adopted during Wednesday’s markup, there are additionally plans to amend it on the floor. Senate Majority Leader Chuck Schumer (D-NY) wants to use that opportunity to incorporate legislation on incentivizing state-level cannabis expungements, as well as protecting gun rights for marijuana consumers.
Tuesday, September 12, 2023
I was asked to post this call for papers, which I am happy to do:
Tulsa Law Review, in conjunction with the University of Tulsa College of Law and the University of Tulsa, is hosting a Symposium on Cannabis Law and Policy on March 1, 2024.
Theme: Contemporary Cannabis: Wading Through a Post-Prohibition Era
Tulsa Law Review invites interested parties to write and submit relevant articles for publication consideration in our 2024 Symposium Issue. One panel will focus on evidentiary and interdisciplinary issues with the increasing legalization of cannabis at the medical and recreation level. The other panel will discuss legalization at the state level and its effects on corporate and banking spheres.
With the recent announcement of the US Department of Health and Human Services’ recommendation to reclassify marijuana as a Schedule III substance, we are excited to facilitate a thoughtful discussion and a variety of papers surrounding this timely topic.
Questions and paper proposals should be submitted to Cameron Skinner, Tulsa Law Review symposium editor, [email protected]
September 12, 2023 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical community perspectives, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)
"A Prescription for Progress? Would a Schedule III Reclassification of Psychoactive Cannabis Help or Hurt State Operators?"
The title of this post is the title of this timely new paper now on SSRN and authored by Benton Bodamer, who is a member of Dickinson Wright PLLC and an Adjunct Professor of Law at OSU and affiliated with the Drug Enforcement Policy Center. Here is its abstract:
On August 30, 2023, the U.S. Department of Health and Human Services (HHS) concluded a scheduling review of psychoactive cannabis and recommended that the Drug Enforcement Administration “reschedule” psychoactive cannabis from Schedule I to Schedule III under the Controlled Substances Act. The next 6 to 12 months could be among the most transformative for the U.S. cannabis industry, but progress is unlikely to come without regulatory confusion, conflicts of federal laws, and unintended consequences. This paper aims to answer major questions that remain following the release of HHS’s statement, including why psychoactive cannabis was on Schedule I given its medical uses, whether a move to Schedule III effectively legalizes existing state-compliant cannabis companies, if relief from 280E tax or advertising restrictions are likely, and whether a move to Schedule III opens up banking for existing cannabis companies. The paper ends with a look at the road ahead.
September 12, 2023 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Wednesday, May 10, 2023
Gearing up for US Senate hearing on "Examining Cannabis Banking Challenges of Small Businesses and Workers"
As detailed at this official site, the U.S. Senate Committee on Banking, Housing, and Urban Affairs has a hearing scheduled for tomorrow morning titled "Examining Cannabis Banking Challenges of Small Businesses and Workers." Among the topics to be discussed is surely to be the SAFE Banking Act, and there are scheduled witnesses who will be supportive and who will be oppositional to this bill. Here are the listed witnesses:
The witnesses on Panel I will be:
- The Honorable Jeff Merkley, United States Senator (D-OR); and
- The Honorable Steve Daines, United States Senator, (R-MT).
The witnesses on Panel II will be:
- Mr. Ademola Oyefeso, International Vice President and Director of Legislative and Political Action Department, United Food and Commercial Workers International Union (UFCW);
- Ms. Michelle Sullivan, Chief Risk & Compliance Officer, Dama Financial;
- Dr. Kevin Sabet, PhD., President and CEO, Smart Approaches to Marijuana, and Fellow, Yale University; and
- Ms. Cat Packer, Vice Chair, Cannabis Regulators of Color Coalition.
Some witness written tesimony is already available at the hearing website.
