Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Tuesday, December 11, 2018

Federal farm bill officially includes provisions to legalize "hemp" defined as the cannabis sativa plant with THC levels under 0.3%

65c04791337f8e561d0e508b808657a0One of many reasons I typically use the work "marijuana" on this blog and in other discussions of marijuana reform is because I think it is the word most directly and commonly associated with the version of the cannabis plant (or the parts of the plant) containing the chemical ingredient (delta-9 tetrahydrocannabinol or THC) that gets humans high from consumption. But for various sound reasons, other researchers and many advocates like to talk only about "cannabis" because this is the scientific name for the plant often called marijuana and because there are so many possible uses for and derivatives from that plant that have nothing to do with getting high. Of course, regular readers surely know all this, and yet it is worth reviewing given this notable news as reported by this Marijuana Moment piece: "The Final 2018 Farm Bill ... Will Legalize Hemp." Here are the basics:

The final text of the 2018 Farm Bill was released on Monday, and industrial hemp legalization made the cut. Votes to send the legislation to President Trump’s desk are expected this week.

The bipartisan provision, championed by Senate Majority Leader Mitch McConnell (R-KY), will enable U.S. farmers to cultivate, process and sell hemp, the market for which is now a multi-billion dollar industry.

Following the announcement last month that lawmakers in the Senate and House Agriculture Committees had reconciled their respective versions of the agriculture legislation — with hemp legalization in the mix — questions remained about a controversial provision in the Senate version that would ban people with felony drug convictions from participating in the hemp industry. But a compromise was reached and the final version will allow such individuals to work for hemp businesses after 10 years....

“While this Farm Bill is a missed opportunity, there are some good provisions,” Rep. Earl Blumenauer (D-OR) said in a press release. “One of those provisions is to roll back our senseless hemp prohibition.”

“Our forefathers would be rolling in their graves if they saw us putting restraints on a versatile product that they grew themselves. We have farmers growing thousands of acres of hemp in dozens of states across the U.S. already. You can have hemp products shipped to your doorstep. This is a mainstream, billion-dollar industry that we have made difficult for farmers. It’s past time Congress gets out of their way.”

Under the legislation, hemp would no longer be in the jurisdiction of the Justice Department. Rather, the U.S. Department of Agriculture will lightly regulate the crop. If the bill passes and President Trump signs it, hemp legalization will go into effect on January 1, according to VoteHemp.

Here is the definition of "HEMP" as set forth in this draft legislation: "The term ‘hemp’ means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis." In other words, if and when this bill becomes law, it will be possible to produce and sell, without violating federal law, "certain version of the "plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids" etc. This seems to me a very big deal, though one that also seems certain to create even more confusion about what is and is not allowed under federal law with respect to so-called "medical marijuana."

This recent lengthy CNBC artice, headlined "Hemp legalization included in new farm bill could 'open the floodgates' on nascent industry," provide a review of what enactment of this legislation could mean and how we got here. Here is a snippet:

Hemp is a cannabis cousin of marijuana but it contains low levels of THC, the chemical that produces a "high" for pot users. Industrial hemp is used to make everything from apparel, foods and pharmaceuticals to personal care products, car dashboards and building materials.

"The vast majority of the market right now is going for CBD products," said Brightfield Group's [Bethany] Gomez. "You can find some hemp seed-based beauty products or hemp in some cereals and things like that, and there's such usage on the fibers for like clothes and other industrial purposes, but that's really minimal right now."

Brightfield Group estimates the domestic hemp market could reach $22 billion in the next four years. The estimate factors in the hemp amendment in the farm bill becoming law....

"There are three words why we have hemp now, and those words are tobacco state Republicans," said Kristin Nichols, editor at Denver-based Hemp Industry Daily, a publication owned by MJBizDaily. "There's been strong support from lawmakers and politicians up and down in former tobacco states looking for a replacement crop."

The hemp provisions in the 2018 Farm Bill were in the Senate version of the legislation sponsored by Senate Majority Leader McConnell. The Kentucky Republican put himself on the joint Senate-House conference committee formed to hammer out the details of the final farm bill. "I know there are farming communities all over the country who are interested in this," McConnell said in June when discussing the hemp legalization legislation before the Senate Agriculture Committee. "Mine are particularly interested in it, and the reason for that is — as all of you know — our No. 1 cash crop used to be something that's really not good for you: tobacco. And that has declined significantly, as it should, given the public health concerns."

