Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Thursday, May 30, 2019

Split Second Circuit panel gives small victory to medical marijuana users while turning away their high-profile court challenge to Schedule I placement

I have noted in a number of prior posts linked below the notable lawsuit seeking to ensure legal access to medical marijuana that was filed in federal district court in New York in July 2017 (first discussed in this post.)   In February of 2018, as noted in this post, US District Judge Alvin Hellerstein dismissed the suit, ruling the litigants had "failed to exhaust their administrative remedies” while concluding that "it is clear that Congress had a rational basis for classifying marijuana in Schedule I."  In response to that ruling, I said "plaintiffs in this suit could appeal this dismissal to the US Court of Appeals for the Second Circuit, and doing so would likely keep the case in the headlines [but] I am not optimistic it would achieve much else."  

In fact, an appeal was brought to the Second Circuit, and it did achieve something: an interesting split panel ruling that provides an interesting small victory to the plaintiffs despite ultimately failing to provide an real relief.  Specifically, the majority opinion authored by Judge Guido Calabresi in Washington v. Barr, No. 18-859 (2d Cir. May 30, 2019) (available here), gets started this way:

This is the latest in a series of cases that stretch back decades and which have long sought to strike down the federal government’s classification of marijuana as a Schedule I drug under the Controlled Substances Act (CSA), 2 U.S.C. § 801 et seq. See, e.g., Krumm v. Drug Enforcement Admin., 739 F. App’x 655 (D.C. Cir. 2018) (mem.); Ams. for Safe Access v. Drug Enforcement Admin., 706 F.3d 438 (D.C. Cir. 2013); Alliance for Cannabis Therapeutics v. Drug Enforcement Admin., 15 F.3d 1131 (D.C. Cir. 1994) (mem.).  The current case is, however, unusual in one significant respect: among the Plaintiffs are individuals who plausibly allege that the current scheduling of marijuana poses a serious, life‐or‐death threat to their health.  We agree with the District Court that Plaintiffs should attempt to exhaust their administrative remedies before seeking relief from us, but we are troubled by the Drug Enforcement Administration (DEA)’s history of dilatory proceedings.  Accordingly, while we concur with the District Court’s ruling, we do not dismiss the case, but rather hold it in abeyance and retain jurisdiction in this panel to take whatever action might become appropriate if the DEA does not act with adequate dispatch.

Judge Jacobs dissents from the panel's failure to just dismiss the lawsuit, and his opinion starts this way:

The plaintiffs seek a declaration that the classification of marijuana as a Schedule 1 substance is unconstitutional because it does not reflect contemporary learning regarding the drug’s medicinal uses.  I agree with the District Court that this case must be dismissed for failure to exhaust administrative remedies in the Drug Enforcement Agency (“DEA”).  The majority opinion does not actually disagree, though it seems to treat lack of jurisdiction as a prudential speed bump. I dissent from the majority opinion’s decision to hold the case in abeyance so that we may turn back to it if, at some future time, we get jurisdiction.

Prior related posts:

May 30, 2019 in Court Rulings, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Wednesday, May 22, 2019

"Half-Baked: The Science and Politics of Legal Pot"

The title of this post is the title of this new article authored by Joelle Anne Moreno and now available via SSRN. Here is its abstract:

Weed, herb, grass, bud, ganja, Mary Jane, hash oil, sinsemilla, budder, and shatter.  Marijuana – whether viewed as a medicine or intoxicant – is fast becoming a part of everyday life, with the CDC reporting 7,000 new users every day and the American market projected to grow to $20 billion by 2020.  Based on early campaign rhetoric, by that same year the U.S. could have a pro-marijuana president.

Despite its growing acceptance and popularity, marijuana remains illegal under federal law.  Like heroin, LSD, and ecstasy, marijuana is a DEA Schedule I drug reflecting a Congressional determination that marijuana is both overly addictive and medically useless.

So what is the truth about pot?  The current massive pro-marijuana momentum and increased use, obscures the fact that we still know almost nothing about marijuana’s treatment and palliative potential.  Marijuana’s main psychoactive chemical is THC; but it also contains over 500 other chemicals with unknown physiological and psychological effects that vary based on dosage and consumption method.  Medical marijuana may be legal in 32 states and supported by 84% of Americans, but federal constraints shield marijuana from basic scientific inquiry.  This means that lawmakers and voters are enthusiastically supporting greater access to a drug without demanding critical scientific data.  For policymaking purposes, this data should include marijuana’s short and long-term brain effects, possible lung and cardiac implications, chemical interactions with alcohol and other drugs, addiction risks, pregnancy and breast-feeding concerns, and the effects of secondhand smoke.

This Article treats marijuana as a significant contemporary science and law problem.  It focuses on the fundamental question of regulating a substance that has not been adequately researched.  The Article examines the extant scientific data, deficiencies, and inconsistencies and explains why legislators should not rely on copycat laws governing alcohol or prescription narcotics.  It also explores how marijuana’s hybrid federal (illegality)/state (legality) raises compelling theoretical and practical Constitutional questions of preemption, the anti-commandeering rule, and congressional spending power.  Marijuana legalization has, thus far, been treated as a niche academic concern.  This approach is short-sighted and narrowminded.  Marijuana regulation implicates the reach of national drug policy, the depth of state sovereignty, and the shared obligation to ensure the health and safety of our citizenry.

May 22, 2019 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)

Tuesday, May 21, 2019

New issue brief calls for "Using Marijuana Revenue to Create Jobs"

Download (25)As detailed in this press release, yesterday "the Center for American Progress released a new issue brief calling for states and the federal government to use marijuana tax revenue to fund the creation of thousands of public sector jobs in low-income communities of color that have been historically deprived of economic opportunity due to discriminatory drug enforcement."  Here is more from the release:

The issue brief proposes a tangible way to pay for the creation of jobs in communities that have experienced the heaviest consequences of disparate criminal enforcement of marijuana.  The authors calculate that annual tax revenues from the regulated marijuana market in California and Washington state, for example, could create nearly 20,000 jobs.  This number is sure to increase as more and more Americans — 68 percent, according to a 2018 CAP/GBAO Strategies poll — favor marijuana legalization and more states consider legalizing the recreational use of marijuana as well as creating a regulated marijuana market.

The proposal is an outgrowth of CAP’s 2018 report, “Blueprint for the 21st Century: A Plan for Better Jobs and Stronger Communities,” which called for a massive investment in public sector  job creation and a jobs guarantee for highly distressed communities.

The brief further describes the need to ensure that any marijuana legalization effort leads with provisions that ensure racial equity and correct injustices that have resulted from the war on drugs.  Key recommendations include providing automatic and cost-free expungements of marijuana arrest and conviction records; reinvesting in essential services for communities most harmed by the war on drugs; and promoting equitable licensing systems and funding for minority-owned businesses.  These measures would greatly help people who face barriers to economic opportunity, employment, and other basic necessities due to the collateral consequences of a marijuana-related conviction.

The full eight-page issue brief is titled “Using Marijuana Revenue to Create Jobs” and is authored by Maritza Perez, Olugbenga Ajilore, and Ed Chung. Here is its conclusion:

Today, states are raking in billion-dollar profits for activity that sent millions of African American and Latinx individuals into the criminal justice system, trapping their families and communities in poverty for generations.  The movement to legalize marijuana presents an opportunity both to achieve justice for and to build economic opportunity in these communities.  Creating public sector jobs and other policies outlined in this issue brief acknowledge the economic impact that the war on drugs has had on low-income people of color.  With these policies, elected leaders can begin to address the structural barriers that states must rupture so that individuals from some of their most vulnerable communities have equal access to economic opportunity.

