Marijuana Law, Policy & Reform

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?"

"Tax Issues Affecting Marijuana Businesses"

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.

Interesting (social media) advertising news for the marijuana industry

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.

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.

FDA concludes that "new regulatory pathway for CBD is needed"

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.”

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.)

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.”

"2022 Was Marijuana Reform’s Best Year And Everyone Is Unhappy About It: How To Move Forward"

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.

"Labor Protections Under Federal Cannabis Prohibition and the Future of Cannabis Unions"

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.

Cannabis lawyering makes the cover of the ABA Journal

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.

Notable new talk about SAFE Banking Act and HOPE Act getting added to "must-pass" defense bill

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.

Prez Biden formally signs into law new "Medical Marijuana and Cannabidiol Research Expansion Act"

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.

DEPC releases "Ohio Medical Marijuana Control Program at Four Years: Evaluating Satisfaction and Perception"

I am happy to highligth the release of a terrific new report, titled ""Ohio Medical Marijuana Control Program at Four Years: Evaluating Satisfaction and Perception," authored by Jana Hrdinova of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law.  This DEPC webpage provides this overview:

This report, a fourth in the annual series from the Drug Enforcement and Policy Center (DEPC), traces the evolution of the Ohio Medical Marijuana Control Program (OMMCP) over the last four years in terms of its growth and OMMCP patients’ and prospective patients’ satisfaction levels with the functioning and design of the program. For the first time, our survey finds respondents reporting being more satisfied with OMMCP than dissatisfied, an important milestone in OMMCP’s development. Nevertheless, the survey respondents continue to report dissatisfaction with some elements of the program, with the price of marijuana product being the most pressing concern, followed by lack of legal protections for patients and the cost and difficulty of obtaining OMMCP patient card. The final section of this report includes recommendations for policy and regulatory changes that could have a positive impact on patients’ satisfaction with OMMCP.

Here are a few of many notable findings from the report:

• 56.1% of respondents reported some level of satisfaction with OMMCP, with 15.3 % reporting being “extremely satisfied” and 40.8% being “somewhat satisfied.” Only 35.5% of respondents expressed some degree of dissatisfaction with OMMCP, a significant change from last year when 55.1% of people reported being dissatisfied.
• If averaged over the 13 months, an Ohio patient paid $4.08 more per gram of plant product in an Ohio dispensary than a Michigan resident in a Michigan dispensary, and $3.57 less per gram than a marijuana medical patient in Pennsylvania.
• The OMMCP recorded a 44% increase in the number of patients with active recommendation and active registration growing over the past 12 months. But the number of physicians with a certificate to recommend has declined over the same time period to 641 from 651 a year earlier. The patient to doctor ratio in Ohio now represents the lowest among states with a similarly aged program.
• The top three policy changes that would most positively affect patients’ satisfaction with OMMCP would be the adoption of legal protections for patients, followed by state allowance for self-cultivation, and provision of home delivery under OMMCP.
• Since January 2019, the state of Ohio collected over $132 million in revenue, with the state tax and local tax accounting for approximately $64 million, medical marijuana businesses application and licensing fees accounting for another $46 million and patient and caregiver fees making up the remaining $22 million.
• 84% of respondents reported having trust in the safety of products sold in Ohio dispensaries. Only 7.2% reported not trusting the safety of dispensary products.

Highlighting all we do not know about marijuana-infused drinks

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

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

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

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

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

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

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

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

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

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

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

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

Here is how the dissent by Judge Gelpi starts:

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

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

DEPC event: "Not a SAFE Bet: Equitable Access to Cannabis Banking"

I am pleased to spotlight another great Drug Enforcement and Policy Center (DEPC) event that is part of our summer 2022 Cannabis Regulatory Deep Dive.  (The first event in this series on "Interstate Commerce" can be watched at this YouTube link.).  This event is scheduled for August 17 at 12noon and is titled "Not a SAFE Bet: Equitable Access to Cannabis Banking."  This is how this event is described on this webpage (where you can register):

According to members of the Cannabis Regulators of Color Coalition, the SAFE Banking Act, as written, is not a safe bet to achieve fair and equitable access to financial services for those in the cannabis industry.

