Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Tuesday, September 14, 2021

"Cannabis, Consumers, and the Trademark Laundering Trap"

The title of this post is the title of this notable new paper now available via SSRN and authored by Viva Moffat, Sam Kamin and Timothy Maffett.  Here is its abstract:

At the moment, cannabis companies cannot get trademark protection for their marijuana and marijuana-related products because the “lawful use” doctrine limits federal trademark protection to goods lawfully sold in commerce.  Given that the drug remains illegal under federal law, this may not sound like much of a problem, but it has serious consequences for consumers of marijuana.  Without trademark rights, a cannabis company in one state can simply use the brand name of a prominent company in another state and consumers will assume that they are getting the products they have come to rely on, with potentially dangerous results.  As the cannabis industry has grown, this issue has only become more acute; the current approach of the United States Patent & Trademark Office (PTO) and the federal courts undermines trademark law’s consumer protection and fair competition goals.

Several years ago, we proposed a solution to the unavailability of trademark protection during federal prohibition, one we suggested would help cannabis companies and cannabis consumers bridge the gap from the current period of legal ambiguity through full marijuana legalization.   We coined the phrase “trademark laundering” to describe the practice of applying for federal trademark protection for a mark placed on legal products and then using that mark on both legal and illegal goods – on both t-shirts and marijuana, for example.  As we anticipated, the practice has indeed taken off, but it has been a success only on the surface.

This article examines how the PTO and the courts have mishandled marijuana marks and identifies how they have interpreted and deployed the lawful use doctrine in ways that undermine and conflict with trademark’s stated goals.  Given that the PTO is unlikely to abandon the lawful use doctrine any time soon, we propose changes to the way the PTO applies that doctrine in the trademark registration process, as well as changes to the courts’ consideration of trademark disputes involving cannabis companies.  These changes will ensure that both consumers and marijuana businesses are protected as the United States transitions from marijuana prohibition to a post-prohibition federal regulatory regime.

September 14, 2021 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Thursday, September 2, 2021

Rounding up some of the round-ups of the many comments submitted on early draft of federal Cannabis Administration and Opportunity Act

6a00d8341bfae553ef0223c85155dc200c-320wiAs detailed in this prior post, in mid July 2021, US Senate Majority Leader Chuck Schumer, along with Senators Ron Wyden and Cory Booker, unveil what was described as a "discussion draft" of a lengthy federal marijuana reform bill titled the Cannabis Administration and Opportunity Act (CAOA).  The full text of this CAOA "discussion draft" is available here, and  marijuana reform advocates (and opponents) unsurprisingly has a whole lot that they wanted to discuss about this discussion draft.  September 1 was the deadline for the submission of comments, and I received multiple emails from multiple groups promoting their comments.  Helpfully, I have seen a few press pieces that serve to round up some of the comments:

From Cannabis Wire, "As Comments Close on the Most Comprehensive Cannabis Reform Plan in Congress, Themes Emerge"

From Law360, "Pot Advocates Advise Careful Rollout Of Federal Legalization"

From Marijuana Moment, "Senators Flooded With Input On Federal Marijuana Legalization Bill"

From MJ Biz Daily, "Marijuana trade groups offer comments on Schumer’s federal legalization bill"

The Marijuana Moment piece provides a particularly fulsome review of (and helpful links to) lots of the submitted comments.  Here is how it sets up the review:

While legalization proponents have widely celebrated the introduction of the Cannabis Administration and Opportunity Act (CAOA), they have some suggestions for improvement — principally as it concerns issues of social equity, licensing, tax policy and interstate commerce.

Senate Majority Leader Chuck Schumer (D-NY), Senate Finance Committee Chairman Ron Wyden (D-OR) and Sen. Cory Booker (D-NJ) are the lead sponsors of the legislation, and after releasing a draft version of the measure in July, they opened a public comment to receive input on what will be a revised measure the senators plan to formally introduce.

Pro-reform organizations like NORML, Marijuana Policy Project (MPP), National Cannabis Industry Association (NCIA) and Hemp Roundtable made their voices heard — and while they generally applauded the senators’ work to end federal cannabis prohibition, they had some recommendations for revisions.  Prohibitionist groups also weighed in with thoughts about the proposal can be changed to better reflect their concerns with the overall policy of legalization.

A few prior related posts: 

September 2, 2021 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Monday, August 23, 2021

"Legalization Without Disruption: Why Congress Should Let States Restrict Interstate Commerce in Marijuana"

The title of this post is the title of this notable new paper now available on SSRN authored by Robert Mikos and Scott Bloomberg.  Here is its abstract:

Over the past twenty-five years, states have developed elaborate regulatory systems to govern lawful marijuana markets.  In designing these systems, states have assumed that the Dormant Commerce Clause (“DCC”) does not apply; Congress, after all, has banned all commerce in marijuana.  However, the states’ reprieve from the doctrine may soon come to an end.  Congress is on the verge of legalizing marijuana federally, and once it does, it will unleash the DCC, with dire consequences for the states and the markets they now regulate.

This Article serves as a wake-up call.  It provides the most extensive analysis to date of the disruptions the DCC could cause for lawmakers and the marijuana industry. Among other things, the doctrine could spawn a race to the bottom among states as they compete for a newly mobile marijuana industry, undermine state efforts to boost participation by minorities in the legal marijuana industry, and abruptly make obsolete investments firms have made in existing state-based marijuana markets.  But the Article also devises a novel solution to these problems.  Taking a page from federal statutes designed to preserve state control over other markets, it shows how Congress could pursue legalization without disruption.  Namely, Congress could suspend the DCC and thereby give state lawmakers and marijuana businesses time to prepare for the emergence of a national marijuana market.  The Article also shows how Congress could make the suspension temporary to allay any concerns over authorizing state protectionism in the marijuana market.