As is so often the case, the folks at Marijuana Moment hav lots of coverage on this topc, and here are links to some of its relevant pieces:
- "Key Senate Committee Officially Schedules Hearing On Marijuana Banking Bill For Next Week"
- "Schumer Says Marijuana Banking Bill Will Go To Senate Floor — With Expungements And ‘Social Justice’ Attached — At NYC Cannabis Rally"
- "American Bankers Association Calls For ‘Swift Passage’ Of Marijuana Banking Bill Ahead Of Senate Committee Hearing"
- "Senate Committee Adds New Witnesses For Marijuana Banking Hearing This Week"
Monday, April 17, 2023
The third student presentation scheduled for my class this week covers yet another important marijuana topic with lots of history, public health issues, and policy concerns all wrapped into package with seemingly significant market appeal. And this description and list of readings from my student is sure to whet appetites for coverage of this signifcant topic:
Edibles, food or drink containing cannabis, have exploded in popularity over the past few decades. Despite their recent boom, they are not a new developement. Edibles have a long and interesting history, with evidence that cannabis has been used in food products for thousands of years. In the modern context, their use is quite common, making edibles the third-largest sector of the cannabis market (after the flower itself and concentrates/cartridges).
Edibles offer several benefits over other methods of cannabis use, but there are also downsides. The amount of THC in a package of edibles is almost always higher than the recommended dose. Additionally, many edibles look and taste like candy or other sweets, leading to increases in child and pet ingestion. There are also many trademark concerns, since many edibles are named and packaged in ways resembling trademarked designs. Despite these issues, there is relatively little regulation of edibles in states that have legalized recreational cannabis. This area is ripe for future legislative action, extending from packaging and labeling requirements to manufacturing and THC content restrictions. There will likely be significant changes to how cannabis law regulates edibles in the future as legislatures move to mitigate certain issues specific to edibles.
Christine Chung, "Consumption of Marijuana Edibles Surges Among Children, Study Finds"
American Addiction Centers, "Marijuana Edibles: Risks, Side Effects & Dangers"
Bobby Hristova, "DAY 40: The ancient history of cannabis edibles"
Kelly Johnson-Arbor, "My Child Ate a Cannabis Edible"
April 17, 2023 in Assembled readings on specific topics, Business laws and regulatory issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Saturday, April 8, 2023
Another week of student presentations in my Marijuana Law, Policy and Reform class means another week of thoughtful explanation and asessment of a diverse array of interesting legal and polcy issue. The first student presentation slated for this week is on medical marijuana in the workplace, and the topic is described by my student this way (along with background readings):
The legal landscape surrounding medical marijuana is complicated by the fact that marijuana remains illegal under federal law and yet, the general US workforce continues to see an upward trend in positive drug tests for marijuana. My focus will be on this conflicting legal framework and understanding what courses of action are being brought forth to deal with medical marijuana in the workplace. One of the key challenges for employers is determining how to manage employees who use medical marijuana. Overall, it is still an undefined company and state-based decision-making process that does not have one solution fitting all.
Not only do employers face tough decisions given the current patchwork of laws, but employees do too. They may be hesitant to disclose their use of the drug to their employer, for fear of discrimination or retaliation. To address these challenges, some states have passed laws that provide protections for employees who use medical marijuana or generally provide protections against discrimination. Additionally, some states have implemented regulations that provide guidelines for employers who are dealing with medical marijuana use in the workplace. Ultimately, it is time for employers to evaluate their policies and procedures, not only in light of the law but practical realities as well.
From Quest Diagnostics, "Drug Testing Index Interactive Map: Positivity for Marijuana" (2021)
From Americans for Safe Access, "2022 State of the States Report: An Analysis of State Medical Cannabis Access" (2022)
From U.S. Department of Health & Human Services, "2021 SAMHSA National Survey of Drug Use and Health" (2021)
From the Ohio Bureau of Workers' Compensation (BWC), "Medical Marijuana and its impact on BWC " (2018)
Monday, March 20, 2023
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?"