December 11, 2018 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Political perspective on reforms, Who decides | Permalink | Comments (0)

Sunday, November 18, 2018

Spotlighting the still-challenging politics that surround the intersection of marijuana reform, criminal justice reform and racial inequities

Today's must-read for both marijuana reform and criminal justice reform fans is this lengthy new Politico article fully headlined "Racial Justice and Legal Pot Are Colliding in Congress: The latest fight over criminal justice reform is over allowing felons access to newly legal aspects of the cannabis industry. Lawmakers are getting woke — slowly." I recommend this piece is full, and here are some extended excerpts:

Thanks to Senate Majority Leader Mitch McConnell, the [Farm] bill includes an amendment that would permanently remove hemp from the list of federally banned drugs like heroin and cocaine, freeing hemp from the crippling legal stigma that has made it economically unviable for the past four decades.  But that amendment also includes a little-noticed ban on people convicted of drug felonies from participating in the soon-to-be-federally-legal hemp industry.

Added late in the process, apparently to placate a stakeholder close to McConnell, the exception has angered a broad and bipartisan coalition of lawmakers, hemp industry insiders and religious groups who see it as a continuing punishment of minorities who were targeted disproportionately during the War on Drugs and now are being denied the chance to profit economically from a product that promises to make millions of dollars for mostly white investors on Wall Street....

[L]awmakers like McConnell, who have discovered the economic benefits of relaxing prohibitions on products such as hemp, have nevertheless quietly found ways, like the Farm Bill felon ban, to satisfy the demands of their anti-legalization constituents, to the chagrin of pro-cannabis lawmakers and activists. After POLITICO Magazine reported on the drug-crime felon ban in August, three senators — Cory Booker (D-New Jersey), Rand Paul (R-Kentucky), and Jeff Merkley (D-Oregon) — wrote to Senate leadership demanding the removal of the ban, citing its “disparate impact on minorities,” among other concerns.

“I think there’s a growing recognition of the hypocrisy and unfairness of our nation’s drug laws, when hundreds of thousands of Americans are behind bars for something that is now legal in nine states and something that two of the last three Presidents have admitted to doing,” Booker told POLITICO Magazine. “If we truly want to be a just and fair nation, marijuana legalization must be accompanied by record expungement and a focus on restorative justice.”...

[The] once-radical notion that felons ought to gain priority for entry into a newly legal industry — instead of being shut out — has quietly gained bipartisan support on Capitol Hill, albeit not among Republican leadership.  In the House, this mounting opposition to the continuing punishment of felons first cropped up in September when the Judiciary Committee passed its first pro-marijuana bill.  It would expand access to scientific study of the cannabis plant, a notion agreed-upon by marijuana’s supporters and detractors alike.  However, Democrats almost killed the bill because it included language that barred felons (and even people convicted of misdemeanors) from receiving licenses to produce the marijuana.

Felon bans are commonplace in legal marijuana programs.  Every state has some version of it, but most of them have a five- or 10-year limit.  But the felon bans in both the Senate’s Farm Bill and the House’s marijuana research bill are lifetime bans, and the House bill includes misdemeanors, too. “Any restriction on misdemeanors goes in the exact contrary direction of the Second Chance Act,” said Rep. Jerry Nadler (D-New York), who will become chairman of the Judiciary Committee in January.  His criticism was echoed by Steve Cohen (D-Tennessee), who sought to have the misdemeanor language struck from the bill until its sponsor, Matt Gaetz (R-Florida), promised to address that language when it comes to the House floor.

In the Senate, the movement to protect the legal marijuana trade has taken the form of the proposed bipartisan Gardner-Warren STATES Act, which would maintain the status quo of federal non-interference of state-legal programs that was upended when then-Attorney General Jeff Sessions repealed the Cole Memo, an Obama-era document that outlined a hands-off approach to state-legal programs.  Booker’s Marijuana Justice Act would adopt California-style principles and apply them federally, going far beyond the STATES Act, removing marijuana from Schedule I (defined as having no medical value and a high risk of abuse) and eliminating criminal penalties for marijuana.  But unlike other pro-marijuana bills, it would also deny federal law-enforcement grants to states that don’t legalize marijuana; direct federal courts to expunge marijuana convictions; and establish a grant-making fund through the Department of Housing and Urban Development for communities most affected by the War on Drugs.

Booker’s bill has become popular among Senate Democrats.  Ron Wyden, Kirsten Gillibrand, Bernie Sanders, Kamala Harris, Jeff Merkley and Elizabeth Warren have signed on as co-sponsors — a list that looks a lot like a lineup of presumed candidates for the 2020 Democratic presidential primary.  “For too long, the federal government has propped up failed and outdated drug policies that destroy lives,” Wyden told POLITICO Magazine.  “The War on Drugs is deeply rooted in racism.  We desperately need to not only correct course, but to also ensure equal justice for those who have been disproportionately impacted. People across America understand and want change. Now, Congress must act.”

Recent polling shows that Americans agree with Wyden — to a point.  There is a widespread acceptance of legalizing marijuana.  Gallup has been tracking this number since 1969, when only 12 percent of Americans believed in legalizing it; in October, Gallup put the number at 64 percent, the highest ever number recorded.  Pew says it is 62 percent, also its highest number ever. 