August 23, 2021 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Tuesday, July 20, 2021

Some federal reform headlines a week after introduction of the Cannabis Administration and Opportunity Act

My Google and Twitter feeds have not been buzzing about the release last week of the discussion draft of the Cannabis Administration and Opportunity Act, and that has lead me to think nobody is too excited about its particulars. That said, it is still an important bill-in-development, and I thought it worthwhile to round up some of the reactions and commentary I have seen in response:

From The American Prospect, "High Hurdles for Commonsense Cannabis Reform: The plan unveiled by the Senate majority leader is doomed to languish despite massive public support for legalization."

From Bloomberg, "U.S. Pot Legalization Bill Gets a Frosty Reception"

From Daily Breeze (editorial), "Latest federal marijuana bill a total dud"

From Fox Business, "Democrats' marijuana legalization bill leaves Canopy Growth CEO optimistic"

From Politico, "Amazon endorsed legal weed. Will it now fight to make it happen?"

July 20, 2021 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

"Cannabis as Treatment for Chronic Pelvic Pain in Women: An Opportunity for the Cannabis Wellness Industry"

The title of this post is the title of this new paper recently posted to SSRN and authored by Jamie Feyko, a rising 3L at The Ohio State University Moritz College of Law.  (This paper is yet another in the on-going series of student papers supported by the Drug Enforcement and Policy Center.)   Here is this latest paper's abstract:  

In a healthcare landscape that routinely ignores women’s pain, many women turn to cannabis to manage their otherwise debilitating chronic pelvic pain caused by conditions such as endometriosis and polycystic ovary syndrome.  This paper explores how the Controlled Substances Act wrongly characterized cannabis as having “no medicinal value” and the effects this federal illegality still has on women seeking alternative pain management therapies for chronic pelvic pain.  Additionally, this paper explains why and how cannabis helps relieve such pain through discussing the effects of cannabinoids like THC and CBD on the body’s inflammatory response and the body’s endocannabinoid system.  Women, as the leading consumers in our society, have expressed a need and a desire for products that provide relief from chronic pelvic pain and increase sexual pleasure.  The 2018 Farm Bill opened the doors to CBD businesses looking to break into the women’s sexual and reproductive wellness market.  The market for women-centric CBD pain relief and sexual enjoyment is far from saturated, and this paper encourages those in the CBD industry (or those looking to enter the industry) to take note.

July 20, 2021 in Federal Marijuana Laws, Policies and Practices, Medical community perspectives, Medical Marijuana Commentary and Debate, Race, Gender and Class Issues, Who decides | Permalink | Comments (0)

Wednesday, July 14, 2021

Great early coverage of US Senate Leader Chuck Schumer's "discussion draft" of new Cannabis Administration and Opportunity Act

6a00d8341bfae553ef0223c85155dc200c-320wiSince nearly the start of this year, Senate Majority Leader Chuck Schumer, along with  Senators Ron Wyden and Cory Booker , has been talking up the introduction in the US Senate of a new comprehensive federal marijuana reform bill.   That talk has suggested that reform efforts from these Democratic Senators would be similar to, but still quite distinct from, the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, that has moved forward in the House of Representatives in recent years.

Today, in mid July 2021, these Senators have scheduled a press conference to unveil what is being described as a "discussion draft" of a lengthy federal bill titled the Cannabis Administration and Opportunity Act (CAOA).  The full text of this CAOA "discussion draft" is available here and it runs 163 pages(!).  In other words, CAOA give marijuana reform advocates (and opponents) a whole lot to discuss.  Helpfully, the cannabis press core is already doing great job covering the basic:

From Marijuana Moment, "Here Are The Full Details Of The New Federal Marijuana Legalization Bill From Chuck Schumer And Senate Colleagues."  Excerpt:

Perhaps the most immediately consequential provision would be a requirement that the attorney general to remove marijuana from the Controlled Substances Act within 60 days of the bill’s enactment.  But it’s important to keep in mind that this legislation—like other federal legalization bills moving through Congress—would not make it so marijuana is legal in every state. The proposal specifically preserves the right of states to maintain prohibition if they way. It stipulates, for example, that shipping marijuana into a state where the plant is prohibited would still be federally illegal.

However, the measure would make it clear that states can’t stop businesses from transporting cannabis products across their borders to other states where the plant is permitted.  FDA would be “recognized as the primary federal regulatory authority with respect to the manufacture and marketing of cannabis products, including requirements related to minimum national good manufacturing practice, product standards, registration and listing, and labeling information related to ingredients and directions for use,” according to the summary.

From Politico, "Schumer launches long-shot bid for legal weed." Excerpt:

The discussion draft of the Cannabis Administration and Opportunity Act includes provisions that cater to both “states rights” Republicans and progressive Democrats. While the proposal seeks to remove all federal penalties on weed, it would allow states to prohibit even the possession of cannabis — along with production and distribution — a nod to states’ rights.  It would also establish funding for a wide range of federal research into everything from drugged driving to the impact cannabis has on the human brain. The measure aims to collect data about traffic deaths, violent crime and other public health concerns often voiced by Republican lawmakers.

On the flip side, the proposal also includes provisions that are crucial to progressives.  That includes three grant programs designed to help socially or economically disadvantaged individuals, as well as those hurt by the war on drugs and expungements of federal non-violent cannabis offenses.  States and cities also have to create an automatic expungement program for prior cannabis offenses to be eligible for any grant funding created by the bill.