Saturday, February 25, 2023
The title of this post is the title of this new article recently posted to SSRN authored by Erik M. Jensen. Here is its abstract:
This article considers several issues affecting Internal Revenue Code section 280E, which denies income-tax deductions and credits to businesses trafficking in controlled substances. Even though marijuana is legal in an increasing number of states, it remains a controlled substance under federal law and section 280E therefore applies to marijuana businesses. As a result, investing in a marijuana business is much less attractive than it would otherwise be. The article discusses issues of statutory interpretation but, more important, considers whether an almost complete denial of deductions and credits converts what is in form an income tax into something else. If the “income” tax as applied to a marijuana business is not on income, within the meaning of the Sixteenth Amendment, it may have to be apportioned among the states on the basis of population to be constitutional (the so-called direct tax apportionment rule). The article also argues, however, based on a 1911 Supreme Court decision, that the Sixteenth Amendment issues might go away if the business is conducted using a taxable corporation. Finally, the article includes a brief discussion about marijuana businesses conducted either directly by American Indian nations or through tribally created corporations. Those entities are not subject to the federal income tax; the limitations of section 280E therefore are irrelevant; and tribal businesses have a competitive advantage in the marijuana market. Because of section 280E’s application to businesses that are legal under state law but illegal under federal law — an untenable situation — federalism issues underlie all of the discussion.
Wednesday, February 15, 2023
As reported in this new Politico piece, headlined "Twitter becomes first major social platform to allow weed ads," a notable new owner is ushering in a notable new advertising policy. Here are the details and some context:
Elon Musk is backing up all his 420 tweets. The owner of Twitter, who sparked a media firestorm after he puffed on a spliff during an appearance on Joe Rogan’s podcast, is making good on speculation that his acquisition of the platform might make it more cannabis-friendly. The company changed its policy to allow U.S. cannabis companies to advertise on its platform Tuesday — although with numerous restrictions.
“It is a groundbreaking thing for many cannabis advertisers to be able to reach their markets and their audiences without doing any type of workarounds,” said Amy Deneson, co-founder of the Cannabis Media Council, a trade association focused on cannabis education.
To advertise on Twitter, cannabis companies must be pre-authorized by Twitter and meet many requirements. Perhaps the most significant restriction is that cannabis companies can’t promote or offer for sale cannabis products. Among the other requirements cannabis companies must adhere to:
- Be licensed by the “appropriate authorities”
- Only target ads to areas where they are licensed to promote products or services online
- Not target those under 21
- Assume all legal responsibility for complying with applicable laws and regulations
Cannabis advertisements also can’t appeal to minors, make any health claims or show any depictions of cannabis use.
Even with this change in Twitter policy, some cannabis companies won’t be able to take advantage of the platform for advertising due to state laws restricting online cannabis advertising....
Beyond simply allowing cannabis advertising, Twitter is actively wooing the industry. Many advertising platforms require minimum buys of $5,000 to $10,000 to get started. But Twitter is not setting any minimum for cannabis companies, explained Deneson.
Twitter is also offering a one-to-one match of every advertising dollar from cannabis companies until the end of March. So if a cannabis company runs a $50 campaign on the platform, it effectively amounts to a $100 campaign....
Mainstream advertising platforms have been reluctant to serve a federally illegal industry, in part due to concerns about existing advertisers not wanting to be positioned next to cannabis ads. But they’re also concerned about how to validate whether a potential advertiser is a licensed business. The change in Twitter’s policy is so new that it’s unclear how long it will take for a cannabis brand to get through the validation process.
Friday, February 3, 2023
Americans for Safe Access releases "2022 State of the States Report: An Analysis of Medical Cannabis Access in the United States"
My wonderful marijuana seminar is about to turn to a close examination of the laws, policies and practices around medical marijuana reforms, and I am incredible grateful that the folks at Americans for Safe Access (ASA) unveiled their latest comprehensive annual report on medical marijuana reform just in time for our collective review. This new 150+ page report, titled "2022 State of the States Report: An Analysis of Medical Cannabis Access in the United States," provides both a national and state-by-state perspective on medical marijuana reforms. This ASA press release about the report provides a bit of an overview:
The report evaluates the effectiveness of each state cannabis program from a patient perspective and assigns a grade using a rubric that reflects the key issues affecting patient access, broken down into more than 100 categories, including: barriers to access, civil protections, affordability, health and social equity, and product safety. The report also assigns penalties for harmful policies. ASA distributes the report to state legislators and regulators in every state, as well as hundreds of health and patient organization across the country.
