Thursday, June 6, 2024

"Just Don't Do It: Why Cannabis Regulations are the Reason Cannabis Businesses are Failing"

The title of this post is the title of this new article available now via SSRN authored by Edward Adams. Here are parts of its abstract:

In the last decade, more and more states have legalized the recreational or medicinal use of cannabis and, in the coming years, many more are likely to follow.  The change that has been advocated by proponents of cannabis reform, including some organizations like NORML, the National Organization for the Reform of Marijuana Laws, that have existed since the 1970s, is finally upon us....  Due to political variation among the states and the protracted process of reform, the cutting edge of cannabis regulation is in an incredible state of flux, and the nation-wide regulatory scheme is a jumble of policy choices; many of which are directly opposite to those of neighboring states.

In attempt to impose some order on the complexities of state cannabis regulation, Part III will canvas the current legal status of the substance in the United States, including a state survey and an in-depth exploration of the various policy decisions facing states that are considering reform.  This portion will also examine some recent, incremental shifts in the federal laws that overlay what is primarily a state level regulatory scheme.  Even after looking to the past and the present, the future remains uncertain.  Many significant impediments to the reform movement remain in place.  For example, even in states where cannabis has been recreationally legalized, local governments have retained (and exercised) the power to prohibit the substance within their jurisdictions.

Part IV will contain a discussion of this and similar roadblocks to reform that lurk in the background of the dynamic environment surrounding cannabis regulation in the United States.  Through understanding the complex history of cannabis regulation and legalization, the current legal landscape, and the existing roadblocks to reform, Part V will discuss how the legal and regulatory landscape causes so many cannabis companies to fail. Cannabis reform needs to happen in order for cannabis companies to become profitable.  For now, the cannabis legal regime creates significant hurdles that result in failing companies with little chance of success. 

June 6, 2024 in Business laws and regulatory issues, History of Marijuana Laws in the United States | Permalink | Comments (0)

Tuesday, May 28, 2024

"Cannabis Law Practice: Lessons for the Legal Profession in the Twenty-First Century"

The title of this post is the title of this new paper authored by Eli Wald and available via SSRN.  Here is its abstract:

The gradual states-driven legalization of cannabis, first medicinal marijuana followed by recreational marijuana, combined with decreased enforcement of federal law, has led to the emergence and growth of the marijuana industry and with it increased demand for cannabis legal services.  This Article is the first to study cannabis law practice in the United States.  In addition to answering fundamental questions about this growing area of law practice, including who cannabis lawyers are, where they practice, and what ethical challenges they face, the Article also investigates the insights cannabis law practice reveals and the lessons it teaches about the American legal profession.

May 28, 2024 in Business laws and regulatory issues, Who decides | Permalink | Comments (0)

Tuesday, May 7, 2024

"Local Moratoriums for Ohio Adult Use Marijuana Operators"

The title of this post is the heading for this terrific new resource page just posted along with other Policy and Data Analyses at the website of The Ohio State University's Drug Enforcement and Policy Center (which I help direct).  Here is how the resource is introduced:

In November 2023, 57% of Ohio voters voted for Issue 2, a ballot initiative which legalized adult recreational marijuana use and tasked the Ohio Departments of Commerce and Development with implementing a legal recreational cannabis industry in the state.  As of December 7, 2023, individuals 21 years and older can legally consume and possess marijuana throughout Ohio, although recreational dispensaries are not expected to open until the summer or early fall of 2024.  Like most other states that have legalized cannabis for recreational use, Ohio allows local jurisdictions to enact ordinances to prohibit or limit the operation of adult-use cannabis businesses within their boundaries.  This page presents information on 47 local moratoriums that have been enacted by Ohio jurisdictions as of March 31, 2024.

May 7, 2024 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Wednesday, May 1, 2024

"The False Promise of Rescheduling"

The title of this post is the title of this timely new paper authored by Robert Mikos and now available via SSRN.  Here is its abstract:

The federal government appears poised to reschedule marijuana under the Controlled Substances Act (CSA). Advocates have suggested the move will generate substantial benefits for the state-licensed marijuana industry, which has struggled to secure basic legal and business services under federal prohibition.  But this Essay serves as a reality check.  It suggests the expectations surrounding rescheduling are highly inflated, for two reasons.