May 21, 2019 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Taxation information and issues | Permalink | Comments (0)

Friday, May 3, 2019

"Clearing the Air About Marijuana in Qualified Opportunity Zones"

The title of this post is the title of this interesting short piece that is available on SSRN and is a reprint from the Tax Management Real Estate Journal.  The piece is authored by Libin Zhang, and here its abstract:

The law formerly known as the Tax Cuts and Jobs Act of 2017 created qualified opportunity zones (QOZs), which are low-income census tracts in which certain investments by qualified opportunity funds (QOFs) are provided tax benefits.  The investments generally cannot include any golf course, country club, massage parlor, hot tub facility, suntan facility, racetrack or other facility used for gambling, or store the principal business of which is the sale of alcoholic beverages for consumption off premises (some practitioners refer to such businesses as "sin businesses," but this article uses the non-judgmental and less anti-golf term of "excluded business.")

Some commentators have stirred the pot by questioning the extent that QOFs can be involved in marijuana businesses.  While the QOZ rules have their hazy areas, the excluded businesses should not include marijuana activities.

However, section 280E may disallow deductions for taxpayers that buy and sell marijuana. QOFs should ensure that they deal with marijuana in a different capacity, such as in a real estate rental business, in order to ensure that their deductions do not go up in smoke.

May 3, 2019 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Taxation information and issues | Permalink | Comments (0)

Monday, April 29, 2019

"Marijuana Banking in New York and Around the U.S.: 'Swim at Your Own Risk'"

The title of this post is the title of this paper just posted to SSRN authored by Jordan Hoffman, who is a student at The Ohio State University Moritz College of Law.  This is the second of what will be an on-going series of student papers supported by Drug Enforcement and Policy Center.  (The first paper in the series was authored by Shelby Slaven under the title "The Canna(business) of Higher Education.") 

Here is the abstract of this new paper on marijuana banking:

Today, banking in any way relating to marijuana is a violation of federal law.  Conflicting laws and guidance from the federal and state governments threatens the welfare and success of a billion-dollar industry.  Analyzing the current marijuana banking laws, regulations, and practices in New York and around the US provides a glimpse into an industry suffocating from public pressures and overpowering economic tides.  To protect and uphold the integrity of our government and the agencies it deems controlling, the federal government must reform marijuana banking.

April 29, 2019 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, April 9, 2019

"The Good, the Bad, and the Ugly: Why IRC § 280E is not the Industry Killer it is Portrayed to be"

The title of this post is the title of a presentation to be made by one of my students in my Marijuana Law, Policy & Reform seminar this coming week.  Here is part of his explanation of his topic and links to some background reading:

State legalization of marijuana, and the rising prevalence of marijuana businesses, has continually thrust Internal Revenue Code (IRC) § 280E into the spotlight.  Many scholars have argued for the provision’s abolishment, but the IRS’s staunch stance remains unyielding.  The literature seems to suggest a tacit assumption that IRC § 280E will remain a hurdle if/until marijuana is removed from Schedule I.  Although IRC § 280E is a hurdle, other mechanisms are shifting to allow marijuana businesses to be successful despite this tax provision. 

For example, in many cases, the Tax Cuts and Jobs Act of 2017 did more for marijuana businesses than a repeal of IRC § 280E would have.  Yes, marijuana businesses are still worse off than other businesses from a tax perspective, but marijuana’s competition is not necessarily other sectors, it is the black market.  There is something to be said for the fact that the marijuana industry continues to grow, despite claims of IRC § 280E making growth “impossible.”  However, the primary focus of this paper is not to explain why IRC § 280E predictions were incorrect, it is to look forward at why and how the industry can continue to succeed regardless of IRC § 280E.

Background Reading

April 2015 white paper by the National Cannabis Industry Association, "Internal Revenue Code 280E: Creating An Impossible Situation For Legitimate Businesses": Download 2015-280E-White-Paper

Fortune article, "The Marijuana Industry’s Battle Against the IRS"

2015 IRS Memo on IRC § 280E

Cannabis Business Times article, "Tax Court Reinforces IRS Code 280E in Harborside Ruling"

Memo from Rosenberg Martin Greenberg law firm, "Are Owners of Cannabusinesses Eligible for the Qualified Business Income Deduction Under Section 199A?"

April 9, 2019 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Taxation information and issues | Permalink | Comments (1)

Friday, April 5, 2019

Will the new, reintroduced version of the STATES Act be able to get even a hearing in Congress?

Supportstates-copy-300x300The question in the title of this post was my reaction of this news out of Congress as reported here by Marijuana Moment:

Reps. Earl Blumenauer (D-OR) and David Joyce (R-OH) filed the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act, appearing alongside cosponsors Reps. Barbara Lee (D-CA) and Joe Neguse (D-CO) at a press conference. Sen. Cory Gardner (R-CO) and Elizabeth Warren (D-MA) filed the Senate version of the bill.... The legislation would amend the Controlled Substances Act to protect people complying with state legal cannabis laws from federal intervention, and the sponsors are hoping that the bipartisan and bicameral nature of the bill will advance it through the 116th Congress.

“I’ve been working on this for four decades. I could not be more excited,” Blumenauer told Marijuana Moment in a phone interview. While other legislation under consideration such as bills to secure banking access for cannabis businesses or study the benefits of marijuana for veterans are “incremental steps that are going to make a huge difference,” the STATES Act is “a landmark,” he said....

The congressman said it will take some time before the bill gets a full House vote, however. Rep. Jim McGovern (D-MA) recently suggested that the legislation would advance within “weeks,” but Blumenauer said it will “be a battle to get floor time” and he stressed the importance of ensuring that legislators get the chance to voice their concerns and get the answers they need before putting it before the full chamber. “We want to raise the comfort level that people have. We want to do it right,” he said. “There’s no reason that we have to make people feel like they’re crowded or rushed.”...

Asked whether he’d had conversations with House Speaker Nancy Pelosi (D-CA) about moving cannabis bills forward this Congress, Blumenauer said there’s been consistent communication between their offices and that the speaker is “very sympathetic” to the issue and “understands the necessity of reform.”

There are 26 initial cosponsors — half Democrats and half Republicans—on the House version. Reps. Ro Khanna (D-CA), Lou Correa (D-CA), Ed Perlmutter (D-CO), Matt Gaetz (R-FL) and Don Young (R-AK) are among those supporters. The previous version ended the 115th Congress with 45 cosponsors.

On the Senate side, there are 10 lawmakers initially signed on: Warren and Gardner, along with Sens. Catherine Cortez Masto (D-NV), Michael Bennet (D-CO), Amy Klobuchar (D-MN), Ron Wyden (D-OR), Dan Sullivan (R-AK), Kevin Cramer (R-ND), Lisa Murkowski (R-AK) and Rand Paul (R-KY)....

For the most part, the latest versions of the legislation are identical to the previous Congress’s bills, though there are two exceptions. Previously, there was a provision exempting hemp from the definition of marijuana, but that was removed—presumably because it is no longer needed in light of the passage of the 2018 Farm Bill, which federally legalized the crop.

The bigger change is that the new version contains a section that requires the Government Accountability Office to conduct a study on the “effects of marihuana legalization on traffic safety.” Among other data points, the office would be directed to collect info on “traffic crashes, fatalities, and injuries in States that have legalized marihuana use, including whether States are able to accurately evaluate marihuana impairment in those incidents.” A report on those effects would be due one year after the law is enacted.

