Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Thursday, May 21, 2020

Bipartisan coalition of state attorneys general urge Congress to include banking access for marijuana businesses in COVID relief bills

As reported in this press release from earlier this week from the Colorado Attorney General, "a bipartisan coalition of 34 state and territorial Attorneys General [on Tuesday urged]  Congress to pass as part of upcoming COVID-19 relief legislation the federal Secure and Fair Enforcement (SAFE) Banking Act (H.R. 1595) or similar measures that would give legal marijuana-related businesses access to the federal banking system."  Here is more from the press release:

Under existing law, federal regulators prohibit financial institutions from providing services to marijuana businesses in states where medical or retail marijuana sales are legal. Forcing legal businesses to operate as cash-only operations poses serious safety threats, creating targets for violent and white-collar crime. The SAFE Banking Act permits marijuana-related businesses in states and territories with existing regulatory structures to access the federal banking system.

The SAFE Banking Act has widespread, bipartisan support with 206 cosponsors in the U.S. House of Representatives. The House passed the bill in September 2019. The HEROES Act relief legislation, which the House approved last week, also included the language of the SAFE Banking Act.

In their letter, the Attorneys General note that the COVID-19 pandemic has shed new light on problems that the SAFE Banking Act is intended to remediate, including health and safety concerns stemming from frequent and large cash exchanges.

The full text of the letter can be read here.

Also released with this letter ws this effective report from the Attorney General Alliance Cannabis Project titled "Solving An Untenable Situation: The Public Health and Safety Rationale Behind The Secure and Fair Enforcement Banking Act."

May 21, 2020 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Sunday, May 17, 2020

"The 'Free Market' for Marijuana: A Sober, Clear-Eyed Analysis of Marijuana Policy"

The title of this post is the title of this new paper recently posted to SSRN and authored by H. Justin Pace.  Here is its abstract:

Marijuana is prohibited at the federal level.  At the same time, states are not only decriminalizing marijuana but attempting to provide a regulatory apparatus for its sale. This has created a unique business environment.  In some ways there is a true “free market” for marijuana in states where it has been legalized — free, that is, of the legal and financial infrastructure available to fully licit businesses in America.

Contracts may not be enforceable because they lack a legal purpose.  Relief in bankruptcy court may not be available, either as a debtor or as a creditor.  Use of a legal entity to limit liability and take advantage of entity personhood may be impracticable.  Federal money laundering and other laws effectively restrict access to the banking system, forcing marijuana businesses to operate as purely cash businesses.  The USPTO refuses to register federal marks related to marijuana.  Marijuana businesses face challenges in obtaining competent legal counsel to guide them through a market free on one hand regulated on the other.

The odd legal posture has implications for considering marijuana policy through an economic lens.  Any analysis of marijuana externalities should consider any additional externalities created by that odd legal posture.  An analysis of policy options for mitigating negative externalities should also factor in the additional costs for marijuana businesses due to this “free market.”  The uncertainty, from a policy perspective, counsels in favor of applying heuristics when considering policy options: this paper offers three and applies each.

This is the first paper to use this situation to examine the value offered by our legal and financial infrastructure.  An inability to use it hurts marijuana businesses in very real ways.  But, at the same time, marijuana businesses are able to operate — to thrive even — nonetheless.  That infrastructure is both more and less valuable than is appreciated, and in surprising ways.  Ultimately, this paper advocates federal action that facilitates a continued incremental, state-by-state approach to marijuana reform.

May 17, 2020 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Tuesday, May 5, 2020

"Reconsidering Federal Marijuana Regulation"

The title of this post is the title of this new article authored by Paul J. Larkin, Jr. available via SSRN.  Here is its abstract:

The Controlled Substances Act (CSA) prohibits the cultivation and distribution of marijuana by placing it in a category (Schedule I) reserved for drugs that are unhelpful and dangerous.  In so doing, the CSA approached this problem from the wrong direction.  People use drugs for medical or recreational purposes, and each one requires a separate legal scheme.

Medical Marijuana Use: For more than 50 years, Congress has entrusted to the Commissioner of Food and Drugs the decision whether a particular drug is “safe” and “effective” and therefore can be sold throughout the nation.  The reason is that those decisions require the scientific expertise of professionals in the fields of medicine, biochemistry, and the like, not the legal knowledge of Justice Department lawyers or the moral sensibilities of the electorate.  Congress should leave to the judgment of the FDA Commissioner the decision how federal law should regulate medical-use marijuana.