First, rescheduling still might not happen.  To reschedule marijuana, the Drug Enforcement Administration (DEA) would have to change its long-standing interpretation of key statutory scheduling criteria.  Even if the Biden Administration were willing to do that (the jury is still out), a future Administration might reconsider.  If President Biden loses the fall 2024 election, nothing would stop his successor from quickly returning marijuana to the tightly regulated Schedule I.

Second, even if it happens, rescheduling to a lower schedule under the CSA will not greatly improve the fortunes of the marijuana industry.  The CSA will continue to impose a litany of restrictions on the manufacture and sale of marijuana.  What is more, the Food Drug and Cosmetic Act (FDCA) will still ban all interstate commerce in the drug.  (Marijuana would still not be approved by the Food and Drug Administration, post-rescheduling.)  If firms in the industry fail to comply with the rules imposed by these two statutes — as seems almost inevitable — they could still be denied banking, bankruptcy protection, intellectual property protection, contract enforcement, and other key services, just as they are today.  The Essay suggests that only Congress can remove all these challenges. To obtain more impactful and comprehensive reforms to federal marijuana policy, advocates should eschew the false promise of administrative rescheduling and focus instead on convincing Congress to enact reform legislation.

May 1, 2024 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Tuesday, April 16, 2024

"Budding cannabis law courses are growing — but not fast enough"

Though I am done teaching my Marijuana Law, Policy & Reform seminar for this semester, I am still having a grand time working with students on their final papers.  And all the work by and with my students all semester long deeply reinforces my sense that marijuana courses in law school can serve as a terrific way to cover all sorts of legal doctrines and policies and pragmatic issues that lawyers can and will confront in many settings.  With these matters in mind, I am so very pleased to see this new ABA Journal article with the headline that serves as the title fo this post.  Here are some excerpts:

Inspired by President Joe Biden’s call to review cannabis’ classification as a Schedule I controlled substance and many states’ moves to legalize weed for medical and general use, an increasing number of law schools around the country are offering cannabis law courses.

In the 2022-2023 academic year, 45 law schools—or about 22% of the 197 ABA-accredited schools—offered a combined total of 47 cannabis law courses, according to research by the Ohio State University Moritz College of Law’s Drug Enforcement and Policy Center.  Although that’s an increase of 24 schools compared to four years earlier in the 2018-2019 academic year, some professors think that even more are needed. “We’re still playing catch-up,” says Robert Mikos, a professor at the Vanderbilt University Law School who has taught a class on marijuana law and policy for more than 10 years....

As the weed business grows, so does the need for lawyers. There are jobs in this field, and they extend far beyond representing cannabis dispensaries, says Mikos ...  Opportunities include working for government regulatory agencies tasked with supervising the licensed cannabis industry, working as advocates and representing investors whose holdings touch the industry, such as real estate that a dispensary wants to rent....

In the classroom, professors must balance theory with myriad practical and ethical issues embedded in the ever-changing state laws and federal regulation, they say. Intersections with cannabis law include constitutional law, taxes, intellectual property, real estate, the environment and workers’ rights.

Most cannabis law classes are directed at upper-level students.  “It’s a great capstone course,” Mikos says. “If you’re a 3L, you might have encountered already constitutional law, criminal law, corporations or administrative law. Now, you get to put that into practice and put it all together in a very concrete way.”

April 16, 2024 in Business laws and regulatory issues, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Tuesday, April 9, 2024

Student presentation examines employer drug testing policies in wake of marijuana legalization

Drug-testing

This week brings the last class for my Marijuana Law, Policy & Reform seminar, which means we are having the last set of student presentations. The sixth and final student presentation slated for this week looks at employer drug testing policies after marijuana reforms. Here is how my student describes her topic (along with some background reading):

As marijuana becomes legal in more and more states, one of the biggest questions for employers is how to handle marijuana testing policies.  The ultimate goal is to maintain a drug-free workplace while also respecting the personal liberties of employees.  My paper will explore the pros and cons for maintaining strict drug testing policies and propose a solution on the best way for states to uniformly approach workplace drug testing.  My paper will analyze how legal states have already approached drug testing and provide an overview of how Amazon approaches drug testing to develop a proposal for best drug testing practices for employers.