Despite an increase in registered patient numbers and states with medical cannabis programs, the report highlights the fact that states are still falling short in creating programs that fulfill the needs of all patients-- the average grade among states was only 46.16% with Maryland earning the highest score of 75.71%. The report also highlights new issues facing patients including a decline in legislative improvements to state medical cannabis programs and the negative impacts recreational adult-use laws are having on medical cannabis access.
The report also offers solutions to improve state programs including legislative and regulatory language. Since the first edition in 2014, advocates and state legislators have utilized ASA’ report to pass new legislation and regulations to improve medical cannabis access. This year’s report offers policymakers a Medical Cannabis Equity Checklist with legislative improvements for states with recreational adult-use programs or those considering adopting such programs, to ensure patient access is not harmed.... ASA recognizes that state policymakers and regulators have been tasked with creating the infrastructure for a supply chain that remains illegal at the federal level and are now addressing a new health concern of the seemingly federally legal, unregulated cannabinoid market. In 2022 alone, 99 pieces of legislation were introduced regarding the unregulated cannabinoid market. The State of the States report calls on state legislatures to join patient advocates in calling on Congress to pass comprehensive federal legislation, and offers steps to do so in the “State's Government's Role in Ending Federal Prohibition” section.
February 3, 2023 in Business laws and regulatory issues, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms | Permalink | Comments (1)
Thursday, January 26, 2023
After extended study, the federal Food and Drug Administration has decided it cannot figure how to regulate cannabidiol (CBD). This FDA press release explains its decision, and here are excerpts:
Given the growing cannabidiol (CBD) products market, the U.S. Food and Drug Administration convened a high-level internal working group to explore potential regulatory pathways for CBD products. Today we are announcing that after careful review, the FDA has concluded that a new regulatory pathway for CBD is needed that balances individuals’ desire for access to CBD products with the regulatory oversight needed to manage risks. The agency is prepared to work with Congress on this matter. Today, we are also denying three citizen petitions that had asked the agency to conduct rulemaking to allow the marketing of CBD products as dietary supplements.
The use of CBD raises various safety concerns, especially with long-term use. Studies have shown the potential for harm to the liver, interactions with certain medications and possible harm to the male reproductive system. CBD exposure is also concerning when it comes to certain vulnerable populations such as children and those who are pregnant.
A new regulatory pathway would benefit consumers by providing safeguards and oversight to manage and minimize risks related to CBD products. Some risk management tools could include clear labels, prevention of contaminants, CBD content limits, and measures, such as minimum purchase age, to mitigate the risk of ingestion by children. In addition, a new pathway could provide access and oversight for certain CBD-containing products for animals.
The FDA’s existing foods and dietary supplement authorities provide only limited tools for managing many of the risks associated with CBD products. Under the law, any substance, including CBD, must meet specific safety standards to be lawfully marketed as a dietary supplement or food additive.
The working group ... has closely examined studies related to the CBD-based drug Epidiolex, published scientific literature, information submitted to a public docket, as well as studies both conducted and commissioned by the agency. Given the available evidence, it is not apparent how CBD products could meet safety standards for dietary supplements or food additives. For example, we have not found adequate evidence to determine how much CBD can be consumed, and for how long, before causing harm. Therefore, we do not intend to pursue rulemaking allowing the use of CBD in dietary supplements or conventional foods.
This Washington Post article about the decision highlights some industry grumpiness and the broader context:
“When it comes to the safety of CBD, the FDA gets it wrong,” Jonathan Miller, general counsel of the U.S. Hemp Roundtable, said in a statement. He called the agency’s intent to tighten regulations “unprecedented and unnecessary” but said he endorsed a legislative solution to allow marketing of CBD in dietary supplements and foods.
Alex Buscher, a Colorado-based lawyer who advises hemp companies, said that CBD doesn’t seem to be riskier than other dietary supplements on the market that have the potential for side effects if taken at higher-than-recommended doses. “The FDA is kicking the decision back to a divided Congress, which will take time to create a new regulatory framework,” he said. “We need actual regulation from the FDA.”Advocacy groups and food industry experts criticized the FDA decision.