Recreational Marijuana Use: American society permits alcohol and tobacco to be sold under regulation.  For alcohol, the Twenty-First Amendment empowers states to decide whether and how to sell liquor without much room for supplementary federal regulation.  For tobacco, the Family Smoking Prevention and Tobacco Control Act of 2009 authorizes the FDA Commissioner to regulate the distribution of tobacco products.  Congress should consider whether to follow the same approach here.  There are various factors relevant to that decision.  For example, long-term marijuana use can lead some users to become dependent on, or addicted to, the drug, or to suffer serious mental disorders, such as psychosis.  Legalizing recreational marijuana use also will increase the number of roadway accidents attributable to cannabis intoxication. Whether the benefits of recreational marijuana use outweigh those harms is the question that Congress should answer.

May 5, 2020 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)

Wednesday, April 22, 2020

Student presentation on "Producing a Better Marijuana Tax Scheme"

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

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

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

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

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

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

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

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

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

Friday, April 17, 2020

Congressional Cannabis Caucus makes bipartisan call for state-legal cannabis businesses to be included in next COVID relief package

As detailed in this letter, a bipartisan group of US representatives are urging House Leadership to include state-legal cannabis businesses in COVID-19 relief efforts.  Here are excerpts from the two-page missive addressed to Nancy Pelosi and Kevin McCarthy:

As you draft the next COVID-19 relief bill, we write to ask that you address one of the shortcomings of the CARES Act — the exclusion of state-legal cannabis businesses and their employees. The COVID-19 crisis response demands the full participation of the American people, businesses, and workforce.  However, without relief, a very large population is left without the means to execute the required public health measures and continue to provide financially for their families.

The state-legal cannabis industry is a major contributor to the U.S. economy and workforce, employing over 240,000 workers across 33 states and four territories, and generating $1.9 billion in state and local taxes in 2019.1,2 As states respond to the COVID-19 crisis by shuttering businesses to mitigate the virus’ spread, jurisdictions across the country have recognized cannabis businesses as “essential.”  Essential businesses, in many places, can operate during the pandemic provided they abide by required public health safety measures.  Like other businesses with continued operations, cannabis businesses have met the moment by preserving access to treatment for patients with chronic conditions, donating protective clothing, and manufacturing equipment for medical use.  However, unlike other small businesses, cannabis businesses are not eligible for the CARES Act programs.

State-legal cannabis businesses need access to CARES Act programs to ensure they have the financial capacity to undertake the public health and worker-focused measures experts are urging businesses to take.  This includes access to and participation in SBA’s loan programs — financial support that is designed to pay workers, group health care benefits, and family or sick leave. Current SBA policies prevent cannabis businesses from accessing the Paycheck Protection Program (PPP), Emergency Economic Injury Disaster Loans (EIDLs), EIDL grants, or SBA loan forgiveness – programs intended to help businesses fight COVID-19 in safe and equitable ways....

Given the nature of the epidemic, we must ensure that everyone has the capacity to carry out the recommended public health and worker-focused measures.  Without doing that, we risk undercutting the public health efforts nationwide.  We ask that House leadership include provisions to allow state-legal cannabis businesses and the businesses who work with this industry to access the critical support they need during this unprecedented time.

April 17, 2020 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Thursday, April 16, 2020

Student presentation on "Transportation of Hemp and Marijuana"

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

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

Hemp Suppliers at Odds With Hazy Regulations” 

The Great American Cannabis Experiment” 

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

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

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

Wednesday, April 15, 2020

Student presentation on "Marijuana Stocks"

As students "take over" my Marijuana Law, Policy & Reform seminar through presentations on research topics of their choice, I continue to enjoy hearing about (and posting here about) their selected topics. The third presentation slated for this week will focus on marijuana stocks. Here is part of the student's description of the issue and some background readings he has flagged:

While the market for investors is nearly impossible to predict, as the Covid-19 pandemic is currently demonstrating, certain industries seem to be “recession proof” and are viewed as “safer” investments. One such industry is the “sin” industry.  Stocks that fall under this category include tobacco, alcohol, weapons, gambling, sex, and most importantly, marijuana.  While many of these industries have been publicly traded on major US stock exchanges for decades, the first marijuana stock was not traded until February 27, 2018.  Thus, the industry is still in its infancy with many questions left unanswered.  I will focus on three areas of law impacting marijuana stocks: 1) the Controlled Substance Act, 2) taxes, and 3) fraud. Further, the history of marijuana stocks in the US, the potential outlook for marijuana stocks in the future, and my opinion on which marijuana stock will be the most successful will be discussed.