On the one hand, maintaining strict marijuana policies is important for employers to avoid intoxication on the job that may result in accidents.  This is especially true for certain industries, such as public transit and manufacturing, where the likelihood of workplace accidents are higher.  Even in other industries, employers want to maintain a drug-free workplace in order to improve the quality of work produced by employees.  On the other hand, however, there are many downsides to strict marijuana drug testing policies.  It is more difficult to test for marijuana intoxication without also regulating off-the-clock activities.  This may result in employees feeling like their privacy is being violated when they are subject to regular drug testing because it restricts them from using marijuana in their off-work time.  In states where marijuana is legal, this can create a major conflict between employer interests and employee personal freedoms.

While the legal states have taken different approaches in regulating how employers drug test, California and Washington have adopted laws which restrict employers from firing employees who test positive for marijuana without also showing that the employee was actually intoxicated while working.  This strategy helps to maintain a balance between employer and employee interests.  Employers are able to prevent employees from using marijuana and being intoxicated at work, and employees are still able to use marijuana recreationally in their free time.  For these reasons, this is the best strategy for legal states and employers to adopt in regards to marijuana testing policies.

Background Reading:

Khorri Atkinson, Legal Weed Drives Companies to Relax Their Drug Testing Policies, Bloomberg Law (July 14, 2023).

Max Freedman, Cannabis at Work: How Employers are Reacting to the Legalization of Marijuana, Business News Daily (Oct. 24, 2023).

Work Health Solutions, The Pros and Cons of Workplace Drug Testing.

Levi Sumagaysay, California New Laws for 2024: Employees Get Protection for Using Cannabis, Cal Matters (Dec. 27, 2023).

April 9, 2024 in Assembled readings on specific topics, Business laws and regulatory issues | Permalink | Comments (0)

Saturday, April 6, 2024

Student presention examined "The Green Rush: A Dank Guide to Navigating the Financial Haze of the Marijuana Industry”

Images (5)I cannot quite believe that we are already up to the last week of student presentations in my Marijuana Law, Policy & Reform seminar.  Fortunately, we still have a half-dozen presentations to finish up the semester.  As I have explained before, students are expected to provide in this space some background on their presentation topic and links to some readings or relevant materials.  The first of our presentations taking place in our last class this coming week will be looking at financial issuses in the marijuana industry.  Here is how my student has described her topic along with background readings she has provided for classmates (and the rest of us):

Background & Summary:

The legalization of marijuana for medical and recreational purposes in several U.S. states has led to the rapid growth of the cannabis industry, attracting entrepreneurs and investors eager to capitalize on this "Green Rush." However, the continued federal prohibition of marijuana under the Controlled Substances Act has created a complex and often contradictory legal and regulatory environment for businesses operating in this sector. Marijuana businesses face significant challenges, including limited access to banking services, high tax burdens, and the risk of federal prosecution.  This paper aims to provide a comprehensive guide for marijuana business owners and entrepreneurs to navigate the financial complexities of the industry, covering topics such as federal and state regulations, banking challenges, interstate commerce issues, cybersecurity, and the future outlook for the industry.  By offering practical insights and strategies, the paper seeks to empower industry participants to make informed decisions, mitigate risks, and seize opportunities in this dynamic and rapidly evolving market.

The rapid growth and legalization of the marijuana industry in the United States have created a complex financial landscape for businesses operating in this sector.  The paper aims to provide a comprehensive guide for marijuana business owners and entrepreneurs to navigate the financial complexities of the industry, including:

1.  Federal regulations and policies, such as the Controlled Substances Act, the Cole Memorandum, FinCEN guidance, and Internal Revenue Code Section 280E, which have significant implications for marijuana businesses and financial institutions.

2.  State-level regulations and policies, including the patchwork of mhttps://www.dea.gov/drug-information/csaarijuana laws across the country, state-specific financial regulations and guidelines, and the challenges in accessing banking services.

3.  Interstate commerce and money transfer issues arising from the conflict between state-level legalization and federal prohibition, as well as potential solutions such as cryptocurrency and blockchain technology.

