Marijuana Law, Policy & Reform

Former Prez Trump articulates forceful support for state marijuana legalization, federal rescheduling and banking reforms

In this post nine days ago,  I noted new comments from former Prez Donald Trump that were seemingly supportive of Florida's marijuana legalization ballot initiative; in this post last week, I noted further comment from Trump suggesting his position of federal rescheduling would likewise be supportive.   Now, via this social media posting from late last night, Trump make quite clear that he is all-in on both state and federal marijuana reforms.  Here are key excerpts:

As a Floridian, I will be voting YES on Amendment 3 this November.  As President, we will continue to focus on research to unlock the medical uses of marijuana to a Schedule 3 drug, and work with Congress to pass common sense laws, including safe banking for state authorized companies, and supporting states rights to pass marijuana laws, like in Florida, that work so well for their citizens.

With these comments, Trump is no longer hedging in any way his seeming robust support for a wide array of state and federal marijuana reforms. Given Trump's various prior comments recently on these topics that did hedge a bit, I am inclined to guess that Trump was looking to see what kind of reactions his pro-marijuana reform statements engendered. The reactions, at least from Trump's view, must have been positive. I also suspect that some of Trump's latest high-profile political endorsers, specifically from Robert F. Kennedy Jr and from Tulsi Gabbart, may have been urging Trump to become more vocal in his support for reform.

Interesting times.

Recent related posts:

• Former Prez Trump suggests he is supportive of marijuana legalization in Florida and elsewhere
• Does former Prez Trump's praise for medical marijuana suggest he would robustly support federal marijuana rescheduling?

Does former Prez Trump's praise for medical marijuana suggest he would robustly support federal marijuana rescheduling?

I flagged here the notable social media comments from former Prez Donald Trump over the weekend which suggested he is supportive of marijuana legalization in Florida and elsewhere. But I just recently saw some notable follow-up comments about medical marijuana that Trump made during an interview on Lex Fridman’s podcast released earlier this week. This Marijuana Moment piece reports on the comments this way:

Former President Donald Trump says medical marijuana has been “absolutely amazing” for patients, and that a Florida initiative to more broadly legalize cannabis for recreational use will be on the November ballot is “going to be very good” for the state after it passes, which he expects to happen.

The 2024 Republican nominee said during an interview on Lex Fridman’s podcast that was released on Tuesday that “medical marijuana has been amazing,” adding that he’s “had friends and I’ve had others and doctors telling me that it’s been absolutely amazing, the medical marijuana.”

Trump referenced a recent social media post he made about Florida’s Amendment 3 ballot initiative, where he gave tacit support for the proposal. “We can live with the marijuana,” he said.

“It’s got to be a certain age [to purchase],” he said. “It’s got to be done in a very concerted, lawful way. And the way they’re doing it in Florida, I think is going to be actually good. It’s going to be very good, but it’s got to be done in a good way. It’s got to be done in a clean way.” He added that his campaign will be putting out an additional, “more specific” statement detailing his cannabis position within the next week.

I will be eager to see what kind of more specific statement concerning cannabis policy comes from the Trump campaign, and I sincerely hope it will address federal law and on-going efforts to reschedule marijuana under the Controlled Substances Act.  But if Trump is of the view that  medical marijuana is "absolutely amazing," I would think Trump's position of federal rescheduling would be absolutely positive.  After all, marijuana's current status as a Schedule I drug means that is has no accepted medical use, and it seems Trump has heard from friends and others and doctors that marijuana has been amazing as a medicine.   And only be moving marijuana to Schedule III are we likely to have medical marijuana access by patients and robust medical marijuana research "done in a very concerted, lawful way."

DEA schedules hearing on federal marijuana rescheduling for December 2, 2024

As reported here via Marijuana Moment, the "Drug Enforcement Administration (DEA) has scheduled a hearing to consider differing expert opinions on the Justice Department’s proposal to federally reschedule marijuana — an extra procedural step that will take place after the November election."  Here is more:

After moving to reclassify cannabis as a Schedule III drug under the Controlled Substances Act (CSA) back in March, DOJ opened a 60-day public comment period that saw more than 4o,000 submissions.  Now that DEA has reviewed the comments, it agreed to an administrative hearing, as requested by several supporters and opponents of the reform.  The hearing will be held on December 2, according to a notice set to be published in the Federal Register on Thursday.