Please join us for another Cannabis Regulatory Deep Dive as our panel of experts shares their analysis of the SAFE Banking Act, why it would fall short of its goals, and recommendations to improve fair access to cannabis banking as detailed in their soon-to-be released paper, Not a SAFE Bet: Equitable Access to Cannabis Banking.

Panelists:
Cat Packer, Distinguished Cannabis Policy Practitioner in Residence, Drug Enforcement and Policy Center, The Ohio State University
Rafi Aliya Crockett, Commissioner, Washington, D.C. Alcoholic Beverage Control Board
Dasheeda Dawson, Cannabis Program Manager, City of Portland, Oregon 
Shaleen Title, Distinguished Cannabis Policy Practitioner in Residence, Drug Enforcement and Policy Center, The Ohio State University

DEPC event: "Cannabis Regulatory Deep Dive: Interstate Commerce"

I am pleased to spotlight a great Drug Enforcement and Policy Center (DEPC) event taking place tomorrow afternoon titled "Interstate Commerce."  This is how this event is described on this webpage (where you can register):

While the likelihood of cannabis legalization or descheduling on the federal level in 2022 remains relatively low, policy analysts and advocates are beginning to debate the impact federal legalization might have on existing state industries.  In particular, they are starting to discuss the transition to interstate commerce, should cannabis become legalized at the federal level.  Discussions are also forming around how and when such large-scale change should be implemented to minimize negative impacts on public health and safety and adequately address the interests of patients, users, and small businesses. 

Join the Drug Enforcement and Policy Center for a discussion of these and other topics with a panel of experts.

Panelists:
Scott Bloomberg, Associate Professor of Law, University of Maine School of Law
Geoffrey Lawrence, Director of Drug Policy, Reason Foundation
Adam J. Smith, Founder and Executive Director, Alliance for Sensible Markets
Shaleen Title, Distinguished Cannabis Policy Fellow, Drug Enforcement and Policy Center, The Ohio State University

Moderator:
Jeremy Berke, Senior Reporter, Business Insider

UPDATE:  This event was recorded and can now be watched via YouTube at this link.

"Maximizing social equity as a pillar of public administration: An examination of cannabis dispensary licensing in Pennsylvania"

The title of this post is the title of this notable new paper authored by Alfred Lee Hannah, Daniel J. Mallinson and Lauren Azevedo published in the Public Administration Review. (For the record, this research was supported by funding from the Drug Enforcement and Policy Center.)   Here is the paper's abstract:

Public administration upholds four pillars of an administrative practice: economy, efficiency, effectiveness, and social equity.  The question arises, however, how do administrators balance effectiveness and social equity when implementing policy?  Can the values contributing to administrative decisions be measured?

This study leverages the expansion of medical cannabis programs in the states to interrogate these questions.  The awarding of dispensary licenses in Pennsylvania affords the ability to determine the effect of social equity scoring on license award decisions, relative to criteria that represent the other pillars.  The results show that safety and business acumen were the most important determining factors in the awarding of licenses, both effectiveness concerns.  Social equity does not emerge as a significant determinant until the second round of licensing.  This study then discusses the future of social equity provisions for cannabis policy, as well as what the findings mean for social equity in public administration.

"Capital Expenditure and Acquisition in Conventional Agriculture and Cannabis: A Comparative Analysis"

I am pleased to report that I am almost fully caught up on posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center.  I continue to relish the he chance to highlight great work by OSU law students and recent graduates, and the title of this post is the title of this paper authored by Steve Nosco who recently graduated from The Ohio State University Moritz College of Law.  Here is its abstract: 

Federal laws prohibiting the possession, production, and use of Cannabis create significant operational challenges for state-compliant Cannabis companies.  One of the largest challenges is acquiring the initial capital required for any new business to become self-sustaining and profitable.  Without traditional sources of capital, namely credit from commercial institutions or government lenders, only individuals with access to significant private funds can become entrepreneurs in this burgeoning industry. In the face of Federal inaction to solve this well-documented problem, States can, and should, take on a leading role.  This Paper explores existing federal programs for traditional agricultural lending and suggests how states can emulate these programs for Cannabis businesses within their jurisdictions.

