Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Friday, May 20, 2022

Ninth Circuit panel holds (in trademark dispute) that "delta-8 THC products are lawful under the plain text of the Farm Act"

Images (6)In this post a few month ago, I noted the growth of so-called delta-8 THC products and all the legal uncertainty around them. Yesterday, in an important ruling, a Ninth Circuit panel directly address question about the legality of delta-8 products under federal law. In AK Futures LLC v. Boyd Street Distro, LLC, No. 21-56133 (9th Cir. May 19, 2022) (available here), a trademark dispute prompted the panel to fully engage the arguments surrounding whether the 2018 Farm Bill served to legalize cannabis products without the standard delta-9 THC, and the opinion ultimately embraces the claim that delta-8 THC products derived from hemp CBD are legal products under federal law.  Here are some key passages from the opinion:

[T]he parties dispute whether the possession and sale of delta-8 THC is permitted under federal law and, consequently, whether a brand used in connection with delta-8 THC products may receive trademark protection.  AK Futures argues that delta-8 THC falls under the definition of hemp, which was legalized by the 2018 Farm Act.  Boyd Street argues a contrary interpretation of the Act based on agency documents and congressional intent....

AK Futures argues the Farm Act’s definition of hemp encompasses its delta-8 THC products so long as they contain no more than 0.3 percent delta-9 THC.  Plain meaning supports this interpretation....  Importantly, the only statutory metric for distinguishing controlled marijuana from legal hemp is the delta-9 THC concentration level....

The Farm Act’s definition of hemp does not limit its application according to the manner by which “derivatives, extracts, [and] cannabinoids” are produced.  Rather, it expressly applies to “all” such downstream products so long as they do not cross the 0.3 percent delta-9 THC threshold....

Regardless of the wisdom of legalizing delta-8 THC products, this Court will not substitute its own policy judgment for that of Congress.  If Boyd Street is correct, and Congress inadvertently created a loophole legalizing vaping products containing delta-8 THC, then it is for Congress to fix its mistake.  Boyd Street’s intent-based argument is thus unsuccessful.  With that, neither of Boyd Street’s counterarguments dissuade us from the conclusion that AK Futures is likely to succeed on the merits of its trademark claim.

May 20, 2022 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)

Wednesday, April 20, 2022

Florida official sues feds, stressing Second Amendment and Rohrabacher-Farr Amendment, on gun purchasing limits for medical marijuana patients

Florida-guns-and-mmjThis interesting NBC News piece reports on an interesting new federal lawsuit under the headline "Top Florida Democrat sues Biden administration over marijuana and guns: Agriculture Commissioner Nikki Fried's lawsuit targets a federal requirement that prohibits medical marijuana users from purchasing firearms." Here are excerpts:

Florida’s lone statewide elected Democrat, Agriculture Commissioner Nikki Fried, plans to sue the Biden administration Wednesday to try to block a federal rule that prohibits medical marijuana users from buying guns or maintaining concealed-carry permits. NBC News obtained a draft copy of the lawsuit.

The lawsuit targets a federal form that asks whether the gun buyer is an unlawful user of drugs and specifies that marijuana is illegal under federal law. A person allowed by the state to use marijuana must then check “yes,” which results in denial of the purchase. Lying by checking “no” runs the risk of a five-year prison sentence for making a false statement.

Fried, whose office oversees concealed weapons permits and regulates some aspects of medical marijuana, argues in her lawsuit that the form violates the Second Amendment rights of lawful medical marijuana patients and runs afoul of a congressional budget prohibition on federal agents’ interfering with state-sanctioned cannabis laws.

The suit has ramifications beyond Florida: At least 37 states have legalized medical marijuana, and recreational use is legal in 18 states, as well as Guam and Washington, D.C. The lawsuit is timed to land on April 20 — a nod to the slang reference of "420" for marijuana.

The suit is laden with political opportunity for Fried, who became the only Democrat elected statewide in 2018 when she ran on an unabashedly pro-cannabis platform. Two years before, 71 percent of Florida voters legalized medical marijuana, and polls show a majority favor legalization of recreational use. Florida also has 2.5 million concealed weapons permit holders, according to Fried’s office.

“Medical marijuana is legal. Guns are legal. This is all about people’s rights,” Fried said in a statement to NBC News. “And I don’t care who I have to sue to fight for their freedom.”

In her official capacity as agriculture commissioner, Fried is bringing the suit with three citizens who have been affected by the federal rules. It names the acting head of the Bureau of Alcohol, Tobacco, Firearms and Explosives and Attorney General Merrick Garland as defendants. While it’s rare for a Democrat to sue a Democratic administration during an election year, Fried said the issue can no longer wait because of the volume of complaints her office has received.

A spokesperson for ATF said the agency “can’t speculate on possible litigation or discuss any pending litigation” but implicitly blamed federal lawmakers for not changing the Controlled Substances Act and the Gun Control Act, which respectively regulate marijuana and firearms....

Fried’s former pollster, Keith Frederick, said any risks for her by bucking the Biden administration are offset because she’s raising her profile by embracing a popular issue. “You can have the best affordable housing plan possible, but once you get to point No. 2, people’s eyes glaze over, and they stop paying attention,” Frederick said. “People care about this.”

Support for medical marijuana and cannabis legalization cuts across party lines, as does opposition to the conflicting regulations in state and federal law. Gun rights are also generally popular in Florida.

Fried’s lawsuit notes that even conservative Supreme Court Justice Clarence Thomas groused in an unrelated case about the “half-in, half-out regime that simultaneously tolerates and forbids use of marijuana.” “This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary,” Thomas said.

Other plaintiffs have tried and failed to sue the federal government over gun purchases. Fried’s lawsuit singles out the most recent lawsuit for presenting “a thin and stale factual record” that improperly ignored a federal study concluding that “marijuana use does not induce violent crime.” In addition, unlike the other unsuccessful federal case, Fried’s lawsuit argues that the form violates the so-called Rohrabacher-Farr Amendment, which prohibits ATF from enforcing anti-cannabis policies in states that have opted for legalization.

The full lawsuit is available at this link.  The complaint runs 33 pages, followed by more than 200 pages of notable attachment.  

April 20, 2022 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Friday, April 15, 2022

Notable federal marijuana reform news with an interesting new bill while we further wait for an old one

6a00d8341bfae553ef0223c85155dc200c-320wiThis past week brought interesting news of federal marijuana reform bill on two fronts.  Marijuana Moment provides the details in these two stories, linked and excerpted here:

"Schumer’s Marijuana Legalization Bill Not Coming This Month, As Senators Work To Finalize Provisions."  Excerpt:

The long-anticipated Senate bill to federally legalize marijuana will not be introduced this month, with Democratic leadership saying on Thursday that the timeline is being extended as they continue to work out various provisions “with the assistance of nearly a dozen Senate committees and input from numerous federal agencies.”

Senate Majority Leader Chuck Schumer (D-NY) has said on several occasions that the bill he’s been working on with Senate Finance Committee Chairman Ron Wyden (D-OR) and Sen. Cory Booker (D-NJ) for many months would be formally filed by the end of April.  That’s no longer the case, with the leader now saying the “official introduction” will take place sometime “before the August recess.”

A discussion draft of the Cannabis Administration & Opportunity Act (CAOA) was first unveiled last year, and advocates and stakeholders have been hanging on the leader’s words as they continue to push for an end to federal prohibition. Most recently, Schumer said last week that he and colleagues were in the process of reaching out to Republican senators to “see what they want” included in the legislation.

The timeline that Schumer previewed has apparently proved too ambitious — but the hope is that by taking extra time to finalize the measure, it will help the senators overcome what are currently significant odds stacked against them to reach a high vote threshold in the chamber, where Democrats hold just a slim majority and several members of the party have indicated that they’re not supportive of legalization.