Fabian Gorsler, A Marijuana Company is Listed on the U.S. Stock Exchange for the First Time, Highsnobiety (Feb. 27, 2018).

Casey W. Baker, Marijuana’s Continuing Illegality and Investors’ Securities Fraud Problem: The Doctrines of Unclean Hands and IN PARI Delicto, 12 J. Bus. Entrepreneurship & L. 93 (2019).

Erin Fuchs, The Legal Risk of Investing in Weed is ‘Remote’ and ‘Theoretical’, Yahoo Finance (Nov. 3, 2018).

April 15, 2020 in Assembled readings on specific topics, Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Taxation information and issues | Permalink | Comments (0)

Student presentation on "Employment rights in a world of marijuana reform"

Continuing to provide in this space background on from students who are "taking over" Marijuana Law, Policy & Reform seminar through presentations on research topics of their choice, the second presentation this week will focus on employment law issues.  Here is how the student working on this topic describes her plans along with background readings she has provided:

While marijuana is legal in some form in thirty-three states, it does not mean that any citizen of those states is immune to negative repercussions for their legal consumption.  Even where medical marijuana is legal, not every state guarantees legal protections.  My presentation will center on the current state of consumer rights, specifically in the realm of employment.   Just as states vary on legalization, few states agree on how marijuana consumption should be treated in an employment context.  Many states are hesitant to require an employer to change its hiring or drug-enforcement policies, despite the change in marijuana law.  Other states provide employment protections by forbidding an employer from retaliating against an employee for any legal activity performed outside work so long as it does not affect the employee’s ability to perform, without regard to marijuana specifically.  I will explore the current trends in employee protections as marijuana law gradually becomes more robust and organized.

Marijuana Accommodations In The Workplace: Your Employees Are Smoking Pot—Now What?

Legal marijuana use still costs people jobs. A new California bill takes on the issue

The Sham Of Drug Testing For Benefits: Walker, Scott And Political Pandering (old, but still very good)

Economy Needs Workers, but Drug Tests Take a Toll

Impact of marijuana legalization important lesson for employers

April 15, 2020 in Assembled readings on specific topics, Business laws and regulatory issues, Employment and labor law issues | Permalink | Comments (0)

Thursday, April 9, 2020

Student presentation on "Regulatory Frameworks States Have Developed for Edibles"

As students in my Marijuana Law, Policy & Reform seminar continue "taking over" my class by making presentations on research topics of their choice, I will continue providing in this space background on their topics and links to relevant materials they provide.  The last of three presentations this week will focus on the (always hot) topic of edibles, and here is how my student has described his topic along with background readings he has provided:
 
For my paper, I'll be looking at the regulatory frameworks states have developed for edibles.  After some background on edibles and their significance to the marijuana industry, I'll discuss the varying levels regulations that states have employed.  Then I discuss the three major types of regulations for edibles: (1) testing; (2) packaging and labeling; and (3) THC content.  Finally, I conclude by assessing the effectiveness of each type and making my own recommendations for moving forward.
 
For background, please see the resources below:

Alice G. Walton, Is Eating Marijuana Really Riskier than Smoking It?, FORBES (June 4, 2014).

Jeff Rossen & Jovanna Billington, Rossen Reports Update: Edible Marijuana That Looks Like Candy Is Sending Kids to the ER, TODAY (Sept. 16, 2017).

Robert J. MacCoun & Michelle M. Mello, Half-Baked--The Retail Promotion of Marijuana Edibles, 372 NEW ENG. J. MED. 989 (2015).

Mike Montgomery, Edibles Are the Next Big Thing for Pot Entrepreneurs, FORBES (July 19, 2017).

Ryan Vandrey et al., Cannabinoid Dose and Label Accuracy in Edible Medical Cannabis Products, 313 JAMA 2491-93 (2015).

Daniel G. Barrus et al., Tasty THC: Promises and Challenges of Cannabis Edibles, RTI PRESS 6 (Nov. 2016).

April 9, 2020 in Assembled readings on specific topics, Business laws and regulatory issues, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Tuesday, April 7, 2020

Student presentation on "Driving Under the Influence of Marijuana, or 'High Driving'"

As I mentioned in this recent post, students in my Marijuana Law, Policy & Reform seminar are now "taking over" my class by making presentations on research topics of their choice. Though the COVID-19 crisis means my resilient students are doing their presenting to the class online, going online has been going pretty well so far.   