4.  Cybersecurity and fraud prevention best practices to protect sensitive financial data and prevent fraudulent activities in the cash-intensive marijuana industry.

5.  Future outlook and potential legislative changes, including proposed legislation like the SAFE Banking Act and the MORE Act, which could significantly impact the industry's growth and development.

The paper also emphasizes the importance of staying informed, adaptable, and proactive in this rapidly evolving industry, as well as the potential for the marijuana industry to drive economic growth, create jobs, and generate tax revenue for communities and social programs.

Related Links:

For information on federal regulations and policies:

DEA, "The Controlled Substances Act"

DOJ, "The Cole Memo" (2013)

US Treasury Department, "FinCEN's Guidelines" (2014) 

US Code: "IRS Code 280E

For information on state-level regulations and policies:

National Conference of State Legislatures, "States Medical Cannabis Laws"

For information on proposed federal legislation:

"The SAFE Banking Act"

"The Marijuana Opportunity Reinvestment and Expungement (MORE) Act"

April 6, 2024 in Assembled readings on specific topics, Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)

Wednesday, March 27, 2024

Student presentation examines marijuana legalization and local regulations

Screen-Shot-2022-05-26-at-11.22.57-AM-768x952Sadly, we are now into our final few weeks of students presentaions in my Marijuana Law, Policy & Reform seminar.  Excitingly, we still have nearly a dozen more presentations coming.  As I have explained before, students are expected to provide in this space some background on their presentation topic and links to some readings or relevant materials. The first of our presentations taking place in class next week will be looking at "Legalized Marijuana and Local Regulation." Here is how my student has described his topic along with background readings he has provided for classmates (and the rest of us):

The growing trend towards full legalization of recreational marijuana throughout the United States has resulted in a variety of quirks in different states’ legislative schemes. One important quirk is laws that allow municipalities to ban or heavily regulate legal marijuana in conflict with state-wide legalization.

Local control can be broadly grouped into two categories.  First, there is existing local control that applies neutrally to marijuana vendors and other businesses within a municipality as implemented through local health and zoning codes.  Second, there are proposed or implemented laws that allow localities to ban or heavily restrict the establishment and operation of marijuana vendors within municipal limits that would otherwise be permissible under state law.  While the first method of regulation should be allowed, the second method of regulation threatens to perpetuate the issues with illegal marijuana that full legalization aims to solve.  Between existing zoning rules and state-specific local bans, this issue affects most people in states with legal marijuana.

My presentation will focus on the background behind local marijuana bans, the interaction between federalism and localism, and the problems that legalization seeks to address.  I will then review the laws in states that have either allowed for local bans or are proposing local bans and the measurable effects of those laws.  Finally, I will analyze the effects of allowing bans on a local level versus blanket legalizations and develop recommendations for policymakers.

Suggested Sources:

Article: Cannabis Legalization In State Legislatures: Public Health Opportunity And Risk, 103 Marq. L. Rev. 1313 (2020)

Article: Cannabis Capitalism, 69 Buffalo L. Rev. 215 (2021)

Resource Page:  Investopedia, Marijuana Laws by State (2024).

Article: American Edibles: How Cannabis Regulatory Policy Rehashes Prohibitionist Fears and What to Do About It, 44 Seattle U. L. Rev. 915 (2021)  

Resource Page: Curate, Local Government Impact on Cannabis Industry (2024)

March 27, 2024 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, March 16, 2024

Student presentation examines the cannabis appellation program in California

1589693002933Following a well-derserved Spring Break, students in my Marijuana Law, Policy & Reform seminar get back to "taking over" my class through presentations on the research topics of their choice.  As I have explained before, 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 in class next week will be looking at the cannabis appellation program in California. Here is how my student has described his topic along with background readings he has provided for classmates (and the rest of us):

Barrowing a powerful tool from California’s native wine-industry, marijuana-renowned regions in the Golden State will soon be able to cash in on their reputations as high-quality cannabis cultivators.  A state program will permit the creation and enforcement of unique appellations of origin for cannabis products.  According to the California Department of Food and Agriculture, an appellation of origin is a protected designation that identifies the geographical origin of a product and typically includes production requirements.  As the rules take effect, the various terroirs of Humbolt County may become as widely recognized for marijuana as the subregions of the Napa Valley have become known for wine.  North Mendocino Coast Cannabis may eventually pack the promotional punch of Bordeaux, Gruyere Cheese, and Prosciutto di Parma.