But there is far less acceptance of the idea that the War on Drugs has had an adverse impact on poorer, minority communities, or that there should be some form of compensation in terms of prioritized access to the new industry. A  poll conducted by Lake Research Partners, a progressive DC-based polling firm, earlier this year on the “Politics of Marijuana Legalization in 2018 Battleground Districts” found that 62 percent of the 800 likely voters surveyed agreed with the idea “we need legalization to repair the financial and moral damage of the failed War on Drugs.”  However, when the pollsters added a racial component to this message — whether the respondents felt that the marijuana prohibition “unfairly target[s] and destroy[s] minority communities” — only 40 percent found that message to be “very convincing.”...

[M]any members of the Congressional Black Caucus have been slow to support marijuana legalization. But the CBC finally made its position on this issue clear in June when its 48-member caucus voted in an “overwhelming majority” to support policies beyond mere decriminalization: “Some of the same folks who told African Americans ‘three strikes and you’re out’ when it came to marijuana use and distribution, are now in support of decriminalizing the drug and making a profit off of it,” CBC Chairman Cedric L. Richmond, Democrat from Louisiana said at the time. “The Congressional Black Caucus supports decriminalizing marijuana and investing in communities that were destroyed by the War on Drugs…” 

Arguments for legalizing marijuana haven’t been entirely persuasive to sway many in the conservative black community, but re-framing it in the context of civil rights has brought many around to this new way of thinking. “What is moving conservative black and brown folks is this idea that we’re on the horizon of marijuana legalization,” according to Queen Adesuyi of the Drug Policy Alliance. “So the idea is in order to do this in a way that is equitable and fair, you have to start on the front end of alleviating racially biased consequences of prohibition while we’re legalizing — and that means expungement, re-sentencing, community re-investment, and looking at where marijuana tax revenue can go, and getting rid of barriers to the industry.”

Now that Democrats have won control of the House, co-founder of the Cannabis Caucus, Rep. Earl Blumenauer (D-Oregon), is poised to implement his blueprint for how the House under Democratic leadership would legalize marijuana at the federal level.  Racial justice is front-and-center in that plan.  The memo he sent to Democratic leadership reads in part, “committees should start marking up bills in their jurisdiction that would responsibly narrow the marijuana policy gap — the gap between federal and state marijuana laws — before the end of the year. These policy issues… should include: Restorative justice measures that address the racial injustices that resulted from the unequal application of federal marijuana laws.”

Cross-posted at Sentencing Law & Policy

November 18, 2018 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Polling data and results, Race, Gender and Class Issues, Who decides | Permalink | Comments (0)

Sunday, November 11, 2018

"Owning Marijuana"

The title of this post is the title of this new article authored by John G. Sprankling now available via SSRN. Here is its abstract:

Legal marijuana is the fastest-growing industry in the United States.  Tens of thousands of new businesses have arisen to meet the demand created by over 34 million Americans who use marijuana.  And the millions of pounds of marijuana grown, processed, and sold this year will generate more than $11 billion in revenue.  This industry is premised on the assumption that marijuana ownership will be protected by law.  But can marijuana be owned?  This Article is the first scholarship to explore the issue.

Federal law classifies marijuana as contraband per se in which property rights cannot exist.  Yet the Article demonstrates that marijuana can now be owned under the law of most states, even though no state statute or decision expressly addresses the issue.  This conflict presents a fundamental question of federalism: Can property rights exist under state law if they are forbidden by federal law?  The Article explains why federal law does not preempt state law on marijuana ownership.

This creates a paradox: state courts and other state authorities will protect property rights in marijuana, but their federal counterparts will not.  The Article analyzes the challenges that this hybrid approach to marijuana ownership poses for businesses and individuals.  It also examines the fragmented status of marijuana ownership in the interstate context, where business transactions involve states with conflicting approaches to the issue.

November 11, 2018 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Saturday, November 10, 2018

Billy Williams, US Attorney for Oregon, appointed to chair Attorney General’s Marijuana Working Group

Easily lost amidst big election news and the resignation of US Attorney General Jeff Sessions was this Justice Department press release, dated Wednesday, November 7, 2018, titled "Deputy Attorney General Names U.S. Attorney Williams Chair of National Marijuana Working Group."  Here is part of the text:

Deputy Attorney General Rod J. Rosenstein today named Billy J. Williams, U.S. Attorney for the District of Oregon, chair of the Attorney General’s Marijuana Working Group.  The working group is part of the Attorney General Advisory Committee’s (AGAC) Controlled Substances Subcommittee.