A few of many prior recent related posts:

July 14, 2021 in Business laws and regulatory issues, 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, Who decides | Permalink | Comments (0)

Monday, July 5, 2021

Cannabis Freedom Alliance releases "Recommendations for Federal Regulation of Legal Cannabis"

Cannabis-freedom-allianceI mentioned in this post a few months ago the launch of the Cannabis Freedom Alliance, which is a prominent coalition with a stated mission to "end the prohibition and criminalization of cannabis in the United States in a manner consistent with helping all Americans achieve their full potential and limiting the number of barriers that inhibit innovation and entrepreneurship in a free and open market."  I was now pleased to see that, right around the traditional July time we celebrate our nation's deep commitments to freedom, this Alliance has released this new white paper titled "Recommendations for Federal Regulation of Legal Cannabis."  Here is part of the start of this notable 14-page document:

If major marijuana reform legislation is to be taken seriously in Congress this year, there are many aspects it must address. These include everything from federal regulation and tax issues to financial services, clinical research, the contours of interstate commerce and technical barriers to trade, social equity, criminal justice, and respect of states’ reserved powers. There is a danger that federal legalization, done incorrectly, could produce outcomes even more adverse than the status quo.

This analysis provides an overview of each of these subtopics and provides general recommendations to help guide the effort toward federal legalization of marijuana that will achieve the following goals:

• Establishing a regulatory framework that promotes public safety while allowing innovation, industry, and research to thrive.

• Ensuring individuals previously involved in the illicit market can effectively secure a second chance and contribute to the legal market.

• Creating low barriers to entry and non-restrictive occupational and business licensing so that large companies and new entrepreneurs can compete on a level playing field.

• Imposing a total tax burden – federal, state, and local combined – that does not incentivize the continuation of gray or black markets and ensures competitive global footing for a vibrant, novel U.S. industry.

July 5, 2021 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Sunday, July 4, 2021

Marijuana liberty in America showing rapid growth as we mark Independence Day 2021

8ca3db280b69645a74c9f43cd763bbd9In a 1788 letter to James Madison, George Washington had a wonderful quote that seems especially fitting to highlight on a marijuana blog on Independence Day 2021:  “Liberty, when it begins to take root, is a plant of rapid growth.”  I have long thought that one of many reasons marijuana prohibitions have proved unsuccessful is because cannabis is itself a "plant of rapid growth" and so is readily cultivated in so many places by so many people no matter when the law formally provides or permits. 

Of course, this quote strikes me as especially fitting circa July 4, 2021 after the 2020 election in which adult-use ballot initiatives passed handily in Arizona, Montana, New Jersey, and South Dakota while medical marijuana initiatives passed overwhelmingly in Mississippi and South Dakota.  And in the first half of 2021, we have already seen four more states legalize fully adult use of marijuana  (Connecticut, New Mexico, New York and Virginia) and also seen Alabama enact medical marijuana reform.  The liberty to use marijuana, once it took root after the ballot initiatives in Colorado and Washington in 2012, has seen a decade of growth that has been even more rapid than anyone might have reasonably predicted.

That said, though fans of marijuana freedom certainly have plenty to celebrate today, the recent suspension of US sprinter Sha'Carri Richardson serves as a reminder that we are still a very long way from being fully free from marijuana prohibitions.  Most fundamentally, blanket prohibition of marijuana for any and all uses is still the federal law of the land in the Land of the Free, and there is little reason to be optimistic that this will change before we celebrate Independence Day 2022.  Though many consider access to cannabis fundamental to "Life, Liberty and the pursuit of Happiness," there is still much work to do before we can truly declare independence from laws that make it a crime to grow and consume this particular "plant of rapid growth."

July 4, 2021 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Monday, June 28, 2021

Justice Thomas talks up reconsidering Raich, but has no compatriots (yet)

Download (18)One of many interesting stories of modern marijuana reform has been the relative lack of Supreme Court engagement with the issue in modern times (which, of course, is partially a function of the relative lack significant federal reforms passed by Congress to date).  Against that backdrop, it was especially surprising and exciting that Justice Thomas today decided to pen this five-page statement respecting the denial of cert in a tax case, Standing Akimbo v. US,  in order to question whether the Raich decision upholding federal power to prohibit all marijuana activity is still good law.  The whole statement is a must read, and here are just a few passages that I especially enjoyed (cites and footnotes removed):

Whatever the merits of Raich when it was decided, federal policies of the past 16 years have greatly undermined its reasoning.  Once comprehensive, the Federal Government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana.  This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary....

though federal law still flatly forbids the intrastate possession, cultivation, or distribution of marijuana, Controlled Substances Act, the Government, post-Raich, has sent mixed signals on its views.  In 2009 and 2013, the Department of Justice issued memorandums outlining a policy against intruding on state legalization schemes or prosecuting certain individuals who comply with state law.  In 2009, Congress enabled Washington D. C.’s government to decriminalize medical marijuana under local ordinance. Moreover, in every fiscal year since 2015, Congress has prohibited the Department of Justice from “spending funds to prevent states’ implementation of their own medical marijuana laws.”  That policy has broad ramifications given that 36 States allow medicinal marijuana use and 18 of those States also allow recreational use.

Given all these developments, one can certainly understand why an ordinary person might think that the Federal Government has retreated from its once-absolute ban on marijuana.  One can also perhaps understand why business owners in Colorado, like petitioners, may think that their intrastate marijuana operations will be treated like any other enterprise that is legal under state law.

Yet, as petitioners recently discovered, legality under state law and the absence of federal criminal enforcement do not ensure equal treatment....