As regular readers know, students provide in this space a little background on their topic and links to some relevant materials before they present.  Our first presentation planned for this week will focus on marijuana-influenced driving, and here is how my student has described his topic along with background readings he has provided for classmates (and the rest of us):

Marijuana legalization proponents quite often compare marijuana use to that of alcohol, claiming that alcohol consumption is far more dangerous, especially when a vehicle is involved.  Legalization dissenters, on the other hand, often make the argument that legalization would lead to rampant use and, inevitably, increases in traffic fatalities and damages as the result of people driving while stoned.  The aim of my class presentation and paper is to explore three topics related to Driving Under the Influence of Marijuana, or, as I like to call it, "High Driving": (1) Marijuana’s effect on driving ability, (2) The different state approaches to testing and prosecuting High Driving, and (3) what research shows about the relationship between the different legal marijuana regimes, the prevalence of High Driving, and the resulting consequences.

For background on these three interrelated topics, please reference the resources below:

"It’s High Time: A Common Sense Approach To Marijuana-Impaired Driving"

"Crash Fatality Rates After Recreational Marijuana Legalization in Washington and Colorado"

"The effects of medical marijuana laws on cannabis-involved driving"

"Drug Impaired Driving/Marijuana Drug-Impaired Driving Laws" (slightly out of date)

"Marijuana Use and Highway Safety"

April 7, 2020 in Assembled readings on specific topics, Business laws and regulatory issues, Criminal justice developments and reforms, Medical Marijuana Data and Research, Recreational Marijuana Data and Research | Permalink | Comments (0)

Thursday, April 2, 2020

Student presentation on the very timely topic of "The Legal and Regulatory Framework for Marijuana Delivery"

As long-time readers know and as I mentioned in this recent post, students in my Marijuana Law, Policy & Reform seminar this time of year typically "take over" my class by making in-class presentations on research topics of their choice. This year, of course, the COVID-19 crisis has precluded in-person gatherings, but my resilient students are still hard at work on their projects and will be presenting to the class online.

Before presentations, students typically provide in this space a little background on their topic and links to some readings or relevant materials. The second of our presentations planned for this week will focus on the very timely topic of marijuana delivery rules, and here is how my student has described her topic along with background readings she has provided for classmates (and the rest of us):

The topic I am interested in is the legal and regulatory framework of marijuana delivery services. In states that allow recreational use, several companies have tried, with varying degrees of success, to start marijuana delivery services, like Postmates but for marijuana products. In terms of additional reading, here are a few suggestions:

April 2, 2020 in Assembled readings on specific topics, Business laws and regulatory issues | Permalink | Comments (0)

Friday, March 27, 2020

"Cannabis finds its moment amid coronavirus outbreak"

CoronavirusandcannabisgraphicThe title of this post is the title of this notable new Politico piece.  Here are excerpts:

Cannabis is turning out to be the one thing the coronavirus can’t destroy.

Marijuana sales are booming, with some states seeing 20 percent spikes in sales as anxious Americans prepare to be hunkered down in their homes potentially for months. Weed sellers are staffing up too, hiring laid-off workers from other industries to meet demand. And in the midst of a historic market meltdown, stock prices for cannabis companies have surged, in some cases doubling since the public health crisis began.

“We are hiring because we are having to shift our business a bit,” said Kim Rivers, CEO of Trulieve, which is valued at $1 billion. The company is staffing up its delivery fleet, retail workers, and people to handle increased inventory shipments. “Now is a great time [to apply], particularly if you’re in a business that has seen layoffs.”

Nearly all of the 33 states with legal medical or recreational markets have classified marijuana businesses as an essential service, allowing them to remain open even as vast swaths of the retail economy are shuttered. San Francisco and Denver initially announced plans to shut down dispensaries, but immediately backpedaled after a public furor.

Weed shops are essentially being treated the same as pharmacies, reflecting a dramatic shift in cultural perceptions about the drug over the last decade. “It is a recognition that it has taken on much greater significance around the country,” said Rep. Earl Blumenauer (D-Ore.), a longtime Capitol Hill champion for cannabis. “This is something that makes a huge difference to the lives of hundreds of thousands of people every day. I do think that this might be part of a turning point.“

Concerns about whether smoking pot is the smartest response to a pandemic that’s causing severe lung injuries in tens of thousands of Americans have been largely drowned out. "Public opinion has pushed lawmakers to think about cannabis — and particularly medical cannabis — in different ways than they used to," said John Hudak, a cannabis policy expert at the Brookings Institution, and author of Marijuana: A Short History. "A lot of state policymakers are trying to get this right and they obviously see the risk of shutting down a dispensary to be higher than the rewards of shutting down a dispensary."...