While some advocates and stakeholders had hoped that DEA would avoid this additional step and simply move to final rulemaking, the agency has often scheduled hearings for regulatory proposals of major public interest. And rescheduling cannabis for the first time since it was designated as Schedule I over 50 years ago evidently met that standard.

That said, the hearing adds some uncertainty about the potential rescheduling timeline.  There are some concerns this means the rulemaking process will not be completed before January, which could mean an administrative changeup after the November election that theoretically could affect the rescheduling process.

While some advocates and stakeholders had hoped that DEA would avoid this additional step and simply move to final rulemaking, the agency has often scheduled hearings for regulatory proposals of major public interest. And rescheduling cannabis for the first time since it was designated as Schedule I over 50 years ago evidently met that standard.

That said, the hearing adds some uncertainty about the potential rescheduling timeline.  There are some concerns this means the rulemaking process will not be completed before January, which could mean an administrative changeup after the November election that theoretically could affect the rescheduling process.

Some new certainty and continued uncertainty in latest state and federal marijuana reform developments

After a lot of uncertainty about when adult-use sales would begin in Ohio, some timeline certainty emerged yesterday in the Buckeye State: "Ohio Cannabis Dispensaries Will Start Adult-Use Sales Aug. 6."  Here are some of the particulars:

Ohio will be the 21st state to launch adult-use cannabis sales when licensed dispensaries open their doors to those 21 and older at 10 a.m. Aug. 6.

The Ohio Division of Cannabis Control (DCC) hasn’t officially issued dual-use certificates of operation—allowing existing dispensaries to serve both medical patients and adult-use customers—to store owners just yet, but the division plans to make a formal announcement Aug. 5, a Department of Commerce spokesperson told Cannabis Business Times....

Ohio’s imminent launch represents a catalyst for the cannabis industry: Ohio will be the fourth most-populated state to commence adult-use sales after California, Illinois and New York.  Ohio is also the first to roll out an adult-use program since Maryland did so on July 1, 2023.

In addition, millions of adults 21 years and older residing in bordering Pennsylvania, Indiana, Kentucky and West Virginia—who don’t have access to adult-use cannabis in their home states—will now live within driving distance of licensed and regulated cannabis products.

Meanwhile, there is still continued uncertainty concerning the timeline for potential federal refrom in the form of rescheduling. But, as reported in this Marijuana Moment article, a collection of US Senators are urging the Drug Enforcement Administration  to "promptly finalize" the proposed rule to reschedule marijuana from Schedule I to Schedule III.  Here are the basics:

In a letter sent to Attorney General Merrick Garland and DEA Administrator Anne Milgram on Friday, Schumer and Sens. Cory Booker (D-NJ), Ron Wyden (D-OR) and others implored the administration to follow through on a proposal to move cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA), as the Justice Department formally proposed in May.

“The proposed rule to reclassify marijuana to schedule III recognizes the medical benefits of marijuana, will improve access for studying the health effects of short and long-term cannabis use, and will provide relief to cannabis businesses that continue to navigate a patchwork regulatory system to conduct legal business,” they said.

The full letter from the seven Senators (all Deomocrats) is available at this link.

DEPC event on Aug 7: "Federal Marijuana Reform: Effects and Echoes of Rescheduling"

I am pleased to be able to spotlight another great Drug Enforcement and Policy Center (DEPC) event focused on federal marijuana reforms.  This online event,  titled "Federal Marijuana Reform: Effects and Echoes of Rescheduling," will take place on August 7, 2024 from 12 noon to 1:15 pm EDT.  The event is described this way on this event registration page (where one can directly register):

After decades-long efforts by advocates and researchers, President Biden announced in October 2022 that he instructed “the Secretary of Health and Human Services and the Attorney General to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law.”  In May 2024, the Attorney General submitted a notice of proposed rulemaking to the Federal Register, initiating a formal rulemaking process to consider the reclassification of marijuana from a schedule I to a schedule III drug under the Controlled Substances Act (CSA).