"U.S. Attorney General Would Be Required To Create Marijuana Commission To Advise On Legalization Under New Bipartisan Bill." Excerpt:

A bipartisan group of congressional lawmakers filed a bill on Thursday that would direct the attorney general to create a commission charged with making recommendations on a regulatory system for marijuana that models what’s currently in place for alcohol.

Reps. Dave Joyce (R-OH), Hakeem Jeffries (D-NY) and Brian Mast (R-FL) are teaming up on what’s titled the Preparing Regulators Effectively for a Post-Prohibition Adult-Use Regulated Environment Act (PREPARE) Act — an incremental reform meant to inform comprehensive cannabis policy changes in the future.

The measure will “provide lawmakers across the ideological spectrum the opportunity to engage on cannabis reform by creating a fair, honest and publicly transparent process for the federal government to establish effective regulation to be enacted upon the termination of its 85-year prohibition of cannabis,” according to a summary from the sponsors....

Here’s what the new bill would accomplish: 

Require the attorney general to establish a “Commission on the Federal Regulation of Cannabis” within 30 days of the bill’s enactment.  The commission would be responsible for studying federal and state regulatory models for alcohol and make recommendations about how they could inform marijuana regulations.  Among other things, the commission’s report must look at the impact of marijuana criminalization, particularly as it concerns minority, low-income and veteran communities.

The panel would also examine the “lack of consistent regulations for cannabis product safety, use and labeling requirements” as well as the “lack of guidance for cannabis crop production, sale, intrastate, interstate, and international trade.“  It would also need to make recommendations on how to remedy cannabis-related banking and research barriers as well as address measures to ensure the “successful coexistence of individual hemp and cannabis industries, including prevention of cross pollination of cannabis and hemp products.”

Members would further be mandated to study and make recommendations on “efficient cannabis revenue reporting and collecting, including efficient and tenable federal revenue frameworks.”  The panel would be required to issue a report to Congress within 12 months.

I have come to believe that Senator Shumer's CAOA is essentially DOA in a Senate that may not now have even 50 votes in support of full marijuana legalization, let alone the 60 needed to get past a filibuster.  But the new PREPARE Act already has bipartisan support, and it seems to only call upon the federal government to take a serious and sustained look at what kind of federal regulatory rules and structures would be preferable as marijuana reform in the states continues apace.  In a well-functioning Congress, I think some version of the PREPARE Act could and should be a no-brainer and likely should have been enacted a number of years ago.  In the current dysfunctional Congress, I fear that we need not seriously prepare for the passage of the PREPARE Act.  But one can still dream. 

April 15, 2022 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Tuesday, April 12, 2022

Student presentation: "Putting Marijuana Back in the Bottle: FDA’s Role in Future Marijuana Regulation"

Images (4)Continuing the Marijuana Law, Policy & Reform seminar students presenting on research topics of their choice. the second topic for this coming week's presentations will be focused on the role of the FDA.  Here is how the student describes her take on the topic and some background readings:

So far, FDA has been fairly hands-off when it comes to the state-driven marijuana market even though marijuana falls under many of the agency’s statutory domains.  “Marijuana” is a hot commodity as consumers can attest from the plethora of products purporting to contain marijuana derivatives.  Many, if not all, of these products fall under FDA’s regulatory regime.

Although FDA has issued some warning letters regarding company actions within the marijuana space, the agency has not developed a consistent theme for regulation.  Once it does, some state regulations may be preempted.  This would throw the current regulatory landscape into question.  Such entry may also change the dynamic of the marijuana industry.  For example, as companies face federal regulation, entry into the marijuana space may become more expensive and push small sellers out of the market.  Conversely, a dual marijuana marketplace may be established — one that establishes itself nationwide and another that attempts to maintain the current system by only selling intra-state.

FDA does not need to completely reinvent the wheel when it comes to marijuana regulation, although it statutorily may have to consider factors unique to current state regulations.  However, given the history of introducing more robust regulations onto new industries, as FDA did with tobacco industry, systems states are already finding successful, and other nations’ marijuana schemes, there are many avenues for FDA to ensure the American public is protected from unsafe products without overly disrupting the current market.

Every year that the federal government declines to implement a regulatory scheme for marijuana products, states are creating their own processes — some more and some less permissive.  This paper describes the statutory basis for FDA to regulate marijuana.  It also describes how future FDA regulation might interplay with current state regulation or be preempted.  Next, it analyzes possible industry challenges as federal regulation becomes more prominent.  Finally, it recommends how FDA may enter the regulatory space in tandem with state regulation and avoid stifling an already robust market.

Background Reading

Law review article: "The Surprising Reach of FDA Regulation of Cannabis, Even after Descheduling"

Law review article (by own own Prof Zettler): "Pharmaceutical Federalism"

US Food & Drug Administration webpage: "FDA Regulation of Cannabis and Cannabis-Derived Products, Including Cannabidiol (CBD)"

Government of Canada webpage: "Health products containing cannabis or for use with cannabis: Guidance for the Cannabis Act, the Food and Drugs Act, and related regulations"

April 12, 2022 in Assembled readings on specific topics, Federal Marijuana Laws, Policies and Practices, Food and Drink, History of Marijuana Laws in the United States, International Marijuana Laws and Policies, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Student presentation examining application of immigration laws in wake of marijuana reforms

Immigration-and-Marijuana-2-1024x683A big group of Marijuana Law, Policy & Reform seminar students are scheduled to present this week on the research topics of their choice.   As I often mention, before their presentations, students are expected to provide in this space some background on their topic and links to some readings or other relevant materials.  The first new topic for this coming week's presentations is to be focused on immigration laws .   Here is how the student describes the topic and some background readings:

Abstract:

This project attempts to raise the profile of and build solidarity among disparate groups on the issue of considering how immigration law should be amended or enforced in the wake of the move towards legalization, whether on a state-by-state or federal level.  The final product will consist of a paper that goes into detail on perspectives and policy rationales for amending the INA to remove marijuana from disparate political perspectives -- those who are already committed to immigrants' rights, those who are already committed to marijuana legalization, and those who are hostile to both. 

For the first group, it's fairly self-explanatory: marijuana use is a deportable offense for immigrants whether or not it is legal, which makes little sense in the era of marijuana reform.  For legalization supporters, I focus on economic developments and social justice.  Allowing immigrants into the group of people who could purchase and use marijuana would both bring more revenue into the market and create a new group of folks who could work in both agricultural and retail ends of the business. Further, given the divisive history of the connections between marijuana criminalization and immigration, noncitizens should be a key consideration in legalization legislation and regulation just as social equity programs are now for women and other minoritized people.  Finally, for those who aren't familiar or amiable to either perspective, the paper dives into arguments about job creation, notions of justice and fairness, and the assertion that supporting minoritized individuals such as immigrants and people of color is beneficial for all members of the U.S. 

After writing the paper, I will be developing a series of issue factsheets based on the arguments and categories above to garner support for solutions to the above issues, such as encouraging readers to support certain bills, state and district level reforms to the criminal justice process, organizations doing work on this issue. 

Background reading:

Law Review Student Comment (2015): "Nonserious Marijuana Offenses and Noncitizens: Uncounseled Pleas and Disproportionate Consequences"

Law Review Student Note (2021): "The Impact of Marijuana Decriminalization on Legal Permanent Residents: Why Descheduling Marijuana at the Federal Level Should Be a High Priority"

Press article providing historical context (2019): "The Surprising Link Between U.S. Marijuana Law and the History of Immigration"

Advocacy group report detailing the personal harm of the current deportation laws and scale of the issue (2015): "A Price Too High - US Families Torn Apart by Deportations for Drug Offenses"

April 12, 2022 in Assembled readings on specific topics, Federal Marijuana Laws, Policies and Practices, Political perspective on reforms, Who decides | Permalink | Comments (0)

Monday, April 4, 2022

Student presentation exploring patent protection for marijuana plants

My Marijuana Law, Policy & Reform seminar continues with student presentations on the research topics of their choice.   The second of this coming week's presentations is focused on patent protection for marijuana plants.   Here is how the student describes the topic and the provided readings:

Presentation Summary

Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. Intellectual properties are one of the most valuable assets for the companies and there are multiples ways one can protects this asset.  And how would businesses in Cannabis go about protecting it’s IP rights under current law, and how much would it effect federal reforms and how would reforms effect IP industries?