This article in Roll Call, headlined "Marijuana bill could help Cory Gardner’s re-election chances. Will Senate GOP leaders get behind it?," provides some more insights into the politics in play. Here are excerpts:

The bill’s sponsors are confident the bill can pass — if it comes up for a vote. “If we get it on the floor of the Senate, it passes,” said Gardner. “If we get it on the floor of the House, it passes.”...

Gardner acknowledged the bill will have a harder time in the GOP-controlled Senate than in the Democrat-led House, saying he was working to convince Judiciary Chairman Lindsey Graham to advance the bill and Majority Leader Mitch McConnell to eventually allow it to come to a floor vote. Graham, asked about the bill, said he hadn’t thought about marking it up. “I’m not very excited about it,” the South Carolina Republican said....

Gardner is up for re-election in 2020 in a state that legalized recreational marijuana, and allowing him a legislative win could help the GOP retain control of the Senate. On the other hand, Republican leadership may be loath to give some Democratic co-sponsors running in 2020 — whether for re-election or the presidency — political victories.

If Congress passes the proposal, Gardner said President Donald Trump will sign it. “The president has been very clear to me that he supports our legislation,” Gardner said. “He opposed the actions that were taken by the Attorney General [Jeff Sessions] to reverse the Cole memorandum and believes we have to fix this.” The Cole memorandum is Justice Department guidance against prosecuting federal marijuana laws in states that have legalized it.

April 5, 2019 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Sunday, March 31, 2019

Federal scheduling and research challenges for cannabis and psychedelics

The second of four student presentation this coming week in my Marijuana Law, Policy & Reform seminar will focus on  federal scheduling under the Controlled Substances Act and the research and market realities impacted by the placement of marijuana in Schedule I.  Here is how my student has summarized his topic, along with the background readings he has provided:

The placement of cannabis in Schedule I practically prevents comprehensive and meaningful research into its medical applications and potential harms.  The federal government cites cannabis' placement in Schedule I as the reason rigorous research must be conducted before it can be rescheduled, but places restrictions on its research, because of its schedule, that are nearly impossible to overcome.  Is there an alternative pathway to federal cannabis legalization, or at least rescheduling, so that more meaningful research can be conducted? 

My presentation will examine U.S. drug scheduling, looking at the criteria and examples of substances in each schedule.  I will then provide an overview of the FDA research model by which new drugs come to market, contrast it with the type of research conducted on cannabis, and discuss why meaningful, rigorous research into cannabis is so difficult.  With this background, I will discuss the findings of a former UK drug-policy adviser that suggests substantial rescheduling is necessary, and how these findings helped initiate research into other Schedule I drugs.  Finally, I will provide an overview of research into other Schedule I substances, particularly psychedelics, and how this research may accelerate the rescheduling or federal legalization of cannabis so that its impact on health may be studied more effectively.

Background Resources:

March 31, 2019 in Assembled readings on specific topics, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Data and Research, Recreational Marijuana Data and Research, Who decides | Permalink | Comments (1)

Monday, March 25, 2019

"The Effect of Marijuana Use on American Veterans with PTSD, and How the U.S. Department of Veterans Affairs Ought to Respond"

The title of this post is the title of a presentation to be made by one of my students in my Marijuana Law, Policy & Reform seminar this coming week.  Here is part of his explanation of his topic and links to some background reading:

Because the U.S. Department of Veterans Affairs (VA) is required to follow all federal laws, the VA is prohibited from prescribing, recommending, or assisting veterans in obtaining marijuana.  While veterans may discuss marijuana use with VA providers, VA doctors cannot help their patients participate in a state medical marijuana program and veterans cannot obtain reimbursement funding through the VA when they seek medical marijuana from state programs.

The inability of the VA to prescribe or recommend marijuana to American veterans with PTSD denies former service members an opportunity to receive treatment that many veterans not only want, but which also has the potential to be safer than the VA’s history of doling out addictive prescription drugs such as opioids, antidepressants, and anti-anxiety pills.  PTSD is a serious disease that is relatively common among combat veterans — it causes varying symptoms such as flashbacks, nightmares, severe anxiety, and uncontrollable thought about a triggering event.

The medical research in this arena has reached mixed findings.  While some researchers have found that the use of medical marijuana by veterans with PTSD has positive results, other studies suggest that marijuana use by those with PTSD may actually make symptoms worse.  There simply has not been enough controlled studies to conclusively state whether marijuana is beneficial for those with PTSD.  Nonetheless, there is plenty of anecdotal evidence by veterans suggesting that their use of marijuana has improved, or in some cases eliminated, symptoms associated with their PTSD.  Fortunately, the first clinical trial of marijuana for American veterans with PTSD is currently underway in Colorado.  My presentation will suggest that we need more controlled clinical trials such as this to further identify whether marijuana could (or should) truly be used as a remedy for veterans with PTSD.

* Medical journal article, "Post-Traumatic Stress Disorder" (discussing what PTSD is and various treatment options, including cannabis).

* Medical journal article, "Use and effects of cannabinoids in military veterans with posttraumatic stress disorder"(reviewing several studies and noting that while there is a need for more randomized and controlled studies, some PTSD patients report benefits in terms of reduced anxiety and insomnia and improved coping ability).

* Medical journal article, "Posttraumatic Stress Disorder and Cannabis Use Characteristics among Military Veterans with Cannabis Dependence" (exploring the negative effects of treating PTSD with marijuana and finding that individuals with PTSD may have a particularly difficult experience when attempting to quit marijuana).

* Medical journal article, "Marijuana and other cannabinoids as a treatment for posttraumatic stress disorder: A literature review" (explaining that conclusions cannot yet be drawn about the therapeutic effects of marijuana and related cannabinoids for PTSD; suggesting that rapidly changing legal landscape will permit promising clinical research).

* Medical journal article, "A review of medical marijuana for the treatment of posttraumatic stress disorder: Real symptom re-leaf or just high hopes?" (finding some positive data for use of marijuana for PTSD but also noting conflicting findings and limits of studies conducted thus far).

* Report on study, "Marijuana for Symptoms of PTSD in U.S. Veterans" (first clinical trial of marijuana for PTSD in American veterans underway).

* Recent Weedmaps article, "Marijuana Study Findings Could Hold Promise for Veterans With PTSD" (noting that MAPS study mentioned above could pave the way toward an FDA-approved prescription medicine; anecdotal evidence of veteran using black market rather than expensive medical marijuana program in CA)

March 25, 2019 in Federal Marijuana Laws, Policies and Practices, Medical community perspectives, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Thursday, February 28, 2019

Senator Cory Booker introduces "Marijuana Justice Act of 2019"

D0frrINXQAI1noaAs reported in this press release, US Senator Cory Booker has joined with a number of other Democrats to formally introduce his social-justice-oriented federal marijuana reform bill.  Here are comments from the bill's sponsors (many of whom are running for President) from the press release, as well as some particulars and a link to the full bill:

U.S. Senator Cory Booker (D-NJ), a member of the Senate's Judiciary Committee, Rep. Barbara Lee (D-CA), Co-Chair of the Congressional Cannabis Caucus, and Rep. Ro Khanna (D-CA), today reintroduced their landmark bill to end the federal prohibition on marijuana.

In the Senate, the bill is cosponsored by Senators Ron Wyden (D-OR), Kirsten Gillibrand (D-NY), Bernie Sanders (I-VT), Kamala Harris (D-CA), Jeff Merkley (D-OR), Elizabeth Warren (D-MA), and Michael Bennet (D-CO).

"The War on Drugs has not been a war on drugs, it's been a war on people, and disproportionately people of color and low-income individuals," said Booker.  "The Marijuana Justice Act seeks to reverse decades of this unfair, unjust, and failed policy by removing marijuana from the list of controlled substances and making it legal at the federal level."