While the rulemaking process timeline has some uncertainties, many expect a final rescheduling rule could appear as soon as September or October 2024.  But what would such a move mean for modern marijuana laws, policies and practices?  Could medical marijuana products be prescribed by doctors and sold in pharmacies nationwide?  Would changes in federal laws dramatically impact current medical and recreational industries operating under disparate state systems?  And would placement in schedule III make a meaningful difference in the operation of criminal justices systems, especially for people with marijuana-related criminal convictions at the federal or state level?

Panelists:

John Hudak, Director of the Maine Office of Cannabis Policy
Robert Mikos, LaRoche Family Chair in Law, Vanderbilt University Law School 
Fatima Afia, Attorney, Rudick Law Group, PLLC
Shane Pennington, Partner, Porter Wright Morris & Arthur LLP 

Moderator:
Cat Packer, Distinguished Cannabis Policy Practitioner in Residence at The Ohio State University Drug Enforcement and Policy Center and Director of Drug Markets and Legal Regulation at Drug Policy Alliance

"Marijuana and the Tyrannies of Scheduling"

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

The Drug Enforcement Administration (DEA) is about to reschedule marijuana under the Controlled Substances Act (CSA), marking an historic shift in federal policy toward the drug.  This Essay analyzes the reasoning behind the agency’s decision and its implications for other Schedule I drugs, including promising psychedelics like psilocybin and methylenedioxymethamphetamine (MDMA). 

The Essay begins by highlighting a new test the agency introduced to determine whether a drug has a “currently accepted medical use” (CAMU).  In the past, the DEA insisted CAMU could be demonstrated only by successfully completing rigorous scientific research demonstrating a drug is effective.  But because the CSA limits the ability to conduct such research on Schedule I drugs, the agency’s CAMU test proved nearly impossible to satisfy, imposing what I call the Tyranny of Science.  In its latest marijuana rescheduling decision, however, the DEA announced that CAMU could also be demonstrated by showing there is already widespread clinical use of a drug.

Because state medical marijuana programs are wildly popular, the agency was able to find that marijuana has a CAMU under the new test, even though scientific proof of its medical efficacy is still lacking. Nonetheless, I argue the new CAMU test is unlikely to facilitate rescheduling of any other drug. In effect, the new test requires convincing popular majorities to pass state laws legalizing medical use of a drug the federal government has banned outright. Although marijuana advocates eventually convinced enough voters in enough states to satisfy this daunting test, no other Schedule I drug is likely to repeat that feat anytime soon (if ever).

But the Essay proposes a way to soften the Tyrannies of Scheduling: I argue the DEA should de-emphasize CAMU in scheduling decisions. The agency has long insisted that a drug with no CAMU must be placed on Schedule I, regardless of its harms.  But the agency has never offered a persuasive rationale for making CAMU paramount in scheduling decisions, and the Essay shows that the agency’s approach is contrary to the text and purposes of the CSA.  De-emphasizing CAMU would reduce the distortive influence the tyrannical CAMU tests now wield over the administrative scheduling process, resulting in more rational scheduling decisions that better reflect the benefits and dangers of controlled substances, as Congress intended.