My research will examine how an appellation program works as well as the general benefits and costs of one to producers, consumers, and other stakeholders.  While California is the first state to launch a Cannabis Appellation Program, this paper will discuss whether the legal tool of appellation would benefit other states given the current political, legal, and economic forces at play across the country.  California’s unique status as a first mover in the space, its legislative and regulatory knowledge of wine appellation programs, and the likely high value of its appellations compared to other states will be considered.  In the legal context, the impact of increased state legalization and federal rescheduling will be explored.  While potential federal rescheduling of marijuana may not immediately lead to interstate commerce, the federal government’s softer stance on the substance along with an increase in states legalizing recreational marijuana, may lead to a rise in legal products illicitly transported across state borders.  As more products from places like California and Colorado find their way across the country, producers in those states may desire to prevent the misrepresentation of a cannabis good’s origin to protect the brands of cultivators at home.  This paper will explore these dynamics and others to establish whether an appellation program makes sense outside of California.

Additional reading:

Mabi Vásquez, 3 Benefits And 3 Disadvantages Of The Designations Of Origin, Agavache (2021)

Cannabis Appellations Program (CAP), California Department of Food and Agriculture

Cannabis Appellations Program Proposed Text of Regulations, California Department of Food and Agriculture (2024)

Designation of Origin Regulations Comment Letter, Origins Council (2022)

Marcus Crowder, New appellations would celebrate individual terroir of cannabis strains, San Francisco Chronicle, Sept 22, 2020

March 16, 2024 in Assembled readings on specific topics, Business laws and regulatory issues, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Friday, March 1, 2024

Student presentation examines "Lessons from Big Tobacco and Big Alcohol for Cannabis Regulation"

Images (4)As I mentioned in this prior post, March is also when students in my Marijuana Law, Policy & Reform seminar "take over" my class through presentations on the research topics of their choice.  Before their presentations, students are expected to provide here some background on their topic and links to some readings or relevant materials.  The second of our presentations taking place in class next week will be looking at lessons from "Big Tobacco and Big Alcohol."  Here is how my student has described her topic along with background readings she has provided for classmates (and the rest of us):

The expansion of marijuana legalization in the United States is giving rise to questions regarding how "Big Marijuana" should be regulated.  As marijuana continues to be legalized at the state level, there is an expectation that "Big Marijuana" will soon be formed.  Insights from the regulatory landscapes of the tobacco and alcohol industries can provide valuable lessons for shaping the future of cannabis regulation.  For instance, Big Tobacco and Big Alcohol have historically used marketing tactics to appeal to non-users and youth in an attempt to gain new consumers.  In particular, the history of tobacco regulation highlights the adverse consequences of utilizing enticing advertisements and flavors to make products more appealing.  As the cannabis industry grows, it is crucial to pay attention to such tendencies, implementing measures to restrict the use of these harmful marketing tactics.  Additionally, challenges faced by tobacco regulators in reducing the number of retailers highlight the need for early and decisive action in the cannabis industry to avoid increasing the risk of illicit trade issues.

The successes and failures of regulations in the alcohol industry also shed light on potential strategies for cannabis regulation.  Lessons from alcohol regulations underscore the importance of taking an exhaustive approach that addresses not only sales but also advertising and promotional activities.  Adopting responsible marketing practices, like those seen in alcohol advertising, can also contribute to minimizing the allure of cannabis products to non-users and youth.  Additionally, balancing the number of licenses issued can help control the size of the legal cannabis market without fostering an unregulated illicit market.

While regulatory caution is essential, it is also important to consider harm reduction strategies.  Moreover, encouraging the use of less harmful cannabis products could help achieve a balance between public health and individual choice.  What "less harmful cannabis products" means is something that can be researched if funding is allocated. Hopefully, the combined lessons of tobacco and alcohol regulation can provide the cannabis industry with the means to develop a regulatory framework that prioritizes public health, minimizes social harms, and promotes responsible use.  As the cannabis industry creates regulations, learning from the successes and failures of tobacco and alcohol regulation is indispensable in creating a responsible and sustainable framework for the future.