"But it's not enough to simply decriminalize marijuana.  We must also repair the damage caused by reinvesting in those communities that have been most harmed by the War on Drugs.  And we must expunge the records of those who have served their time.  The end we seek is not just legalization, it's justice."

"The War on Drugs has destroyed lives, and no one continues to be hurt more than people of color and low-income communities," said Wyden. "There is a desperate need not only to correct course by ending the failed federal prohibition of marijuana, but to right these wrongs and ensure equal justice for those who have been disproportionately impacted."

"Millions of Americans' lives have been devastated because of our broken marijuana policies, especially in communities of color and low-income communities," said Gillibrand. "Currently, just one minor possession conviction can take away a lifetime of opportunities for jobs, education, and housing, tear families apart, and make people more vulnerable to serving time in jail down the road.  It is shameful that my son would likely be treated very differently from one of his Black or Latino peers if he was caught with marijuana, and legalizing marijuana is an issue of morality and social justice.  I'm proud to work with Senator Booker on this legislation to help fix decades of injustice caused by our nation's failed drug policies."

"As I said during my 2016 campaign, hundreds of thousands of people are arrested for possession of marijuana every single year," said Sanders. "Many of those people, disproportionately people of color, have seen their lives negatively impacted because they have criminal records as a result of marijuana use. That has got to change. We must end the absurd situation of marijuana being listed as a Schedule 1 drug alongside heroin. It is time to decriminalize marijuana, expunge past marijuana convictions and end the failed war on drugs."

"Marijuana laws in this country have not been applied equally, and as a result we have criminalized marijuana use in a way that has led to the disproportionate incarceration of young men of color. It's time to change that," said Harris. "Legalizing marijuana is the smart thing to do and the right thing to do in order to advance justice and equality for every American."

"Marijuana should be legalized, and we should wipe clean the records of those unjustly jailed for minor marijuana crimes. By outlawing marijuana, the federal government puts communities of color, small businesses, public health and safety at risk." said Warren.

"This long-overdue change will help bring our marijuana laws into the 21st century. It's past time we bring fairness and relief to communities that our criminal justice system has too often left behind." said Bennet....

The Marijuana Justice Act seeks to reverse decades of failed drug policy that has disproportionately impacted low-income communities and communities of color. Beyond removing marijuana from the list of controlled substances - making it legal at the federal level - the bill would also automatically expunge the convictions of those who have served federal time for marijuana use and possession offenses, and it would reinvest in the communities most impacted by the failed War on Drugs through a community fund. This community reinvestment fund could be used for projects such as job training programs, re-entry services, and community centers.

The bill would also incentivize states through the use of federal funds to change their marijuana laws if those laws were shown to have a disproportionate effect on low-income individuals and/or people of color.

By going further than simply rescheduling marijuana with expungement and community reinvestment, Booker, Lee, and Khanna's bill is the most far-reaching marijuana legislation ever to be introduced in Congress.

The bill is retroactive and would apply to those already serving time behind bars for marijuana-related offenses, providing for a judge's review of marijuana sentences.

Full text of the bill is here.

The Marijuana Justice Act of 2019 looks nearly identical to the Marijuana Justice Act of 2017, so prior commentary of the MJA as in prior posts here and here remain germane.

February 28, 2019 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

"All 2020 presidential candidates now support marijuana legalization efforts — even the Republicans"

Download (2)The title of this post is the title of this recent Boston Globe piece. Here are excerpts:

When it comes to marijuana, Elizabeth Warren of 2012 would probably not recognize Elizabeth Warren of 2019.

Seven years ago, Warren opposed legalization. In 2015, the US senator from Massachusetts said she was “open” to it. In 2016, she said, she voted for it privately at the ballot box. Now she’s one of marijuana’s top cheerleaders on Capitol Hill, championing a measure to protect the pot industry in states where it’s legal.

Warren’s evolution is not unique — in fact, 2020 will see the first US presidential race in which every candidate, at least so far, favors some path to legalization.

All 12 official Democratic candidates, as well as the potential Republican hopeful and former Massachusetts governor Bill Weld, told the Globe they now support full nationwide legalization, Canada-style. President Trump, meanwhile, has said he supports states’ rights to legalize.

“There’s been a tremendous evolution — marijuana legalization, if you look back, was really something for fringe candidates,” said John Lapp, a Democratic national campaign strategist.“It’s just not very controversial at all now.”

For Democrats, especially, being for cannabis legalization might be as much of a litmus test in 2020 among voters as is being for abortion rights. But they must face their past stances with honesty, political strategists say. In 2008, now-US Senator Kamala Harris touted her high conviction rates for drug dealers as a district attorney, and Joe Biden, the former vice president — who is likely to run, but hasn’t announced — was long an evangelist for the war on drugs.

A quarter-century ago, then-presidential candidate Bill Clinton did damage control by saying he tried pot while he was a Rhodes scholar in England, but “didn’t inhale.” Running in 2007, Barack Obama found it politically acceptable to admit he had smoked marijuana as a young man, and “the point was to inhale” — but he called it “a mistake.”’...

Now politicians, particularly Republicans, have a more politically safe way of supporting cannabis: by advocating for states’ rights, said Steve Fox, a cannabis lobbyist with VS Strategies. “At this point, the greatest driving factor at the federal level is simply the fact that it’s legal in so many states,” Fox said.

To combat the rising momentum, the anti-legalization group Smart Approaches to Marijuana is producing a guide for candidates that it says will be backed by medical associations. “Candidates will have a simple choice: They can either follow the pot lobby or they can follow the science,” said executive director Kevin Sabet....

Senator Cory Booker of New Jersey, who has made legalization a core part of his presidential campaign, said his position has much more to do with addressing racial disparities in policing than it does with freedom for recreational use. “I am pleased to see public sentiment moving as it is, but I have an approach to marijuana legalization that sees it as a justice issue and not just as an adult-use issue,” Booker said. “The damage that the enforcement and prohibition has done to our country is outrageous, unacceptable, and violates our values.”...

In New Hampshire this election cycle, candidates are likely to be asked about marijuana, as the Legislature there moves toward possibly passing legalization this year. Governor Chris Sununu, a Republican, has vowed to veto such a measure.

But don’t expect many candidates to focus their campaigns on marijuana. It’s not just safe now — it’s too safe. To stand out in a crowded field, Lapp recommends that a candidate take on affordable health care, immigration, or college debt — “something where there’s some upside and downside, some passion and some risk. I’m just not sure that’s the case with marijuana anymore.”

February 28, 2019 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Monday, February 25, 2019

Perhaps not realizing federal law imposes prohibition, commentary urges someone to "implement a two-year moratorium on further legalization and commercialization of marijuana"

Download (7)This notable new Hill commentary authored by psychiatrist Mitchell Rosenthal, headlined "To ensure public health and safety, impose a two-year moratorium on marijuana legalization," is somewhat sensible as a matter of public policy and is somewhat clueless in light of modern legal realities.  Here are excerpts:

Marijuana legalization is gaining momentum across the country, backed by supportive public opinion, politicians, Wall Street investors and the increasingly influential for–profit cannabis industry.  By 2025, the legal U.S. marijuana market could be a roughly $50 billion business as a cornucopia of cannabis-based products become easily available in shops and online.

But in the rush to legalize marijuana, we are not taking adequate precautions and lack comprehensive and conclusive scientific evidence about what the impact might be.  In today’s largely unregulated environment, for example, marijuana marketers can seemingly tout the purported benefits of pot to relieve anxiety and aches and pains and even treat Alzheimer’s disease, without any oversight, regulation or recourse for disappointed users.