Rounding up some recent notable marijuana legal news and commentary from various quarters

I have not blogged in this space much latety as I have been consumed with activity by the US Supreme Court and other legal developments in recent weeks.  In addition, I do not usually cover much day-to-day marijuana news because all sort of outlets cover this news (and Marijuana Moment covers it especially well).  But as these streams come together, I though it useful to do a quick post highlighting some notable marijuana legal news and commentary.  So:

From the AP, "Brazil’s Supreme Court decriminalizes possession of marijuana for personal use"

From Bloomberg Law, "Federal Cannabis Law Dispute Tossed by Massachusetts Judge"

From Harris Sliwoski, "Cannabis Law and Gun Rights: News from SCOTUS"

From Marijuana Moment, "South Dakota Law Banning Intoxicating Hemp Products Takes Effect After Judge Declines To Block It"

From Marijuana Moment, "DeSantis Seems To Concede He Vetoed Hemp Ban Bill, In Part, To Engage Industry In Marijuana Legalization Opposition Campaign"

From MinnPost, "Court decision ending cannabis odor as sole reason for search codified by Minnesota lawmakers"

From the Missouri Independent, "Missouri courts still slogging through marijuana crime expungements, long after deadline"

From MJBiz Daily, "How will Supreme Court ruling affect marijuana rescheduling?"

Robust coverage of rescheduling at Marijuana Moment

Anyone and everyone who seriously follows marijuana news – of which there is plenty these days – knows to follow Marijuana Moment for lots of cannabis coverage and context.  In the past week, of course, news around possible federal rescheduling is coming fast and furious, and I will here use Marijuana Moment headlines (and links) to cover a lot of ground (which is sure to keep shifting):

"Attorney General Formally Moves To Reschedule Marijuana, But DEA Signals Resistance"

"DOJ Seeks Input On ‘Unique Economic Impacts’ Of Marijuana Rescheduling For ‘Multibillion Dollar Industry’"

"Former Obama Drug Czar Says Marijuana Is ‘Not Medicine’ And That ‘Big Cannabis’ Is Behind Federal Rescheduling Decision"

"Feds Begin Accepting Marijuana Rescheduling Comments, With Key Reform Groups Previewing How They Plan To Influence The Process"

"Biden Drug Czar Says Marijuana Rescheduling Is ‘Based On Science And Evidence’ But Misstates Impact On Prescription Access"

Biden Administration moves federal marijuana rescheduling forward to start public comment period

As reported in this Washington Post piece, "President Biden on Thursday publicly endorsed the Justice Department’s recommendation to loosen restrictions on marijuana, a long-expected measure that marks a historic shift in the nation’s drug policy." Here is more on an important next step in the rescheduling process:

The Justice Department, after receiving the go-ahead from the White House, published an official notice, opening a two-month period for the public to comment on the proposed change. The rule reclassifying marijuana as a Schedule III controlled substance would not go into effect until afterward.

Marijuana would not be legalized federally, but would move out of the Schedule I category reserved for tightly controlled substances such as heroin and LSD. If the rule goes into effect, marijuana will join a category including prescription drugs such as ketamine, anabolic steroids and testosterone....

The move comes a little more than two weeks after Attorney General Merrick Garland recommended to the White House that marijuana be reclassified as a Schedule III substance. The recommendation was applauded by cannabis supporters who for decades have complained that the federal government exaggerated the dangers of the drug.

Marijuana’s Schedule I status means it is tightly controlled because the federal government sees no proven medical value and a high potential for abuse. Stripping that designation would provide researchers easier access to cannabis and allow marijuana companies to deduct business expenses from their tax bills — a boon for an industry that has struggled because of high operating costs and competition from the illicit market. “Our ultimate goal is federal legalization, and we see Schedule III as a necessary and critical step along the way,” Edward Conklin, executive director of industry group U.S. Cannabis Council, said in a statement....

Some cannabis advocates say reclassification is an incremental step that doesn’t address the fundamental disconnect between the federal criminalization of the drug and the reality that a majority of Americans live in states where they can legally buy it. The implications of rescheduling for existing legal state markets are especially murky because marijuana has not been treated as a federally regulated medicinal product sold at pharmacies.

Meanwhile, cannabis critics fault the Biden administration for normalizing a drug that can still be harmful to individual and public health. Reclassification of marijuana — which is opposed by some former federal law enforcement officials, some Republicans in Congress and the anti-cannabis group Smart Approaches to Marijuana — could be delayed again by legal and regulatory challenges.

In announcing this move, the Justice Department released its formal federal register rule which will  start a 60-day comment period, as well as this 36-page document from the  Office of Legal Counsel detailing legal arguments surrounding rescheduling issues.

