Wednesday, September 25, 2019
As reported in this MarketWatch piece, headlined "House passes cannabis-banking bill, but getting Senate’s OK still looks tricky," one piece of significant federal marijuana reform moved a step forward today. Here are the details:
The Democratic-controlled House of Representatives late Wednesday voted to pass a bill protecting banks that work with the marijuana industry, but some analysts are warning that the measure isn’t likely to become law in 2019 as it faces a tough road in the Republican-controlled Senate.
The chances of enactment this year for the bill — known as the Secure And Fair Enforcement (SAFE) Banking Act — have risen to 1 in 3, up from 1 in 5, reckons Ian Katz, an analyst at Capital Alpha Partners. Those still aren’t great odds, however. “We remain skeptical for now,” Katz said in a note before the House vote, though he added that the chances could get better “if we see meaningful signals from the Senate in the next few weeks.”
The bill aims to give clarification to banks and credit unions that serve cannabis companies with, for instance, business accounts for bill paying. Currently, financial institutions face legal problems because marijuana remains illegal on the federal level, even as more states legalize it. Lobbyists have emphasized that many cannabis businesses end up “unbanked” and operating largely in cash, and that makes them targets for robberies and other crimes.
Influential Republican Sen. Mike Crapo gave some hope to the SAFE Banking Act’s supporters earlier this month, as the Senate Banking Committee chairman told Politico that he wanted to hold a committee vote before the year’s end on a cannabis banking bill. There are no additional details on the potential timing for such a vote, said a spokeswoman for the Idaho lawmaker on Monday. Crapo had sounded noncommittal on the issue at a July hearing.
The SAFE Banking Act “has been sweetened for Republicans,” Katz said. One provision would prevent the return of Operation Choke Point, an Obama-era program that Crapo mentioned at the July hearing and that involved investigating banks for doing business with payday lenders and firearms dealers. Another new provision aims to protect financial firms that serve the hemp industry, which is a force in Kentucky, the home state of Senate Majority Leader Mitch McConnell.
But McConnell continues to look like he could serve as a big roadblock to the bill. He described marijuana last year as hemp’s “illicit cousin which I choose not to embrace.” “There’s a line of thinking that McConnell could go along with a pot banking bill to help Republicans in the 2020 elections,” Katz said. “The tough re-election prospects of Republican Sen. Cory Gardner [a co-sponsor of the bill] of marijuana-friendly Colorado are often cited. But the benefit to Republicans, especially in the West and South, of supporting a bill that’s at least superficially pro-marijuana, is debatable.”
At the other end of the political spectrum, the bill had faced opposition ahead of Wednesday’s House vote from several progressive groups, such as the Center for American Progress, the American Civil Liberties Union and others. In a letter to top House Democrats, the groups criticized the efforts to advance a bill that just addresses banking issues, but does not help “communities who have felt the brunt of prohibition,” yet have been “shut out” of the growing industry. Their concerns didn’t end up stopping the House from passing the measure.
Wednesday’s vote happened under a suspension of House rules that limited debate and meant that two-thirds of the lawmakers present and voting needed to back the measure. The vote tally was announced as 321 in favor vs. 103 against....
Many players in the cannabis industry say banking-related legislation will become law at some point in the next few years, even if 2019 doesn’t bring the action that they hope to see. “I’m fairly confident that either the SAFE Act or STATES Act will be passed,” said Rob DiPisa, co-chair of law firm Cole Schotz’s Cannabis Law Group. “I think the industry has come too far. The cat’s out of the bag, and it’s not going to disappear, so banking needs to happen.”
In prior posts here and here I have highlighted ways in which hemp and other cannabis reforms have made marijuana enforcement ever more challenging for law enforcement. Politico has this new lengthy article covering these realities with a spotlight on Senator Mitch McConnell's central role in hemp reform under the headline "Marijuana Mitch? How McConnell’s hemp push has made pot busts harder." Here are excerpts:
Mitch McConnell’s big victory for his home state hemp industry may have made it easier for people busted for marijuana to get off the hook.
Last year, McConnell pushed to get a provision legalizing hemp into the farm bill. His goal was to spur hemp farming across the country and boost farmers in his home state of Kentucky who have been battered by a loss in federal tobacco subsidies.
But here’s the catch: Hemp and marijuana products both come from the same plant, cannabis, which makes it nearly impossible for the average cop to tell the difference. As states rushed to change their hemp laws to capitalize on the federal changes, many municipalities are giving up on small-time pot busts because of a lack of reliable testing. Under federal and most state laws, hemp can’t be more than 0.3 percent THC, the psychoactive compound that triggers a high. Before hemp was legal, police only had tests that could detect the presence of THC, not how much.
Now that cannabis with less than 0.3 percent THC is legal, a growing number of prosecutors are requiring lab tests to bring charges. The mere presence of THC is no longer enough.
For example, in Texas, prosecutors were shocked by Republican Gov. Greg Abbott’s embrace of a hemp bill in June, said Paul Fortenberry, the narcotics division chief in the Harris County district attorney’s office. The new law led to several district attorney’s offices to set policies requiring lab testing in marijuana cases. Hundreds of people across the state happily had their cases dismissed.
Prosecutors in Florida, Ohio, Georgia and elsewhere have announced similar policies following hemp legalization laws. Five states legalized hemp this year and others expanded existing hemp programs because of the farm bill.
In Ohio, Columbus City Attorney Zach Klein’s office announced in August that it would stop prosecuting misdemeanor marijuana possession cases entirely after Republican Gov. Mike DeWine signed the state’s hemp legalization bill. “I was not opposed to the law because of what it meant for Ohio farmers,” Klein said. “Our farmers have been particularly hit by President [Donald] Trump’s trade war with China so it’s a positive thing for our state … but it still doesn’t mean there aren’t unintended consequences of this law.”
The localities where changes have already been made are likely just the first of many. “It is a national issue. This is not anything that is limited to just a few states,” said Duffie Stone, a South Carolina prosecutor and president of the National District Attorneys Association.
Hemp backers including McConnell, especially in conservative-leaning states, frame the hemp legalization issue as an agricultural one. The crop cannot be consumed as an intoxicating drug, and it can help otherwise struggling farmers access a booming global market worth $3.7 billion in 2018.
But the issue of hemp cuts across several issues. It’s exactly this focus on agriculture that caught prosecutors off guard in the first place — the hemp bill in Texas went through the agriculture committee. “Typically when we have a criminal justice bill, it will come through the criminal justice committee,” Fortenberry said. “Legislatures are seeing that other states have hemp programs worth tens or hundreds of millions of dollars, and they don’t want farmers in their state to get left behind,” he said. “But in the process of doing that, I don’t think that they foresaw this unintended consequence.”
Earlier this year, South Dakota’s legislature passed a hemp legalization bill that Republican Gov. Kristi Noem promptly vetoed, arguing that it would undermine marijuana enforcement. While lawmakers fell a few votes short of overriding her veto, they have vowed to try again in 2020.
“I find hard to believe [McConnell] would have moved [hemp legalization] in the same way had he been thinking about all these different implications,” said Melissa Moore, deputy state director of the Drug Policy Alliance, an advocacy group that aims to reduce criminalization in drug policies. McConnell has previously opposed efforts to liberalize marijuana laws and didn’t return requests for comment for this report.
The farm bill essentially legalized hemp by removing it from the definition of marijuana under federal drug laws. Regulatory agencies haven’t finalized rules for the newly legal industry, however, leaving the nearly $2 billion industry built on the hemp derivative CBD in a regulatory limbo. CBD is a trendy cannabis compound used for relieving anxiety, pain, inflammation and more, though research on its efficacy is slim. Hemp cultivars generally contain higher amounts of CBD and trace amounts of THC. Its industrial applications abound: Hemp is gaining attention for its environmental friendliness and can be used in textiles, construction, biofuels, and more....
CBD-rich hemp flowers often look and smell the same as marijuana flowers that are high in THC. “Testing before didn’t distinguish the quantity of THC,” said Dallas County District Attorney John Creuzot. Without some sort of lab results showing that the substance had more than the legal limit of THC, “it just didn’t make any sense to accept the case.”
Texas lawmakers were so dismayed by marijuana cases being tossed out that they wrote a letter to local prosecutors arguing that lab tests aren’t required in every case. “Criminal cases may be prosecuted with lab tests or with the tried and true use of circumstantial evidence,” read the letter signed by the governor, lieutenant governor, House speaker, and state attorney general.