Consumers would be better served if we first implement a two-year moratorium on further legalization to ascertain the potential risks and possible benefits of marijuana. Under the current haphazard laws and rules adopted by states that have legalized, we are simply not able to ensure public health and safety as marijuana becomes mainstream.

Pausing the runaway train of legalization would provide the opportunity to study the impact so far on health and social behavior in legalized states, as well as in Canada, which legalized last year.   We would want a definitive understanding of the effect pot has on everything from driving impairment to workplace performance and learning development in young people....

As a psychiatrist who has treated substance abusers for decades, I understand that calling for a legalization slowdown might suggest a return to the fear-filled Reefer Madness past.  But it is more about being responsible, especially as many clinical studies indicate that pot is not as benign as many would like to believe and can be addictive as well as potentially harmful to the developing teenage brain.

Clearly, the same sensible precautions required of any new drug or food product should also apply to marijuana.  Warning labels, dosage recommendations and information about possible side effects, interactions and potency levels are critical for consumer safety, along with education programs and outreach....

To safeguard public health, we need clarity and consistent guidelines on a federal level for the legalization and commercialization of marijuana.  Questions abound about the appropriate age of consumption, where cannabis should be located — hopefully not near schools and parks and playgrounds — and whether marijuana is an effective treatment for opioid addiction, as many claim.

A two-year moratorium on marijuana legalization would enable us to answer many of these questions and lead to practical and enforceable guidelines based on scientific evidence, not the hyped claims of pot marketers.  Consumers — especially parents — have the right and the need to know.

Because this commentary speaks of the need for "clarity and consistent guidelines on a federal level for the legalization and commercialization of marijuana," I presume it is imagining the federal government as the legal entity to "implement a two-year moratorium on further legalization and commercialization of marijuana."  But, of course, federal law right now has long-standing and on-going complete prohibition on legalization and commercialization of marijuana.  That legal fact has not stopped "marijuana legalization is gaining momentum across the country" because prohibition cannot easily be enforced effectively against states interested in pursuing reforms.

Perhaps this commentary means to suggest (and would be more reasonable to suggest) that all states considering legalization sit tight for two years to provide more time and "opportunity to study the impact so far on health and social behavior in legalized states."  But legalization has been a reality in some form in California for more than two decades and in modern forms in Colorado and Washington for five years.  It seems highly unlikely that we will have "comprehensive and conclusive scientific evidence about what the impact might be" of legalization by early 2021.  Because it may take decades to reach "definitive understanding of the effect pot has on everything from driving impairment to workplace performance and learning development in young people," I am not sure just a two-year pause would be all that productive even if it were some how legally achievable.

That all said, this commentary is not misguided in identifying a range of issues that states should consider with respect to public health and safety in the reform of marijuana prohibition, and especially in (indirectly) suggesting that the federal government play a more active and productive role as states continue to move forward with reforms.  I think the Obama Administration was remiss when failing to set up a task force or study group on these critical health and safety issues when modern state marijuana reforms were heating up, and the Trump Administration also seems content to continue to ignore these issues all while Congress cannot itself move forward on any production reforms at the federal level.

February 25, 2019 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Tuesday, February 12, 2019

House Subcommittee to hold hearing on Feb. 13 on "Challenges and Solutions: Access to Banking Services for Cannabis-Related Businesses"

Tomorrow afternoon, as detailed on this official webpage, the Subcommittee on Consumer Protection and Financial Institutions of the US House Committee on Financial Services will have hearing on the topic of banking access for cannabis businesses. One focal point for the hearing is consideration of draft legislation, the "Secure And Fair Enforcement Banking Act of 2019" or the "SAFE Banking Act of 2019," which is designed to allow marijuana-related businesses in states with existing regulatory structures to access the banking system. 

In addition to being the first-ever congressional hearing on banking for marijuana businesses, I sense this is the first of a series of possible effects by the Democratic-controlled House to move forward on various possible federal legislative reforms.  A few days ago, Click the Committee produced this Memorandum providing background, and here is the scheduled "Witness List":

  • The Honorable Fiona Ma, California State Treasurer
  • Maj. Neill Franklin (Ret.), Baltimore City & Maryland State Police Departments, and Executive Director, Law Enforcement Action Partnership (LEAP)
  • Ms. Rachel Pross, Chief Risk Officer, Maps Credit Union, on behalf of Credit Union National Association (CUNA)
  • Mr. Gregory S. Deckard, President, CEO and Chairman, State Bank Northwest, on behalf of Independent Community Bankers of America (ICBA)
  • Mr. Corey Barnette, Owner, District Growers Cultivation Center & Metropolitan Wellness Center

 

UPDATE: Here now are links to all of the written testimony of witnesses at this hearing:

February 12, 2019 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Saturday, January 26, 2019

Reviewing the now "mainstream" and "trendy" (and still uncertain) new world of CBD products

Download (3)NBC News has this new article, headlined "CBD goes mainstream as bars and coffee shops add weed-related drinks to menus," that is worth a read, and I especially liked its closing paragraph. Here are excerpts:

Coffee. Cocktails. Lotion. Dog treats. You name it, CBD is probably in it.

CBD, short for cannabidiol, is a compound found in the cannabis plant.  It promises to deliver the calming benefits of marijuana without the high that comes from THC.  Companies are adding CBD to just about everything — a trend set to accelerate as regulations ease and consumer interest grows.

Most CBD is now federally legal thanks to the farm bill President Donald Trump signed in December. Companies still aren't supposed to add CBD to food, drinks and dietary supplements, but many are doing it anyway.  The Food and Drug Administration has said it plans to continue enforcing this ban but will also look into creating a pathway for such products to legally enter the market.

Some users swear by it, saying it relieves their anxiety, helps them sleep and eases their pain.  And forget stoner stereotypes when thinking about CBD. Moms and even pets are experimenting with it.  One research firm, Brightfield Group, expects the CBD market to reach $22 billion by 2022.

However, most of our current understanding of CBD is anecdotal — not proven through scientific studies.  And because CBD products aren't yet regulated, the quality can vary widely. "There's a lot of interest and excitement, for good reason, but I think people are pushing it too hard, too fast and are overgeneralizing things," said Ryan Vandrey, a professor at Johns Hopkins who studies the behavioral pharmacology of cannabis.

We don't know what exactly CBD interacts with in the brain or the body, but researchers do know that CBD tends to turn down abnormal signaling in the brain, said Ken Mackie, a psychological and brain sciences professor at Indiana University.  That's why CBD may help with epilepsy, anxiety and sleep. CBD and other cannabis compounds tweak systems in the body, a process he compares to lowering the volume. Other compounds, like opioids, ketamine and nicotine, simply turn them on and off.

There isn't much clinical research on the safety and efficacy of CBD. Studying cannabis has been challenging because it's technically illegal under federal law, meaning researchers must overcome a number of hurdles in order to study it.  We don't know anything about indications like sleep, anxiety or pain, Vandrey said.

We do know it's safe and effective in treating seizures in children with Lennox-Gastaut syndrome or Dravet syndrome. GW Pharma studied its CBD-derived drug, Epidiolex, in numerous clinical trials.  After reviewing the company's science, the Food and Drug Administration approved Epidiolex in June.

The lack of clinical evidence hasn't stopped consumers from trying it — and raving about it.  "It's always nice to have strong proof in placebo controlled trials, but if someone's taking a drug and feeling any benefit, more power to them," Mackie said....