Food safety experts have said that the FDA has been in an impossible situation as states have decriminalized marijuana — which remains illegal under federal law — and related products have gained popularity. According to the National Conference of State Legislatures, as of this past February, 37 states (plus D.C., Puerto Rico, Guam and the U.S. Virgin Islands) have legalized medical use. As of Nov. 9, 21 states (plus D.C., Guam and the Northern Mariana Islands) have decriminalized recreational use — a strong indication that public sentiment has shifted.
“I’m sure the FDA probably concluded that no matter which way they went, it would involve trying to fit a very big genie back into a very small bottle, and create a political firestorm,” said Brian Ronholm, director of food policy for Consumer Reports. “It’s not surprising that they would want to seek some cover from Congress.”
Monday, January 23, 2023
Highlighting the hazy "who" of marijuana reform with state reforms and persistent federal prohibition
In the classroom and also in some of my scholarship, I often lean into the questions relating to "who" takes the lead with various legal doctrines and reforms. In the marijuana space, of course, these "who" questions have the added complications from conflicting federal and state (and sometimes local) laws and regulations. Usefully, this lengthy new Grid piece provides something of an overview of the messy realities of discordant "whos" in the marijuana policy space. The full title for the piece highlights its themes: "Marijuana can be legal and illegal at the same time: How the hazy mix of state and federal laws is creating a mess: It’s hard to figure out when and where using or selling marijuana is a crime — and when it’s not." Here are excerpts:
America is a little dazed and even more confused when it comes to how legal (or not legal) marijuana is. State laws have been changing dramatically over the past decade — but they’re also inconsistent across state borders. Something legal in one state could get you arrested the next state over. It has created a dizzying patchwork of rules, regulations and exceptions made even worse by the federal government’s complete ban of the substance....
[J]ust because federal agents aren’t exactly arresting every single person with a cannabis plant on their windowsill (there aren’t enough agents for that) that doesn’t mean there won’t be consequences. In child custody cases, for instance, one party can cite marijuana use as a violation of federal law when arguing that someone shouldn’t get custody.
There are also no workplace protections at the federal level, even for workers who use cannabis legally or medicinally in a state. That means that workers can be fired if they fail a drug test, even if they’re in a state where it’s legal and they aren’t currently using or high. Some states have passed worker protections for off-duty use of marijuana to address the issue.
And then there is housing: Federally subsidized public housing bans cannabis use. An applicant or tenant who is found to be in violation of this law might be denied housing or evicted — even if it’s legal in the state they are living in....
Besides the matter of taxes and prices, the matrix of federal and state policies has allowed a thriving “gray market” to proliferate.... This market might take the form of storefronts offering marijuana as a “gift” accompanying a purchase in D.C., where buying and selling weed is illegal — but possessing it isn’t — because of congressional members opposed to legalization putting a rider in a budget bill nearly a decade ago....
The removal of a federal prohibition might result in consolidation. Any huge company, which would be able to ship the product across state lines, could buy out any smaller competitors and bring down prices for legal cannabis products. (For reference, Rand previously estimated that all the cannabis used in the U.S. could be grown on a few dozen industrial-size farms.)
January 23, 2023 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)
Friday, January 13, 2023
In shadow of full legalization initiative, Ohio legislature again discussing broad expansion of medical marijuana program
Last year brought lots of chatter in the Buckeye State remarding marijuana reform, but not much legal reform actually was completed. A proposed ballot initiate for full legalization got bumped a year because of the timing of signature collection, and other bills proposing full legalization did not advance in the Ohio General Assembly. But there was some momentum behind a bill to significantly expand the state's medical marijuana program in the Ohio legislature in 2022, though that bill only passed one house of the legislature and so did not make it to Gov DeWine's desk.
But, as this local article details, these Ohio marijuana reform issues and possibilities are all already garnering attention early in 2023. Here are excerpts from the article with the key details:
A newly introduced Ohio Senate bill would create a 13-member medicinal cannabis oversight commission, as well as a new state agency, in hopes of being more responsive to the state’s medical marijuana industry and expand the diagnoses for which it could be prescribed.
Senate Bill 9 is similar to Senate Bill 261 from last legislative session in that they both are trying to update the state’s 6-year-old law that legalized medical marijuana in Ohio. However, the oversight board is new in SB 9.