The burgeoning industry does face some stiff financial headwinds: The massive stimulus package moving through Congress this week to help beleaguered businesses shuts out cannabis companies from taking advantage of its benefits, reflecting the continued federal illegality of marijuana. Prior to the recent boom in sales, the industry had been in financial turmoil, with many companies laying off workers and scuttling acquisitions as they ran short on cash. “I'm frustrated Senate Republicans refused to allow us to include them in this legislation, but we aren't giving up," Sen. Patty Murray (D-Wash.) said Wednesday.

In addition, some medical experts question the wisdom of allowing uninhibited access to marijuana during a massive public health crisis. They worry that customers flocking to pot shops could spread the virus, that stoned customers will engage in risky behavior and that smoking pot will worsen the lung damage for people who do become infected. “If you keep the pot stores open, you're just adding fuel to the fire,” said Karen Randall, an emergency room doctor in Colorado. “You're having a whole bunch of people who are trashing their lungs.”...

The federal government said Thursday that a staggering 3.3 million people applied for unemployment benefits last week. While the cannabis industry can’t do much to remedy that bloodletting, some companies are looking to hire people who have recently lost their jobs. Harborside — which operates three shops in the Bay Area — found itself suddenly understaffed as delivery requests increased by 45 percent and phone calls exploded from around 100 to 8,000 per day.... Harborside has hired 10 employees in the last few weeks — some of whom were directly laid off as a result of the coronavirus — and plans to hire at least six more. The largest increase was in their delivery fleet, going from four drivers to 10.

And they’re not alone. “Two and a half weeks ago, our sales just exploded,” said Zachary Pitts, CEO of California cannabis delivery service Ganja Goddess. “People are leaning on delivery more now … even though storefronts are still open in California.” Pitts estimated that he’s increased his workforce by about 15 percent in recent weeks, and is working on hiring more. The company has suspended normal vetting processes and is instead relying on trusted referrals....

As states move to declare marijuana an essential business, the gulf between state and federal policy has never been wider. Congress is poised to enact a $2 trillion stimulus package this week, but the cannabis industry will not see a cent. “In the same way that cocaine dealers in the United States who are suffering under Covid-19 are not going to be eligible for relief under the stimulus bill, cannabis companies won't either,” said Hudak of the Brookings Institution. “Illegal businesses do not access legal funding.”

The cannabis industry generated $15 billion in sales last year and employs 340,000 people. Employers and workers pay federal taxes, and are required to comply with other coronavirus-related measures such as paid sick leave coverage. But for cannabis companies to access assistance made available through the stimulus package, Congress or the administration would need to dictate their inclusion. A spokesperson for Sen. Jeff Merkley (D-Ore.) said he wants to include such a provision in a future coronavirus aid package. Similarly, Murray said she is “exploring what can be done in the upcoming appropriations process to help them through this crisis and beyond."

March 27, 2020 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Political perspective on reforms, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Tuesday, March 24, 2020

Just some of the latest headlines highlighting how COVID-19 is changing the marijuana reform world

I suspect regular readers have an inkling for why I have not blogged in this space for a few weeks.  For this blogger, the new coronavirus world has meant a lot more time spent rescuing kids from shuttered colleges, gearing up for online classes, and lots of blogging at Sentencing Law & Policy about the impact of the virus on our criminal justice systems.  Because a lot of organizations and journalists spend a lot of time covering marijuana news, I have not tried to keep up here with all the ways in which the COVID-19 is changing the marijuana reform world.

That all said, I think it useful to keep up with news in this space, if only to document how this historical moment is being captured in news stories and headlines.  So, as social distancing turns into lockdowns and as stimulus package proposals get closer to becoming law, here is a sampling:

From Boston.com, "Charlie Baker order lets medical marijuana shop stay open, but shuts down recreational sales"

From Business Insider, "Cannabis site Leafly just laid off nearly 40% of its workforce as coronavirus upends the marijuana industry"

From CNN Business, "Cannabis advocates to governors: Our businesses are 'essential'"

From Forbes, "Coronavirus Crisis Shows Marijuana Is ‘Essential’ And Mainstream"

From MLive, "Michigan is smoking more marijuana than any other state during coronavirus pandemic, survey says"

From Marijuana Business Daily, "Coronavirus outbreak could delay marijuana legalization along East Coast, other states"

From Marijuana Business Daily, "Adult-use cannabis sales plunge after briefly hitting new heights on coronavirus concerns"