"The False Promise of Rescheduling"

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

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

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

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

Widespread new reporting that DEA is rescheduling marijuana to Schedule III under the Controlled Substances Act

As reported in this new AP article, the "U.S. Drug Enforcement Administration will move to reclassify marijuana as a less dangerous drug, The Associated Press has learned, a historic shift to generations of American drug policy that could have wide ripple effects across the country."  Here is more on a legal developments that has been expected, but is still a very big deal:

The DEA’s proposal, which still must be reviewed by the White House Office of Management and Budget, would recognize the medical uses of cannabis and acknowledge it has less potential for abuse than some of the nation’s most dangerous drugs. However, it would not legalize marijuana outright for recreational use. The agency’s move, confirmed to the AP on Tuesday by five people familiar with the matter who spoke on the condition of anonymity to discuss the sensitive regulatory review, clears the last significant regulatory hurdle before the agency’s biggest policy change in more than 50 years can take effect.

Once OMB signs off, the DEA will take public comment on the plan to move marijuana from its current classification as a Schedule I drug, alongside heroin and LSD. It moves pot to Schedule III, alongside ketamine and some anabolic steroids, following a recommendation from the federal Health and Human Services Department. After the public comment period and a review by an administrative judge, the agency would eventually publish the final rule....

Biden and a growing number of lawmakers from both major political parties have been pushing for the DEA decision as marijuana has become increasingly decriminalized and accepted, particularly by younger people. A Gallup poll last fall found 70% of adults support legalization, the highest level yet recorded by the polling firm and more than double the roughly 30% who backed it in 2000. The DEA didn’t respond to repeated requests for comment.

Schedule III drugs are still controlled substances and subject to rules and regulations, and people who traffic in them without permission could still face federal criminal prosecution. Some critics argue the DEA shouldn’t change course on marijuana, saying rescheduling isn’t necessary and could lead to harmful side effects....

Federal drug policy has lagged behind many states in recent years, with 38 having already legalized medical marijuana and 24 legalizing its recreational use. That’s helped fuel fast growth in the marijuana industry, with an estimated worth of nearly $30 billion. Easing federal regulations could reduce the tax burden that can be 70% or more for businesses, according to industry groups. It could also make it easier to research marijuana, since it’s very difficult to conduct authorized clinical studies on Schedule I substances.

The immediate effect of rescheduling on the nation’s criminal justice system would likely be more muted, since federal prosecutions for simple possession have been fairly rare in recent years. But loosening restrictions could carry a host of unintended consequences in the drug war and beyond.

Critics point out that as a Schedule III drug, marijuana would remain regulated by the DEA. That means the roughly 15,000 cannabis dispensaries in the U.S. would have to register with the DEA like regular pharmacies and fulfill strict reporting requirements, something that they are loath to do and that the DEA is ill equipped to handle.

Then there’s the United States’ international treaty obligations, chief among them the 1961 Single Convention on Narcotic Drugs, which requires the criminalization of cannabis. In 2016, during the Obama administration, the DEA cited the U.S.’ international obligations and the findings of a federal court of appeals in Washington in denying a similar request to reschedule marijuana. 

US Supreme Court grants cert to consider RICO claim brought by fired employee against medical marijuana company

One theme of my marijuana seminar is how the US Supreme Court has largely stayed out of broad legal uncertainties relating to marijuana reform for the past two decades (after very significant early rulings in United States v. Oakland Cannabis Buyers' Co-op., 532 U.S. 483 (2001) and Gonzales v. Raich, 545 U.S. 1 (2005)).  But today, via this order list, the Justice took up a new marijuana case -- sort of.  Here is how Jon Elwood at SCOTUSblog explains the case last week (links from the original):

 Medical Marijuana, Inc. v. Horn. Douglas J. Horn lost his job as a commercial truck driver after a drug test he took reflected the presence of tetrahydrocannabinol (“THC”), the active chemical compound in marijuana. Horn maintained that he ingested THC unwittingly by consuming a cannabis-derived product that Medical Marijuana, Inc. marketed as THC-free.