Some smaller DA offices in the state agree. A spokesperson for the El Paso DA’s office sent a statement pointing to a provision of the Texas Health and Safety Code for its decision to continue prosecuting marijuana cases without lab results. But prosecutors in the state’s more populous counties have a different view. “In this day and age, when you have the actual ability to determine whether something is a certain substance, juries expect you to bring you that evidence,” Fortenberry said.
But the lack of testing equipment to differentiate between hemp and marijuana has overwhelmed state crime labs and using private labs can be pricey for local authorities. Some local police departments are exploring a roadside test from Switzerland, where cannabis under 1 percent THC is legal. In Florida, more sophisticated testing is coming soon to law enforcement agencies in the Sunshine State: An agriculture official told the Industrial Hemp Advisory Council that a new THC field test will cost $6.50 per test.
Stone said local prosecutors in South Carolina are sending samples to the South Carolina Law Enforcement Division, which hired additional chemists and bought additional mass spectrometry machines that each cost about $100,000.
Like Texas, South Carolina hemp laws followed last year’s farm bill. But unlike other states that have seen prosecutions move away from marijuana cases, South Carolina prosecutors can still move forward with the cases because there is no statute of limitations for any criminal offense in the state. In Texas, the statute of limitations for marijuana offenses is two years. That’s why prosecutors’ offices are tossing cases, said Creuzot, the Dallas County district attorney. There’s such a “tremendous backlog” at state crime labs that the suspected marijuana samples can’t be tested before the statute of limitations runs up.
Ohio bought equipment that isn’t yet online, said Klein, but it will eventually allow the state Bureau of Criminal Investigation to test suspected marijuana samples. When testing becomes available, prosecutors in the state also will have a two-year statute of limitations to contend with....
Proponents of marijuana legalization, however, caution that a lack of enforcement does not solve the issues that legalization and regulation would address. “Certain individuals will avoid prosecution, but the only way to truly end the arrest of adults for marijuana is to fully legalize it at the state level,” said Erik Altieri, the executive director of NORML, an organization that advocates for marijuana legalization.
Creuzot said police officers often file marijuana cases anyways, despite knowing that his office won’t pursue the charges. “They arrest the person [and] take them to jail.... I don’t have any control over that if that’s what they want to do,” he said. “An arrest in and of itself, even if the case is dismissed, can still have life-altering effects for somebody,” said Moore, of the Drug Policy Alliance, listing the potential consequences: barriers to employment opportunities, loans for higher education, affordable housing, and family law and immigration implications.
Recent related posts:
- Exploring the intersection of police work and marijuana (and marijuana reform)
- Hemp reforms causing headaches for criminal marijuana enforcement
September 25, 2019 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States | Permalink | Comments (0)
Wednesday, September 18, 2019
Advocacy groups urge House leaders not to move forward with banking bill that "does not solve the underlying problems of marijuana prohibition"
As noted in this prior post, House Majority Leader Steny Hoyer is reportedly planning to put a marijuana banking bill on the floor of the House of Representatives for a vote in the coming weeks. But yesterday a set of advocacy groups sent this short and significant letter to House leaders urging a postponement of the floor vote because the SAFE Banking Act fails to address any criminal justice reform issues. Here are excerpts from the letter:
The Congress has a unique opportunity to address the myriad injustices created by this nation’s marijuana laws. For decades, people of color have suffered under harsh and racially-biased marijuana laws. Although marijuana use is equal between whites and Blacks, Blacks are 3.73 times more likely to be arrested for marijuana offenses. Despite many states legalizing marijuana, arrests have increased, with one arrest every 48 seconds. Against this backdrop, we urge Congress to address the issue of marijuana prohibition holistically and inclusively, with timely Committee and Floor consideration of H.R.3884 – the Marijuana Opportunity Reinvestment and Expungement (MORE) Act of 2019. Marijuana legislation must first address the equity and criminal justice reform consequences of prohibition.
The banking bill does not address marijuana reform holistically. Instead, it narrowly addresses the issues of banking and improved access to financial services, measures that would benefit the marijuana industry, not communities who have felt the brunt of prohibition. To be clear, we recognize the challenges facing marijuana businesses that lack access to financial services. However, we believe it is a mistake to move this issue forward while many of the other consequences of marijuana prohibition remain unresolved. The banking bill does not solve the underlying problems of marijuana prohibition – namely, that many people of color have been saddled with criminal records for a substance that is now legal in many states, and that communities have been shut out of the emerging and booming marijuana industry....
Since the start of the 116th Congress, we have expressed concern to House Leadership, the House Financial Services Committee, and member offices, that if the banking bill moved to the Floor before broader reform, it would jeopardize comprehensive marijuana reform. Therefore, we have pushed for a conversation among advocates, Committee leadership, and House Leadership to formulate a plan for moving marijuana legislation in a way that is comprehensive and does not result in carve-outs for the industry and leave behind impacted communities.
We ask that you delay any vote on the banking bill until agreement has been reached around broader marijuana reform.
September 18, 2019 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)
Monday, September 16, 2019
This new Politico piece, headlined "Hoyer plans cannabis banking vote this month," reports that there is new momentum behind a small but very important federal marijuana reform bill. Here are the details:
House Majority Leader Steny Hoyer intends to put cannabis banking legislation on the floor this month, a historic step toward legitimizing the marijuana industry nationwide.
A Hoyer spokesperson said the Maryland Democrat was discussing the matter with members but hasn't scheduled the vote just yet. He shared his plans at a whip meeting yesterday. Other House Democratic aides said they expected the bill to be on the floor during the week of Sept. 23.
The bipartisan legislation would shield banks from federal penalties if they serve cannabis-related businesses in states where the drug has been legalized. Banks have been lobbying for the bill because cannabis remains banned at the federal level.
The new movement in the House comes as the legislation appears to be getting unexpected traction in the Senate, where Banking Chairman Mike Crapo (R-Idaho) is planning to hold a vote on a cannabis banking bill this year.
This piece at Marijuana Moment, headlined "Marijuana Banking Bill Will Get A Full House Floor Vote This Month," provides more context and quotes concerning these developments. It also has this account why matters are now moving forward:
While sources told Marijuana Moment that Hoyer made his decision to allow cannabis banking vote following an earlier Wednesday meeting on the issue, it is likely that building momentum in the GOP-controlled Senate added to pressure on the House to act so that Democrats wouldn’t be seen as lagging behind Republicans on cannabis reform, an issue the party has sought to take political ownership of.
I have generally been pessimistic about the prospects for any form of federal marijuana reform primarily because Senate Majority Leader Mitch McConnell has seemed disinclined to allow any reforms to get to the Senate floor. I fear that this remains a reality that will thwart passage of even a modest reform bill that might have considerable support on both sides of the aisle. But, as proved true with the sentencing reform legislation last year, it seems possible that Senator McConnell would be willing to move the bill if President Trump and a significant number of GOP Senators expressed support for it. Stay tuned.
September 16, 2019 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)
Monday, September 9, 2019
Old folks like me remember when one had to track down a hard copy of an issue of High Times in order to read about marijuana and policy reform. But times sure have changed, and the latest media marker of modern high times may be the new newsletter that was rolled out today by Politico, a highly respected inside-the-beltway media outlet covering politics and policy. This newsletter is described this way:
This newsletter launches at a historic moment for marijuana and cannabis policy. Marijuana is legal on some level in 33 states but illegal at the federal level, creating a bewildering and complex web of legal, regulatory and business questions that even the most expert policy makers and lawyers struggle to answer.
This newsletter offers a sneak preview of what we will do for our Pro subscribers starting next month. Our mission for Pro readers is to cover these policy issues with passion and expertise, to deliver exclusive news and analysis, and to report on cannabis from a neutral, unbiased point of view. We come to this issue with no pre-cooked narrative about what should happen on cannabis policy. Our stories will focus on what POLITICO Pro does best: explaining policy issues and the politics behind them and delivering the news in an easy to digest format so that you can use our content to make business decisions.
And here are two new stories from the Politico team about happenings inside and outside the Beltway:
This could be a big moment for marijuana and Congress. But Democrats are fighting Democrats over whether to focus on social justice issues or industry priorities like banking. Marijuana advocates are divided among themselves over whether to push for full legalization or settle for less far-reaching legislation. And many Republicans — some of whom are seeing the benefits of cannabis legalization in their home states — are still decidedly against any legalization on the national level, even for medicinal uses.