Different IP requires different protections, like trademark, copyright, and patent.  And the one I will be focusing on will be patent protection.  Patent protection is most desired of all IP protections as it grants 20 years of monopoly from date of filing.  However, for marijuana related IP to be protected under patent, there are multiple hoops to overcome.  As a plant, it is very difficult to claim a patent.  Furthermore, patents are exclusively governed by federal law, and under federal law marijuana is still illegal, as a Schedule 1 drug under the Controlled Substances Act.   With patent, could provide incentives for researching marijuana and to be able to have enough scientific data to remove it form schedule 1 drug.

This does not mean that getting patent for marijuana is impossible.  There are multiple ways to get over the barriers.  And there are some successful examples of marijuana patent.  This include government owned marijuana patent.  And this patents not only provide economic benefits to patentees but also to the public as it will provide incentive to have more research done on the marijuana.

Background

Background information about marijuana patent law: “Basics of Marijuana Patent law” 

Examples and introduction to obstacles of marijuana patent and examples of marijuana patent: “Twelve Cannabis Plant Patents and Counting

Information about plant patents in general: “General information about 35 U.S.C. 161 plant patents” 

News report of government owned marijuana patent: “Feds patented medical pot…while fighting it” 

April 4, 2022 in Assembled readings on specific topics, Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices | Permalink | Comments (0)

Sunday, April 3, 2022

Student presentation on native tribes exploring marijuana marketplaces

Download (24)My Marijuana Law, Policy & Reform seminar is in its homestretch, and there are scheduled for the coming weeks a host of student presentations on the research topics of their choice.   As I often mention, before their presentations, students are expected to provide in this space some background on their topic and links to some readings or other relevant materials.  The first of this coming week's presentations is focused on native tribes involved in marijuana activities.   Here is how the student describes the topic and the provided readings:

Summary:

Native Americans have the highest poverty rate in the United States and the percentage of American Indians and Alaska Natives living in poverty is nearly twice the rate of the nation.  In addition, the U.S. Commission on Civil Rights “reported that -- due to things like historical discriminatory policies, insufficient resources, and inefficient federal program delivery -- Native Americans continue to rank near the bottom of all Americans in terms of health, education, and employment.”  Some tribes have begun to look towards the marijuana marketplace as a different way to generate revenue for their tribe and to encourage economic development.

Tribes that have been able to build successful marijuana enterprises have seen great benefits.  The Las Vegas Paiute in 2017 opened a 15,800 square foot dispensary called NuWu Cannabis Marketplace which has since been deemed a blueprint for the industry and brings in over $5 million in sales per month.  A designated amount of the profits from the company goes to the Paiutes’ general fund to support things like medical and educational expenses of tribe members.  However, some tribes have faced extensive legal barriers to their attempts to tap into this potential financial gain.  Federal raids and threatened state intervention has left some Native American communities weary of even thinking about entering into this realm.

Marijuana is still illegal under federal law and the federal government is in charge of regulating tribes.  However, Congress can transfer its jurisdiction over tribes to the states if it chooses and in some states it has given them exclusive jurisdiction, through Public Law 280, over all crimes committed on reservations.  The interaction between state and federal law and the overall lack of clarity often leaves tribes to make tough decisions in this space with little guidance.  This presentation explores the legal issues implicated with tribal marijuana and discusses what has happened when tribes have entered or tried to enter the market.

Background Reading:

April 3, 2022 in Assembled readings on specific topics, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Friday, April 1, 2022

MORE Act to legalize marijuana federally again passes US House, but this time with LESS support

Ccc_SQUAREA little under 18 months ago, as noted here, the US House had a historic vote on the MORE Act, which would remove marijuana from the Controlled Substances Act and do a lot of other notable reforms.  The bill passed in early December by a margin of 228 in favor, 164 against (largely along party lines with 222 Democrats, 5 Republicans and libertarian Rep. Justin Amash in support and 158 Republicans and 6 Democrats against).  With much fanfare, the MORE  Act was brought to the floor again, and Politico has this report on how this new vote went:

The House passed a far-reaching marijuana legalization bill on Friday by a 220-204 vote, largely along party lines and still with no real path to President Joe Biden’s desk.

It marks the second time in less than two years that the House passed legislation to decriminalize cannabis, scrap some old marijuana-related convictions and allow states to make their own decisions about whether to establish marijuana markets. But Democrats seem no closer to fulfilling a major campaign promise, passing a party-line bill that has little chance of getting the necessary Republican support to pass the Senate.

“I was a supporter of the War on Drugs — I’ve been here a long time,” House Majority Leader Steny Hoyer said on the House floor on Friday, pointing out that Black Americans are four times more likely than white people to be arrested for low level cannabis crimes. “This bill is a matter of justice and equal opportunity… so that Americans and America can become a better, stronger, more fair, and more just America.”

Majority Leader Chuck Schumer plans to introduce his own cannabis bill soon, but does not currently have the Democrat votes to pass it, let alone the Republicans needed to overcome a filibuster. Today’s vote highlighted the growing rift between the parties — and even among Democrats — on how to address cannabis policy. Despite growing support among GOP lawmakers for legalization and polling that shows two-thirds of Americans back that stance, just three Republicans voted for the Marijuana Opportunity Reinvestment and Expungement Act. That was fewer than the five GOP lawmakers who backed the bill in 2020 — two are no longer in Congress.

The MORE Act debate underlined a fundamental question that divides the parties: When changing the nation’s drug laws, should the federal government also take steps to provide financial incentives to individuals and communities who were most harshly impacted by the war on drugs?

Republicans say no. “You’re not going to be able to get Republicans on board… the way that the MORE Act is done,” said Rep. Nancy Mace (R-S.C.), who introduced a bill last year that decriminalizes cannabis and expunges some records but does not create federal grant programs. The federal social equity efforts were a major reason for her “nay” vote on Friday. “You’ve got to have Republicans on board if we’re going to have any chance of getting it done in the Senate.”

For many Democrats, however, the equity grant programs are nonnegotiable. “This is a major criminal justice reform bill,” said Rep. Barbara Lee (D-Calif.), one of the co-chairs of the Congressional Cannabis Caucus. “So negotiating that away — to leave [affected communities] behind — that to me is just immoral.”

In fact, House Speaker Nancy Pelosi on Thursday went so far as to frame the MORE Act as a criminal justice reform bill. In her weekly news conference, she touted the criminal justice and economic provisions of the bill, and explained that the lack of similar provisions in the George Floyd Justice in Policing Act was one reason that it failed in the upper chamber.

The Senate — where Schumer, Sen. Cory Booker (D-N.J.) and Sen. Ron Wyden (D-Ore.), are working on their own comprehensive cannabis bill — is even tougher ground for weed. Booker and Schumer have drawn a line in the sand on marijuana policy, refusing to even hold a hearing on a cannabis banking bill the House has approved six times because it does not address criminal justice reform.

But Democrats’ pursuit of their perfect bill worries some pro-cannabis lawmakers and advocates, who do not see a clear path forward for sweeping drug policy changes under Republican leadership in either chamber — especially the Senate. Given that Democrats may not control both houses of Congress come January, the window for federal cannabis policy change may not be open much longer.