Suffice it to say, the Federal Government’s current approach to marijuana bears little resemblance to the watertight nationwide prohibition that a closely divided Court found necessary to justify the Government’s blanket prohibition in Raich. If the Government is now content to allow States to act “as laboratories” “‘and try novel social and economic experiments,’” Raich, 545 U. S., at 42 (O’Connor, J., dissenting), then it might no longer have authority to intrude on “[t]he States’ core police powers . . . to define criminal law and to protect the health, safety, and welfare of their citizens.” Ibid.  A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the Federal Government’s piecemeal approach.

Of course, Justice Thomas dissented in Raich, so perhaps it should not seem lke a big surprise that he would be inclined to talk up the possibility that it is no longer good precedent.  Still, I do not think the tax issue in Standing Akimbo directly called for considering Raich's standing and status.   And, of course, Justice Thomas "had me at hello," given that a mere eight months ago I was talking up in this post the prospects of "Raich 2.0" challenges to federal prohibition because so much has changed in the 16 years since the original Raich ruling.  (In my prior post, I suggested a number of new Justices might not only be inclined to join Justice Thomas to reconsider the Commerce Clause ruling in Raich, but also might be inclined to breathe some life into the Ninth and Tenth Amendments in this unique context.  And one could further speculate that Justices Breyer, Kagan and Sotomayor might be open to considering Fifth and Eighth Amendment challenges to the modern functioning of federal marijuana prohibition.)

Disappointingly, none of Justice Thomas's fellow Justices joined his statement, and so it is unclear whether there could be others inclined to now reconsider Raich.  But I am hopeful that perhaps this statement by Justice Thomas alone could fuel some more lower court litigation and discussion, perhaps on a number of different grounds, concerning whether blanket federal marijuana prohibition now functions in constitutionally problematic ways.  I think it is only a matter of time before we start to see more Supreme Court engagement with marijuana reform issues, and broadside constitutional issues always make for an interesting place to start.

June 28, 2021 in Court Rulings, Federal court rulings, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Sunday, June 27, 2021

Red state marijuana reforms not yet leading to GOP Senator support for federal reform

Natalie Fertig of Politico has this effective new piece highlighting that Senate Republicans do not seem to be moving off their opposition to broad federal  marijuana reform even as more and more red states enact reform.  The piece is headlined "Republicans are watching their states back weed — and they’re not sold," and here are excerpts:

Marijuana’s popularity boom in red states isn’t breaking through with conservatives on Capitol Hill, pinching an already narrow path to federal legalization.

A growing number of Republican senators represent states that have legalized recreational or medical cannabis — six approved or expanded marijuana in some form just since November.  But without their support in Congress to make up for likely Democratic defectors, weed falls critically short of the 60 votes needed to advance legislation.

Montana’s Steve Daines and South Dakota’s Mike Rounds, both Republicans, said they don’t support comprehensive federal cannabis reform, no matter what voters back home voted for....

Lawmakers whose constituents have already approved some form of legal marijuana are seen as the most likely to support loosening federal restrictions, but so far Republican senators appear largely unmoved by the will of voters when it comes to weed.  In some states, such as Montana and South Dakota, marijuana did better on the ballot than their senators.

POLITICO spoke with a dozen GOP senators who represent medical or recreational cannabis markets in recent days. None committed to vote to remove cannabis from the Controlled Substances Act, but Sens. Lisa Murkowski of Alaska and Kevin Cramer of North Dakota said they were open to discussing ways to remove federal cannabis penalties.  Others, however, said they were not on board with any type of federal cannabis legislation.

June 27, 2021 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Wednesday, June 9, 2021

"Achieving Social Equity in the Cannabis Industry"

The title of this post is the title of this new paper recently posted to SSRN and authored by Samuel DeWitt, a student at The Ohio State University Moritz College of Law.  (This paper is yet another in the on-going series of student papers supported by the Drug Enforcement and Policy Center.)   Here is this latest paper's abstract:  

As legal cannabis begins to infiltrate most American states and public support grows for federal legalization, the national discussion has shifted from if cannabis should be legalized to how it should be legalized.  A significant part of this debate has centered around the need to use cannabis legalization to address the lasting harm done to communities of color through federal prohibition.  A fair and just framework for the legal cannabis industry cannot be achieved without sufficient efforts to foster social equity within the industry and to right the wrongs done by decades of prohibition.  While most states with legal cannabis have recognized this issue and have taken some steps to address it, state action as a whole has been mostly ineffective and does not adequately reflect the scale of the problem.  This paper argues that broad federal action is needed to achieve true social equity in the cannabis industry, action that goes beyond recognizing the problems and works to change the stigma surrounding drug use and its historical relation to communities of color.

June 9, 2021 in Federal Marijuana Laws, Policies and Practices, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Friday, May 28, 2021

Could reintroduction of MORE Act in US House actually make federal marijuana reform less likely?

6a00d8341bfae553ef0223c85155dc200c-320wiThe question in the title of this post is my initial reaction and worry in response to this press release from the office of House Judiciary Chair Jerry Nadler.  Here are some basics from the release:

Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY), along with Representatives Earl Blumenauer (D-OR), Barbara Lee (D-CA), Sheila Jackson Lee (D-TX), Hakeem Jeffries (D-NY) and Nydia Velázquez (D-NY) reintroduced the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, one of the most comprehensive marijuana reform bills ever introduced in the U.S. Congress.

