Wednesday, May 22, 2024

Robust coverage of rescheduling at Marijuana Moment

Thursday, May 16, 2024

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

ImagesAs 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.

May 16, 2024 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Wednesday, May 1, 2024

"The False Promise of Rescheduling"

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

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

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

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

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

Tuesday, April 30, 2024

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

ImagesAs 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. 

April 30, 2024 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Monday, April 29, 2024

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.

April 29, 2024 in Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Saturday, April 6, 2024

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

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

Background & Summary:

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

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

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

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

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

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

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

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

Related Links:

For information on federal regulations and policies:

DEA, "The Controlled Substances Act"

DOJ, "The Cole Memo" (2013)

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

US Code: "IRS Code 280E

For information on state-level regulations and policies:

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

For information on proposed federal legislation:

"The SAFE Banking Act"

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

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

Monday, March 25, 2024

Student presentation exploring Delta-8 THC products

Images (2)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

March 25, 2024 in Assembled readings on specific topics, 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)

Thursday, March 21, 2024

Student presentation examines for federal marijuana rescheduling could impact immigration enforcement

Download (1)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

March 21, 2024 in Assembled readings on specific topics, Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)

Friday, January 12, 2024

Federal government makes public documentation behind HHS recommendation to reschedule marijuana

DownloadAs 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.

January 12, 2024 in Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Thursday, January 4, 2024

Now for some marijuana year-in-preview pieces

Friday, December 29, 2023

Reviewing some marijuana year-in-review stories

Tuesday, November 7, 2023

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

22068050-election-day-celebration-star-vectorLater 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!

November 7, 2023 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Wednesday, September 27, 2023

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

No-SAFE-Banking-On-The-NDAAAs reported here by Marijuana Moment, the "Senate Banking Committee has approved a bipartisan marijuana banking bill with amendments, sending it to the floor."  Here are some details:

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

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

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

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

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

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

Tuesday, September 12, 2023

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

I was asked to post this call for papers, which I am happy to do:

Tulsa Law Review, in conjunction with the University of Tulsa College of Law and the University of Tulsa, is hosting a Symposium on Cannabis Law and Policy on March 1, 2024.

Theme: Contemporary Cannabis: Wading Through a Post-Prohibition Era

Tulsa Law Review invites interested parties to write and submit relevant articles for publication consideration in our 2024 Symposium Issue.  One panel will focus on evidentiary and interdisciplinary issues with the increasing legalization of cannabis at the medical and recreation level.  The other panel will discuss legalization at the state level and its effects on corporate and banking spheres.

With the recent announcement of the US Department of Health and Human Services’ recommendation to reclassify marijuana as a Schedule III substance, we are excited to facilitate a thoughtful discussion and a variety of papers surrounding this timely topic.

Questions and paper proposals should be submitted to Cameron Skinner, Tulsa Law Review symposium editor, [email protected]

September 12, 2023 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical community perspectives, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

"A Prescription for Progress? Would a Schedule III Reclassification of Psychoactive Cannabis Help or Hurt State Operators?"

The title of this post is the title of this timely new paper now on SSRN and authored by Benton Bodamer, who is a member of Dickinson Wright PLLC and an Adjunct Professor of Law at OSU and affiliated with the Drug Enforcement Policy Center. Here is its abstract:

On August 30, 2023, the U.S. Department of Health and Human Services (HHS) concluded a scheduling review of psychoactive cannabis and recommended that the Drug Enforcement Administration “reschedule” psychoactive cannabis from Schedule I to Schedule III under the Controlled Substances Act.  The next 6 to 12 months could be among the most transformative for the U.S. cannabis industry, but progress is unlikely to come without regulatory confusion, conflicts of federal laws, and unintended consequences.  This paper aims to answer major questions that remain following the release of HHS’s statement, including why psychoactive cannabis was on Schedule I given its medical uses, whether a move to Schedule III effectively legalizes existing state-compliant cannabis companies, if relief from 280E tax or advertising restrictions are likely, and whether a move to Schedule III opens up banking for existing cannabis companies.  The paper ends with a look at the road ahead.

September 12, 2023 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Tuesday, September 5, 2023

Some press accounts of impact of marijuana possible movement to Schedule III of the CSA

As noted in this prior post, the U.S. Department of Health and Human Services is officially recommending that marijuana be moved from Schedule I to Schedule III under federal law.  A number of media outlets and other sources have done useful  reviews of what this means for marijuana law and policy, and here is a round up of some pieces:

From the AP, "US regulators might change how they classify marijuana. Here’s what that would mean"

From Foley Hoag, "The Cannabis Rescheduling Recommendation: What it Means and What’s Next"

From Forbes, "What Would The Reclassification Of Marijuana Mean For The Industry?"