“We need those social equity programs,” one moderate Democrat lawmaker said, granted anonymity to speak candidly about his leadership’s strategy. “Nonetheless, if I have to choose between nothing and something that, going forward, will not put our children, our neighbors or friends in jail — I’ll choose the latter.”

Conspicuously absent from the “ayes” on Friday were some of the most pro-cannabis Republican voices on Capitol Hill, including Mace and Rep. Dave Joyce of Ohio, a co-chair of the Congressional Cannabis Caucus. Joyce’s office circulated a memo among Republicans earlier this week outlining his critiques of the MORE Act and why he intended to vote against it — and inviting discussion on Republican approaches to marijuana policy.

Joyce’s office said he reached out to Democrats to try and forge consensus on the best approach to overhauling federal cannabis laws. He sent a letter to Judiciary Chair Jerry Nadler (D-N.Y.), the chief sponsor of the MORE Act, in February — offering to work with him to create a bill that was more palatable to Republicans. Joyce’s office said they also had one meeting with Nadler’s staff to discuss their primary concerns with the bill, but were not invited back for any further discussion. Nadler’s office declined an interview request for this story. His office told POLITICO that the chair asked many Republican lawmakers to cosponsor the MORE Act, but did not answer questions about the letter from Joyce or requests from Republicans to change the bill.

It’s unclear how many additional Republican votes Mace and Joyce could bring to the legislation — between their two decriminalization bills they have four additional Republican cosponsors. But Joyce’s office said the bill, as it stands, is “too impractical and too flawed” to even start a conversation with GOP members who are interested in changing America’s drug laws.

Mace says her cannabis reform bill — the States Reform Act — polls better among Republican primary voters in her district than broad federal legalization, but she is also facing a tough primary in May and was recently targeted by Super PAC ads on her support for cannabis legalization.

Despite declining GOP support for the MORE Act, Democrats’ nerves on cannabis legislation have calmed. When a vote on the bill was scheduled in September 2020, moderate Democrats balked, worried that voting to legalize weed could hurt their reelection chances. But the politics around cannabis have changed so rapidly nationwide that those concerns appear to have evaporated.

In fact, six Democrats voted against the bill in 2020, but only two voted against the MORE Act on Friday. One of the lawmakers who previously voted against the bill — Rep. Conor Lamb of Pennsylvania — is in a tough primary race with Lt. Gov. John Fetterman for the Democratic nomination for Pennsylvania’s open Senate seat. Fetterman has campaigned vocally on cannabis legalization, both for his state and federally. This time around, Lamb voted in favor of the bill.

Because I am very much on board with the let's do something "if I have to choose between nothing and something," I am deeply disappointed that the House leadership decided this symbolic vote was more important than trying to forge a federal reform bill that could have at least a small chance of moving forward.  (As the headline of this post indicates, I think what really proved symbolic about this vote is that the MORE Act got less support in April 2022 than it did in December 2020.)  If, as many expect, the GOP takes over Congress next year, it will be interesting to watch if any real compromise marijuana reform bills become more broadly discussed or if instead blanket marijuana prohibition continues to remain the law of the land at the federal level.

April 1, 2022 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Thursday, February 3, 2022

Guest post: "First Circuit Splits with Ninth Circuit Over Meaning of Rohrabacher-Farr Amendment"

6a00d83451574769e20282e1172fad200b-320wiI was very pleased to have received this morning following terrific guest post content from Professor Scott Bloomberg of the University of Maine School of Law about a notable recent federal circuit court ruling:

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Since December 2014, Congress has included a rider in its annual appropriations acts that prohibits the Department of Justice (“DOJ”) from expending funds to prevent states from “implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, § 537, 133 Stat. 13, 138 (2019).  The rider — most commonly known as the Rohrabacher-Farr Amendment — is an important source of protection from federal prosecution for medical marijuana businesses and users.

Until recently, the only federal circuit court to interpret the Rohrabacher-Farr Amendment was the Ninth Circuit.  In 2016 in United States v. McIntosh, the court held that the amendment only prohibited the DOJ from prosecuting marijuana businesses that strictly complied with their states medical marijuana rules.  This strict compliance standard meant that if a business stepped out of line — including, in theory, if it only extended a toe over the line — the DOJ could prosecute the business for federal drug crimes.

I have never been a fan of the McIntosh court’s strict compliance standard.  I don’t think it is workable in practice and I find it to be a rather unsound interpretation of the Rohrabacher-Farr Amendment.  So, when the First Circuit had an opportunity to interpret the Amendment in United States v. Bilodeau, I decided to submit an amicus brief arguing as much.

The brief explains that the strict compliance standard offers little real protection for marijuana businesses given the complex state regulatory codes with which they must comply. What’s more, even if the compliance standard were loosened (say, companies only had to remain in “material compliance” rather than “strict compliance” to avoid the risk of prosecution) tethering the DOJ’s ability to prosecute medical marijuana businesses to a business’s non-compliance with state law creates an inherent problem.  Under a standard that bases the DOJ’s authority to prosecute businesses on whether that business has complied with state medical marijuana rules, the best way for a state to shield its medical marijuana businesses from federal prosecution is to not have any medical marijuana rules.  The more carefully a state regulates medical marijuana, the more likely its businesses are to be subject to federal prosecution.  That incentive structure may not only prevent states from “implementing their own State laws that authorize” medical marijuana, it also flies in the face of the DOJ’s Cole Memo, which instructs states to regulate marijuana closely.

The McIntosh court’s strict compliance standard also relies on an artificial distinction between a state’s “laws that authorize” medical marijuana and a state’s enforcement of such laws.  According to the court, when the DOJ prosecutes medical marijuana businesses that fail to comply with a state’s medical marijuana rules, the DOJ does not prevent the state from implementing the “laws that authorize” medical marijuana because the business’s conduct was not authorized by those laws. But laws authorizing states to enforce violations of their “laws that authorize” medical marijuana cannot be so easily divorced from the underlying laws.  Enforcement rules are intertwined with the underlying laws for many reasons. Most significantly, a looming threat of federal prosecution would deter many businesses from ever entering the state’s marketplace.  The threat would also undermine the state’s enforcement authority over those businesses that do—after all, what rational business would admit to even the most menial of regulatory violations if doing so would open a risk of federal prosecution?

In light of these problems with the strict compliance standard, my amicus brief urged the First Circuit to adopt a more expansive interpretation of the Rohrabacher-Farr Amendment. I argued that the Amendment creates a blanket prohibition on the DOJ’s authority to prosecute state-licensed medical marijuana businesses for marijuana-related offenses (with some limited exceptions).

The First Circuit last week handed down its opinion in Bilodeau, which departed from the McIntosh court’s strict compliance standard but did not go quite as far as I urged.  As Judge Kayatta explained, the Ninth Circuit’s strict compliance standard affords the DOJ more power to undermine states’ medical marijuana laws than Congress could have intended.

With federal prosecution hanging as a sword of Damocles, ready to drop on account of any noncompliance with Maine law, many potential participants in Maine's medical marijuana market would fasten fearful attention on that threat.  The predictable result would be fewer market entrants and higher costs flowing from the expansive efforts required to avoid even tiny, unintentional violations.  Maine, in turn, would feel pressure to water down its regulatory requirements to avoid increasing the risk of noncompliance by legitimate market participants.

***

[Moreover, Maine’s medical marijuana] rules were not drafted to mark the line between lawful activity and cause for imprisonment.  Rather, as with most every regulated market, Maine declined to mandate severe punishments (such as, for example, the loss of a license) on participants in the market for each and every infraction, no matter how small or unwitting….  To turn each and every infraction into a basis for federal criminal prosecution would upend that decision in a manner likely to deter the degree of participation in Maine's market that the state seeks to achieve.