From Marijuana Moment, "Marijuana Industry Pleads For Access To Federal Coronavirus Business Relief"

From Marijuana Moment, "Nebraska Medical Marijuana Campaign Suspended Due To Coronavirus"

From Westworld, "Ask a Stoner: Quarantining Proves We Should Grow Our Own"

UPDATEThese topics made the New York Times this afternoon: "Is Marijuana an ‘Essential’ Like Milk or Bread? Some States Say Yes"

March 24, 2020 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)

Friday, February 28, 2020

"Recent Supreme Court Trademark Decisions and Cannabis Registrations"

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

The prohibition on immoral trademarks has been steadily eroding as a result of First Amendment litigation at the United States Supreme Court.  In light of recent Supreme Court decisions on trademark registrations and free speech, the question then becomes: Is the Lanham Act’s ban on cannabis trademark registrations justifiable in light of the First Amendment in view of these recent cases? 

February 28, 2020 in Business laws and regulatory issues, Federal court rulings, Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)

Wednesday, February 19, 2020

"Colorado marijuana sales hit a record $1.75 billion in 2019: Cannabis sales have now reached a total of $7.79 billion in the 6 years since legalization"

Growing-your-moneyThe title of this post is the full headline of this new Denver Post piece, which provides a reminder of how easy it is to identify (some) economic metrics that follow from marijuana reform. Here are the details:

Last year was the most lucrative 12 months for cannabis sales in Colorado since the state’s voters legalized recreational marijuana.  Medical and recreational cannabis sales hit a record $1.75 billion in 2019, up 13% from 2018, according to data from the Department of Revenue’s Marijuana Enforcement Division.  Marijuana tax collections also hit an all-time high, at more than $302 million in 2019.

December closed out the year with strong sales totaling more than $144 million, up 6.7% compared to the previous year.  But that wasn’t the biggest month of 2019; instead, August topped the calendar year with $173 million in sales.  All told, Colorado marijuana sales now have hit $7.79 billion since recreational sales began in 2014.

Truman Bradley, the newly appointed executive director of the Marijuana Industry Group, said the revenue increases in Colorado track with expectations. “People are moving from the unregulated market to the regulated market,” Bradley said. “As reefer madness goes away, as the stigmatism of cannabis reduces and people come over to the regulated market, I would expect that trend to continue.”

Since January 2014, Colorado’s cannabis industry has generated $1.21 billion in tax revenue.  Those taxes are allocated to the state’s public education fund, which covers initiatives such as the Colorado Department of Education’s Building Excellent Schools Today (BEST) fund; the state general fund, which covers agencies’ expenses; and the marijuana tax fund, which benefits programs related to substances abuse and treatment, health research, youth education and more.  Tax revenues also benefit local governments.

In recent posts (here and here and here) and in my marijuana seminar, I have been exploring in various ways what might be the proper metrics for assessing medical marijuana reform regimes.  This new data from Colorado, in turn, prompts similar questions about assessing recreational reform regimes.   I am inclined to believe these numbers represent positive economic realities like increased employment, wealth and valuable wealth reallocation via taxes.  But public health experts might see these numbers as representing negative health trends and they might also perhaps demonstrate problematic wealth reallocation from the vulnerable to the already privileged.

February 19, 2020 in Business laws and regulatory issues, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Taxation information and issues | Permalink | Comments (0)

Thursday, January 16, 2020

"From Reefer Madness to Hemp Utopia: CBD, Hemp and the Evolving Regulation of Commoditized Cannabis"

Jan-24-Cannabis-Roundtable_for-email-600x400The title of this post is the title of this exciting event taking place next week put on by the Drug Enforcement and Policy Center at The Ohio State University.  Here are all the essential details and some background from this page where you can also find a registration link: 

When: Friday, January 24 from 7:30-9:30 a.m.
Where: 2nd Floor Rotunda, Mason Hall, 250 W Woodruff Avenue, Columbus Ohio

Join the Drug Enforcement and Policy Center and the Center for Innovation Strategies for From Reefer Madness to Hemp Utopia: CBD, Hemp and the Evolving Regulation of Commoditized Cannabis.  The latest Cannabiz Roundtable discussion will feature a panel of experts as they discuss the challenges of regulating the unusual agricultural commodity that is hemp and the myriad products infused with one of its derivatives, CBD.

With the passage of the 2018 Farm Bill, the world of the cannabis plant has undergone a seismic shift allowing for its legal cultivation as long as its THC content remains below 0.3%.  A year later, the federal and state governments, including the state of Ohio, are in the process of creating regulations that would allow the agricultural sector to take advantage of this new crop while at the same time addressing numerous concerns about public health and law enforcement.