At the same time that Congress is in gridlock, there is growing national support for cannabis, which is illegal at the federal level but at least partially legal in 33 states. In addition, public opinion is shifting rapidly, with nearly two-thirds of Americans supporting legalization according to Gallup — double the level of support two decades ago. That’s led to a steadily growing number of lawmakers on both sides of the aisle who represent states with legal cannabis markets, making them more sympathetic toward legislation aimed at helping the burgeoning industry — which brought in roughly $10 billion in sales last year.
These conflicts between state and federal law have created a rash of problems for cannabis companies, including lack of access to banking services, sky-high federal tax rates and bewildering questions about exactly what business practices are legal.
The United States is feeling some North American peer pressure to get in on the cannabis boom. Producers in Canada, where marijuana is legal for medicinal and recreational uses, are already planning for a future where pot is a globally traded commodity, and some are setting themselves up to profit if it is legalized in the U.S.
In Mexico cannabis is legal for medicinal purposes, and the landscape could shift further: The country's new president, whose party controls a majority in the national legislature, sent a proposal to the Mexican Senate late last year to legalize recreational use.
September 9, 2019 in Federal Marijuana Laws, Policies and Practices, International Marijuana Laws and Policies, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Friday, September 6, 2019
The title of this post is the headline of this new Columbus Dispatch commentary authored by Benton Bodamer, who is a member of the law firm Dickinson Wright and teaches a Cannabiz course here at The Ohio State University Moritz College of Law. Here are excerpts from the piece:
Regulators and law enforcement have a wildly impractical task in attempting to regulate companies, plants and products using a distinguishing factor (hemp vs. marijuana) that is both arbitrary and mutable. There are no federal guidelines on how dry cannabis must be to test for THC, nor guidelines for the stage of cultivation or processing at which testing should occur. As cannabis dries, the THC content increases and that process can continue after harvest and testing. This means that temperature changes during transportation could turn “hemp” into “marijuana” unless we have a federally standardized testing and transportation procedure and methodology, which we do not.
CBD and THC can be extracted from both federally noncompliant marijuana and federally legal hemp. If it is the exact same substance at the molecular level, should we really care?
In the face of federal illegality, draconian tax burdens, Wild West banking and competition from black market illegal operations, the state-compliant cannabis industry in America has managed to build a base of sophisticated investors, informed customers, medical professionals and even Republican supporters (gasp!), cultivating a promising industry that has generated millions of tax dollars and thousands of jobs. This industry persists in 33 states (and growing) because the vast majority of the country knows that the federal law is wrong and largely unenforced....
When laws are irrational we lose faith in civil institutions. The cannabis industry is filled with “efficient illegality,” meaning noncompliance meets with little risk of federal enforcement against state-compliant businesses. F ederal prosecutorial dollars for action against state-compliant cannabis businesses are throttled through federal legislative restraints and 33 states have now decided that they would rather generate tax dollars from cannabis than spend tax revenue persecuting its nonthreatening uses. Continuing the charade of federal illegality is doing far more harm to public perception in the value of laws and law enforcement than full-scale legalization with sensible federal, state, and local regulation would do.
There’s a simple answer to the confusion over “hemp” and “marijuana,” and it’s one that happens to reflect popular opinion. It’s time to fully legalize the cannabis plant and the cannabinoids extracted from it and build a data-driven industry from the existing state-sanctioned marketplaces. The sooner we stop pretending that century-old uninformed hysteria constitutes a sound public health policy, the sooner we can heal and grow (cannabis) together.
Thursday, August 29, 2019
This morning, the federal government weighed in on the health risks of marijuana reforms through this new extended US Surgeon General advisory headed "Marijuana Use and the Developing Brain." Here is how it gets started and some key passages (with lots of cites to research removed):
I, Surgeon General VADM Jerome Adams, am emphasizing the importance of protecting our Nation from the health risks of marijuana use in adolescence and during pregnancy. Recent increases in access to marijuana and in its potency, along with misperceptions of safety of marijuana endanger our most precious resource, our nation’s youth.
Marijuana, or cannabis, is the most commonly used illicit drug in the United States. It acts by binding to cannabinoid receptors in the brain to produce a variety of effects, including euphoria, intoxication, and memory and motor impairments. These same cannabinoid receptors are also critical for brain development. They are part of the endocannabinoid system, which impacts the formation of brain circuits important for decision making, mood and responding to stress....
The risks of physical dependence, addiction, and other negative consequences increase with exposure to high concentrations of THC7 and the younger the age of initiation. Higher doses of THC are more likely to produce anxiety, agitation, paranoia, and psychosis. Edible marijuana takes time to absorb and to produce its effects, increasing the risk of unintentional overdose, as well as accidental ingestion by children and adolescents. In addition, chronic users of marijuana with a high THC content are at risk for developing a condition known as cannabinoid hyperemesis syndrome, which is marked by severe cycles of nausea and vomiting.
This advisory is intended to raise awareness of the known and potential harms to developing brains, posed by the increasing availability of highly potent marijuana in multiple, concentrated forms. These harms are costly to individuals and to our society, impacting mental health and educational achievement and raising the risks of addiction and misuse of other substances. Additionally, marijuana use remains illegal for youth under state law in all states; normalization of its use raises the potential for criminal consequences in this population. In addition to the health risks posed by marijuana use, sale or possession of marijuana remains illegal under federal law notwithstanding some state laws to the contrary.
Marijuana Use during Pregnancy
Pregnant women use marijuana more than any other illicit drug. In a national survey, marijuana use in the past month among pregnant women doubled (3.4% to 7%) between 2002 and 201712. In a study conducted in a large health system, marijuana use rose by 69% (4.2% to 7.1%) between 2009 and 2016 among pregnant women. Alarmingly, many retail dispensaries recommend marijuana to pregnant women for morning sickness.
Marijuana use during pregnancy can affect the developing fetus. THC can enter the fetal brain from the mother’s bloodstream and may disrupt the endocannabinoid system, which is important for a healthy pregnancy and fetal brain development. Moreover, studies have shown that marijuana use in pregnancy is associated with adverse outcomes, including lower birth weight. The Colorado Pregnancy Risk Assessment Monitoring System reported that maternal marijuana use was associated with a 50% increased risk of low birth weight regardless of maternal age, race, ethnicity, education, and tobacco use....
Marijuana Use during Adolescence
Marijuana is also commonly used by adolescents, second only to alcohol. In 2017, approximately 9.2 million youth aged 12 to 25 reported marijuana use in the past month and 29% more young adults aged 18-25 started using marijuana. In addition, high school students’ perception of the harm from regular marijuana use has been steadily declining over the last decade. During this same period, a number of states have legalized adult use of marijuana for medicinal or recreational purposes, while it remains legal under federal law. The legalization movement may be impacting youth perception of harm from marijuana.
The human brain continues to develop from before birth into the mid-20s and is vulnerable to the effects of addictive substances. Frequent marijuana use during adolescence is associated with changes in the areas of the brain involved in attention, memory, decision-making, and motivation. Deficits in attention and memory have been detected in marijuana-using teens even after a month of abstinence. Marijuana can also impair learning in adolescents. Chronic use is linked to declines in IQ, school performance that jeopardizes professional and social achievements, and life satisfaction. Regular use of marijuana in adolescence is linked to increased rates of school absence and drop-out, as well as suicide attempts.
Monday, August 26, 2019
The title of this post is the title of this new paper recently posted to SSRN authored by Sara Goots Blair, a recent graduate of The Ohio State University Moritz College of Law. This paper is the tenth in an on-going series of student papers supported by Drug Enforcement and Policy Center. (The nine prior papers in this series are linked below.) Here is this latest paper's abstract:
Use of Cannabidiol (CBD) in the therapeutics industry has become increasingly popular in the last few years. CBD rode into public consciousness on the coattails of three booming consumer trends: the herbal supplement industry, the anxiety economy, and the growing legitimate cannabis industry. However, many uncertainties remain about the legality, safety, and quality of CBD. The passage of the 2018 Farm Bill legalized hemp production throughout the US, thereby removing hemp-derived CBD from Center for Disease Control and Prevention (CDC)-regulation. However, the U.S. Food and Drug Administration (FDA) still stakes a claim on regulating dietary supplements and food additives containing CBD. The sudden legality of CBD, coupled with uncertainty as to its safety, quality, and effectiveness, means it is imperative for states to support research and impose sufficient regulatory oversight over CBD-infused products.