The farm bill signed in December legalized hemp. Most CBD hitting shelves is derived from the hemp plant, which contains less than 0.3 percent THC, the psychoactive chemical in weed. Hemp's close cousin, marijuana, can contain upwards of 10 percent THC. So you can't get high from CBD products if the proper dosage is followed, but the industry isn't regulated on a federal level so the amount of THC can vary.

Doses can vary, too. Some shops recommend six milligrams of CBD when taken as a tincture or added to food. Others recommend at least 30. Again, since there isn't much clinical research on CBD, most of the recommendations are based on trial and error.

As more people dabble with CBD, more people are following the money, worrying some that bad products will enter the market and taint CBD's allure. Or worse, harm consumers. "There does need to be some sort of regulatory framework for overall product safety and to protect the customer from purchasing products that contain false advertisements or make unsubstantiated claims," said Pamela Hadfield, co-founder of HelloMD, a medical cannabis company, while cautioning against strict regulations that would be "too difficult for most manufacturers to comply."

Joe Masse, beverage director at The Woodstock bar, added a CBD cocktail to the menu in September. Called The White Rabbit, the drink is made with Bombay Dry Gin, sage simple syrup, honey, fresh lemon juice and 1 milligram of CBD oil.... "It's trendy right now, so I don't know how it will be in six months when we redo the menu," Masse said. "A year ago, activated charcoal was popular and now you can't find it anywhere."

Because I am not hip enough to know that "sctivated charcoal" was once, and now is no longer, a big deal, I am not the right person to be predicting the trend lines on the CBD trend.  But I do know how important and likely unpredictable it will be to see the FDA and/or state regulatory players take on CBD products and marketing in the wake of the new Farm Bill.  Just another important front to watch in the coming months and years and marijuana products and industry players continue to emerge from prohibition's shadow.

January 26, 2019 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Food and Drink, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Sunday, January 6, 2019

Will 2019 really be the "year of weed"? How can we tell?

Images (5)The questions in the title of this post are prompted by this new lengthy Rolling Stone piece fully headlined "Why 2019 Will Be the Year of Weed: From more states legalizing to a boom of new kinds of products, here’s what to expect from the cannabis industry this year."  Here are excerpts from an article that merits a full read:

In 2018, pot reached a tipping point.  A clear majority of Americans now wants to see the drug made fully legal. California and Canada began selling marijuana to anyone over 21. Corporate behemoths like Altria (parent company of Marlboro cigarettes) and Constellation Brands (parent of Corona beer and Svedka vodka) made multi-billion dollar weed investments. And Senate Majority Leader Mitch McConnell (R-KY) managed to include hemp legalization in the 2018 Farm Bill — de facto legalizing every part of the cannabis plant except THC.

But at the same time, pot prohibition is not over.  Well over half a million folks are still arrested for possession every year. Smoking weed or working for a pot company can still threaten your housing, employment, immigration status, finances and freedom.  Cannabis business models, regulatory environments and market valuations shift on a daily basis....

As for the 2018 Farm Bill, it’s not yet clear what the regulatory landscape will look like for CBD in 2019.  [Some expect] researchers will soon be able to access CBD without jumping through the hoops necessary to acquire a Schedule I drug license from the DEA, which could finally allow scientists to provide more evidence of the compound’s uses and dosage.  Still, many people in the cannabis industry are concerned about what the exact guidelines will look like on the commercial production side, and how the rollout will go.

For business owners who have been involved in the weed game for a while, another aspect of the 2018 Farm Bill has proven a troubling sign of the times: anyone with a drug felony conviction in the past 10 years will not be allowed to participate in the legal hemp and CBD market.  “What the fuck is that?” asks longtime cannabis cultivator Bill Levers, who runs an influential Instagram account through his California-based company, Beard Bros Pharms.  “No one got rich on hemp.  There were no hemp cartels. So why would there be a restriction?”

The drug-felony provision in the Farm Bill cuts to the heart of one of the biggest unresolved problems facing the marijuana movement in 2019: the persistence of the illicit market, and the struggle to accommodate folks who have been illegally selling or growing marijuana for years.  It is now widely acknowledged that barring people with drug felony convictions from the cannabis industry is racist, as white people with experience on the illicit marijuana market are far less likely to be arrested or convicted.  But even without a criminal record, making the transition from outlaw to mogul has proven incredibly difficult, and many of the people who have tried have already given up....

Taxes, in particular, are a thorny issue.  Local and state governments generally consider pot taxes to be a primary incentive for legalization, but if tax rates are too high, fewer growers and dispensaries will try to go legal.  Already, lax oversight and an oversupply of legal cannabis in states like Oregon and Washington have led to diversion rates of at least 30 percent — meaning at a minimum about a third of legal pot is being sold on the illicit market. Meanwhile, in places like California, Canada and Michigan, hundreds of illegal storefront marijuana dispensaries compete with legal vendors, consistently undercutting them on price.  Illicit operators tell me again and again that they cannot afford to survive in the highly taxed and regulated legal market, so they intend to continue breaking the law — sometimes while simultaneously operating a legal business.

Because wealthy (and typically white) applicants have an easier time covering high taxes and licensing fees, some states and municipalities have created so-called “equity” programs to ensure a more diverse industry.  In 2017 and 2018, places like Oakland and Sacramento garnered fawning headlines for setting the lofty goal of legislating solutions to the catastrophic and racially disproportionate impact of the War on Drugs.  But moving into 2019, California cannabis operators of all colors and political stripes now often describe equity a well-intentioned idea that is failing in practice.  The words “tokenism” and “paternalistic” come up a lot.

“Equity is a marketing tool.  All of the licenses are going to be given to the people with the most money,” predicts Ophelia Chong, the founder of StockPot Images and executive creative director of Aura Ventures.  “Social equity will work for a few, but even then it will be 2 percent [from disadvantaged backgrounds], and those 2 percent will have to really climb a mountain to do it, with no help.”  Outside of California, however, including equity and restorative justice in cannabis legalization remains an alluring prospect.

“What I like about California is they give a chance for minorities to get in.  They doing the opposite in Michigan,” says Jason, whose cannabis social club, the OMS Dab House, has been a crucial gathering place for Detroit’s marijuana movement for the past decade.  Michigan legalized adult-use cannabis in 2018, but as in California, quasi-legal medical dispensaries began proliferating years ago, serving stoners and sick people alike.  (The ongoing legal confusion around sales and social spaces is why Jason preferred to not give his last name).  Though the city of Detroit is more than 80-percent black, black activists there have previously asserted that only three to five percent of local marijuana dispensaries were owned by black people. Jason predicts that, as Michigan’s legal cannabis industry becomes increasingly corporate and consolidated, those numbers will only go down.

January 6, 2019 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Political perspective on reforms, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Friday, December 21, 2018

"How Legalizing Marijuana Is Securing the Border: The Border Wall, Drug Smuggling, and Lessons for Immigration Policy"

The title of this post is the title of this interesting and timely new Cato Institute policy analysis authored by David J. Bier.  Here is its executive summary:

President Trump has repeatedly cited drug smuggling to justify a border wall. Because it is difficult to conceal, marijuana is the main drug transported between ports of entry where a border wall would matter.  However, Border Patrol seizure figures demonstrate that marijuana flows have fallen continuously since 2014, when states began to legalize marijuana.  After decades of no progress in reducing marijuana smuggling, the average Border Patrol agent between ports of entry confiscated 78 percent less marijuana in fiscal year (FY) 2018 than in FY 2013.