After departing from the strict compliance standard, the court declined to clearly demarcate when the DOJ can (and cannot) prosecute medical marijuana businesses.  Instead, the court reasoned that, under the facts of this case, the DOJ could subject the defendants to federal criminal punishment because their alleged conduct also constitute a crime under Maine’s marijuana laws.

The First Circuit’s interpretation of the Rohrabacher-Farr Amendment in Bilodeau should bring some comfort to medical marijuana businesses in the First Circuit.  The interpretation gives the DOJ less discretion to prosecute medical marijuana businesses than does the Ninth Circuit’s strict compliance standard.  This increased protection could become all the more important if a Presidential administration less friendly to marijuana takes power.  (And, for marijuana law professors, Bilodeau and McIntosh present an excellent opportunity for a class exercise on statutory interpretation!)

February 3, 2022 in Business laws and regulatory issues, Criminal justice developments and reforms, Federal court rulings, Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Tuesday, February 1, 2022

"Bigger is Not Better: Preventing Monopolies in the National Cannabis Market"

The title of this post is the title of this notable new paper available via SSRN and authored by Shaleen Title.  (Shaleen Title served as one of five inaugural commissioners of the Massachusetts Cannabis Control Commission from 2017 to 2020, and has been serving as the Distinguished Cannabis Policy Practitioner in Residence at the Drug Enforcement and Policy Center.)  Here is the abstract for this paper:

It is a crucial and vulnerable moment for the future of the cannabis market.  While states are making historic progress creating paths for small businesses and disenfranchised groups, larger companies are expanding, consolidating, and lobbying for licensing rules to create or maintain oligopolies.  Federal legalization will only accelerate the power grab already happening with new, larger conglomerates openly expressing interest.  Left unchecked, this scramble for market share threatens to undermine public health and safety and undo bold state-level efforts to build an equitable cannabis marketplace.  This paper argues for intentionally applying well-developed antitrust principles to federal cannabis reform now, before monopolization of the market takes place, and offers eight concrete policy recommendations.

February 1, 2022 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Wednesday, January 26, 2022

Jeff Bezos can go to space, but can Amazon help get federal marijuana reform enacted?

Amazon_tweetThe question in the title of this post is prompted by all the press buzz about the decision by Amazon to formally endorse Rep Nancy Mace's States Reform Act.  This New York Post piece, headlined "Amazon endorses GOP bill that would legalize marijuana on federal level," provides some context:

Amazon has endorsed a Republican-backed bill in Congress on Tuesday that would legalize marijuana on a federal level, leaving states to decide whether to prohibit or regulate it.  Rep. Nancy Mace’s (R-SC) States Reform Act would remove cannabis as a federal Schedule I substance and introduce a new 3% federal tax on the substance....  “Every state is different and every state should be able to dictate their cannabis laws,” Mace told The Post in an interview. “This bill would get the federal government out of the way.”...

Mace, a freshman Congresswoman who previously worked for Donald Trump’s 2016 presidential campaign, told The Post that she was approached by Amazon representatives after she introduced the bill.  She said the company was motivated to endorse her bill because legal issues around marijuana can make hiring difficult.  “They’re looking at it from a workers perspective,” Mace said in an interview. “The prohibitions at the federal level really do affect their workforce.” 

Amazon told Mace that it is not interested in selling marijuana on its website, according to the Congresswoman.  “That is not their goal, not their intention,” Mace said of the prospect of Amazon pushing pot. “They said that right off the bat.”  In June, Amazon stopped testing many job applicants for marijuana and said that it would support efforts to legalize the drug.... 

Mace expects Democrats, many of whom have supported weed legalization for years, to come out in support of her bill. She argued that Republicans are also likely to support her bill because it gives more power to states — and because weed legalization is extremely popular nationwide.  “Even in my very red state of South Carolina, statewide, medical cannabis is at an approval rating of 70%,” she said. “If we’re going to do cannabis reform at the federal level, Republicans need to have a seat at the table.” 

This lengthy new Forbes article, headlined "Republican Congresswoman Nancy Mace Is On A Mission To Legalize Cannabis — And Amazon Just Got Behind Her," discusses further Rep Mace, the States Reform Act, and some of the current political realities as of early 2022. I recommend the full piece, and here are some excerpts:

The cannabis industry also adores Mace and her bill, which is pro-business. (She proposes a 3% federal excise tax—compared to Schumer’s 10% tax—which would generate an estimated $3 billion in annual tax revenue by 2030.) Still, her bill is unlikely to become law, and Mace is under no pot-addled delusion that its passage is a sure thing. Her broader goal is to get as many Republicans as possible on board with cannabis reform and show the GOP that legalization is a good campaign issue in 2022 and beyond....

Mace’s bill also attempts to heal some of the inequities of America’s war on drugs, which disproportionately affects people of color. She estimates that if her bill were to pass, and some 2,800 federal prisoners incarcerated for non-violent cannabis crimes were released and another 1,100 or so people who get put in prison for similar crimes each year are not incarcerated, the government would save nearly $600 million over five years....

Cannabis legalization has historically been a progressive issue, but Mace wants to make it a Republican talking point. Kim Rivers, the CEO of Florida-based Trulieve, which has 160 dispensaries across eight states, welcomes Mace’s approach. “Cannabis is not a red or blue issue,” says Rivers. “And cannabis reform has done well consistently in conservative states. It sends a significant message that cannabis is not partisan.”...

Despite all of this momentum, Mace knows the States Reform Act is unlikely to go forward before the midterm elections, but her goal is to show a “proof of concept” that there are enough votes on the Republican side to get meaningful reform across the finish line in Congress.

When asked what it means that cannabis is now more popular than President Trump in red states—74% of Mississippians, for example, voted for the state’s medical marijuana ballot initiative while nearly 58% of Mississippians voted for Trump—she says it’s a signal to Republicans that they need to get on board with legalization.

“It means that if you don't do it, you're full of shit,” Mace says. “There's no reason not to do this. And if you are anti-marijuana, this is not forcing you to do it. It's not forcing your state to legalize it. But if it is legal in your state, then we're going to tax it and regulate it.”

January 26, 2022 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, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Monday, January 24, 2022

Notable accounts of current politics and practicalities surrounding marijuana reform

I have recently seen two good new press reviews of the essential politics of federal marijuana reform as of January 2022 and of a key practical issue that has been a concern since the start of modern state marijuana reforms.  Here are full headlines, links and excerpts from these pieces:

From Politico, "Big Weed is on the brink of scoring big political wins. So where are they?: Competing agendas have stifled the effectiveness of the burgeoning industry on Capitol Hill."

Marijuana advocates are stuck in the weeds. Cannabis policy has never had a rosier outlook on Capitol Hill: Democrats control both Congress and the White House, seven new states just legalized recreational marijuana, and the cannabis industry has gained powerful new allies in companies like Amazon and conservative groups like Americans for Prosperity that are backing federal reform. The industry has even lured powerful advocates like former GOP House Speaker John Boehner and former Democratic Senate Majority Leader Tom Daschle to help push its agenda.

But nearly one year into this Congress, not one piece of cannabis legislation has been sent to the president's desk. There is growing fear among advocates that the window to act is closing. Industry lobbyists and legalization advocates say the movement has been stymied by a lack of consensus on the legislative strategy. Liberal advocacy groups are pushing for a comprehensive overhaul of federal cannabis policies with the aim of helping people harmed by criminal enforcement, while industry groups are seeking any piecemeal policy victory that could provide momentum toward more sweeping changes.

“There are certain people who are willing to forgo any of it if they don’t get all of it,” said one marijuana lobbyist, speaking on condition of anonymity in order to candidly discuss the industry’s struggles. The lobbyist noted that such a viewpoint is not universally shared, causing a disagreement “that’s stunting the legalization effort.”