“I am honored to be named chair of the Marijuana Working Group and look forward to working with Attorney General Sessions, Deputy Attorney General Rosenstein and my fellow U.S. Attorneys on this important policy area,” said U.S. Attorney Williams.  “From our statewide summit in February to the release of our district enforcement strategy this summer, we’ve learned a lot from stakeholders representing many diverse interests.  There is one thing everyone agrees on: a broad need for stronger regulation.  This working group provides a valuable forum for sharing ideas and learning from the experiences of others in an effort to develop innovative, multi-district enforcement strategies to address the many impacts of a nascent industry.”

The day of this press release was the day that Jeff Sessions resigned as Attorney General, so Chair Williams can no longer "look forward to working with Attorney General Sessions." But this appointment still seems notable and important because US Attorney Williams has been playing an active role in trying to enhance regulatory control of the marijuana industry in his home state of Oregon. I have blogged about his efforts, and a series of posts which reveal some of his views on these matters can be found linked below. Interesting times.

Prior related posts:

November 10, 2018 in Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Wednesday, November 7, 2018

A first accounting of how "Marijuana Won The Midterm Elections" in 2018

Tom Angell has this new Forbes piece under the headline "Marijuana Won The Midterm Elections."   His accounting of marijuana's victory goes beyond just the statewide ballot initiatives, and here are excerpts (with links from the original and my highlighting of state names):

Michigan voters approved a ballot measure making their state the first in the midwest to legalize cannabis.  Missouri approved an initiative to allow medical marijuana, as did Utah.

Voters in several Ohio cities approved local marijuana decriminalization measures, and a number of Wisconsin counties and cities strongly approved nonbinding ballot questions calling for cannabis reform.

While North Dakota's long-shot marijuana legalization measure failed, cannabis also scored a number of big victories when it came to the results of candidate races. When new pro-legalization governors take their seats next year, marijuana bills in several states will have a good chance of being signed into law. 

In Illinois, Democrat J.B. Pritzker won the governor's race after making marijuana legalization a centerpiece of his campaign.  "We can begin by immediately removing one area of racial injustice in our criminal justice system," he said during his primary night victory speech earlier this year. "Let's legalize, tax and regulate marijuana."

Minnesota Gov.-elect Tim Walz (D) wants to "replace the current failed policy with one that creates tax revenue, grows jobs, builds opportunities for Minnesotans, protects Minnesota kids, and trusts adults to make personal decisions based on their personal freedoms."

Michigan voters who supported the state's marijuana legalization measure will have an ally in the incoming governor, Gretchen Whitmer (D), who supported the initiative and is expected to implement it in accordance with the will of the people. She has called cannabis an "exit drug" away from opioids

In New Mexico, Michelle Lujan Grisham (D), who won the governor's race, said legalizing marijuana will bring “hundreds of millions of dollars to New Mexico’s economy."

In New York, while easily reelected Gov Andrew Cuomo (D) had previously expressed opposition to legalization, he more recently empaneled a working group to draft legislation to end cannabis prohibition that the legislature can consider in 2019, a prospect whose chances just got a lot better in light of the fact that Democrats took control of the state's Senate.

In Wisconsin, Democrat Tony Evers supports decriminalizing marijuana and allowing medical cannabis, and says he wants to put a full marijuana legalization question before voters to decide.  He ousted incumbent Gov. Scott Walker (R) on Tuesday.

States that already have legalization elected new governors who have been vocal supporters and will likely defend their local laws from potential federal interference. California's Gavin Newsom, Colorado's Jared Polis, Maine's Janet Mills and Nevada's Steve Sisolak, all Democrats, fit that bill.   Oregon Gov. Kate Brown (D), also a legalization supporter, was reelected in her state, which ended prohibition in 2014.

Speaking of the federal government, when it comes to congressional races, one of the main impediments to cannabis reform on Capitol Hill won't be around in 2019.  Rep. Pete Sessions (R-TX), who as chairman of the House Rules Committee, has systematically blocked every single proposed marijuana amendment from reaching a floor vote this Congress, is now out of a job after having lost his reelection bid to Democrat Colin Allred.

And the fact that the Democrats, who have been much more likely than Republicans to support cannabis reform legislation than GOP members, retook control of the chamber means that the chances of ending federal prohibition sooner rather than later just got a lot better.  Last month, Rep. Earl Blumenauer (D-OR) published what he called a  "Blueprint to Legalize Marijuana" in which he laid out a detailed, step-by-step plan for Democrats to enact the end of federal cannabis prohibition in 2019.  It's not clear whether Democratic leaders will embrace the idea, but a look at polling on the issue should give them the sense that marijuana reform is a popular issue with bipartisan support....

That said, while Senate Majority Leader Mitch McConnell (R-KY) has championed legalizing hemp, he does not support broader marijuana law reform and seems unlikely to bring far-reaching cannabis bills to a vote without substantial pressure.