"Since I introduced the MORE Act last Congress, numerous states across the nation, including my home state of New York, have moved to legalize marijuana. Our federal laws must keep up with this pace," said Chairman Nadler. "I’m proud to reintroduce the MORE Act to decriminalize marijuana at the federal level, remove the needless burden of marijuana convictions on so many Americans, and invest in communities that have been disproportionately harmed by the War on Drugs. I want to thank my colleagues, Representatives Barbara Lee and Earl Blumenauer, Co-Chairs of the Congressional Cannabis Caucus, as well Representatives Sheila Jackson Lee, Hakeem Jeffries, and Nydia Velázquez for their contributions to this legislation, and I look forward to our continued partnership as we work to get this legislation signed into law."...

Following efforts led by states across the nation, the MORE Act decriminalizes marijuana at the federal level. The bill also aims to correct the historical injustices of failed drug policies that have disproportionately impacted communities of color and low-income communities by requiring resentencing and expungement of prior convictions. This will create new opportunities for individuals as they work to advance their careers, education, and overall quality of life. The MORE Act also ensures that all benefits in the law are available to juvenile offenders....

In the 116th Congress, Chairman Nadler led the House of Representatives in passing the MORE Act by a bipartisan vote of 228 to 164.

Because the MORE Act is a very ambitious bill, it has lots of support from many advocacy groups and long-time supporters of marijuana reform. But because the MORE Act is a very ambitious bill, it got no traction in the Senate in the last Congress and there is little reason to be confident it will get any traction in the Senate in this Congress. 

This Politico article last month, headlined "Senate Democrats split over legalizing weed; Several told POLITICO they’re opposed to Majority Leader Chuck Schumer's legalization push," highlighted that not even all Senate Democrats are inclined to support federal marijuana legalization.  That article also rightly noted that there are some particular provisions in the MORE Act that are especially likely to turn off libertarian-leaning GOP Senators who might be inclined to support another kind of federal reform.

Because I have never work on the hill, I am not sure if a bill like the MORE Act with little chance of actual passage can still help advance the reform cause.  But I am sure that the current President and the current Congress seem generally disinclined to do anything all that big in this arena.  The MORE Act is not only big, but it also presents the possibility of indirectly thwarting smaller efforts garnering needed support and momentum going forward.

In this post last month, I suggested that Senator leader Chuck Schumer may have a shrewd view of how best to advance marijuana reform legislation in his chamber.  But I remain worried that there really is neither a will nor a way for big federal marijuana reforms like the MORE Act to become law anytime soon. 

May 28, 2021 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)

Saturday, May 15, 2021

Notable new GOP bill for ending federal marijuana prohibition

6a00d8341bfae553ef0223c85155dc200c-320wiIn a post last month, titled "Senate majority leader shrewdly emphasizing "freedom" in his push for federal marijuana reform," I explained why I viewed Senator Chuck Schumer's focus on "freedom" in his marijuana reform pitch to be appealing and shrewd given that it lines up with a lot of the smaller-government rhetoric often coming from GOP politicians and activists.  Consequently, I was not surprised to see this past week that part of the pitch for a notable new GOP-sponsored bill to end federal marijuana prohibition includes an emphasis on greater liberty for individuals and states concerning marijuana practices.   

This new 14-page marijuana reform bill is available at this link, and it is formally titled the "Common Sense Cannabis Reform for Veterans, Small Businesses, and Medical Professionals Act."  This press release from Congressman Dave Joyce (OH-14), one of the sponsors, provides these details:

Through his work with the Cannabis Caucus and his position on the House Appropriations Committee, Joyce has helped lead the effort to reform the federal government’s outdated approach to cannabis and protect the rights of states across the country, like Ohio, that have voted to implement responsible cannabis policies. Specifically, the Common Sense Cannabis Reform for Veterans, Small Businesses and Medical Professionals Act, which has been applauded by several organizations, would:

  • Remove cannabis from the Federal Controlled Substances Act.
  • Direct the U.S. Food and Drug Administration and the Alcohol and Tobacco Tax and Trade Bureau to issue rules to regulate cannabis modeled after the alcohol industry within one year of enactment.
  • Create a federal preemption to protect financial institutions and other businesses in non-cannabis legal states so that they can service cannabis companies.
  • Allow the Department of Veterans’ Affairs to prescribe medical cannabis to veterans.
  • Direct the National Institutes of Health to conduct two studies on cannabis as it pertains to pain management and cannabis impairment and report to Congress within two years of enactment.

And here is some of the media coverage that provides a review of this bill:

May 15, 2021 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Wednesday, April 28, 2021

"Reflexive Federalism" reviews Marijuana Federalism: Uncle Sam and Mary Jane

9780815737896_FCI believe I have previously noted some of the marijuana reform essays in the terrific collection published last year by Brookings under the title "Marijuana Federalism: Uncle Sam and Mary Jane." (Information about the book can be found here and here.)  I am now pleased to see that Paul Larkin, Jr. has this notable new article titled "Reflexive Federalism" which engages with many of the ideas and essays in Marijuana Federalism.  Here is its abstract:

Over the last twenty-plus years, a majority of states have concluded that marijuana has legitimate therapeutic and recreational value, and those states allow private parties to cultivate, sell, possess, and use it under a state regulatory régime.  Consequently, we have witnessed the development of state cannabis regulatory programs that are inconsistent legally, practically, and theoretically with the approach that our national government has taken for fifty years.  How do we resolve that conflict between state and federal law?  The Supreme Court has refused to take this issue away from the political branches of the federal government by ruling that it is a matter within the states’ bailiwick.  The Executive Branch has failed to take a coherent position regarding whether, when, and how it will enforce the existing federal law.  And Congress has abdicated its responsibility to clarify what should be federal policy in a field where only Congress can decide.  The result is that we have one law for Athens and one for Rome. Not surprisingly, that strategy is not working for anyone other than those members of Congress who wish to avoid casting a vote on the issue.