Horn sued, alleging injury under the Racketeer Influenced and Corrupt Organizations Act. The district court held that Horn lacked RICO standing because he sued for economic injuries from loss of earnings that were derived from his personal injury (exposure to THC). The U.S. Court of Appeals for the 2nd Circuit reversed, holding that although RICO only permits suit by a plaintiff “injured in his business or property” by racketeering activity, an economic injury resulting from personal injury sufficed.

Medical Marijuana, represented by Supreme Court veteran Lisa Blatt, petitions for review, arguing that the courts of appeals “are divided on whether economic damages arising from persual injuries … support civil RICO liability.” Medical Marijuana notes that the Supreme Court indicated – a bit offhandedly, in an opinion addressing another issue – that RICO’s private cause of action “exclud[ed], for example, personal injuries.” If granted, it should make for an interesting argument.

Cert has now been granted for an argument likely to take place in Ovtober or November this year. Not sure how much marijuana law and policy will become central to the briefing and argument, but it is interesting to see a marijuana-related case on the SCOTUS merits docket after a long dry spell.

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

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

Background & Summary:

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

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

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

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

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

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

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

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

Related Links:

For information on federal regulations and policies:

DEA, "The Controlled Substances Act"

DOJ, "The Cole Memo" (2013)

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

US Code: "IRS Code 280E" 

For information on state-level regulations and policies:

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

For information on proposed federal legislation:

"The SAFE Banking Act"

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

Student presentation exploring Delta-8 THC products

As noted in this prior post, there is an on-going debate in Ohio (as well as in many other jurisdictions) about so-called Delta-8 or "intoxicating hemp" products.  Helpfully, the last planned presentation for this week in my Marijuana Law seminar is going to cover issues surrounding Delta-8, and here are some resources that she provided for some background:

Background information about Delta-8:

Leas, EC. The Hemp Loophole: A Need to Clarify the Legality of Delta-8-THC and Other Hemp-Derived Tetrahydrocannabinol Compounds. Am J Public Health. 2021 Nov;111(11):1927-1931.

FDA and DEA Regulation:

FDA advises against use: 5 Things to Know about Delt-8 Tetrahydrocannabinol – Delta-8 THC. Food and Drug Administration. May 5, 2022.

Coverage of warning letters sent to Delta-8 brands by FDA.

Good summary of case interpreting "hemp" to include Delta-8 products under Farm Bill 

Good summary of possible DEA Interpretation

Coverage of the push from the states for federal regulation

Report on study regarding Delat-8 use and state regulation

Student presentation examines for federal marijuana rescheduling could impact immigration enforcement

March madness continues in my Marijuana Law, Policy & Reform seminar as students continue their "take over" of my class through presentations on the research topics of their choice. As noted many tmes before, before their presentations, students are expected to provide here some background on their topic and links to some readings or relevant materials. The second of our presentations taking place in class next week will be looking at how federal marijuana rescheduling could impact immigration enforcement. Here is how my student has described her topic along with background readings she has provided for classmates (and the rest of us):

On August 29, 2023, the Department of Health and Human Services released its recommendation to reschedule marijuana to a schedule III drug instead of its current standing as a schedule I drug.  The Department found that marijuana meets the three criteria for schedule III drugs: (1) it has less of a potential for abuse than schedule I and II drugs; (2) abuse of marijuana may lead to low or moderate physical dependence or high psychological dependence; and (3) it has a currently accepted medical use in the United States.  The Drug Enforcement Administration is currently investigating this recommendation and is expected to make a final decision of whether or not to reschedule by the November election.  While rescheduling would likely lead to greater medical access for U.S. citizens, it is unclear how it could affect immigration enforcement.