As a result, the value of all drugs seized by the average agent has fallen by 70 percent since FY 2013.  Without marijuana coming in between ports of entry, drug smuggling activity now primarily occurs at ports of entry, where a border wall would have no effect.  In FY 2018, the average inspector at ports of entry made drug seizures that were three times more valuable overall than those made by Border Patrol agents between ports of entry — a radical change from 2013 when Border Patrol agents averaged more valuable seizures. This is because smugglers bring mainly hard drugs through ports. By weight, the average port inspector seized 8 times more cocaine, 17 times more fentanyl, 23 times more methamphetamine, and 36 times more heroin than the average Border Patrol agent seized at the physical border in early 2018.

Given these trends, a border wall or more Border Patrol agents to stop drugs between ports of entry makes little sense.  State marijuana legalization starting in 2014 did more to reduce marijuana smuggling than the doubling of Border Patrol agents or the construction of hundreds of miles of border fencing did from 2003 to 2009.  As more states — particularly on the East Coast — legalize marijuana in 2019, these trends will only accelerate.  The administration should avoid endangering this success and not prosecute state-legal sellers of marijuana.  This success also provides a model for addressing illegal immigration.  Just as legalization has reduced the incentives to smuggle marijuana illegally, greater legal migration opportunities undercut the incentive to enter illegally.  Congress should recognize marijuana legalization’s success and replicate it for immigration.

December 21, 2018 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Thursday, December 20, 2018

Prez Trump signs Farm Bill, officially legalizing hemp, which means a notable statement from the FDA Commissioner

Fda-gottlieb-1600b-e1503939617409a whole lot, but there are lots of complications as to what this means for the development of products using parts of the cannabis plant.  Right after the Farm Bill was signed into law, FDA Commissioner Scott Gottlieb released this lengthy statement highlighting some of these complications.  Here are excerpts:

Today, the Agriculture Improvement Act of 2018 was signed into law. Among other things, this new law changes certain federal authorities relating to the production and marketing of hemp, defined as cannabis (Cannabis sativa L.), and derivatives of cannabis with extremely low (less than 0.3 percent on a dry weight basis) concentrations of the psychoactive compound delta-9-tetrahydrocannabinol (THC). These changes include removing hemp from the Controlled Substances Act, which means that it will no longer be an illegal substance under federal law.

Just as important for the FDA and our commitment to protect and promote the public health is what the law didn’t change: Congress explicitly preserved the agency’s current authority to regulate products containing cannabis or cannabis-derived compounds under the Federal Food, Drug, and Cosmetic Act (FD&C Act) and section 351 of the Public Health Service Act. In doing so, Congress recognized the agency’s important public health role with respect to all the products it regulates. This allows the FDA to continue enforcing the law to protect patients and the public while also providing potential regulatory pathways for products containing cannabis and cannabis-derived compounds.

We’re aware of the growing public interest in cannabis and cannabis-derived products, including cannabidiol (CBD). This increasing public interest in these products makes it even more important with the passage of this law for the FDA to clarify its regulatory authority over these products. In short, we treat products containing cannabis or cannabis-derived compounds as we do any other FDA-regulated products — meaning they’re subject to the same authorities and requirements as FDA-regulated products containing any other substance. This is true regardless of the source of the substance, including whether the substance is derived from a plant that is classified as hemp under the Agriculture Improvement Act. To help members of the public understand how the FDA’s requirements apply to these products, the FDA has maintained a webpage with answers to frequently asked questions, which we intend to update moving forward to address questions regarding the Agriculture Improvement Act and regulation of these products generally.

In view of the proliferation of products containing cannabis or cannabis-derived substances, the FDA will advance new steps to better define our public health obligations in this area. We’ll also continue to closely scrutinize products that could pose risks to consumers. Where we believe consumers are being put at risk, the FDA will warn consumers and take enforcement actions.

In particular, we continue to be concerned at the number of drug claims being made about products not approved by the FDA that claim to contain CBD or other cannabis-derived compounds. Among other things, the FDA requires a cannabis product (hemp-derived or otherwise) that is marketed with a claim of therapeutic benefit, or with any other disease claim, to be approved by the FDA for its intended use before it may be introduced into interstate commerce. This is the same standard to which we hold any product marketed as a drug for human or animal use. Cannabis and cannabis-derived products claiming in their marketing and promotional materials that they’re intended for use in the diagnosis, cure, mitigation, treatment, or prevention of diseases (such as cancer, Alzheimer’s disease, psychiatric disorders and diabetes) are considered new drugs or new animal drugs and must go through the FDA drug approval process for human or animal use before they are marketed in the U.S. Selling unapproved products with unsubstantiated therapeutic claims is not only a violation of the law, but also can put patients at risk, as these products have not been proven to be safe or effective. This deceptive marketing of unproven treatments raises significant public health concerns, as it may keep some patients from accessing appropriate, recognized therapies to treat serious and even fatal diseases.

Additionally, it’s unlawful under the FD&C Act to introduce food containing added CBD or THC into interstate commerce, or to market CBD or THC products as, or in, dietary supplements, regardless of whether the substances are hemp-derived. This is because both CBD and THC are active ingredients in FDA-approved drugs and were the subject of substantial clinical investigations before they were marketed as foods or dietary supplements. Under the FD&C Act, it’s illegal to introduce drug ingredients like these into the food supply, or to market them as dietary supplements. This is a requirement that we apply across the board to food products that contain substances that are active ingredients in any drug.

We’ll take enforcement action needed to protect public health against companies illegally selling cannabis and cannabis-derived products that can put consumers at risk and are being marketed in violation of the FDA’s authorities. The FDA has sent warning letters in the past to companies illegally selling CBD products that claimed to prevent, diagnose, treat, or cure serious diseases, such as cancer. Some of these products were in further violation of the FD&C Act because they were marketed as dietary supplements or because they involved the addition of CBD to food.

While products containing cannabis and cannabis-derived compounds remain subject to the FDA’s authorities and requirements, there are pathways available for those who seek to lawfully introduce these products into interstate commerce. The FDA will continue to take steps to make the pathways for the lawful marketing of these products more efficient....

It should also be noted that some foods are derived from parts of the hemp plant that may not contain CBD or THC, meaning that their addition to foods might not raise the same issues as the addition of drug ingredients like CBD and THC. We are able to advance the lawful marketing of three such ingredients today. We are announcing that the agency has completed our evaluation of three Generally Recognized as Safe (GRAS) notices related to hulled hemp seeds, hemp seed protein and hemp seed oil and that the agency had no questions regarding the company’s conclusion that the use of such products as described in the notices is safe. Therefore, these products can be legally marketed in human foods for these uses without food additive approval, provided they comply with all other requirements and do not make disease treatment claims.

Given the substantial public interest in this topic and the clear interest of Congress in fostering the development of appropriate hemp products, we intend to hold a public meeting in the near future for stakeholders to share their experiences and challenges with these products, including information and views related to the safety of such products.

December 20, 2018 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)

Democrat wing of congressional Joint Economic Committee releases report on "The National Cannabis Economy"

Download (30)This week the Democrats of the US Congress' Joint Economic Committee released this interesting short report titled simply "The National Cannabis Economy." Here is how it gets started and its final passages:

The National Cannabis Economy

Cannabis, or marijuana, is the most commonly used illicit drug in the United States.  Though illegal at the federal level, states are taking action to legalize cannabis — from recreational use in states like Colorado and Maine to medical use in New Mexico and Florida.  A record 66 percent of Americans now support legalizing cannabis, a dramatic increase from just 12 percent in 1969.