From Bloomberg, "U.S. Grapples With How to Gauge Just How High Cannabis Users Are"

“Everybody wants a cannabis breathalyzer — something like what we have for alcohol where you breathe into a device and it tells a THC level and whether that means you’re impaired or not,” said Jodi Gilman, an associate professor in psychiatry at Harvard Medical School and lead author of the imaging study.  “But that’s not how it works for cannabis, we need a new paradigm.”

Companies have been trying to crack the stoned-test for a while.  Hound Labs, which makes a marijuana breathalyzer, said in September it had raised $20 million to scale its product.  Cannabix Technologies Inc. recently reported it had made headway creating a more portable device, while Lifeloc Technologies Inc. said it was finalizing the platform for a rapid marijuana breathalyzer that could be used for roadside testing.

There are concerns, however, that tests based on THC levels may be unfair to those who have it in their system but aren’t actually impaired.  This can be the case for some who consumed cannabis days ago, or with frequent users who’ve built up a tolerance — who may use it for medical reasons.  “You wouldn't want to penalize that person,” Gilman told me. “What this technology will do is differentiate impaired from not-impaired, which is different than distinguishing cannabis from no-cannabis.”

January 24, 2022 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, Medical community perspectives | Permalink | Comments (0)

Tuesday, January 11, 2022

Take a break, Delta 8, Delta 8, take a break ... we can check the laws, but we're still a ways away from legal clarity

Delta8THC_FB.cc7717d0828e659b2bbd6967bfb682e3I am gearing up to teach my marijuana seminar for the first time in two years, and that necessarily means having to prepare for new discussions about new issues in an arena where legal and marketplace reforms are always fast-moving.  One brand new issue, for example, is the emergence of a wide array of Delta-8 THC products and all the legal uncertainty that they engender.  (As my post title reveals, at least for hard-core REM fans, I cannot help but hum the great REM song Driver 8 whenever I think about Delta 8 issues.)

Usefully for me (and perhaps for others), I just saw this recent piece providing an overview of state laws and other matters related to Delta 8 THC products.   Though industry-delta-friendly, this article still provides a helpful review of various basics under this full headline: "Delta-8 is Available in 28 States While Others Try to Ban It: Several U.S. states preemptively restrict or outright ban delta-8 THC as federal regulators swoop in to clarify its legality."  Here are some excerpts from the lengthy piece:

Delta-8 THC has been a sensation in the country.  Its popularity soared throughout 2020 and many believed its reign of euphoric bliss would continue into 2021 and beyond.  However, the federal government and the DEA are swooping in to ruin all the fun.

In April, alone, several U.S. states either restricted or banned delta-8 THC, sparking outcry from users, companies, manufacturers, and vendors within the cannabis industry. So, why are U.S. states banning delta-8 THC? Which ones have already banned it? What have the federal government and the DEA got to do with this?....

Delta-8 is one of 113 cannabinoids found in varieties of cannabis (hemp or marijuana) and a variant of delta-9-tetrahydrocannabinol (THC). It’s psychoactive and intoxicating, causing a “high” when consumed. However, when compared to delta-9 THC, the effects are far milder and better suited to beginners looking to enjoy the euphoric effects without the side effects commonly associated with delta-9. Delta-8 THC can now be found in several product types such as distillates, vape cartridges, oils, and flower....

In 2018, the federal government under the Trump administration, signed the Agriculture Improvement Act (2018 Farm Bill), legalizing hemp and all hemp-derived cannabinoids.... However, in 2020, the DEA issued a controversial interim final rule that sought to bring the Farm Bill further in line with the Controlled Substances Act (CSA), spelling trouble for not only delta-8 but also for delta-10 THC.

Within this final rule, the DEA stated all “synthetically-derived tetrahydrocannabinols remain schedule I controlled substances”. Why is this significant and how is it related to delta-8? Well, in order for companies to have enough delta-8 THC in their products, it must be converted from cannabidiol (CBD) via a structural isomerization process conducted under laboratory conditions. This isomerization process takes CBD, alters its molecular structure, and turns it into delta-8. Since it’s produced by chemical or biochemical synthesis and not sourced straight from the hemp plant itself, the DEA believes delta-8 is a synthetic substance.....

Is delta-8’s safety in question? Yes. Delta-8’s safety is in question. Why? Because it’s a psychoactive and intoxicating delta-9 THC variant that’s recently exploded into an unregulated market with very little research verifying its effects.

January 11, 2022 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Monday, December 27, 2021

Looking back and forward suggests pessimism (with a hint of hope?) for federal marijuana reform in 2022

6a00d8341bfae553ef0223c85155dc200c-320wiA couple of notable new commentaries on federal marijuana reform caught my eye recently.   This first one is by Alex Shephard at The New Republic under this full headline: "Legalize It, Already!: Biden needs to ditch his old-fashioned ideas about marijuana and realize that legalization is a winning bipartisan issue — something he desperately needs in 2022."  This piece is more about marijuana politics than policy, and here are a few passages with an emphasis on the White House:

“You would think that President Biden would embrace legalization, considering where his constituents are on this issue,” Chris Lindsey, legislative analyst at the Marijauna Policy Project, told me. Per a recent Pew survey, 60 percent of Americans favor full legalization, while 31 percent favor legalizing marijuana for medical use only, meaning that a whopping 91 percent of Americans are in favor. And while several states have relaxed laws or fully legalized weed, the federal government is trailing....

Given the general sense of inertia in Congress, there are other less far-reaching but still important things the Biden administration could do.  The Cole memo, issued by Eric Holder in 2013 and revoked by Jeff Sessions five years later, instructed U.S. attorneys not to enforce federal marijuana laws.  That memo could be reinstated and even expanded to other departments.  Biden could offer clemency to people currently imprisoned for nonviolent cannabis-related offenses and pardons for them and those who have been released.

All of this would be better politically and morally, and in policy terms, than what Democrats are doing now. “You would think that President Biden would embrace legalization, considering where his constituents are on this issue,” Lindsey told me.  “There’s really no question [about] the level of support that they have, and yet the president seems to be AWOL.” After a year ending with political and legislative inertia — and with Biden’s tanking poll numbers, particularly among young people — marijuana policy would be the perfect place to start.

This second one is by John Hudak at Brookings under the headline: "The numbers for drug reform in Congress don’t add up." This piece effectively details some political cross-currents thwarting reform progress in Congress. It should be read in full, and here are some highlights:

Often, in a legislative body, the issue is not whether a law should be reformed, but how that law should be reformed. And there’s the rub for federal legalization legislation. Liberals and progressives in the Democratic Party cannot agree with moderate and libertarian Republicans on what cannabis reform should look like, even if majorities agree that the law should be changed. And as pro-cannabis reform members from both sides dig their heels in on the importance of provisions that are close to their heart (and the heart of their base), it makes assembling that coalition impossible....

It is clear that as a legalization bill shifts away from a pro-business direction, the number of Republican supporters plummets.  And while in a Democratic-controlled House, leadership can muster the votes to pass something like the MORE Act, the requirement to beat a filibuster in the Senate makes passage of more social equity and racial justice-oriented comprehensive legislation an impossibility.  It is not clear if Democrats can even keep all 50 of their Democratic members in line for such a vote, and it is a certainty that they cannot attract the 10 or more Republicans necessary to clear the 60-vote hurdle. And more moderate legislation that could attract more Republicans will likely lose the more progressive members of the Senate Democratic Caucus....

Ultimately, cannabis reform supporters inside and outside of Congress need a reality check about the state of play of current cannabis reform proposals, and what additional complications the future may offer. Regardless of the chosen path forward, there will be naysayers, holdouts, resistance, and anger.  There will be accusations of bloated government or not doing enough to reverse the effects of the drug war.  That is standard for an interest group environment on a passionate issue in a deliberative body.  However, in the end, Congress has a choice between doing nothing and letting prohibition win the day and allowing all of the consequences of that to remain. Or doing something short of perfect, that addresses some of the real harms that drug prohibition has created in this country.