From Harris Bricken, "Three Myths and Three Facts on the HUGE Marijuana Rescheduling Recommendation"

From Marijuana Moment, "Moving Marijuana To Schedule III Could Have Sweeping Impacts For Businesses, Federal Employees, Research And More"

From MSNBC, "What the federal 'rescheduling' of cannabis would (and wouldn't) mean"

From Vox, "Marijuana could be classified as a lower-risk drug. Here’s what that means."

From the Washington Post, "Possible easing of marijuana restrictions could have major implications"

September 5, 2023 in Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (1)

Wednesday, August 30, 2023

Press reporting key US Agency (HHS) is recommending moving marijuana from Schedule I to III

Images (1)This new Marijuana Moment piece report that "the U.S. Department of Health and Human Services (HHS) is officially recommending that marijuana be moved from Schedule I to Schedule III under federal law — a historic development that means the top health agency no longer considers cannabis to be a drug with high abuse potential and no medical value."  Here is more on this significant federal marijuana reform news:

After completing a scientific review into cannabis under a directive from President Joe Biden last year, HHS is now telling the Drug Enforcement Administration (DEA) that it believes marijuana should be placed in Schedule III of the Controlled Substances Act (CSA). The recommendation is not binding, and DEA has the final say, but the scientific analysis combined with growing political support for cannabis reform may well influence DEA to make the change.

As a Schedule III drug, cannabis would still remain federally prohibited. However, the rescheduling would have major implications for researchers who’ve long criticized the Schedule I classification that creates significant barriers to access for studies. Moving cannabis to Schedule III would also unlock marijuana industry tax opportunities that are currently unavailable.

“We can confirm DEA received a letter from the Department of Health and Human Services providing its findings and recommendation on marijuana scheduling, pursuant to President Biden’s request for a review,” a DEA spokesperson told Marijuana Moment on Wednesday. “As part of this process, HHS conducted a scientific and medical evaluation for consideration by DEA. DEA has the final authority to schedule or reschedule a drug under the Controlled Substances Act. DEA will now initiate its review.”

The Food and Drug Administration (FDA) under HHS led the scientific review that led to the Schedule III recommendation. According to Bloomberg, which first reported the development, HHS Assistant Secretary for Health Rachel Levine, who advocated for medical cannabis as Pennsylvania’s health secretary before joining the Biden administration, sent a letter to DEA on Tuesday about the Schedule III recommendation that referenced FDA’s review. The development comes two months after HHS Secretary Xavier Becerra told Marijuana Moment that his agency was aiming to wrap up the review by the end of the year.

A White House spokesperson told Marijuana Moment on Wednesday that the “administrative process is an independent process led by HHS and DOJ and guided by the evidence,” so president’s team will not be commenting on the agency’s recommendation at this time....

There would be both practical and political implications of a Schedule III reclassification if DEA goes along with HHS’s recommendation. For researchers, this would mean that they would no longer need to go through the onerous registration process with DEA in order to access cannabis for studies as a Schedule I drug.... For the industry, the reclassification would allow them to make federal tax deductions that are currently prohibited for businesses involved in the sale of Schedule I or II drugs. Because of this prohibition, the cannabis industry has faced a significantly higher effective tax rate, and state governments have taken it upon themselves to provide state-level tax relief for their regulated markets.

Politically, moving marijuana from Schedule I to Schedule III would allow the president to say that he’s helped accomplish a major reform, facilitating an administrative review that may result in rescheduling more than 50 years after cannabis was placed in the most restrictive category as the federal government launched a war on drugs. This could also bolster momentum for congressional efforts to further reform federal cannabis laws. As lawmakers come back from the August recess and continue to try to pass cannabis banking legislation, they will be able to point to the HHS recommendation as evidence of the urgency to normalize the industry....

Of course, advocates’ highest hopes for the HHS review was that it would lead to a descheduling recommendation, where marijuana would be completely removed from the CSA and treated the same as alcohol in the eyes of the government. Some have also voiced concerns that a Schedule III reclassification could negatively impact state markets, with FDA potentially assuming a more hands-on role with respect to cannabis.

August 30, 2023 in Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Tuesday, August 29, 2023

"A Second Amendment Angle of Cannabis Prohibition: Are State-Compliant Marijuana Users Being Denied the Right to Keep and Bear Arms?"