Prior student papers in this series:
- "The Canna(business) of Higher Education"
- "Marijuana Banking in New York and Around the US: 'Swim at Your Own Risk'"
- "Intellectual Property Survey: Cannabis Plant Types, Methods of Extraction, IP Protection, and One Patent That Could Ruin It All"
- "Marijuana in the Workplace: Distinguishing Between On-Duty and Off-Duty Consumption"
- "An Argument Against Regulating Cannabis Like Alcohol"
- "The State of Marijuana in The Buckeye State and Fiscal Policy Considerations of Legalized Recreational Marijuana"
- "Race Based Statutes at Play with Cannabis: Cultivating a Process for Weeding Out the Competition"
- "Tribal Cannabis: Balancing Tribal Sovereignty and Cooperative Enforcement"
- "Land of the Free, Home of the (Disgruntled) Brave: The Case for Allowing Veterans Access to Medical Marijuana"
August 26, 2019 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)
The title of this post is the title of this notable new Department of Justice press release. Here is its full text:
The Drug Enforcement Administration today announced that it is moving forward to facilitate and expand scientific and medical research for marijuana in the United States. The DEA is providing notice of pending applications from entities applying to be registered to manufacture marijuana for researchers. DEA anticipates that registering additional qualified marijuana growers will increase the variety of marijuana available for these purposes.
Over the last two years, the total number of individuals registered by DEA to conduct research with marijuana, marijuana extracts, derivatives and delta-9-tetrahydrocannabinol (THC) has increased by more than 40 percent from 384 in January 2017 to 542 in January 2019. Similarly, in the last two years, DEA has more than doubled the production quota for marijuana each year based on increased usage projections for federally approved research projects.
“I am pleased that DEA is moving forward with its review of applications for those who seek to grow marijuana legally to support research,” said Attorney General William P. Barr. “The Department of Justice will continue to work with our colleagues at the Department of Health and Human Services and across the Administration to improve research opportunities wherever we can.”
“DEA is making progress in the program to register additional marijuana growers for federally authorized research, and will work with other relevant federal agencies to expedite the necessary next steps,” said DEA Acting Administrator Uttam Dhillon. “We support additional research into marijuana and its components, and we believe registering more growers will result in researchers having access to a wider variety for study.”
This notice also announces that, as the result of a recent amendment to federal law, certain forms of cannabis no longer require DEA registration to grow or manufacture. The Agriculture Improvement Act of 2018, which was signed into law on Dec. 20, 2018, changed the definition of marijuana to exclude “hemp”—plant material that contains 0.3 percent or less delta-9 THC on a dry weight basis. Accordingly, hemp, including hemp plants and cannabidiol (CBD) preparations at or below the 0.3 percent delta-9 THC threshold, is not a controlled substance, and a DEA registration is not required to grow or research it.
Before making decisions on these pending applications, DEA intends to propose new regulations that will govern the marijuana growers program for scientific and medical research. The new rules will help ensure DEA can evaluate the applications under the applicable legal standard and conform the program to relevant laws. To ensure transparency and public participation, this process will provide applicants and the general public with an opportunity to comment on the regulations that should govern the program of growing marijuana for scientific and medical research.
Thursday, August 15, 2019
"Land of the Free, Home of the (Disgruntled) Brave: The Case for Allowing Veterans Access to Medical Marijuana"
The title of this post is the title of this new paper recently posted to SSRN authored by David Haba, a recent graduate of The Ohio State University Moritz College of Law. This paper is the ninth in an on-going series of student papers supported by Drug Enforcement and Policy Center. (The eight prior papers in this series are linked below.) Here is this latest paper's abstract:
Approximately 30 percent of post-9/11 veterans have been diagnosed with Post-traumatic Stress Disorder (PTSD). Over half of U.S. veterans struggle with chronic pain, and approximately 22 veterans commit suicide every day in America. For veterans currently seeking medical treatment through Veteran Affairs (VA), 50 percent of PTSD patients cannot tolerate or do not adequately respond to existing treatments of opioids, anti-anxiety, and anti-depressant medications. While an overwhelming majority of veterans, about 83%, support the use medical marijuana, they remain unable to obtain their preferred course of treatment (or financial assistance for it) through the VA because the federal government prohibits VA health care providers from recommending MMJ.
This paper argues that veterans, especially those with PTSD, should be able to obtain a recommendation, and financial assistance, for medical marijuana from the VA. This is especially true in states with legal medical marijuana programs. Veterans have recently been calling on lawmakers to help them in their time of need as they battle hosts of ailments such as PTSD, chronic pain, and opioid addiction. The government's current policy, which has allowed thirty-three states to enact legal medical marijuana programs, yet does not allow veterans to obtain a MMJ recommendation from the VA, nor obtain financial assistance for this medication, is unacceptable. This paper calls on researchers to continue to enhance our understanding of MMJ's effects on PTSD, and for lawmakers to step up and do the right thing — to give the veterans the medicinal treatment that they want, need, and deserve for laying it all out on the line for our freedoms.
Prior student papers in this series:
- "The Canna(business) of Higher Education"
- "Marijuana Banking in New York and Around the US: 'Swim at Your Own Risk'"
- "Intellectual Property Survey: Cannabis Plant Types, Methods of Extraction, IP Protection, and One Patent That Could Ruin It All"
- "Marijuana in the Workplace: Distinguishing Between On-Duty and Off-Duty Consumption"
- "An Argument Against Regulating Cannabis Like Alcohol"
- "The State of Marijuana in The Buckeye State and Fiscal Policy Considerations of Legalized Recreational Marijuana"
- "Race Based Statutes at Play with Cannabis: Cultivating a Process for Weeding Out the Competition"
- "Tribal Cannabis: Balancing Tribal Sovereignty and Cooperative Enforcement"
Tuesday, July 30, 2019
Is hemp really now going to become the number three crop in Ohio and can marijuana stay illegal if it does?
I do not blog all that much about hemp reforms, even though I find them quite interesting and important, largely because I do not know that much about agriculture or about all the different ways the hemp plant might be used. But this local article concerning Ohio hemp developments prompted both the question in the title of this post and some broader thoughts about the relationship between help developments and marijuana reform. First, some excerpts from the article:
Gov. Mike DeWine signed Ohio's hemp legalization bill, Senate Bill 57, into law on Tuesday at the Ohio State Fair. The law takes effect immediately, freeing all embargoes on CBD inventory and moving hemp-derived cannabidiol off Ohio’s controlled substances list. It also means Ohio State University and other colleges can grow the state's first hemp this summer....
The law immediately allows hemp-derived CBD to flow into the state, but it will be a while before hemp can be commercially grown or processed in the Buckeye State. The U.S. Department of Agriculture plans to issue federal rules for hemp cultivation and processing in the coming weeks. In addition to CBD from hemp flowers, the plant is also harvested for its fiber and seed.
Ohio agriculture officials have six months to draft Ohio’s rules and regulations, which will then be submitted to the feds for approval. The goal: Have everything in place so farmers can get seeds in the ground next spring.... Ohio Department of Agriculture Director Dorothy Pelanda said the agency does not plan to limit the number of licenses issued to cultivate or process hemp.
Pelanda said the agency plans to craft regulations to ensure farmers plant seeds that are certified to be low in THC – hemp is defined as cannabis containing less than 0.3% THC. “We want to make sure that Ohio has the very best hemp program in the nation,” Pelanda told The Enquirer.
Ohio is the 46th state to allow hemp farming. A big part of Ohio’s program will be research, which will begin right away. Ohio State University plans to buy about 2,000 hemp plants in the next week. Gary Pierzynski, associate dean for research and graduate programs at OSU's College of Food, Agricultural and Environmental Sciences, said it’s too late to plant with the goal of harvesting. But Pierzynski hopes this first crop at four locations will position them for good research on growing methods, plant diseases, pests and more next year.
Industry analysts predict the U.S. hemp market will grow from about $4.6 billion to more than $26 billion by 2023. The Ohio Farm Bureau Federation has said hemp has the potential to be Ohio's No. 3 crop behind corn and soybeans.