Looking for a hint of hope in these stories, I am drawn to notion that, if the Biden team concludes that Congress is unlikely to get much (if anything) done on this front in 2022, it might look for "safe" executive action that serves as a political winner in this space.  And, as I see it, a clemency initiative focused around certain marijuana offenders — maybe not one as robust as urged by many advocates, but still impactful — could be a huge political winner. 

Frustratingly, I know I am projecting a vision of what I hope will happen soon, not an account of what seems likely in the short term (or even long term).   But I really want to believe there are "safe" and  smart and impactful ways for Prez Biden to start leaning in to this issue at least a bit more.  And at some point he has to at least try in some way to deliver on his 2020 campaign promise to "Decriminalize the use of cannabis and automatically expunge all prior cannabis use convictions."

UPDATE on 12/28: I see that the Wall Street Journal now has this new article in a similar vein discussing the challenges of federal marijuana reform under this full headline: "Cannabis Overhaul in Washington Is Only Getting Harder: Legalization agenda could be complicated by states that want to defend their nascent marijuana industries and associated tax revenues."

December 27, 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)

Sunday, December 19, 2021

Is Congress sure to take up marijuana reform in spring 2022?

The question in the title of this post is prompted by this curious new Hill piece boldly headlined "Congress to take up marijuana reform this spring."  The lengthy article discusses all sorts of reasons why it is quite possible Congress could get serious about marijuana reform in 2022, but it really does not present any reason to expect that it actually will take up reform soon.  Here is an excerpt:

Much of the pressure for reform is bipartisan.  On Thursday, Reps. Dave Joyce (R-Ohio) and Don Young (R-Alaska) sent a letter to Biden and Vice President Harris urging them to change the severity with which cannabis is listed, or “scheduled,” under the Federal Controlled Substances Act, distinguishing it from "far more dangerous drugs such as Fentantly, morphine, methadone and cocaine.”

The restrictions forced by marijuana’s place as a Schedule 1 drug, Joyce wrote, “puts the United States far behind many of our international partners and scientific competitors,” from Ireland and the U.K to South Korea and Israel.  “For the sake of researchers, medical professionals and patients across the United States who continue to lose access to life-saving therapies and data every day #cannabis remains over controlled,” Joyce wrote on Twitter, “I will keep asking.”

December 19, 2021 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Friday, December 3, 2021

Ohio GOP and NY Dem representatives introduce federal HOPE Act to support state cannabis expungement efforts and study collateral consequences

I was pleased to see this news via Marijuana Moment about a new federal bill to support state marijuana expungement efforts.  Here are the basics:

As congressional lawmakers work to advance federal marijuana legalization, a bipartisan duo on Thursday filed a bill that would incentivize states and local governments to expunge cannabis records in their jurisdictions.  Reps. Dave Joyce (R-OH) and Alexandria Ocasio-Cortez (D-NY) are sponsoring the legislation, titled the Harnessing Opportunities by Pursuing Expungement (HOPE) Act.

It would encourage states to provide relief to people with non-violent marijuana convictions through federal grants — the State Expungement Opportunity Grant Program, run through the Department of Justice — that would help cover the administrative costs of identifying and clearing eligible cases.  The bill proposes to appropriate $2 million in funding to support the program for each fiscal year starting in 2023 and ending in 2032.

Specifically, the grants could be used by states to purchase technology used to facilitate expungements at scale, automate the relief process, fund legal clinics to help people get their records cleared and support “innovative partnerships” to provide mass relief....

Under the bill, state governors and local governments “shall submit to the attorney general an application at such time, in such manner, and containing such information as the attorney general may reasonably require” to qualify for the grants.  Further, the legislation would require the attorney general to carry out a study on the impacts of cannabis convictions on individuals, as well as the financial costs for states that incarcerate people over non-violent marijuana offenses.

Officials in jurisdictions that receive the grants would be required to “publish on a publicly accessible website information about the availability and process of expunging convictions for cannabis offenses, including information for individuals living in a different jurisdiction who were convicted of a cannabis offense in that jurisdiction.” They would also need to “submit to the attorney general a report describing the uses of such funds, and how many convictions for cannabis offenses have been expunged using such funds.”

Longtime readers know that expungement policies and practices have long been of great interest to me, going back to my work years ago on an big early article, "Leveraging Marijuana Reform to Enhance Expungement Practices." and more recently through work done in part by the Drug Enforcement and Policy Center (see here and here).  So I am very excited to see this issue getting notable attention via this notable bill by two notable members of Congress.

That said, I must comment that the particulars of this short bill are a bit disappointing.  For starters, allocating only $2 million per year to incentivize states to ramp up expungement seems woefully insufficient.  From the state's perspective, a little money is better than nothing, but having a range of mandates tied to a very small revenue stream likely ensures this bill would have at most modest impact.  Second, the issues that the US Attorney General is tasked to study in this bill are only a small portion of the issues raised by marijuana criminalization, and the bill seems only to look at the impact of past marijuana offenses that have been reformed rather than all marijuana prohibitions.

In the end, I presume this bill is highly unlikely to become law anytime soon, so the particulars may matter less than the useful discussion of the broader issues raised.  Still, I hope that any future legislative proposals in this space are even bolder than this first notable effort.

December 3, 2021 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Sunday, November 21, 2021

"New GOP weed approach: Feds must ‘get out of the way’" ... which is an important historic drug policy theme

9780197582183The first part of the title of this post is the headline of this notable new Politico piece, and the second part draws on this recent short book review that I recently authored for The Federalist Society blog.  I was reviewing Judge Jeffrey Sutton’s majestic Who Decides, in which the judge richly develops and documents why “some matters should not be nationalized” while urging a “renewed appreciation for the virtues of localism.”  In my (too brief) review, I stressed the importance of these localism themes for drug policy throughout US history, and I highlighted this fascinating 1921 Atlantic piece by journalist Louis Graves discussing how alcohol prohibition most effectively gained adherents from a “gradual building up of dry sentiment" at the local level until “Federal interference ... dealt a blow to the cause of real prohibition.”

With Judge Sutton's book and my own affinity for ever-evolving political realities, the long Politico piece by Natalie Fertig and Mona Zhang provides an effective accounting of some structural issues in play in the modern marijuana reform discourse.  I recommend the article in full, and here are excerpts:

Republicans are warming to weed. Nearly half of Republican voters support federally decriminalizing cannabis, and GOP lawmakers are now beginning to reflect their constituents’ view by increasingly supporting broad legalization at the state and federal level.

“We need the federal government just to get out of the way,” said Rep. Nancy Mace (R-S.C.), who introduced the first Republican bill in Congress to decriminalize marijuana this past week and pointed to more than 70 percent of Americans supporting the idea.

Stronger Republican involvement could hasten a snowball effect on Capitol Hill, where Democrats lead the charge on decriminalization but lack results. It could also chip away at Democrats’ ability to use cannabis legalization to excite progressives and younger voters as the midterms approach.

“When the culture becomes more accepting of something, even the most resistant groups get tugged along,” said Dan Judy, vice president of North Star Opinion Research, which focuses on Republican politics. “I don't want to directly conflate marijuana legalization with something like gay marriage, but I think there's a similar dynamic at play.”

Earlier this year, North Dakota’s GOP-dominated House passed a marijuana legalization bill introduced by two Republican lawmakers — the first adult-use legalization bill to pass in a Republican-dominated chamber. And Mace's bill marks the first time a Republican has proposed federal legislation to decriminalize cannabis, expunge certain cannabis convictions and tax and regulate the industry.