I continue to be excited to post some the latest papers from the on-going series of student papers supported by the Drug Enforcement and Policy Center in order to highlight great work by OSU law students and recent graduates on many important and cutting-edge topics.   The title of this post is the title of this paper authored by Katie Schaefer, who is in her final year as a student at The Ohio State University Moritz College of Law.  Here is its abstract:

Although individual states have not necessarily legislated that possessing a gun is unlawful for state compliant marijuana users, cannabis’s federal illegality produces this result.  The process for obtaining a gun – regardless of what state the individual resides in – requires the individual to fill out the Federal Bureau of Alcohol, Tobacco, and Firearms’ Form 4473.  Form 4473 question 21g, as mandated by 18 U.S.C. § 922(g)(3), disqualifies cannabis users from purchasing a firearm.

Consequently, individuals who are fully in compliance with the marijuana laws in their home state are being stripped of their Second Amendment right, regardless of if the plant is being used for medicinal or adult use purposes.  Therefore, marijuana users who wish to possess a gun have three options: stop using marijuana entirely, stop using state compliant marijuana and instead obtain it from an illicit source, or lie.  Although ATF agents and prosecutors report that due to limited resources, they are not inclined to prioritize the nonviolent crime of lying on a form over more serious charges, lying on the form and obtaining a gun while being a cannabis user remains a federal felony offense.

In the wake of Bruen, litigation on this matter has so far been leaning in favor of gun rights activists.  But there remain many unanswered questions in this area.  The implications of either a legitimization of state-legal marijuana use on the federal level (while the plant remains on schedule I), or of an acknowledgement that the gun control/background check process can be changed, could be massive.

August 29, 2023 in Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Thursday, August 24, 2023

"Ending Federal Marijuana Prohibition Through Administrative Action"

The title of this post is the title of this notable new paper authored by Scott Bloomberg, Alexandra Harriman and Shane Pennington.  Here is its abstract:

In October 2022, President Biden requested that the Secretary of Health and Human Services and the Attorney General initiate a procedure to review how marijuana is scheduled under the federal Controlled Substances Act (“CSA”).  The announcement was historic.  After more than fifty years of federal prohibition, decades of advocacy and litigation from reform groups, and dozens of stalled efforts in Congress, a President finally decided to wield the Executive Power with an eye towards rescheduling or descheduling marijuana.  But just how far does that power go?

That question has been severely underexplored in legal scholarship.  Indeed, our Article is the first to fully navigate the thicket of statutory and administrative law that dictates the scope of the President’s power to unilaterally reschedule or deschedule marijuana.  In doing so, we conclude that the CSA’s administrative drug-scheduling procedure is much broader than prior scholarship has led on.  We identify several avenues for the President to move marijuana to a less restrictive schedule and highlight a narrower pathway to deschedule marijuana entirely.

These findings are of immediate relevance.   They can help guide the Executive Branch as it reconsiders how marijuana is scheduled and will prove useful to courts when the Biden Administration’s eventual decision is, inevitably, subjected to judicial review.

August 24, 2023 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Saturday, July 1, 2023

"Why National Cannabis Legalization Is Still A Decade Away"

-1x-1The title of this post is the title of this new Forbes commentary by Will Yakowicz that provides an astute review of justice some of the reasons not to be very bullish about federal cannabis reform.  I recommend the piece in full, and here are a few excerpts:

Marijuana is still illegal federally for a very simple reason.  “Politicians just don't really care,” says Paul Armentano, the deputy director of nonprofit legalization advocacy group NORML.  “It's just not on their priority list.  If it were, they would address it. They don't because it isn't. It’s simple stuff.”

Over the last 30 years, 23 states have legalized recreational use and 38 now allow some form of medical marijuana, but the Senate has never held a single vote on legislation to decriminalize — or legalize — cannabis, despite the fact that some 88% of the American public believe it should be legal.

As for President Biden’s request for HHS to review marijuana’s classification as a Schedule I narcotic, Armentano says he’s been through multiple re-scheduling petitions, which have all been denied by the Drug Enforcement Administration.  The DEA has final approval over any rescheduling petition.

It gets more bureaucratically tangled from there.  One of the key benchmarks marijuana must pass is whether it has recognized medical use in the United States.  The only acceptable definition of medical utility in the U.S., according to the federal government, is approval by the U.S. Food and Drug Administration. “That's the federal government's position: no medical utility absent FDA approval,” Armentano says. “There's not going to be FDA approval of cannabis, at least not botanical raw plant cannabis.”

July 1, 2023 in Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)