But President Trump earlier this year voiced support for pending legislation that would respect the right of states to implement their own marijuana laws.  If Democrats pass that bill or similar proposals out of the House, the president's support could be enough to get it through the Senate, where a number of GOP members have already endorsed ending federal prohibition. 

November 7, 2018 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Sunday, November 4, 2018

Former House Speaker John Boehner says "Washington Needs to Legalize Cannabis"

This afternoon former Speaker of the House John Boehner published this new Wall Street Journal commentary headlined "Washington Needs to Legalize Cannabis."  Though Boehner's support for marijuana reform has been well-known now for at least six months, this piece on the eve of a big election in a conservative newspaper still seems quite noteworthy.

November 4, 2018 in Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Friday, November 2, 2018

Former White House Communications Director Anthony Scaramucci says he thinks Prez Trump is "going to legalize marijuana ... after the midterms"

As covered here by Marijuana Moment, today brings a notable comment about marijuana reform from a notable former insider:

President Trump will push for marijuana legalization after the upcoming elections, according to former White House Communications Director Anthony Scaramucci.

“I do. I think he’s going to legalize marijuana,” Scaramucci told Succeed.com founder Charles Peralo in an interview this week. “I think he’s waiting for after the midterms. I think he’s on the side of legalization.”

Whether Scaramucci is basing his prediction on a hunch or insider knowledge is unclear. He might have only lasted 10 days at the White House, but he still claims to talk with the president on occasion. In any case, “The Mooch,” as he is known, did not respond to a Marijuana Moment request for clarification via Twitter DM....

Trump said earlier this year that he’s inclined to support a bipartisan congressional bill that would let states implement their own marijuana laws without federal interference.

The Mooch isn’t alone in his belief. Last month, marijuana-friendly Rep. Dana Rohrabacher (R-CA) said in an interview that cannabis reform would be on the White House agenda after the midterms and that legislation would be in the works “as early as spring of 2019.”

“I would expect after the election we will sit down and we’ll start hammering out something that is specific and real,” the congressman said. 

November 2, 2018 in Federal Marijuana Laws, Policies and Practices, Political perspective on reforms, Who decides | Permalink | Comments (2)

Saturday, October 27, 2018

"The Surprising Reach of FDA Regulation of Cannabis, Even after Descheduling"

The title of this post is the title of this new article recently posted to SSRN authored by Sean O'Connor and Erika Lietzan. Here is its abstract:

As more states legalize cannabis, the push to “deschedule” it from the Controlled Substances Act is gaining momentum.  At the same time, the FDA recently approved the first conventional drug containing a cannabinoid derived from cannabis — cannabidiol (“CBD”) for two rare seizure disorders.  This would all seem to bode well for proponents of full federal legalization of medical cannabis. 

But some traditional providers are wary of drug companies pulling medical cannabis into the regular small molecule drug development system.  The FDA’s focus on precise analytical characterization and on individual active and inactive ingredients may be fundamentally inconsistent with the “entourage effects” theory of medical cannabis. Traditional providers may believe that descheduling cannabis would free them to promote and distribute their products free of federal intervention, both locally and nationally.  Other producers appear to assume that descheduling would facilitate a robust market in cannabis-based edibles and dietary supplements.  In fact, neither of these things is true.  If cannabis were descheduled, the FDA’s complex and comprehensive regulatory framework governing foods, drugs, and dietary supplements would preclude much of this anticipated commerce.

For example, any medical claims about cannabis would require the seller to complete the rigorous new drug approval process, the cost of which will be prohibitive for most current traditional providers.  Likely also unexpected to some, there is no pathway forward for conventional foods containing cannabis constituents, if those foods cross state lines.  And it will certainly come as a shock to many that federal law already prohibits the sale of dietary supplements containing CBD — including those already on the market.  In this article, we describe in detail this surprising reach of the FDA and then outline three modest — but legal — pathways forward for cannabis-based products in a world where cannabis has been descheduled.

October 27, 2018 in Federal Marijuana Laws, Policies and Practices, Food and Drink, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)

Thursday, October 18, 2018

"Could Weed Be Federally Legal in 2019?"

WashingtonDC-Capitol-MarijuanaThe question in the title of this post is the headline of this new Rolling Stone article that effectively summarizes the lengthy memo circulated yesterday by Representative Earl Blumenauer written to House Democratic Leadership outlining his plan to legalize cannabis in the next Congress.  Here are excerpts from the article:

In honor of Canada’s first day with legal adult-use marijuana, an optimistic Rep. Earl Blumenauer (D-OR) sent a letter to House Democratic leadership Wednesday outlining a plan to advance federal legalization measures with the goal of federally legalizing cannabis by the end of 2019. “Congress is out of step with the American people and the states on cannabis,” he wrote. “There is no question: cannabis prohibition will end. Democrats should lead the way.”