Some of Marijuana Federalism’s contributors encourage Congress to “cowboy up” politically and eliminate the disarray in the law by leaving it to each state to decide, while others try to persuade the Supreme Court to take another whack at the issue and rule that Congress cannot generally regulate the intrastate sale of cannabis.  The threads that tie the essays together are the potential benefits we might see from permitting multiple states to devise different regulatory approaches and the affinity for decentralized decision-making built into our Constitution’s DNA.  What Marijuana Federalism is missing, however, is a treatment of the argument that Congress should leave decisions regarding the recreational use of marijuana to the states, but not whether it has legitimate medical uses. For 80 years the nation has entrusted the Food and Drug Administration with the responsibility to decide what is a “drug” and what drugs are “safe” and “effective.”  There is no good reason to treat cannabis differently.

April 28, 2021 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Tuesday, April 20, 2021

Notable working group releases new "Principles for Federal Cannabis Regulations & Reform"

As detailed in this new Drug Policy Alliance press release, today "the Federal Cannabis Regulations Working Group released its Principles for Federal Cannabis Regulations & Reform," outlining what a federal regulatory framework — grounded in justice and social equity—should look like." Here is more from the DPA release:

The working group was convened by the Drug Policy Alliance at the beginning of this year.

Throughout a series of meetings and in-depth conversations, the group — made up of cannabis state regulators, public health professionals, criminal justice reform advocates, civil rights attorneys, people working with directly impacted communities in the cannabis industry, re-entry advocates, academics and an expert involved in Canada’s cannabis regulation — has identified key principles that should guide the development of federal cannabis regulation policies.  The principles document encourages and provides guidance on issues related to racial justice, equity, preventing underage use, elimination of lifelong consequences, medical use, taxation, research and more.  This release precedes the group’s continued effort to develop and roll out a more comprehensive set of recommendations for Congress on crucial issues such as — but not limited to — which federal agency should regulate cannabis (and to what extent), what kind of product should cannabis be regulated as, expungement, workforce development, medical use, non-commercial activity, and enforcement.

It will be very interesting to see if how forthcoming federal marijuana reform bills meet up with this two-page statement of principles.

April 20, 2021 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

"Hitting the Trip-Wire: When Does a Company Become a 'Marijuana Business'?"

The title of this post is the title of this new article authored by Lauren Newell recently posted to SSRN.  Here is its a abstract:

Like the alcohol industry during Prohibition, the marijuana industry is a profitable one.  And, like bootlegging was then, selling marijuana in the United States now is illegal.  Despite the number of states that have legalized or decriminalized the sale of marijuana for medical or recreational use under state law, marijuana sales remain illegal as a matter of federal law under the federal Controlled Substances Act of 1970 (CSA).  Individuals and entities that violate the CSA face substantial potential criminal and civil liability, including prison time and fines, alongside a host of additional negative consequences arising in business law, tax, bankruptcy, banking, and other sources.  The negative consequences marijuana businesses face have been discussed in detail elsewhere.  This Article asks a different question: not, what are the negative consequences, but rather, when do those negative consequence attach?  In other words, when does a company become a “Marijuana Business”?

For purposes of this discussion, a Marijuana Business is an entity that participates, contributes, or assists, directly or indirectly, in the retail and/or medical marijuana industry to an extent that exposes it, its owners, and its agents to potential criminal and civil liability and other negative business consequences.  In short, these are the companies that should be worried about the fact that they are engaging in an industry that is illegal under federal law.  To identify the circumstances that result in a company’s being a Marijuana Business, this Article analyzes seven hypothetical companies that directly participate in the marijuana industry or support others that do.  For each, it asks whether the facts are sufficient to establish criminal liability either directly under the CSA or indirectly under criminal conspiracy or aiding and abetting liability theories.  Part I briefly introduces criminal liability under the CSA, along with the two complicity theories.  Part II analyzes the hypothetical companies’ actions and determines whether they are Marijuana Businesses.  Part III concludes with factors that courts and companies can look toward to determine whether those companies are indeed Marijuana Businesses.

April 20, 2021 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Monday, April 19, 2021

After strong bipartisan approval in US House again, will US Senate finally take up SAFE Banking Act?

1555342460244A big week for discussion of marijuana reform got off to a big start thanks to a vote in the US House of Representatives.  This effective Marijuana Moment piece, headlined "U.S. House Approves Marijuana Banking Bill For Fourth Time, Setting Up Senate Consideration," provides these details:

The U.S. House of Representatives on Monday approved a bill to protect banks that service state-legal marijuana businesses from being penalized by federal regulators.  After receiving an initial voice vote earlier in the afternoon, members passed the legislation by a final recorded vote of 321-101.

The legislation, which was reintroduced by Rep. Ed Perlmutter (D-CO) and a long bipartisan list of cosponsors last month, was taken up under a process known as suspension of the rules, which does not allow for amendments and requires a 2/3rd supermajority to pass....

Because marijuana businesses are largely precluded from accessing traditional financial institutions and have to operate on a mostly cash-only basis, that makes them targets of crime — a point that advocates, regulators and banking representatives have emphasized.  “Even if you are opposed to the legalization of cannabis, you should support this bill,” Perlmutter added.  “American voters have spoken and continue to speak — and the fact is, you can’t put the genie back in the bottle.  Prohibition is over.”...