The legalization of cannabis has significant implications for state economies, as well as the national economy.  The industry totaled more than $8 billion in sales in 2017, with sales estimated to reach $11 billion this year and $23 billion by 2022.  There were more than 9,000 active licenses for cannabis businesses in the U.S. in 2017, with the industry employing more than 120,000 people.

As more states move to legalize cannabis, these numbers will only continue to rise, potentially providing a new stream of revenue and jobs to local economies.  But to realize these benefits, policymakers must address conflicts between state and federal regulations that impede the growth of the cannabis economy....

Going Forward

There are a variety of proposals to fix the conflicts between state and federal cannabis laws.  Of these proposals, the bipartisan STATES Act has drawn support from President Trump and the cannabis industry.  The STATES Act would amend the Controlled Substances Act so that its provisions no longer apply to individuals acting in accordance with state laws. Importantly, the bill would also clarify that financial transactions with state-legal cannabis businesses are not drug-trafficking, creating a solution for financial institutions and the cannabis industry.  Several states could be next to legalize cannabis.  A bill to legalize cannabis is progressing through the New Jersey legislature, while New York lawmakers are preparing to consider similar legislation this year.  Similarly, newly elected governors in New Mexico, Minnesota, Illinois, and Connecticut have all voiced support for legal cannabis, positioning their states to consider the issue.

Conclusion

The growth of the cannabis economy presents opportunities for greater job creation, more tax revenue, and better patient care.  But current conflicts between state and federal law threaten to impede social and economic growth.  Going forward, lawmakers and regulators should prioritize solutions that promote greater research into the health effects of cannabis and reduce regulations that restrict the industry’s ability to conduct business.

December 20, 2018 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Employment and labor law issues, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate | Permalink | Comments (1)

Monday, December 17, 2018

New commentary assails "The Medical Marijuana Delusion"

Download (29)Paul J. Larkin, Jr., who is a senior legal research fellow at the Heritage Foundation’s Meese Center for Legal and Judicial Studies, has this notable new commentary titled "The Medical Marijuana Delusion." I recommend the piece in full, and here are excerpts:

Contemporary society also does not trust the unregulated backyard, in-home, or agricultural production and distribution of medications.  To protect the public against snake-oil salespeople and other charlatans, Congress enacted the Federal Food, Drug, and Cosmetic Act of 1938 (FDCA), the Drug Amendments of 1962, and scores of complementary laws.  Those statutes are critically important features of today’s public health regulatory programs. They prohibit, using criminal penalties, the distribution of a new drug in interstate commerce, unless the FDA Commissioner has previously found that it is “safe” and “effective” for its intended use. These laws empower FDA to carefully and strictly regulate and oversee the production of medicines intended for human consumption — and drugs cannot be disguised in food to avoid regulation, because FDA regulates food too. Those laws reflect an 80-year consensus that the nation should leave to the professional, scientific judgment of experts — physicians, biochemists, and the like — the question of which drugs can be created and used for therapeutic purposes by educated, trained, and licensed physicians — not “budtenders.”...

To be sure, the belief that marijuana could have legitimate therapeutic benefits has a basis in science.  FDA has found that a few cannabinoids — that is, biologically active constituents of cannabis — can have positive medical benefits, and FDA has approved the manufacture and distribution of synthetic forms of those substances to treat disease, most recently the spasticity caused by rare, severe forms of childhood epilepsy.  There might be other therapeutically useful cannabinoids as well. Regulators and scientists should conduct the necessary research to learn if that is true.

But the states that have authorized marijuana to be smoked for medical purposes have simply taken the law into their own hands.  Since 1996, more than 30 states have permitted marijuana to be smoked for medical purposes, despite the fact that FDA has never approved marijuana for medical use and there is no FDA-approved medicine that is smoked.  The reason is that there are serious, adverse, and undeniable health risks associated with smoking any agricultural product.  Since 1964, U.S. Surgeons General have consistently found that smoking tobacco is dangerous.  Congress finally agreed in 2009 by passing the Family Smoking Prevention and Tobacco Control Act, which empowers FDA to regulate cigarettes. Smoking marijuana carries many of the same risks as smoking tobacco, so no FDA Commissioner could legitimately treat marijuana in a unique manner.

Much of the debate over marijuana legalization has been misguided — intentionally so.  Legalization’s advocates have urged states to adopt medical marijuana laws to ease the suffering of the afflicted and dying.  In so doing, the medical marijuana movement has played on the compassion that Americans feel toward people about to traverse the River Styx or who are in such pain or distress that they would gladly make that crossing now.  State approval of marijuana for medical purposes, however, is proof that hypocrisy is the tribute that vice pays to virtue.

The real question is whether lawmakers should revise federal law to allow marijuana to be used for recreational purposes, just as alcohol and tobacco can be so used today.  If Americans are to honestly debate marijuana use, the debate must be over its utility as a recreational drug, not as medicine, and who should regulate its potential uses — the FDA Commissioner or the U.S. Attorney General.  The United States has followed the wrong approach to marijuana regulation for 80 years.  It is time to get it right.

December 17, 2018 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)

Saturday, December 15, 2018

Could Prez Trump's new Chief of Staff become major force pushing federal marijuana reforms in 2019?

Download (28)The question in the title of this post is prompted by President Donald Trump's  announcement that Mick Mulvaney will be his next Chief of Staff and this effective review of Mulvaney's marijuana reform record by Tom Angell at Marijuana Moment.  Here are the details, with links from the original:

Mulvaney, who currently serves as director of the Office of Management and Budget and acting director of the Consumer Financial Protection Bureau, was previously a member of the U.S. House, where he consistently voted to support marijuana reform amendments and cosponsored cannabis bills.

In 2015, for example, he voted for a floor amendment that would have barred the Justice Department from spending money to interfere with state marijuana laws. The proposal, which came just nine flipped votes short of passage, would have expanded on existing protections for state medical cannabis programs by covering recreational laws as well.  Mulvaney also voted for the medical marijuana rider three years in a row.

In 20142015 and 2016, he supported amendments to allow Department of Veterans Affairs doctors to recommend medical marijuana to military veterans.  Mulvaney backed a 2014 amendment to prevent the Treasury Department from punishing banks that work with marijuana businesses.  The South Carolina congressman he also voted for an amendment to protect limited cannabidiol (CBD) medical cannabis laws as well as a number of proposals concerning industrial hemp.

He also signed his name on as a cosponsor of several pieces of standalone marijuana legislation, including a comprehensive bill to reschedule cannabis and protect state medical-use laws, a measure to allow banking access for marijuana businesses, a hemp legalization bill and two separate CBD proposals.

“Mulvaney’s history of opposing wasteful government spending and support for states’ rights, specifically when it comes to marijuana, makes him our strongest ally in the White House,” Don Murphy, director of federal policies for the Marijuana Policy Project, told Marijuana Moment.

Pointing to how the Office of Management and Budget under Mulvaney on several occasions has floated severe funding cuts for the Office of National Drug Control Policy, commonly known as the drug czar’s office, Murphy said that the new acting chief of staff “delivers our ‘more liberty/less spending’ position directly into the Oval Office on a daily basis, where it could bring the federal war on marijuana to an end by 2020.”

It is unclear how long Mulvaney will serve as acting chief of staff, or how frequently marijuana issues will come across his desk, but the fact that he — and not an ardent legalization opponent like Chris Christie, who was also under consideration for the job — will sit a door away from the Oval Office is likely to be seen as a positive development for cannabis reform supporters.

In his new capacity, Mulvaney will be party to conversations about which congressional legislation the president should back as well as discussions about potential marijuana enforcement policy changes at the Department of Justice under a new attorney general.

December 15, 2018 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)