Currently, immigration law places harsh consequences on immigrants for marijuana activity.  Even in states where marijuana is decriminalized and or medically legalized, immigrants can be deported, found inadmissible, and barred from naturalization if they are caught possessing marijuana.  If marijuana is rescheduled, would immigration enforcement necessarily change?  Can immigrants still be found to have “moral turpitude” for involvement with marijuana once it is recognized the have medical legitimacy?  How may a second Biden versus Trump administration affect immigration enforcement after rescheduling?   My paper aims to discuss how the potential rescheduling may affect the disparate enforcement and consequences of marijuana criminalization on immigrants.

Some reading:

Congressional Research Service, Legal Sidebar, Legal Consequences of Rescheduling Marijuana, Jan. 2024

Marijuana Moment, DEA Tells Congress It Has ‘Final Authority’ On Marijuana, Regardless Of Health Agency’s Schedule III Recommendation, Jan 2024

Immigrant Legal Resource Center, Immigrants and Marijuana, May 2021

Washington Post, Trump vs. Biden on immigration: 12 charts comparing U.S. border security, Feb 2024

Politico, She Immigrated Legally. She Married a U.S. Citizen. But She Was Denied Citizenship for Working in Legal Cannabis, Dec 2023

Federal government makes public documentation behind HHS recommendation to reschedule marijuana

As reported here by Marijuana Moment,  the "U.S. government has released hundreds of pages of documents related to its ongoing review of marijuana’s status under federal law, officially confirming for the first time that health officials have recommended the Drug Enforcement Administration (DEA) place the substance in Schedule III of the Controlled Substances Act (CSA)."  Here is more:

The 252 pages of documents explain that cannabis “has a currently accepted medical use in treatment in the United States” and has a  “potential for abuse less than the drugs or other substances in Schedules I and II.” 

Federal health officials said they conducted an analysis that found more than 30,000 healthcare professionals “across 43 U.S. jurisdictions are authorized to recommend the medical use of marijuana for more than six million registered patients for at least 15 medical conditions.”

These documents are now available at this link.

UPDATE:  Over at the substack On Drugs, Shane Pennington has this lengthy new entry titled "The Unredacted HHS Docs: What do they say? What do they mean? What difference do they make?".  Here is an excerpt from the start:

 I was up all night last night reviewing the unredacted copy of HHS’s 252-page analysis. A month ago, I went through a similar exercise with the heavily-redacted copies. Although HHS had revealed only scattered fragments and snippets of its analysis back then, I read the tea leaves and gave my best guesses as to what the agency’s analysis might say. My key predictions were that we would eventually learn that HHS

1. recommended that DEA move cannabis to schedule III;

2. established a “newly-minted standard” for currently accepted medical use based on “state-level data regarding widespread medical use of marijuana under state law” and deference to the “State laws and State licensing bodies [that] collectively regulate the practice of medicine” under our federalist system;

3. applied that new standard to conclude that cannabis does, in fact, have a currently accepted medical use;

4. “include[d] a broader and more current data set” in its analysis; and

5. “focus[ed] less on the sheer amount of illegal marijuana use and more on marijuana’s abuse potential and safety profile compared to other substances of abuse” when compared to past rescheduling proceedings.

Having reviewed the unredacted documents carefully now, I’m happy to report that my predictions were pretty much spot on across the board. We’ll probably do multiple posts on the implications of HHS’s analysis. For now, though, I’m just going to describe the key standards and conclusions underlying HHS’s analysis and flag a couple of things that really jumped out at me.

Now for some marijuana year-in-preview pieces

In this post last week, I rounded up a number of press pieces provided a review of big marijuana reform developments in 2023.  It seems only fitting to follow up a number of 2024 preview pieces.  So here goes:

From Cannabis Business Times, "5 Cannabis Policy Reform Efforts to Watch in 2024"

From Forbes, "2024 Cannabis And Psychedelics Predictions"

From the Green Market Report, "Cannabis Industry Executives Share Predictions for 2024"

From Leafly, "30 weed predictions very likely to come true in 2024"

From MJBizDaily, "Rescheduling marijuana and the next states to legalize: 7 predictions for 2024"

From Marijuana Moment, "More States Set To Legalize Marijuana And Psychedelics In 2024 As Federal Cannabis Scheduling Review Concludes"