Might some kind of "omnibus" federal marijuana reform bill get through Congress this year?

The question in the title of this post is prompted by this interesting Marijuana Moment article headlined "New Details On Congressional Marijuana Omnibus Bill Emerge As Lawmakers Work For 60 Senate Votes."  Here are some of the intriguing particulars from an extended piece worth reading in full:

Two key congressmen made waves in the marijuana community on Thursday by disclosing that there are high-level talks underway about putting together a wide-ranging package of incremental marijuana proposals that House and Senate lawmakers believe could be enacted into law this year.  But multiple sources tell Marijuana Moment that issues under consideration go further than the banking and expungements reforms that were at the center of the public discussion that has emerged.

The dueling pushes for comprehensive legalization and incremental reform — a source of tension among advocates, lawmakers and industry insiders over many months — may actually result in something actionable and bipartisan by the end of the current Congress, those familiar with the bicameral negotiations say.  That said, no deal is set in stone and talks are ongoing.

In addition to the banking and expungements proposals that made waves when discussed publicly at a conference on Thursday by two key House lawmakers, there are also talks about attaching language from other standalone bills dealing with issues such as veterans’ medical cannabis access, research expansion, marijuana industry access to Small Business Administration (SBA) programs and broader drug sentencing reform....

Reps. Ed Perlmutter (D-CO) and Dave Joyce (R-OH) first publicly disclosed that there were discussions about crafting a bipartisan cannabis package at an International Cannabis Bar Association conference on Thursday, with Joyce revealing a recent meeting he had about the idea with Schumer.

Perlmutter, sponsor of the Secure and Fair Enforcement (SAFE) Banking Act, said that his legislation to safeguard financial institutions that work with state-legal marijuana businesses would be part of the package under consideration, but he also said at the time that members are interested in including Joyce’s Harnessing Opportunities by Pursuing Expungement (HOPE) Act to incentive state and local governments to expunge prior marijuana records, as well as proposals to provide veterans with access to medical cannabis and expand marijuana research.

But those four issues — banking, expungements, research and veterans — noted earlier by Law360, are only part of what’s on the table, sources who have been involved in the negotiations but requested anonymity, told Marijuana Moment on Friday.  They stressed, however, that a deal has not yet been reached and talks are tentative at this point.

Another possible component that lawmakers have discussed including in the omnibus legislation would be a proposal to give cannabis businesses access to SBA loans and services that are available to every other industry. It’s a reform that Sen. Jacky Rosen (D-NV) in particular has consistently advocated for, including in a recent letter to the head of SBA.

While it’s not clear what stage the negotiations over the prospective marijuana package is at, a congressional source said that Rosen has spoken with Schumer about her interest in advancing the issue as he’s worked to navigate the congressional cannabis waters.

“These talks are very serious,” a source involved in criminal justice reform said. “I would say this is one of the most serious bipartisan, bicameral conversations that we’ve seen occur in our time in this space.”

To be clear, Senate leadership isn’t giving up the push for the broader CAOA legalization bill at this point.  Nor is Perlmutter fully conceding passing the SAFE Banking Act on a sooner timetable, either as standalone legislation or as part of a large-scale manufacturing bill called the America COMPETES Act that’s currently in a bicameral conference committee....

Other sources told Marijuana Moment that they’ve been involved in conversations about potentially adding to the in-progress cannabis package language that would provide for record sealing of federal misdemeanor convictions, as would be prescribed under the standalone Clean Slate Act from Rep. Lisa Blunt Rochester (D-DE).  It’s the type of reform that presumably would not compromise GOP support given the widespread recognition that offenses like simple possession should not lead to long-term consequences like the loss of access to housing and job opportunities.