The bill leaves the details of Ohio’s hemp program – like who can grow it and how much licenses will cost – to the Ohio Department of Agriculture. Those rules will be shaped by experts, lobbyists and public comment periods. Hours after Senate Bill 57 passed, a new hemp industry lobbying group was announced. Backing the group: Ian James and Jimmy Gould, who led the unsuccessful 2015 effort to legalize recreational marijuana in Ohio. Since Issue 3 failed, James and Gould have invested in hemp, in addition to obtaining licenses for medical marijuana businesses here.
Statehouse lobbyist Neil Clark, who has been tapped to lead the organization, said the association will serve businesses who are involved at several levels of the industry and who have “big ideas.” “Our goal is to make sure those restrictions aren’t prohibitive,” Clark said. “There’s a lot of farmland in Ohio and there has to be opportunities for everyone.”
The group joins others that pushed the bill along including the U.S. Hemp Roundtable, which largely represents CBD businesses, and the Ohio Hemp Association, comprised of Ohio businesses and entrepreneurs that want to grow hemp or manufacture hemp products.
Queen City Hemp has been gearing up to put its CBD Seltzer water back on the shelves at local retailers, including Hemptations and Clifton Natural Foods. A large part of the Cincinnati-based manufacturer’s inventory of CBD-infused seltzer water was confiscated from those retailers and destroyed by the local health department during their crackdown in February, according to president and co-founder Robert Ryan.
A number of national chain stores are already selling CBD products across the country. Kroger, the nation's largest grocery retailer, announced in June it would sell hemp-derived CBD creams, balms and other topical products in nearly 1,000 stores in 17 states – but not its home state of Ohio. That will change with the new law, but a Kroger spokeswoman said it was too early to provide details.
As this article highlights for Ohio, many folks here and throughout the nation with an affinity for marijuana reform are involved with hemp reform and the hemp industry. If (when?) this crop becomes a huge part of agriculture in Ohio and elsewhere, I suspect these these folks are likely to use their clout and their money to push for reforms regarding other types of cannabis plants. Similarly, if folks in Ohio and throughout the nation get used to seeing CBD sodas on many store shelves and CBD creams when shopping for soap, it seems ever more likely that they will start to view many forms of cannabis more benignly.
Tuesday, July 23, 2019
Senate hearing on marijuana industry banking issues reveals continued challenges for federal reforms
Many folks seemed quite excited by the Senate Banking Committee's decision to hold this hearing today, titled “Challenges for Cannabis and Banking: Outside Perspectives,” to discuss the SAFE Banking Act and related issues concerning the banking problems that face the marijuana industry. But just the headlines of two press reports on the hearing suggest my persistent pessimism about the short-term prospects for federal marijuana reforms remains justified:
From The Hill: "Pot banking bill supporters seek path to passage in skeptical Senate"
Both articles provide a helpful review of the hearing, and here is how the CNBC piece gets started:
A much-hyped congressional hearing on easing cannabis banking restrictions served as a reminder Tuesday that reforming pot laws remains an uphill battle in Congress despite growing bipartisan support among lawmakers.
The Senate Committee on Banking, Housing and Urban Affairs hosted a hearing titled “Challenges for Cannabis and Banking: Outside Perspectives.” Lawmakers, industry executives and advocates testified on the challenges cannabis companies face trying to get basic banking services in states where medical or recreational marijuana is legal. They urged lawmakers to change federal laws to give the budding industry access to traditional financial services.
One piece of legislation, the Secure and Fair Enforcement (SAFE) Banking Act, would allow banks, credit unions and other financial institutions to work with the cannabis industry. Some think it could pass because it’s narrowly focused on banking and not other sticky issues like decriminalizing or legalizing pot.
But Tuesday’s hearing showed just how hard getting the bill through the Senate would be. Aside from committee chairman Mike Crapo, R-Idaho, none of the Republican committee members attended the hearing.
New Marijuana Opportunity Reinvestment and Expungement Act envisions creating a Cannabis Justice Office
I was pleased to hear reports about, and then see an email describing, a notable new federal marijuana reform bill being proposed by notable federal officials. The email from the House Judiciary Democratic Press was titled "Nadler & Harris Introduce Comprehensive Marijuana Reform Legislation." Here are excerpts:
Today, U.S. Representative Jerrold Nadler (D-NY-10), Chairman of the House Judiciary Committee, and U.S. Senator Kamala D. Harris (D-CA) introduced the Marijuana Opportunity Reinvestment and Expungement Act, one of the most comprehensive marijuana reform bills ever introduced in the U.S. Congress.
“Despite the legalization of marijuana in states across the country, those with criminal convictions for marijuana still face second class citizenship. Their vote, access to education, employment, and housing are all negatively impacted,” said Chairman Nadler. “Racially motivated enforcement of marijuana laws has disproportionally impacted communities of color. It’s past time to right this wrong nationwide and work to view marijuana use as an issue of personal choice and public health, not criminal behavior. I’m proud to sponsor the Marijuana Opportunity Reinvestment and Expungement 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 acknowledge the partnership in developing this legislation with my colleagues, Rep. Barbara Lee and Rep. Earl Blumenauer, Co-Chairs of the Congressional Cannabis Caucus, as well as the contributions of Rep. Hakeem Jeffries and Rep. Nydia Velazquez.”
“Times have changed — marijuana should not be a crime,” said Sen. Harris. “We need to start regulating marijuana, and expunge marijuana convictions from the records of millions of Americans so they can get on with their lives. As marijuana becomes legal across the country, we must make sure everyone — especially communities of color that have been disproportionately impacted by the War on Drugs — has a real opportunity to participate in this growing industry. I am thrilled to work with Chairman Nadler on this timely and important step toward racial and economic justice.”
The Marijuana Opportunity Reinvestment and Expungement Act 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. Immigrants will also benefit from the Marijuana Opportunity Reinvestment and Expungement Act, as they will no longer be subject to deportation or citizenship denial based on even a minor marijuana offense. The Marijuana Opportunity Reinvestment and Expungement Act also ensures that all benefits in the law are available to juvenile offenders.
The Marijuana Opportunity Reinvestment and Expungement Act:
- Decriminalizes marijuana at the federal level by removing the substance from the Controlled Substances Act. This applies retroactively to prior and pending convictions, and enables states to set their own policy.
- Requires federal courts to expunge prior convictions, allows prior offenders to request expungement, and requires courts, on motion, to conduct re-sentencing hearings for those still under supervision.
- Authorizes the assessment of a 5% sales tax on marijuana and marijuana products to create an Opportunity Trust Fund, which includes three grant programs:
- The Community Reinvestment Grant Program: Provides services to the individuals most adversely impacted by the War on Drugs, including job training, re-entry services, legal aid, literacy programs, youth recreation, mentoring, and substance use treatment.
- The Cannabis Opportunity Grant Program: Provides funds for loans to assist small businesses in the marijuana industry that are owned and controlled by socially and economically disadvantaged individuals.
- The Equitable Licensing Grant Program: Provides funds for programs that minimize barriers to marijuana licensing and employment for the individuals most adversely impacted by the War on Drugs.
- Opens up Small Business Administration funding for legitimate cannabis-related businesses and service providers.
- Provides non-discrimination protections for marijuana use or possession, and for prior convictions for a marijuana offense:
- Prohibits the denial of any federal public benefit (including housing) based on the use or possession of marijuana, or prior conviction for a marijuana offense.
- Provides that the use or possession of marijuana, or prior conviction for a marijuana offense, will have no adverse impact under the immigration laws.
- Requires the Bureau of Labor Statistics to collect data on the demographics of the industry to ensure people of color and those who are economically disadvantaged are participating in the industry.