 

Speakers

Benton Bodamer, DEPC Adjunct Faculty, Dickinson Wright PLLC, Columbus


Donnie Burton, Owner and CEO, The Harvest Foundation


David E. Miran, Jr. Esq., Executive Director, Hemp Program, Ohio Department of Agriculture


Anthony Seegers
, Director of State Policy, Ohio Farm Bureau


Patricia Zettler, DEPC Assistant Professor of Law, Moritz College of Law

 

Moderator: Douglas Berman, Executive Director, DEPC


Schedule

7:30 – 8:00 a.m. | registration
8:00 – 9:00 a.m. | panel
9:00 – 9:30 a.m. | follow up conversation and networking

January 16, 2020 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Wednesday, December 11, 2019

National Cannabis Roundtable launches new "Corporate Social Responsibility program"

Logo (2)As reported in this press release, yesterday the National Cannabis Roundtable (NCR) "pledged its commitment to fostering social justice, equity, and diversity in the cannabis industry [through] the launch of NCR’s Corporate Social Responsibility program."  Here is more from the release: 

Looking to do their part to reduce the negative impact of the War on Drugs, specifically in those communities disproportionately affected by it, NCR members will commit time, talent and financial resources to pursue social justice measures, equity in business and diversity and inclusion within member companies.  More information about NCR’s Corporate Social Responsibility Pledge can be found here.

“We are not just having a conversation about how the cannabis industry can benefit those most impacted by decades of discriminatory drug policy, we are taking action,” said Dr. Chanda Macias, MBA, Ph.D., Owner of NHHC, and First Vice Chair of NCR.  “It is critically important to the future success of cannabis in America that we build justice and equity into the very fabric of this burgeoning industry.”

Some states with legal cannabis, including Massachusetts, California, and most recently Illinois, have developed social equity programs through their license structure, but no state has pushed businesses to take a reflective look at their own operations.  NCR’s Corporate Social Responsibility program is our members’ effort to address that void and to ensure real outcomes with regard to justice, equity and diversity and inclusion.

NCR Executive Director Saphira Galoob said that members will begin 2020 assessing their internal practices – providing a baseline look at where they are today through the goals and activities outlined in the social responsibility pledge while developing targets for greater impact within their own operations.  “Our members are passionate about promoting social responsibility in this fast-growing industry,” said Saphira Galoob, NCR Executive Director.  “NCR is proud to bring cannabis into the mainstream and harness its potential to benefit our communities.”

NCR will engage subject matter experts from minority, adversely impacted, and designated beneficiary communities to advise the organization on the effectiveness and impact of CSR.  These subject matter experts will work with NCR members and staff to ensure the integrity of the program and to measure performance and accountability.

The full five-page NCR Corporate Social Responsibility Pledge can be viewed at this link here, and it makes for an interesting read.  The document sets forth three "Core Values" labeled as "Social Justice" and "Social Equity" and "Diversity and Inclusion in Business."  The document then sets out four "pillars of equal importance ... meant to provide a baseline for all participants in NCR." These pillars are "1) Criminal Justice; 2) Equity in Business Opportunity; 3) Jobs & Employment; 4) Health Education and Health Disparities."

December 11, 2019 in Business laws and regulatory issues, Who decides | Permalink | Comments (0)

Saturday, November 16, 2019

"Exposure to Cannabis Marketing in Social and Traditional Media and Past-Year Use Among Adolescents in States With Legal Retail Cannabis"

The title of this post is the title of this notable new research by multiple authors published in the Journal of Adolescent Health.  Here is its abstract:

Purpose

The objective of this study was to examine adolescents' self-reported exposure to cannabis marketing in states with legalized cannabis and its association with past-year cannabis use.

Methods

We conducted a cross-sectional, online panel survey of 469 adolescents aged 15–19 years residing in four states with legal retail cannabis for adult use.  Adolescents self-reported exposure to cannabis marketing on social or traditional media (i.e., outdoor or print) and past-year cannabis use.  Logistic regression generated estimated odds of youths' past-year cannabis use by marketing exposure after adjusting for demographic factors and cannabis-related social norms.

Results

Exposure to cannabis marketing on Facebook, Twitter, and Instagram was associated with increased odds of past-year cannabis use of 96% (95% confidence interval [CI]: 15%–234%), 88% (95% CI: 11%–219%), and 129% (95% CI: 32%–287%), respectively.  Odds of past-year cannabis use increased by 48% (95% CI: 16%–87%) with each additional social media platform where adolescents reported exposure.