Currently, the Ohio Department of Commerce, the State Medical Board of Ohio and the Ohio Board of Pharmacy oversee regulations and licensing in the marijuana program. “What we’ve found is that many of the growers want to expand and grow more,” said Sen. Stephen Huffman, who is sponsoring the bill with fellow Republican Sen. Kirk Schuring. “There’s more growers, there’s more demand. They put an application into the Department of Commerce, and it sits there for 18 months, two years. Hopefully this takes the bureaucracy out of this and streamlines things and make it a better-functioning industry.”
SB 9 comes as the legislature also must decide what to do about a recreational marijuana initiated statue proposal. The legislature has until May 3 to pass a law based on the proposal, backed by a group of medical marijuana licensees. If the General Assembly does nothing, which is likely as GOP leaders have said they’re not interested in the proposal, then the Coalition to Regulate Marijuana Like Alcohol can collect signatures to get on the ballot for voters to decide the matter. The coalition believes it has wide support from Democrats and Republicans in Ohio.
Under SB 9, the Medical Marijuana Oversight Commission would oversee the Division of Marijuana Control. The Division of Marijuana Control would fall under the Ohio Department of Commerce....
SB 9 would allow medical marijuana for patients with autism spectrum disorder and opioid use disorder, in addition to conditions for which medical marijuana has already been approved. The new bill additionally allows medical marijuana for other conditions that physicians, in their discretion and medical opinion, determine are debilitating to a patient.
A similar provision was in SB 261, stating that drug was allowed for conditions if a doctor determines “the patient’s symptoms may reasonably be expected to be relieved from medical marijuana.” SB 261 passed the Senate in December 2021. It died in the House, though, in the session that ended late last year.
SB 261 allowed marijuana cultivators to expand grow space. The larger square footage isn’t in SB 9 but Huffman, who is a physician from Miami County, said he’s willing to discuss amending his bill with more grow space. “In my discussions with Sen. Schuring, we felt this would be a positive move and positive change for the industry,” Huffman said. “At the same time hopefully members of the House will be comfortable with it.”
Tuesday, January 10, 2023
As I am gearing up for another exciting new semester of teaching my always exciting Marijuana Law and Policy seminar at The Ohio State University Moritz College of Law, I was especially drawn to this lengthy new op-ed by Justin Strekal at Marijuana Moment which has the same title as this post. I recommend the full piece, and here are excerpts highlighting some of its main themes:
2022 was the best of times for marijuana policy reform in America—but if you read the headlines or (god forbid) log onto Twitter, you could be forgiven for thinking that it was the worst.
This Orwellian doublethink is understandable if you look at it through the lens of a minute-by-minute analysis, or by only looking at the stock prices of the young, dominant players in the emerging cannabis industry. But we must keep the long game in mind when we think about ending the 85-year policy of marijuana prohibition and criminalization....
I have been a supporter of the SAFE Banking Act since I started at NORML in 2016, and I even took pro-SAFE meetings with groups that have since evolved their positions on the bill and are now demanding reforms to its underlying structure.
Back then, the purpose of the effort was to advance an aspect of legalization and the regulated marketplaces in Congress at a time when neither chamber had a leader who explicitly said they supported reform, be it SAFE or comprehensive. In other words, being for SAFE Banking was a form of harm reduction, not a cure.
Since the 115th Congress, a lot has changed. This includes the funding power of the reform movement, which has shifted dramatically in recent years, with the number of earnest advocates from the Drug Policy Alliance, Marijuana Policy Project and Americans for Safe Access shrinking, for example. On the flip-side, K Street lobby shops are hiring new suits seemingly every month, many of whom never thought about marijuana prohibition before being paid by a private company or trade association to do so....
As for what the Republican flip in the House means for this reported agreement between Schumer and Daines? What about comprehensive reform? Well, I’m not going to give you a percentage likelihood because only snake oil salespeople treat Congress like a betting market.
Whatever comes next in the House majority, it’s important to remember that 51 percent of House Republicans already voted for SAFE in the last Congress, including leaders like Reps. Kevin McCarthy (R-CA), Elise Stefanik (R-NY), Dave Joyce (R-OH), Bryon Donalds (R-FL), Kevin Hern (R-OK) and many others....