Along with Nadler and Harris, co-sponsors of the Marijuana Opportunity Reinvestment and Expungement Act include U.S. Senators Cory Booker (D-NJ), Jeff Merkley (D-OR), and Ron Wyden (D-OR); in the U.S. House of Representatives, cosponsors Barbara Lee (D-CA) and Earl Blumenauer (D-OR), Co-Chairs of the Congressional Cannabis Caucus, and Hakeem S. Jeffries (D-NY) and Nydia M. Velazquez (D-NY), were particularly instrumental in developing this bill. Other House cosponsors include Matt Gaetz (R-FL), David Cicilline (D-RI), Steve Cohen (D-TN), J. Luis Correa (D-CA), Madeleine Dean (D-PA), Theodore E. Deutch (D-FL), Veronica Escobar (D-TX), Sheila Jackson Lee (D-TX), Pramila Jayapal (D-WA), Henry C. “Hank” Johnson, Jr. (D-GA), Ted Lieu (D-CA), Zoe Lofgren (D-CA), Jamie Raskin (D-MA), Eric Swalwell (D-CA), Dwight Evans (D-PA), Tulsi Gabbard (D-HI), Debra A. Haaland (D-NM), Ro Khanna (D-CA), James P. McGovern (D-MA), Eleanor Holmes Norton (D-DC), Ayanna Pressley (D-MA), Maxine Waters (D-CA), and Bonnie Watson Coleman (D-NJ).
The Marijuana Opportunity Reinvestment and Expungement Act has the support of a broad coalition of civil rights, criminal justice, drug policy, and immigration groups, including: the Drug Policy Alliance, Center for American Progress, 4thMVMT, ACLU, California Minority Alliance, Center for Law and Social Policy (CLASP), Human Rights Watch, Immigrant Legal Resource Center, Law Enforcement Action Partnership, Leadership Conference on Civil and Human Rights, National Council for Incarcerated and Formerly Incarcerated Women and Girls, National Organization for the Reform of Marijuana Laws (NORML), Sentencing Project, Students for Sensible Drug Policy, UndocuBlack Network, Washington Office on Latin America (WOLA).
The full text of the Marijuana Opportunity Reinvestment and Expungement Act is available at this link, and I especially what to note that Section 5 of the bill includes a provision for establishing within the federal "Office of Justice Programs a Cannabis Justice Office." In my 2018 article, "Leveraging Marijuana Reform to Enhance Expungement Practices," I make the case for using marijuana revenues to help build an institutional infrastructure for helping to remediate the various harms from the war on drugs. Though this proposed Cannabis Justice Office is not exactly what I had in mind, I am really excited to see any major reform bill focus on creating a justice infrastructure for continued emphasis on justice and equity issues.
July 23, 2019 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)
Thursday, July 18, 2019
With new marijuana-related hearings taking place this summer in both the House and Senate and with new bills being proposed and reform talk afoot, it might seem like significant federal marijuana reform could occur any day now. But, usefully, this new Rolling Stone article provides an oft-needed reminder of who really decides whether and when any legislative proposals will advance. The piece is headlined "Three Republicans Stand in the Way of Federal Weed Legalization: There’s finally bipartisan support for cannabis legislation — but unless it can get past a small group of Republican senators, the bills will continue to fizzle," and here are excerpts:
Democrat lobbyist... Saphira Galoob was [at lunch] to talk about cannabis legalization with Republican lobbyist Don Murphy. Over sweet potato fries, Murphy — a former GOP state representative in Maryland who has been working in marijuana policy for over 15 years — and Galoob traded war stories about advocating for cannabis on Capitol Hill, where, as Murphy explains, public opinion only goes so far.... [P]ublic and bipartisan support are not enough for full marijuana legalization, says Galoob. “We are still in a situation where the temperature within the Republican Party conference — within the leadership — is not yet signaling that it’s OK.”
The circle of people on Capitol Hill who will decide if cannabis legislation passes is actually pretty small. There are three names that are continually listed — by lobbyists, advocates, and lawmakers — as the gatekeepers to any federal cannabis legislation: Republican Senators Mike Crapo (ID), Lindsey Graham (SC), and Majority Leader Mitch McConnell (KY). They make decisions about which cannabis bills — if any — the Senate in Congress will have opportunity to vote on this session.
“I used to think that in civics, in government, you need 50 percent plus one to pass legislation,” Murphy says. “Not exactly. You need one, plus 50 percent.” That one, says Murphy, is a committee chairman. In order to get a bill to the floor for a full Senate vote, it must first pass the House, then get seen by a Senate committee. However, there are absolutely no guarantees that a committee will ever hear a bill. That’s completely up to the committee chairman.
Senators Crapo and Graham are chairmen of the Senate Banking and Senate Judiciary committees, respectively — the two committees that have the highest chance of seeing standalone cannabis legislation in this congress.
Take, for example, the SAFE Banking Act, which is expected to pass the House by a strong margin. But because the bill deals with banking, it will have to pass through the Senate Banking Committee, which has been led by Crapo since 2016.... Until very recently, the chairman and his office avoided taking a hard stance on the SAFE Banking Act by arguing that cannabis’ Schedule I status on the Controlled Substances Act should be dealt with first. But on July 16th, a hearing popped up on the Banking Committee calendar titled “Challenges for Cannabis and Banking: Outside Perspectives,” to be held in late July. Sen. Crapo’s Senate Banking committee, turns out, has scheduled a hearing on the SAFE Banking Act, officially pulling it into the Senate sphere of influence before it has even formally passed through the House of Representatives.
While that is good news for pro-SAFE Banking advocates and a big step forward for the bill itself, the story is far from over. The bill still needs a vote — called a “markup” — scheduled, it needs to pass that committee vote, and then it moves on, most likely, to the Senate Judiciary Committee.
The situation in the Judiciary Committee, where Sen. Lindsey Graham is chairman, is similar to banking. Most cannabis bills — not just the banking bill — would have to pass his committee before being considered in the full Senate, because they involve the Controlled Substances Act, which is overseen by the Department of Justice.
Sen. Graham’s track record on marijuana is mostly cold. He co-sponsored the medical marijuana-focused CARERS Act of 2015, which would have re-scheduled marijuana and given added protections to states that legalized marijuana. But since then, Graham has voted against other bills such as the SAFE Banking Amendment — which have been tacked onto different appropriations bills multiple times over the years. Graham told Roll Call in April that he is “not very excited about” the SAFE Banking Act, and in 2016 told POLITICO Magazine he rejects recreational marijuana. His scorecard on marijuana advocacy group NORML’s website gives him a “C” grade.
What he would do if cannabis legislation is sent to his committee is unclear. Most advocates don’t think Graham is motivated to hear standalone marijuana legislation unless there was additional pressure on him from GOP leadership.... Even if a cannabis bill passes a Senate committee in this congress, though, that doesn’t necessarily mean it will make it to a vote. Majority Leader Mitch McConnell holds the keys to the Senate chamber, and he only brings bills to the floor that he personally wants passed. Though he worked hard last year to legalize hemp – Kentucky has a long history of farming industrial hemp, and McConnell was looking for a way to help the state’s economy — he’s said he will not consider descheduling cannabis....
Some advocates believe that the majority leader could be swayed if a cannabis bill could also help the hemp industry. Right now, some hemp farmers are still having issues opening bank accounts or accessing other programs that should be legal for them, because to the untrained eye, full-spectrum cannabis and hemp look incredibly similar. The difference between legality and classification as a Schedule I drug is in how much CBD and THC the plant possesses, and banks don’t want to be held liable if a hemp company grows a crop with too much CBD or any THC. So many banks and credit card companies are avoid working with the hemp industry entirely. At a tour of a Kentucky hemp facility earlier this month, McConnel himself acknowledged the service gap, saying the banks “need to be convinced, and we hope to explain it to them.”
If the SAFE Banking Act was passed, it would arguably give hemp – which Sen. McConnell worked hard to make legal for his state – some breathing room. Republican Cory Gardner, one of the more influential GOP members on this topic, is optimistic. “I think we’re making more progress than we’ve ever had,” he says.
When asked about the chances for cannabis legislation in the Senate, Senator Jeff Merkley of Oregon said he believes the SAFE Banking Act — and potentially other cannabis legislation — has the votes to pass. “It would help a lot to have the support of leadership in this chamber,” he says. “If there’s no obstruction, if we have a free chance to have a debate on the floor, I think we can get the sixty votes and pass it.”
If no cannabis legislation is passed by the time a new congress arrives in January of 2021, the whole process — introducing bills, committee hearings and votes, House votes, Senate votes, etc — will have to start over at square one.