Conclusions

Despite restrictions that prohibit cannabis advertising on social media, adolescents are exposed to cannabis marketing via social media, and this exposure is associated with recent cannabis use.  States should consider further regulation of cannabis marketing on social media.

November 16, 2019 in Business laws and regulatory issues, Recreational Marijuana Data and Research | Permalink | Comments (1)

Tuesday, November 12, 2019

"A special exception for CBD in foods and supplements?"

X13596446The question in the title of this post is the headline if this notable new editorial in the journal Drug Discovery Today authored by Patricia Zettler and Erika Lietzan.  (Disclosure/humble brag: Professor Zettler is on the Ohio State College of Law faculty and a member of our Drug Enforcement and Policy Center.)  Here are excerpts from the start and end of the piece:

In the last two years the cannabidiol (CBD) market has exploded. Consumers can purchase CBD-containing oils, lotions, gummies, tea, coffee, water, popcorn, and cereal, on store shelves and online. Celebrities and athletes are touting the benefits of these products, and sales are forecast to exceed $20 billion in the next five years.  This market explosion has coincided with the U.S. Food & Drug Administration (FDA)’s 2018 approval of the first CBD drug (Epidiolex), for treating seizures associated with two rare and severe forms of epilepsy in children, as well as the 2018 Farm Bill, which removed cannabis with low levels of delta-9-tetrahydocannabinol (THC) — “hemp” — from the federal list of controlled substances.  And it comes on the heels of nearly 40 states enacting comprehensive laws to legalize cannabis for medical use (and sometimes recreational use) within their borders.

Yet significant questions remain about the legal status of these widely available CBD products.  Most sales of CBD-containing foods and supplements violate the “drug exclusion rules” in the Federal Food, Drug, and Cosmetic Act (FDCA).  But FDA has yet to enforce those rules, apart from sending warning letters to a few sellers.  The agency is instead considering what approach to take.  Several former agency officials — including former Commissioner Scott Gottlieb — have urged FDA to create a sensible, science-based path forward for consumer products.  The time is ripe for the agency, lawmakers, health care providers, the drug discovery community, and the public to consider the purpose of the drug exclusion rules and what a different approach — exempting CBD — might mean for consumer and patient access and safety, as well as innovation incentives....

As a practical matter, CBD-containing foods and supplements may be here to stay.  Lawmakers or FDA may decide that the drug exclusion rules are unwarranted for CBD, given the federal descheduling of hemp, state legalization of cannabis products, and (eventually) rigorous evidence that CBD products are relatively safe.  But FDA should not default into this position simply because a robust, albeit unlawful, market has already emerged.  A decision to give CBD special treatment should be made thoughtfully and with public participation, accounting for possible gains in consumer access and choice, as well as the lost opportunity to learn, and harness, CBD’s full therapeutic potential.

November 12, 2019 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Medical community perspectives, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Tuesday, November 5, 2019

"Going Green in American Professional Sports: Why Marijuana Usage Should Be Allowed and What Policy Changes Should Ensue"

The title of this post is the title of this new paper recently posted to SSRN and authored by Lucian Lungu, a recent graduate The Ohio State University Moritz College of Law.  This paper is the fifteenth paper in an on-going series of student papers supported by the Drug Enforcement and Policy Center.  (The fourteen prior papers in this series are linked below.)    Here is this latest paper's abstract:

In America, professional sports carry significant importance.  This billion-dollar industry is largely controlled by four professional leagues — the National Football League (NFL), Major League Baseball (MLB), National Basketball Association (NBA), and the National Hockey League (NHL) — together known as “the big four.”  Currently, each league has player conduct rules aimed at preventing the use of marijuana.  This paper analyzes the marijuana-related policies of each league and goes on to suggest that these regulations must be revised to allow for marijuana usage.

I argue that the historical misconceptions of marijuana; the outdated, illogical reasons for its initial and continued prohibition in sports; the prevalence and positive public sentiment of marijuana in society today; the ineffectiveness of the leagues’ current policies; and the widespread use of life-threatening, team-prescribed drugs in every league require that these policies be updated.  Subsequently, I discuss the potential medical benefits of marijuana for athletes.  Lastly, based on my analysis, this paper predicts the immediate future of marijuana in the big four and details what I believe should happen in the future.

Prior student papers in this series:

November 5, 2019 in Business laws and regulatory issues, Sports | Permalink | Comments (0)