Because democracy is a verb and, as recent and ongoing events clearly show, things are not working well in America. But for the first time ever, there is actually a pathway to accomplish something pertaining to marijuana law reform — but only if the monied interests are willing to live up to the rhetoric they espouse.
January 10, 2023 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Tuesday, January 3, 2023
As I have recently mentioned, after a very busy Fall semester, I am catching up on the posting of some recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center. As I seek to catch up in the days ahead, as I continue to relish the chance to highlight great work by OSU law students and recent graduates. The title of this post is the title of this paper authored by Jenna Pletcher who is in the midst of her 3L year at The Ohio State University Moritz College of Law. Here is its abstract of her paper:
America’s legal cannabis market is growing exponentially and more states are beginning to legalize cannabis products. Currently, the legal cannabis industry supports 428,059 workers nationally, and it is predicted that a mature cannabis market would support 1.5 million to 1.75 million workers. However, it can be unclear what legal protections are offered to these workers under a federal prohibition regime.
The basic right of workers to form a union is protected by the National Labor Relations Act (“NLRA”). However, the NLRA does not protect agricultural workers, and it is not clear which positions in the cannabis industry are considered “agricultural.” 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. This paper will evaluate the applicability of the NLRA to the cannabis industry, the policy concerns surrounding the use of labor peace agreements to fill in gaps left by federal labor laws, and what widespread unionization could mean for a quickly growing sector of the economy.
Monday, December 5, 2022
I was intrigued and pleased to see that the cover story of the latest issue (December/January 2022-2023) of the ABA Journal is all about cannabis lawyering. This new piece is headlined "Lawyers are lighting up the budding cannabis industry: Justice Cannabis Co. is one of the biggest of the little guys in the rough-and-tumble, fast-paced and legally treacherous world of marijuana growing and selling."
Becuase I do not see too many really good pieces broadly reviewing the state of cannabis lawyering, I was a little disappointed that the ABAJ article is almost entirely about the practice and experience of lawyers involved with Justice Cannabis. Still, the ABAJ piece is an interesting read that covers a good bit of marijuana law along the way. Here is an excerpt:
As of early February, 37 states, three territories and the District of Columbia permitted the medical use of cannabis products. And as of November, 21 states, two territories and D.C. had approved cannabis for adult nonmedical use.
The cannabis industry generated $25 billion in revenues from legal sales in 2021 and employs more than 400,000 people nationwide. It was expected to reach $32 billion in annual sales in 2022 and could exceed $50 billion by 2030.
It can be a lucrative and fascinating area of practice, according to attorneys such as William Bogot of Fox Rothschild, who left the Illinois Gaming Board to take on cannabis work. It also can be frightening, says Lisa Dickinson of the Dickinson Law Firm in Spokane, Washington, who is chair of the ABA Tort Trial and Insurance Practice Section's Cannabis Law and Policy Committee. “It's still the wild, wild west,” she says.
The federal Controlled Substances Act prohibits the production, distribution, sale, use or possession of cannabis--which is classified alongside heroin and LSD as a Schedule I drug with a high likelihood of addiction and no safe dose. The federal statute provides no exception for medical or other uses authorized or regulated by state law. The penalties for some offenses are severe. The rapid bifurcation of state and federal law has woven deep contradictions into the legal system and American society, and it has created a thorny dilemma for cannabis businesses and the attorneys they need to help them.
For attorneys, there are two issues that have a chilling effect on their participation: The first is whether by representing a business that is breaking federal law they are violating the ethics of the profession, which could cost them their license to practice; the second is they could be charged with engaging in criminal activity, resulting in fines and prison.
Sunday, December 4, 2022
New reporting by Axios and Politico suggest that US Senators on both sides of the aisle are working to get notable marijjuana reform measures included in this year's (must-pass) National Defense Authorization Act. The Politico piece, headlined "Senators push for SAFE Banking in defense bill," starts this way:
A landmark bill that would make it easier for banks and other financial institutions to service the cannabis industry could finally be poised for passage. The SAFE Banking Act could be included in the National Defense Authorization Act that Congress is expected to take up next week.