Blumenauer’s plan would begin as early as next January, when he says the key to advancing some of the 37 cannabis bills sitting in Congress is to have the individual issues evaluated by the distinct congressional committees. For example, the House Judiciary Committee could hold a hearing on descheduling marijuana; the House Veterans Affairs Committee could hold a hearing on veterans’ access to medical pot; the House Financial Services Committee could discuss the current barring of cannabis businesses from federally backed banks; and the House Ways and Means Committee could have a hearing on the unequal taxation of pot businesses.

Additionally, Blumenauer writes that these committees should start “marking up bills in their jurisdiction[s] that would responsibly narrow the marijuana policy gap — the gap between federal and state marijuana laws,” using examples like the protection of employment, protection of private property from civil asset forfeiture and the removal of barriers to marijuana research. He also includes, most importantly, the need to “address the racial injustices that resulted from the unequal application of federal marijuana laws” — or, in other words, a social-justice element that could begin to correct the racist tide of the 40-year-old War on Drugs.

By August, Blumenauer believes, the House can pass a package of marijuana laws to address these concerns, and the bills can move to the Senate. The Oregon representative hopes that, given the increasing public support for marijuana — he cites a poll that 69 percent of registered voters support legalizing pot — the public will be able to pressure the senior body of Congress into passing the bill....

On a call with reporters, Blumenauer said that he believes key members of the prohibitionist movement — including Texas Rep. Pete Sessions and House Majority Leader Paul Ryan — won’t be returning next session, and with those opponents gone, the cannabis movement will be able to advance. He has been speaking with senior members of the committees, he said, and is confident that some will be able to get these specific areas of cannabis law on the agenda next year. “The outline is ambitious,” Blumenauer admitted. “It’s aspirational, but it’s entirely within our capacity.”

October 18, 2018 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (6)

Friday, October 12, 2018

Is Trump White House really on verge of proposing federal marijuana reform?

The question in the title of this post is prompted by this new Fox Business piece headlined "White House to unveil federal cannabis reform 'very soon,' says GOP lawmaker." Here are excerpts:

The White House is planning on tackling cannabis reform after the midterm elections, according to Rep. Dana Rohrabacher, R-Calif. Rohrabacher tells FOX Business that the Trump administration has made a “solid commitment” to fix marijuana regulation.

“I have been talking to people inside the White House who know and inside the president’s entourage... I have talked to them at length. I have been reassured that the president intends on keeping his campaign promise.”...

“I would expect after the election we will sit down and we’ll start hammering out something that is specific and real,” he said.

The California congressman, who is up for re-election this November, is battling to hold onto a seat that national Democrats have identified as part of their strategy to win the House majority this midterm election. Rohrabacher faces Democrat Harley Rouda. RealClearPolitics has listed the seat that Rohrabacher has held for five years as a toss-up – and the polling average has both candidates in a dead heat – with both at 48 percent of voter support.

Recreational marijuana was just recently legalized in California this year – but reforms on the federal level have been stalled for decades. Yet, according to Rohrabacher, that will soon change: “It could be as early as spring of 2019, but definitely in the next legislative session.”

I suspect Rep. Rohrabacher is making these claims as part of an effort to make the case to Californians that he needs to be reelected to help with federal marijuana reforms.

October 12, 2018 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (1)

Saturday, October 6, 2018

"Marijuana skeptics fear 'de facto legalization' in states"

Download (22)The title of this post is the headline of this lengthy Politico article discussing the politics and practicalities surrounding the relationships between medical marijuana reform and marijuana industry developments.  I recommend the piece in full, and here are excerpts:

With nine states, and the District of Columbia, now allowing the recreational use of cannabis — and more in the pipeline — advocates on both sides of the issue say that medical cannabis programs are increasingly functioning as a Trojan horse for de facto legalization in the 40 states where the politics of legalization aren’t quite ripe yet. And that’s rapidly changing the political and policy dynamics surrounding the emerging industry....

Medicinal marijuana has, indeed, been a driving force for legalization in other states. California’s decision 20 years ago to become the first state to approve the sale of legal medicinal marijuana paved the way for the Golden State to become, as of this year, the world’s largest legal recreational cannabis market. Now, with polls showing public support for medical cannabis in the U.S. at around 90 percent, medical marijuana proponents have shifted their gaze to more conservative states like Kentucky, West Virginia, Oklahoma and Louisiana, or towards enlarging existing medical marijuana programs in places like New Jersey or Pennsylvania.

And while medicinal advocates insist their efforts are simply meant to help patients, opponents say that’s laughable. “There’s a marijuana industry making all sorts of medical claims that, if they were pharma companies, they’d probably be jailed,” said Kevin Sabet, the president and CEO of Smart Approaches to Marijuana, which opposes recreational use policies. “It’s not this bright line between medical and recreational. And there should be a bright line.”...