Thursday, July 11, 2019
Yesterday was an interesting and perhaps historic day inside the Beltway as the Crime, Terrorism and Homeland Security Subcommittee of the Committee of the Judiciary of US House of Representatives conducted a hearing titled "Marijuana Laws in America: Racial Justice and the Need for Reform." The full two-hour+ hearing, along with the written testimony submitted by the official witnesses, can all be found at this official webpage. If one is looking for a summary, this High Times piece provides recap under the headline "What Was Said at Today’s Congressional Hearing on Federal Marijuana Law Reform." And the headline of this Marijuana Moment recap, headlined "Lawmakers And Witnesses Clash On Strategy During Congressional Hearing On Ending Federal Marijuana Prohibition," highlights that there was considerable consensus on the problems with blanket federal marijuana prohibition, but considerable dissensus concerning how reform might best move forward.
I have been fairly pessimistic about federal marijuana reforms before 2020 primarily because, as I noted in this MJBiz Daily piece, I do not think Senate Majority leader Mitch McConnell has any interest in moving any significant reforms forward these days (especially after he got hemp reforms passed late last year). But this congressional hearing provides yet another reminder of why federal marijuana reform is likely to remain so very challenging in the months and years ahead. Even when there is broad agreement as to the need for reform, we still seem to be a very long way from agreement as to the best form of reform. And experiences over the last year in New Jersey and New York highlight that even a strong political will for reform among key official can still be thwarted by squabbles over which of various forms reform could take.
For this reason, as I wonder about what is next in Congress on this front, I remain inclined to say "probably nothing."
A few related recent prior posts:
- US House Subcommittee hearing scheduled on "Marijuana Laws in America: Racial Justice and the Need for Reform"
- On eve of congressional marijuana reform hearing, major policy groups form new Marijuana Justice Coalition
- New Jersey shows, yet again, the challenges of marijuana legalization done via the traditional legislative process
- Will the new, reintroduced version of the STATES Act be able to get even a hearing in Congress?
- Senator Cory Booker introduces "Marijuana Justice Act of 2019"
Wednesday, July 10, 2019
On eve of congressional marijuana reform hearing, major policy groups form new Marijuana Justice Coalition
As reported in this Marijuana Moment piece, headlined "ACLU And Other Groups Form Coalition To Push Justice-Focused Marijuana Legalization Model," a notable new alliance has come together to press for federal marijuana reform. Here are the basics:
Ten leading civil rights and criminal justice reform groups announced on Tuesday the formation of a coalition to advocate that marijuana legalization legislation must be comprehensive and include wide-ranging social equity provisions.
Members of the Marijuana Justice Coalition (MJC) include the ACLU, Center for American Progress, Center for Law and Social Policy, Drug Policy Alliance, Human Rights Watch, Immigrant Legal Resource Center, Lawyers’ Committee for Civil Rights Under Law, Leadership Conference on Civil & Human Rights, NORML and Students for Sensible Drug Policy.
Noting that the congressional conversation around cannabis has shifted from whether to legalize to how to legalize, MJC said in its announcement that any reform effort should include a series of measures that focus on investing in communities disproportionately harmed by prohibition, encouraging participation in the industry by impacted individuals, expunging the records of those with prior marijuana convictions and ensuring that work in a legal market doesn’t impact citizenship applications.
“Ending prohibition on the federal level presents a unique and desperately needed opportunity to rightfully frame legalization as an issue of criminal justice reform, equity, racial justice, economic justice, and empowerment, particularly for communities most targeted by over-enforcement of marijuana laws,” MJC wrote. “As Congress considers the end of marijuana prohibition, the Marijuana Justice Coalition believes that any legislation that moves forward in Congress should be comprehensive.”
That comprehensive approach should involve descheduling cannabis and advancing criminal justice reform provisions such as expungements and resentencing, MJC said. The group also called for “eliminating barriers to access to public benefits (e.g. nutrition assistance, public housing, etc.) and other collateral consequences related to an individual’s marijuana use or previous arrest or conviction” and “eliminating unnecessarily discriminatory elements for marijuana use, arrests and convictions, including drug testing for public benefits or marijuana use as a reason for separating children from their biological families in the child welfare system.”
Queen Adesuyi, policy coordinator at the Drug Policy Alliance’s national affairs office, said the coalition was formed “with the goal of reforming federal marijuana laws, but doing so in a way that gives back to the communities most impacted by the war on drugs.”...
“Since the scheduling of marijuana as a Controlled Substance in 1970, over 20 million Americans have been unjustly arrested or incarcerated,” Justin Strekal, political director of NORML, told Marijuana Moment. “Entire communities have lost generations of citizens to cyclical poverty and incarceration that resulted from the collateral consequences of having a cannabis-related conviction on their record.”...
Tuesday’s announcement from MJC and its influential members is especially timely. On Wednesday, the House Judiciary Crime, Terrorism and Homeland Security Subcommittee will hold a hearing on marijuana reform that’s expected to explore many of the social equity and racial justice issues identified in MJC’s priority list. While the panel may well consider the bipartisan Strengthening the Tenth Amendment Through Entrusting States (STATES) Act among other bills, it seems unlikely MJC will be inclined to offer its support for that specific legislation because it lacks social equity provisions.
The full "Statement of Principles on Federal Marijuana Reform" from this coalition can be found at this link. Here are a few paragraphs from that two-page statement before it turns to specifics:
Ending prohibition on the federal level presents a unique and desperately needed opportunity to rightfully frame legalization as an issue of criminal justice reform, equity, racial justice, economic justice, and empowerment, particularly for communities most targeted by over-enforcement of marijuana laws.
As Congress considers the end of marijuana prohibition, the Marijuana Justice Coalition believes that any legislation that moves forward in Congress should be comprehensive. The provisions set forth below are agreed upon by the undersigned criminal justice, drug policy, civil rights, and anti-poverty groups as principles that should be considered as a part of any moving marijuana reform efforts in Congress.
Relatedly, Kyle Jaeger at Marijuana Moment also has this lengthy preview of today's congressional hearing on marijuana reform headlined "The Debate Over How, Not Whether, Congress Should Legalize Marijuana Is Heating Up."
Related prior post:
US House Subcommittee hearing scheduled on "Marijuana Laws in America: Racial Justice and the Need for Reform"
July 10, 2019 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Monday, July 8, 2019
US House Subcommittee hearing scheduled on "Marijuana Laws in America: Racial Justice and the Need for Reform"
I am quite intrigued and pleased that this week the US House of Representatives has scheduled a hearing titled "Marijuana Laws in America: Racial Justice and the Need for Reform." The official notice of the hearing is here, and the event will be conducted by the Crime, Terrorism and Homeland Security Subcommittee of the Committee of the Judiciary and will take place on Wednesday, July 10, 2019 at 10:00am in Room 2141 of the Rayburn House Office Building in Washington DC.
Based solely on the title given to this hearing, I would expected it to be focused principally on racial disparities in arrests and on other racialized aspects of the enforcement of marijuana prohibitions. But the official witness list for the hearing shows that two of the four scheduled witnesses are doctors while another is the CEO of the Cannabis Trade Federation. One scheduled witness who does work in the criminal justice, Marilyn Mosby, the chief prosecutor for Baltimore City, surely can and will speak to racial justice issue in the application of marijuana laws. But I am not entirely sure the other witnesses will be focused on racial justice specifically or just the need for reform generally.
Kyle Yeager at Marijuana Moment has this helpful review of what we might expect from the witnesses and the significance of this event. Here are excerpts:
Given the backgrounds of these individuals, it seems apparent that committee members will be discussing not whether the U.S. should end federal cannabis prohibition, but will focus primarily on how to do it.
Witnesses [will] include Malik Burnett, a physician at Johns Hopkins Bloomberg School of Public Health who previously served as the Washington, D.C. policy manager at the Drug Policy Alliance’s Office of National Affairs, where he helped lead a successful ballot initiative campaign to legalize cannabis in the nation’s capital in 2014.
Baltimore State’s Attorney Marilyn Mosby, who announced in January that her office would no longer prosecute cannabis possession cases and would work to clear the records of certain individuals with prior marijuana convictions, is also being invited to testify.
David Nathan, a physician and board president of the pro-legalization group Doctors for Cannabis Regulation (DFCR), will also appear before the committee. He told Marijuana Moment that he looks “forward to discussing the evidence-based health effects of cannabis, the failure of prohibition, the inadequacy of decriminalization, and the public health and social justice benefits of effective regulation.”...