Suggested readings:

March 1, 2024 in Assembled readings on specific topics, Business laws and regulatory issues | Permalink | Comments (0)

Wednesday, January 17, 2024

"Governor DeWine Calls for Quick Action on Intoxicating Hemp"

The title of this post is the title of this new release coming from the Office of the Ohio Governor this evening. Here are some excerpts:

Ohio Governor Mike DeWine today encouraged the Ohio General Assembly to work quickly to regulate intoxicating hemp to prevent its sale to children.

Rogue chemists are modifying hemp, which is a legal, non-intoxicating plant, to extract a compound (Delta 8 THC) that causes a high similar to marijuana. The intoxicating hemp is being marketed in stores across Ohio as candy, cereal, gummy candy, and other products that are attractive to children. Because intoxicating hemp products are not currently regulated, Ohio law does not prevent its sale to children.

"The current loophole that allows these dangerous products to be sold to children needs to be closed as soon as possible. Right now, Senator Steve Huffman is working on a bill to address this, and once it is introduced, I encourage members of the Ohio General Assembly to act quickly to pass it," said Governor DeWine. "These products are marketed to kids and are made to look like their favorite candy and treats. With no regulation and wide availability, it is all too easy for kids to get them."

According to data from the Ohio Poison Control Center, there have been at least 257 reports of Delta 8 poisoning in Ohio over the last three years. In 2023 alone, there were 102 reported poisonings, including 40 involving children under the age of six. Ninety percent of these children required emergency care or were hospitalized after ingesting the intoxicating hemp....

By regulating intoxicating hemp, Delta 8 products would be sold with restrictions similar to Ohio's new recreational marijuana laws that require products to only be sold by licensed retailers to those 21 years old or older. Regulation would also prevent flashy advertising and packaging that attracts children.

To demonstrate how easily youth can purchase intoxicating hemp, Ohio Department of Public Safety Director Andy Wilson asked two 15-year-old children to purchase Delta 8 gummy candy at a gas station in Clark County. "Their instructions were not to be tricky and not to try to act older than they were. There was no doubt in looking at them that they were clearly underage," said Director Wilson. "In under 10 minutes and within three miles of their high school, the kids walked into a BP gas station and purchased THC gummies with no questions asked." Under current law, both the purchase and sale of the item were legal.

Until intoxicating hemp products are regulated, Governor DeWine encourages retailers to remove these items from their shelves to prevent harm to children.

January 17, 2024 in Business laws and regulatory issues, Who decides | Permalink | Comments (0)

Friday, November 10, 2023

"Putting Patients First: Medical Cannabis Use Patterns and Policy Protections"

Download (1)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 Role of Small Business in the Evolving Cannabis Industry"

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.

October 6, 2023 in Business laws and regulatory issues, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Wednesday, September 27, 2023

By 14-9 vote, Senate committee finally advances marijuana banking bill

No-SAFE-Banking-On-The-NDAAAs 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.

September 27, 2023 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)

Tuesday, September 12, 2023

Tulsa Law Review examining "Contemporary Cannabis: Wading Through a Post-Prohibition Era"

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"

Download (2)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:

May 10, 2023 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Monday, April 17, 2023

Student presentation exploring the history and regulation of edibles

Images (1)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.

Background Reading:

Christine Chung, "Consumption of Marijuana Edibles Surges Among Children, Study Finds"

Press release, "Sour Patch Kids Files Trademark Lawsuit Against THC-Infused 'Stoney Patch' Brand

Tom Schuba, "‘Medicated Skittles’? Candy giant sues weed sellers for trademark infringement

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

Student presentation examines medical marijuana in the workplace

MedicalmarijuanaAnother 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.

Background Readings:

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)

April 8, 2023 in Assembled readings on specific topics, Business laws and regulatory issues | Permalink | Comments (0)

Monday, March 20, 2023

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

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

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

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

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

March 20, 2023 in Assembled readings on specific topics, Business laws and regulatory issues, Criminal justice developments and reforms | Permalink | Comments (7)