“This doesn’t have anything to do with cancer patients, or folks with epilepsy, this is about the expansion of the marijuana industry,” he said. “The worst kept secret about most medical marijuana programs is that they often act as de facto legalization. With the expansion of programs in New Jersey or other states, this is often tied to the marijuana industry’s interest to expand the user pool and make money.”

Marijuana proponents don’t necessarily disagree. The growing acceptance of medical cannabis has helped eliminate the stigma around recreational use, multiple sources told POLITICO. We’re far from the days of “Reefer Madness.” “When you have a situation in a state like California, where there are cannabis stores in your neighborhood; when you can see what that looks like, and how much it’s different from the unregulated criminal market; when you can see the effects of businesses moving into storefronts that generate jobs and tax revenue,” then it’s far easier to change the minds of fearful or skeptical consumers — and political leaders — about legalization, says Tom Angell, publisher of Marijuana Moment, one of the nation’s leading trackers of developments and news in the cannabis industry....

California, which legalized the sale of recreational marijuana this past Jan. 1, essentially wrote the blueprint for moving from medicinal marijuana to full-scale legalization. The state’s cannabis market is expected to reach $5.1 billion in the next year — and $25 billion by 2026. That booming business potential on both the medical and recreational side has made it an attractive investment for Canadian companies like CannaRoyalty Corporation, which this year acquired a crowd of California-based cannabis firms that include FloraCal Farms, an “ultra-premium cannabis producer,” Oakland-based Alta Supply, a medical cannabis firm; Kaya Management, a vaporizer manufacturer, as well as RVR, a “large-scale distributor” of both medical and recreational cannabis....

Already, the immediate challenges of transitioning from legal medical to recreational markets have resulted in a flood of legislation aimed at addressing concerns and regulations in the U.S. Angell says that his publication, Marijuana Moment, tracked a whopping 863 bills in Congress related to cannabis this year alone. And along with that legislation has come a parade of “stakeholders invested in keeping legalization in effect — and eroding prohibition on the state and federal level.” That includes lobbyists, industry representatives, attorneys and innovators. What their growing numbers show is that “it will be increasingly hard for opponents to push back on the green wave,” he said.

With tens of thousands of Americans now employed in both the medical and recreational segments of the industry, and billions of dollars being generated in tax dollars for local and state governments, it’s no wonder that “so many ambitious politicians jumping in front of this issue,’’ Angell said. They’re not going back, he predicts: “There are too many people invested in legalization now.”

October 6, 2018 in 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)

Thursday, October 4, 2018

Could the feds really be gearing up for a criminal crackdown on Colorado's state-compliant marijuana businesses?

Bob-troyer-dojThe question in the title of this post is the one I have been thinking about since, Bob Troyer, the US attorney for the District of Colorado, authored this Denver Post commentary under the headline "It’s high time we took a breath from marijuana commercialization." Here are some key excerpts from the piece, with a few lines emphasized:

In 2012 we were told Colorado would lead the nation on a grand experiment in commercialized marijuana. Six years later — with two major industry reports just released and the state legislature and Denver City Council about to consider more expansion measures — it’s a perfect time to pause and assess some results of that experiment.

Where has our breathless sprint into full-scale marijuana commercialization led Colorado?  Well, recent reports from the Rocky Mountain High Intensity Drug Trafficking Area, from Denver Health, from Energy Associates, from the Colorado Department of Revenue and from the City of Denver should be enough to give everyone in this race pause.

Now Colorado’s youth use marijuana at a rate 85 percent higher than the national average.  Now marijuana-related traffic fatalities are up by 151 percent.  Now 70 percent of 400 licensed pot shops surveyed recommend that pregnant women use marijuana to treat morning sickness.  Now an indoor marijuana grow consumes 17 times more power per square foot than an average residence.  Now each of the approximately one million adult marijuana plants grown by licensed growers in Colorado consumes over 2.2 liters of water — per day.  Now Colorado has issued over 40 little-publicized recalls of retail marijuana laced with pesticides and mold.

And now Colorado has a booming black market exploiting our permissive regulatory system — including Mexican cartel growers for that black market who use nerve-agent pesticides that are contaminating Colorado’s soil, waters, and wildlife....

As the U.S. attorney leading other U.S. attorneys on marijuana issues, I have traveled the country and heard what people are saying about Colorado. Do they tout Colorado’s tax revenue from commercialized marijuana? No, because there’s been no net gain: marijuana tax revenue adds less than one percent to Colorado’s coffers, which is more than washed out by the public health, public safety, and regulatory costs of commercialization.

Do they highlight commercialization’s elimination of a marijuana black market? No, because Colorado’s black market has actually exploded after commercialization: we have become a source-state, a theater of operation for sophisticated international drug trafficking and money laundering organizations from Cuba, China, Mexico, and elsewhere.