Republican senators had a “productive” meeting about the legislation on Thursday with Majority Leader Chuck Schumer, Sen. Steve Daines (R-Mont.) told POLITICO. Sen. Sherrod Brown (D-Ohio), chair of the Senate Banking Committee, said he "hopes" it is in the NDAA.
The final decision is likely to be made on Monday, when the House Rules Committee meets to tee up the compromise version of the NDAA for a vote on the House floor as early as Tuesday. A final version of the defense bill was expected to be filed Friday, but has been delayed as House and Senate leaders iron out last-minute issues around what outside bills should be attached.
The Axios piece adds these details:
The targeted legislation is the result of the pairing of two bills —Secure and Fair Enforcement (SAFE) Banking Act and the Harnessing Opportunities by Pursuing Expungement (HOPE) Act—that would attract both conservatives and progressives across Congress.
The latest changes to the bill ensure that the legislation does not unintentionally make it harder for law enforcement to prosecute other crimes involving other drugs or money laundering.
Schumer and the bipartisan group plan to attach this legislation to a must-pass year-end bill like the annual National Defense Authorization Act.
Schumer and Sen. Jeff Merkley have been working with Republicans for months, including Sens. Steve Daines, Rand Paul, and Dan Sullivan.
Friday, December 2, 2022
As reported in this Marijuana Moment piece, "President Joe Biden has officially signed a marijuana research bill into law, making history by enacting the first piece of standalone federal cannabis reform legislation in U.S. history." Here is more:
The bill cleared the House in April and the Senate last month, and a White House spokesperson confirmed to Marijuana Moment that the president intended to sign it. On Friday, he did just that.
The law gives the U.S. attorney general 60 days to either approve a given application or request supplemental information from the marijuana research applicant. It also creates a more efficient pathway for researchers who request larger quantities of cannabis....
Reps. Earl Blumenauer (D-OR) and Andy Harris (R-MD) sponsored the House version of the research legislation, which is substantively identical to a Senate bill from Sens. Dianne Feinstein (D-CA), Brian Schatz (D-HI) and Chuck Grassley (R-IA) that previously cleared that chamber....
The four co-chairs of the Congressional Cannabis Caucus — Blumenauer and Reps. Barbara Lee (D-CA), Dave Joyce (R-OH) and Brian Mast (R-FL) — released a joint statement following the president’s signing.
“For decades, the federal government has stood in the way of science and progress—peddling a misguided and discriminatory approach to cannabis. Today marks a monumental step in remedying our federal cannabis laws,” they said. “The Medical Marijuana and Cannabidiol Research Expansion Act will make it easier to study the impacts and potential of cannabis.”...
In a press release, Schatz said that “the medical community agrees that we need more research to learn about marijuana’s potential health benefits.” “Our new law will remove excessive barriers that make it difficult for researchers to study the effectiveness and safety of marijuana, and hopefully, give patients more treatment options,” he said.
Blumenauer and Harris previously championed a separate cannabis research bill that advanced through their chamber in April. Unlike that legislation, however, the newly approved bill notably does not include a provision that scientists had welcomed that would have allowed researchers to access cannabis from state-legal dispensaries to study.
The research legislation further encourages the Food and Drug Administration (FDA) to develop cannabis-derived medicines. One way it proposes doing so is by allowing accredited medical and osteopathic schools, practitioners, research institutions, and manufacturers with a Schedule I registration to cultivate their own cannabis for research purposes.
The Drug Enforcement Administration (DEA) is now mandated to approve applications to be manufacturers of marijuana-derived, FDA-approved drugs under the bill. Manufacturers will also be allowed to import cannabis materials to facilitate research into the plant’s therapeutic potential.
Another section requires the Department of Health and Human Services (HHS) to look at the health benefits and risks of marijuana as well as policies that are inhibiting research into cannabis that’s grown in legal states and provide recommendations on overcoming those barriers.
The bill further states that it “shall not be a violation of the Controlled Substances Act (CSA) for a State-licensed physician to discuss” the risk and benefits of marijuana and cannabis-derived products with patients.