Finally, Neal Levine, CEO of Cannabis Trade Federation, will be the minority witness—which is noteworthy in and of itself, as Levine advocates for legalization, while one might expect the minority Republican party to invite someone who shares an opposing perspective on ending prohibition. “I cannot comment on what has not been announced publicly by the committee, but I would welcome the opportunity to share the perspective of our members,” Levine, who previously served as a staffer for the Marijuana Policy Project, told Marijuana Moment. “We are especially well positioned to discuss the challenges arising from the inconsistency between state and federal cannabis laws.”...
While lawmakers aren’t expected to vote on any particular bill at the hearing, it will nonetheless be one of the most significant congressional developments on marijuana reform to date.
Thursday, May 30, 2019
Split Second Circuit panel gives small victory to medical marijuana users while turning away their high-profile court challenge to Schedule I placement
I have noted in a number of prior posts linked below the notable lawsuit seeking to ensure legal access to medical marijuana that was filed in federal district court in New York in July 2017 (first discussed in this post.) In February of 2018, as noted in this post, US District Judge Alvin Hellerstein dismissed the suit, ruling the litigants had "failed to exhaust their administrative remedies” while concluding that "it is clear that Congress had a rational basis for classifying marijuana in Schedule I." In response to that ruling, I said "plaintiffs in this suit could appeal this dismissal to the US Court of Appeals for the Second Circuit, and doing so would likely keep the case in the headlines [but] I am not optimistic it would achieve much else."
In fact, an appeal was brought to the Second Circuit, and it did achieve something: an interesting split panel ruling that provides an interesting small victory to the plaintiffs despite ultimately failing to provide an real relief. Specifically, the majority opinion authored by Judge Guido Calabresi in Washington v. Barr, No. 18-859 (2d Cir. May 30, 2019) (available here), gets started this way:
This is the latest in a series of cases that stretch back decades and which have long sought to strike down the federal government’s classification of marijuana as a Schedule I drug under the Controlled Substances Act (CSA), 2 U.S.C. § 801 et seq. See, e.g., Krumm v. Drug Enforcement Admin., 739 F. App’x 655 (D.C. Cir. 2018) (mem.); Ams. for Safe Access v. Drug Enforcement Admin., 706 F.3d 438 (D.C. Cir. 2013); Alliance for Cannabis Therapeutics v. Drug Enforcement Admin., 15 F.3d 1131 (D.C. Cir. 1994) (mem.). The current case is, however, unusual in one significant respect: among the Plaintiffs are individuals who plausibly allege that the current scheduling of marijuana poses a serious, life‐or‐death threat to their health. We agree with the District Court that Plaintiffs should attempt to exhaust their administrative remedies before seeking relief from us, but we are troubled by the Drug Enforcement Administration (DEA)’s history of dilatory proceedings. Accordingly, while we concur with the District Court’s ruling, we do not dismiss the case, but rather hold it in abeyance and retain jurisdiction in this panel to take whatever action might become appropriate if the DEA does not act with adequate dispatch.
Judge Jacobs dissents from the panel's failure to just dismiss the lawsuit, and his opinion starts this way:
The plaintiffs seek a declaration that the classification of marijuana as a Schedule 1 substance is unconstitutional because it does not reflect contemporary learning regarding the drug’s medicinal uses. I agree with the District Court that this case must be dismissed for failure to exhaust administrative remedies in the Drug Enforcement Agency (“DEA”). The majority opinion does not actually disagree, though it seems to treat lack of jurisdiction as a prudential speed bump. I dissent from the majority opinion’s decision to hold the case in abeyance so that we may turn back to it if, at some future time, we get jurisdiction.
Prior related posts:
- Latest effort to take down federal marijuana prohibition via constitutional litigation filed in SDNY
- "Colorado girl suing U.S. attorney general to legalize medical marijuana nationwide"
- Could a high-profile lawsuit help end federal marijuana prohibition?
- Mixed messages from US District Judge hearing legal challenge to federal marijuana prohibition
- Federal judge dismisses high-profile suit challenging marijuana's placement on Schedule 1 under the Controlled Substances Act
May 30, 2019 in Court Rulings, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Wednesday, May 22, 2019
The title of this post is the title of this new article authored by Joelle Anne Moreno and now available via SSRN. Here is its abstract:
Weed, herb, grass, bud, ganja, Mary Jane, hash oil, sinsemilla, budder, and shatter. Marijuana – whether viewed as a medicine or intoxicant – is fast becoming a part of everyday life, with the CDC reporting 7,000 new users every day and the American market projected to grow to $20 billion by 2020. Based on early campaign rhetoric, by that same year the U.S. could have a pro-marijuana president.
Despite its growing acceptance and popularity, marijuana remains illegal under federal law. Like heroin, LSD, and ecstasy, marijuana is a DEA Schedule I drug reflecting a Congressional determination that marijuana is both overly addictive and medically useless.
So what is the truth about pot? The current massive pro-marijuana momentum and increased use, obscures the fact that we still know almost nothing about marijuana’s treatment and palliative potential. Marijuana’s main psychoactive chemical is THC; but it also contains over 500 other chemicals with unknown physiological and psychological effects that vary based on dosage and consumption method. Medical marijuana may be legal in 32 states and supported by 84% of Americans, but federal constraints shield marijuana from basic scientific inquiry. This means that lawmakers and voters are enthusiastically supporting greater access to a drug without demanding critical scientific data. For policymaking purposes, this data should include marijuana’s short and long-term brain effects, possible lung and cardiac implications, chemical interactions with alcohol and other drugs, addiction risks, pregnancy and breast-feeding concerns, and the effects of secondhand smoke.
This Article treats marijuana as a significant contemporary science and law problem. It focuses on the fundamental question of regulating a substance that has not been adequately researched. The Article examines the extant scientific data, deficiencies, and inconsistencies and explains why legislators should not rely on copycat laws governing alcohol or prescription narcotics. It also explores how marijuana’s hybrid federal (illegality)/state (legality) raises compelling theoretical and practical Constitutional questions of preemption, the anti-commandeering rule, and congressional spending power. Marijuana legalization has, thus far, been treated as a niche academic concern. This approach is short-sighted and narrowminded. Marijuana regulation implicates the reach of national drug policy, the depth of state sovereignty, and the shared obligation to ensure the health and safety of our citizenry.
May 22, 2019 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)
Tuesday, May 21, 2019
As detailed in this press release, yesterday "the Center for American Progress released a new issue brief calling for states and the federal government to use marijuana tax revenue to fund the creation of thousands of public sector jobs in low-income communities of color that have been historically deprived of economic opportunity due to discriminatory drug enforcement." Here is more from the release:
The issue brief proposes a tangible way to pay for the creation of jobs in communities that have experienced the heaviest consequences of disparate criminal enforcement of marijuana. The authors calculate that annual tax revenues from the regulated marijuana market in California and Washington state, for example, could create nearly 20,000 jobs. This number is sure to increase as more and more Americans — 68 percent, according to a 2018 CAP/GBAO Strategies poll — favor marijuana legalization and more states consider legalizing the recreational use of marijuana as well as creating a regulated marijuana market.
The proposal is an outgrowth of CAP’s 2018 report, “Blueprint for the 21st Century: A Plan for Better Jobs and Stronger Communities,” which called for a massive investment in public sector job creation and a jobs guarantee for highly distressed communities.
The brief further describes the need to ensure that any marijuana legalization effort leads with provisions that ensure racial equity and correct injustices that have resulted from the war on drugs. Key recommendations include providing automatic and cost-free expungements of marijuana arrest and conviction records; reinvesting in essential services for communities most harmed by the war on drugs; and promoting equitable licensing systems and funding for minority-owned businesses. These measures would greatly help people who face barriers to economic opportunity, employment, and other basic necessities due to the collateral consequences of a marijuana-related conviction.
The full eight-page issue brief is titled “Using Marijuana Revenue to Create Jobs” and is authored by Maritza Perez, Olugbenga Ajilore, and Ed Chung. Here is its conclusion:
Today, states are raking in billion-dollar profits for activity that sent millions of African American and Latinx individuals into the criminal justice system, trapping their families and communities in poverty for generations. The movement to legalize marijuana presents an opportunity both to achieve justice for and to build economic opportunity in these communities. Creating public sector jobs and other policies outlined in this issue brief acknowledge the economic impact that the war on drugs has had on low-income people of color. With these policies, elected leaders can begin to address the structural barriers that states must rupture so that individuals from some of their most vulnerable communities have equal access to economic opportunity.
May 21, 2019 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Taxation information and issues | Permalink | Comments (0)