Rep. Patrick McHenry (R-NC) spoke in opposition to the legislation, stating that “regardless of your position on this bill, I do think the fact remains that cannabis is a prohibited substance under Schedule I of the Controlled Substances Act — and let me further state, by enacting this legislation, we’re effectively kneecapping law enforcement enforcement and legalizing money laundering.”

But in a sign of the bipartisan nature of this reform, Rep. David Joyce (R-OH) took to the floor to defend the legislation. He said “I’m proud to help lead this common sense and overdue effort.”

“At a time when small businesses are just beginning to recover from the economic destruction caused by COVID-19, the federal government should be supporting them, not standing in their way,” he said.

McHenry was the only lawmaker to rise against the bill on the floor, yielding all additional opposition time to other Republican members who actually spoke in support of it.

Just before the debate started on Monday, the governors of 20 states and one U.S. territory — as well as bankers associations representing every state in the country and a coalition of state treasurers — sent letters to House leadership, expressing support for the reform legislation.

The vote marks the fourth time the House has approved the Secure and Fair Enforcement (SAFE) Banking Act. Lawmakers passed it as a standalone bill in 2019 and then twice more as part of coronavirus relief legislation.  At no point did the measure move forward in the Senate under Republican control last session, however.

But this time around, advocates and industry stakeholders are feeling confident that the bill’s path will not end in the House.  With Democrats now in control of both chambers and the White House, there are high expectations that the proposal will make its way through the Senate and onto the president’s desk.

I am hopeful, but not at all optimistic, that this bill will move forward in the Senate with Democrats now in control of the chamber.  Senate leader Chuch Schumer is expected to release a comprehensive marijuana reform bill "soon" and that bill will likely be a priority for Senators and advocates most eager to see federal marijuana reforms.  Senators and others backing broader reforms could potentially view the SAFE Banking Act as an insufficient reform that could undercut momentum for bigger reforms.

April 19, 2021 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Tuesday, April 6, 2021

Notable new group, the Cannabis Freedom Alliance, seeks to advance end of marijuana prohibition

Cannabis-freedom-allianceAs discussed in this new Politico piece, headlined "Koch, Snoop Dogg join forces to push marijuana legalization," there is another notable new advocacy group focused on marijuana reform.  Here is how the Politico article gets started:

What do you get when weed-loving rapper Snoop Dogg, right-wing billionaire Charles Koch and criminal justice reform advocate Weldon Angelos walk into a Zoom room?   The Cannabis Freedom Alliance, a new coalition launching Tuesday that could change the dynamics of the marijuana legalization debate, as first reported by POLITICO.

The organization includes Americans for Prosperity, the political advocacy group founded by the Koch brothers; the Reason Foundation, a libertarian think tank; marijuana trade organization the Global Alliance for Cannabis Commerce; and The Weldon Project, a nonprofit that advocates for the release of individuals incarcerated for marijuana offenses.

The movement for marijuana legalization has long been dominated by left-leaning organizations like the Drug Policy Alliance and the National Organization for the Reform of Marijuana Laws.  And despite a handful of congressional Republicans supporting the issue, most legalization proponents in Congress are Democrats.  “We can’t cut with one scissor blade.  We need Republicans in order to pass [a legalization bill],” said Angelos, founder of the Weldon Project. Angelos served 13 years of a 55-year sentence for marijuana trafficking charges, and got a full pardon from former President Donald Trump last December.

The background: The idea for the Cannabis Freedom Alliance sprouted from a Zoom call between Angelos, Snoop Dogg and Koch last summer.  Koch expressed support for legalizing all drugs, to the surprise of Angelos. “I had known that his position on drugs was very libertarian,” Angelos said. “I just didn't know that he supported the legalization of all drugs.”

Angelos connected with the Koch network for its help in advocating for legalization at the federal level, which he believes is now more important than ever with Democrats in control of Congress. Prior to flipping the Senate, then-Majority Leader Mitch McConnell was a barrier to any marijuana legislation coming to the floor. But now with Majority Leader Chuck Schumer pushing the issue as a priority, a marijuana bill could very well come up for a vote. “We need 10 to 12 Republican senators,” Angelos said. “With Koch’s influence, I think that's likely a possibility.”

The website for the Cannabis Freedom Alliance is available here, and its one-page Statement of Principles can be found here. (Disclosure: The Ohio State University's Drug Enforcement and Policy Center (DEPC), which I help run, was founded with a grant from the Charles Koch Foundation, and a long time ago I served as co-counsel for Weldon Angelos as he pursued relief through a 2255 motion.  But I have never met Snoop Dogg.)

April 6, 2021 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (1)

Saturday, April 3, 2021

Senate majority leader shrewdly emphasizing "freedom" in his push for federal marijuana reform

11119_Weed_Legalize_Freedom_Decal_Sticker_DM__26064.1538472841.1280.1280The federal marijauan reform bill that passed through the US House late last year was the "Marijuana Opportunity Reinvestment and Expungement Act" (the MORE Act).  But the marijuana reform bill that Senator Chuck Schumer first introducted in the US Senate in 2018 was called the "Marijuana Freedom and Opportunity Act."  I find the names of these bills particularly notable upon seeing this new Politico interview with now-majority-leader Schumer headlined "Schumer: Senate will act on marijuana legalization with or without Biden."  As highlighted by these excerpts, Senator Schumer seem especially eager to play up the freedom theme in explaining his reasons for supporting reform (my ephasis added):

Schumer: In 2018, I was the first member of the Democratic leadership to come out in support of ending the federal prohibition.  I'm sure you ask, “Well what changed?” Well, my thinking evolved.  When a few of the early states — Oregon and Colorado — wanted to legalize, all the opponents talked about the parade of horribles: Crime would go up.  Drug use would go up.   Everything bad would happen.