Reviewing some marijuana year-in-review stories

It may be a smidge early for a complete review of all the 2023 year-in-review stories relating to marijuana issues.  But I have seen enough pieces in this space to justify this review of some reviews:

From Forbes, "A Look At Cannabis In 2023"

From MJBiz Daily, "MJBizDaily’s most popular cannabis business stories of 2023"

From NORML, "2023 Year In Review: NORML’s Top Ten Events In Marijuana Policy"

And, unsurprisingly, Marijuana Moment has so much year-in-review coverage that they needed three sepearate pieces:

"These Were The Biggest Federal And Congressional Marijuana Policy Developments Of 2023"

"New Legalization Laws, Marijuana Sales Records And The Other Top State Developments Of 2023"

"Marijuana Legalization Advancements In Several Countries Were Among The Biggest International Cannabis News Stories Of 2023"

Reviewing the state of marijuana politics in the US on Election Day 2023

Later tonight or early tomorrow I expect I will be blogging about the results of today's initiative vote on the full legalization of marijuana in Ohio.  And, as voters head to the polls in the Buckeye State and in some other states, I am tempted to make the case that cannabis reform politics may be at an inflection point.  But maybe not, especially when possible federal reforms may be looming.  I suspect I will opine a bit on marijuana politics after seeing some actual outcomes on this intriguing off-off-year election day, but for now I will lean on recent Marijuana Moment coverage of both state and federal politics in this arena:

"Ohio Voters Will Decide On A Marijuana Legalization Ballot Initiative On Tuesday As Polls Show Strong Support"

"Virginia Election Forecast Predicts Democratic Wins In House And Senate, Which Could Lead To Legal Marijuana Sales"

"Colorado Should Be At The ‘Center’ Of Global Marijuana Market, Governor Says As He Unveils New Cannabis Budget Proposals"

"Pennsylvania House Committee Holds Marijuana Legalization Hearing As Lawmakers Consider State-Run Stores"

"Congressional Committee Urges DOJ To Study ‘Adequacy’ Of State Marijuana Laws And Address Federal Research Barriers"

"Congress Considers Opposing Amendments To Protect Legal Marijuana States And Block Biden From Rescheduling Cannabis"

"RFK Jr. Releases Presidential Campaign Ad Calling For Marijuana Legalization ‘To End Addiction’"

Happy Election Day to all who celebrate!

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

As reported here by Marijuana Moment, the "Senate Banking Committee has approved a bipartisan marijuana banking bill with amendments, sending it to the floor."  Here are some details:

On Wednesday, members voted to pass the Secure and Fair Enforcement Regulation (SAFER) Banking Act, sponsored by Sens. Jeff Merkley (D-OR) and Steve Daines (R-MT), in a 14-9 vote. This comes one week after it was filed with revisions that were meant to bolster its bipartisan buy-in....

Sen. Steve Daines (R-MT), the lead GOP sponsor of the SAFER Banking Act, emphasized that he does not view the legislation as a step toward legalization, which he opposes. But “the current all cash model of legal cannabis businesses makes him targets for theft, for tax evasion and for organized crime,” he said. “The key to addressing this risk is by ensuring that all legal businesses have access to the banking system,” Daines said....

The road to Wednesday’s vote has been bumpy. While the House has passed earlier versions of the legislation several times, this marks the first time the Senate has taken the lead—and bipartisan negotiations have proved trying.

Leadership aimed to move the bill through committee in July, but disagreements over provisions related to broad banking regulations shot that timeline down. Then, over the August recess, lawmakers drafted a revised version, with a slightly updated title and new language that earned some praise from both sides of the aisle.

But the amended SAFER Banking Act that was finally released last week is likely not in its final form. Beside amendments adopted during Wednesday’s markup, there are additionally plans to amend it on the floor. Senate Majority Leader Chuck Schumer (D-NY) wants to use that opportunity to incorporate legislation on incentivizing state-level cannabis expungements, as well as protecting gun rights for marijuana consumers.