As Republicans wade into the weed group chat, they are bringing their principles, constituents and special interest groups. When Mace introduced her bill on a freezing day on the House triangle, she was surrounded at the podium not by Drug Policy Alliance and the National Organization for the Reform of Marijuana Laws, but by veterans groups, medical marijuana parents, cannabis industry lobbyists and Koch-backed Americans For Prosperity.

Many GOP proposals include lower taxes and a less regulatory approach than Democratic-led bills, while often maintaining elements popular among most voters, like the expungement of nonviolent cannabis convictions. “I tried to be very thoughtful about what I put in the bill that would appeal to Democrats and Republicans,” Mace said in an interview on Monday. “Which is why criminal justice reform is part of it. It's why the excise tax is low.”

The motivations bringing Republicans to the table are also changing. Former Capitol Hill cannabis advocates like Sen. Cory Gardner (R-Colo.) and Rep. Dana Rohrabacher (R-Calif.) advocated primarily for their state legalization programs, but Mace comes from South Carolina — a state with no medical or recreational cannabis program. She joins other GOP lawmakers who are pushing for federal policy to move beyond their own states — they include Reps. Matt Gaetz and Brian Mast of Florida, where only medical marijuana is legal, and libertarian-leaning Sen. Rand Paul of Kentucky, which does not yet have a medical program....

Six in 10 younger GOP voters — what Pew described as the “Ambivalent Right” in a recent report — believe marijuana should be legal for medical and recreational use, but older, educated Republicans and Christian conservatives do not feel the same way....

Republicans who support legalization are viewing the issue through the prism of states' rights, personal freedom, job creation and tax revenue. Many libertarian-leaning Republicans are early supporters of cannabis policy reform, arguing that arresting people for using cannabis is a violation of personal liberties.

Some Republicans also cite the racial disparities in marijuana arrests as a reason to fix federal law — though Democrats focus more strongly on criminal justice reform on the whole. And, as is the case for Democrats, the shift is often generational: Texas Young Republicans announced they support marijuana decriminalization back in 2015.

The shift within the GOP at times is less about lawmakers’ own beliefs about marijuana and more about how much the public has shifted on the subject. Bill sponsors in North Dakota, for example, said they were personally opposed to marijuana, but introduced the bill anyways to head off the possibility of a ballot initiative that would legalize marijuana through the constitution — especially after South Dakota voters approved legalization in 2020.

November 21, 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)

Thursday, November 18, 2021

Highlighting the persistent Democratic divide over federal marijuana reform

Those who follow happenings inside the Beltway know that the primary roadblock to federal marijuana reform right now is the debate over whether to make smaller reforms (like the SAFE Banking bill) or to go for a more comprehensive approach to reform.  This lengthy new Washington Post piece, headlined "Democratic divide puts congressional action on marijuana in doubt," effectively review the state of this debate as of mid-November 2021.  I recommend the full piece, and here is how it gets started:

A split on Capitol Hill over marijuana policy has lawmakers confronting the possibility that they could again fail to pass any meaningful changes to the federal prohibition of cannabis this Congress, even as polls show vast majorities of Americans support at least partial legalization of the drug.

The clash, on one level, follows familiar contours for Washington policymaking: A narrower measure with significant bipartisan support — one that would make it easier for banks to do business with legitimate cannabis firms in states where marijuana is legal — is in limbo while a smaller group of lawmakers pushes for a much broader bill.

But it has also become infused with questions of racial equity and political competence that have pitted key Democrats against each other as they seek a way to roll back federal marijuana laws that have gone largely unchanged since the height of the War on Drugs in the 1980s and 1990s.

The conflict has come to a head in recent weeks after a push by Democratic and Republican lawmakers to attach the narrower banking legislation to the must-pass annual defense policy bill, which would ensure its passage in the coming months.  The bill’s advocates say it would offer a substantial step toward legitimizing and rationalizing the cannabis industry in the 47 states that have moved to at least partially legalize marijuana — allowing businesses to move away from risky cash-only operations.

That push has hit a roadblock in the Senate, however, where Majority Leader Charles E. Schumer (D-N.Y.) has sided with Sens. Cory Booker (D-N.J.) and Ron Wyden (D-N.J.), who are seeking to assemble a comprehensive bill that would federally decriminalize the drug, tax it and potentially expunge the criminal records of those previously convicted of having bought or sold it.  Passing the narrower bill, they argue, would make passing their broader bill more difficult....

November 18, 2021 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States | Permalink | Comments (0)

"How State Reforms Have Mellowed Federal Enforcement of Marijuana Prohibition"

The title of this post is the title of this new essay that I had the pleasure of co-authoring with my colleague Alex Fraga. The forthcoming publication in now up on SSRN, and here is part of its abstract:

Modern state medical marijuana laws date back to 1996, when Californians approved the first statewide medical marijuana legalization law via ballot measure; Colorado and Washington voters passed the first ballot initiatives legalizing marijuana for adult use in 2012.  By summer 2021, a total of 36 states and 4 U.S. territories had legalized the medical use of marijuana and 18 states, two territories and the District of Columbia had legalized adult use of marijuana.

Over this quarter century of state reforms, blanket federal marijuana prohibition has remained the law of the land. Indeed, though federal marijuana policies have long been criticized, federal prohibition has now been in place and unchanged for the last half century.  But while federal marijuana law has remained static amidst state-level reforms, federal marijuana prohibition enforcement has actually changed dramatically.  In fact, data from the U.S. Sentencing Commission (USSC) reveals quite remarkable changes in federal enforcement patterns since certain states began fully legalizing marijuana in 2012.

This essay seeks to document and examine critically the remarkable decline in the number of federal marijuana sentences imposed over the last decade.  While noting that federal sentences imposed for marijuana offenses are down 83% from 2012 to 2020, this essay will also explore how the racial composition of persons sentenced in federal court and has evolved as the caseload has declined....  The data suggest that whites are benefiting relatively more from fewer federal prosecutions.

Reports from the Drug Enforcement Administration indicate that marijuana seizures at the southern US border have dwindled as states have legalized adult use and medicinal use of marijuana, and the reduced trafficking over the southern border likely largely explain the vastly reduced number of federal prosecutions of marijuana offenses.  Nonetheless, though still shrinking in relative size, there were still more than one thousand people (and mostly people of color) sentenced in federal court for marijuana trafficking in fiscal year 2020 and over 100 million dollars was committed to the incarceration of these defendants for activities not dissimilar from corporate activity in states in which marijuana has been legalized for various purposes. 

November 18, 2021 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States | Permalink | Comments (0)

Monday, November 15, 2021

Some early coverage of big new federal GOP bill, the States Reform Act, to legalize marijuana

Congress-legalization-billsToday, Representative Nancy Mace (R-SC) unveiled a new GOP-led bill to legalize marijuana at the federal level.  The States Reform Act (available here), which runs 131 pages, is cosponsored by Representatives Tom McClintock (R-CA), Don Young (R-AK), Brian Mast (R-FL) and Peter Meijer (R-MI).

My initial sense is that this bill does not have a great chance of passage anytime soon, but it still ought to be considered a big moment in the broad modern story of marijuana reform.  And it is understandably getting a lot of press.  Here is a sample:

From the AP, "GOP Rep. Mace’s bill would federally decriminalize marijuana"

From Forbes, "Representative Nancy Mace Introduces Bill To End Federal Cannabis Prohibition"

From Insider, "Rep. Nancy Mace says her GOP-led cannabis legalization bill would be 'a real win-win' for bipartisan marijuana reform in the US"

From Marijuana Moment, "Republican Lawmakers File Bill To Tax And Regulate Marijuana As Alternative To Democratic Proposals"

From MJBizDaily, "South Carolina Republican reveals marijuana legalization bill she’ll introduce in Congress"

From Reason, "Frequently asked questions about the States Reform Act, a proposed marijuana bill"

November 15, 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 (0)