The legalization of states worked out remarkably well.  They were a great success.  The parade of horribles never came about, and people got more freedom. And people in those states seem very happy.

I think the American people started speaking with a clear message — more than two to one — that they want the law changed.  When a state like South Dakota votes by referendum to legalize, you know something is out there.

Was there a specific moment or a specific experience that you can point to and say, “This is when I started to see this issue differently?”

A while back — I can't remember the exact year — I was in Denver.  I just started talking to people, not just elected officials, but just average folks.

[They said] it benefited the state, and [didn’t] hurt the state.  There were tax revenues, but people had freedom to do what they wanted to do, as long as they weren't hurting other people.  That's part of what America is about.  And they were exultant in it.

Perhaps because it plays well to my libertarian instincts, I find this focus on "freedom" to be appealing and shrewd as a central part of a pitch for federal marijuana reforms.  I find the freedom focus appealing because I like the general notion that the federal government generally ought not be prohibiting personal freedoms, and especially ought not be using the weighty tools of the federal criminal justice system to advance prohibitions, unless and until we can be generally confident that federal prohibition is doing more good than harm.

Perhaps more importantly, I find the freedom focus shrewd because it lines up with a lot of the smaller-government rhetoric, past and present, often coming from GOP policians and activists.  Whether it is the congressional Freedom Caucus or opposition to gun control or COVID rules or a host of other issues, there are lots of Republican who loudly claim to be ever eager to shrink the size and power of the federal government in order to increase the freedom of individuals (and/or states and localities). Against this political backdrop, I think Senator Schumer is already trying to position any vote against federal marijuana reform as a vote against freedom.

April 3, 2021 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Friday, March 19, 2021

Marijuana use still proving hurdle to working in White House despite Prez Biden's advocacy for reform

6054e3359505d732ff68aa75_o_U_v2As reported in this Daily Beast piece,"dozens of young White House staffers have been suspended, asked to resign, or placed in a remote work program due to past marijuana use, frustrating staffers who were pleased by initial indications from the Biden administration that recreational use of cannabis would not be immediately disqualifying for would-be personnel, according to three people familiar with the situation." Here is more:

The policy has even affected staffers whose marijuana use was exclusive to one of the 14 states — and the District of Columbia — where cannabis is legal.  Sources familiar with the matter also said a number of young staffers were either put on probation or canned because they revealed past marijuana use in an official document they filled out as part of the lengthy background check for a position in the Biden White House.

In some cases, staffers were informally told by transition higher-ups ahead of formally joining the administration that they would likely overlook some past marijuana use, only to be asked later to resign.  “There were one-on-one calls with individual affected staffers — rather, ex-staffers,” one former White House staffer affected by the policy told The Daily Beast. “I was asked to resign.”...

In response to this news story, White House press secretary Jen Psaki tweeted out on Friday an NBC News report from February stating that the Biden administration wouldn’t automatically disqualify applicants if they admitted to past marijuana use.  Psaki said of the hundreds of people hired in the administration, only five who had started working at the White House are “no longer employed as a result of this policy.”

Psaki didn’t note how many had been disqualified for a White House job before actually starting, nor did she note how many were suspended or relegated to remote work, but she did send an additional statement to The Daily Beast on Friday. “In an effort to ensure that more people have an opportunity to serve the public, we worked in coordination with the security service to ensure that more people have the opportunity to serve than would not have in the past with the same level of recent drug use.  While we will not get into individual cases, there were additional factors at play in many instances for the small number of individuals who were terminated,” Psaki said.

The White House said in February it intended — for some candidates — to waive the requirement that all potential appointees in the Executive Office of the President be able to obtain a “top secret” clearance.  The rules about past marijuana use and eligibility for the clearance vary, depending on the agency: For the FBI, an applicant can’t have used marijuana in the past three years; at the NSA, it’s only one.  The White House, however, largely calls its own shots, and officials at the time told NBC News that as long as past use was “limited” and the candidate wasn’t pursuing a position that required a security clearance, past use may be excused.

Asked about the policy and its effect on the administration’s staffing Thursday night, a White House spokesperson disputed the number of affected staff, but said the Biden administration is “committed to bringing the best people into government — especially the young people whose commitment to public service can deepen in these positions,” and noted that the White House’s approach to past marijuana use is much more flexible than previous administrations....

Some of these dismissals, probations and remote work appointments could have potentially been a result of inconsistencies that came up during the background-check process, where a staffer could have, for example, misstated the last time they used marijuana.  The effect of the policy, however, would be the same: The Biden White House would be punishing various staffers for violating thresholds of past cannabis use that would-be staffers didn’t know about....

The Biden administration has attempted to modernize the White House’s personnel policy as it relates to past marijuana use, which has disproportionately affected younger appointees and those from states where marijuana has been decriminalized or legalized. (Marijuana, of course, remains illegal in the eyes of the federal government.) The number of allowable instances of past marijuana use was increased from the Trump and Obama administrations — a reflection of the drug’s widespread use — and the White House approved limited exemptions for candidates whose positions don’t require security clearances.  Those employees, like all those at the White House, must commit to not using marijuana while serving in the federal government and must submit to random drug testing.

The president, however, remains the final authority on who can receive a clearance, and the chief executive can overrule agency judgments on eligibility, as President Donald Trump did when he granted his son-in-law Jared Kushner a top-secret clearance over the objections of the intelligence community and his own counsel.

March 19, 2021 in Campaigns, elections and public officials concerning reforms, Employment and labor law issues, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)