Do they promote our success in controlling production or containing marijuana within our borders? No, because last year alone the regulated industry produced 6.4 metric tons of unaccounted-for marijuana, and over 80,000 black market plants were found on Colorado’s federal lands.

Does the industry trumpet its promised decrease in alcohol use? No, because Colorado’s alcohol consumption has steadily climbed since marijuana commercialization. How about the industry’s claim that marijuana will cure opioid addiction? No, a Lancet study found that heavy marijuana users end up with more pain and are more likely to abuse opioids....

I’m not sure the 55 percent of Coloradans who voted for commercialization in 2012 thought they were voting for all this.

These impacts are why you may start seeing U.S. attorneys shift toward criminally charging licensed marijuana businesses and their investors.  After all, a U.S. attorney is responsible for public safety.

My office has always looked at marijuana solely through that lens, and that approach has not changed. But the public safety impacts of marijuana in Colorado have.  Now that federal enforcement has shot down marijuana grows on federal lands, the crosshairs may appropriately shift to the public harms caused by licensed businesses and their investors, particularly those who are not complying with state law or trying to use purported state compliance as a shield.

We should pause and catch our breath before racing off again at the industry’s urging. Let’s call it “just say know.” Let’s educate ourselves about the impacts of commercialization. Let’s reclaim our right as citizens to have a say in Colorado’s health, safety, and environment. Unfettered commercialization is not inevitable. You have a say.

I read this commentary as a warning of sorts, particularly to undercut the notion that some businesses may have that simply possessing a license from the state insulates them from federal prosecution.  In many ways, even when the Cole Memo was in place, that was not true.  But I sense from this piece that there is a growing concern about the way some in the licensed industry are operating, and this idea is made even clearer in this Westword piece with a Q&A with Mr. Troyer and this AP piece with additional quotes.

Were I involved in a Colorado marijuana business now, I would give particular attention to this statement from the AP piece: "'You can do plenty of harm to the community and still be in compliance with state law because those laws have a lot of loopholes and they're very permissive,' Troyer said." Specifically, if I was running a Colorado marijuana business, I would be spending a lot more time trying to document how my business was helping, rather than harming, the community (as well as, of course, documenting compliance with state laws).

October 4, 2018 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Tuesday, September 18, 2018

Come see great panel on "Marijuana Policy in America" at "Laboratories of Democracy: Drug Policy In The United States"

The second part of the title of this post is the title of this exciting event taking place in Washington DC next week that I have had the honor of helping to plan.   The event will include a panel discussion on the opioid crisis and a panel discussion on marijuana reform, and here is the event's full description:

Drug use and substance abuse are circumstances that no longer impact only a small percentage of our population. In 2016, over 20 million Americans dealt with a substance use disorder, and the CDC estimates that more than 10 percent of the American population use some form of illegal drug each month. The Bureau of Justice Statistics estimates that 58 percent of those in state prisons and 63 percent of those sentenced to state jails meet the medical criteria for drug dependence or abuse.

The Ohio State University’s newly established Drug Enforcement and Policy Center (DEPC), with support from the Charles Koch Foundation, will host Laboratories of Democracy: Drug Policy in the United States. This important event will bring together leading academics, members of law enforcement, policymakers, think tank scholars, community advocates, media figures, and other influencers from different spheres and perspectives to discuss the diverse and challenging policy questions that have emerged in the drug policy area.

The event will be held at The Willard InterContinental in Washington, DC on September 25, 2018 from 9:00 am until 3:00 pm. The experts speaking at this event have used their knowledge to propose positive drug policy solutions to tackle the difficult problems faced by our country, and the program will engage attendees in an action-oriented discussion on how our country can move forward with positive solutions to addiction and substance abuse.

More details about and registration for this event are available here and here.   I will be one of the speakers on the marijuana panel, and all the other participants are even more interesting.

September 18, 2018 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (2)

Monday, September 17, 2018

AG Jeff Sessions laments drug-impaired driving with special mentions of marijuana

Jeff-sessions-attorney-general-630x354Attorney General Jeff Sessions today delivered these remarks at a National Highway Traffic Safety Administration event titled "Ideas to Impact: A Dialogue to Address Drug-Impaired Driving." Here are excerpts:

It is especially important that we get the word out about this because currently there is a great deal of misinformation and misunderstanding out there. Some even seem to suggest that marijuana and other drugs do not pose accident risks.

In recent years, a number of states have repealed their prohibitions on marijuana use. As a result, too many people think that marijuana is legal and that it is even legal to drive under the influence of marijuana.

That’s wrong. Federal law has not changed and drugged driving laws have not changed. Drugged driving is illegal on every inch of American soil. People need to understand that.

There is another common myth out there, as well: that marijuana doesn’t impair driving. That’s also wrong. Marijuana use slows reaction time and inhibits motor coordination and decision-making abilities. That makes driving much more dangerous.

The bottom line is this: if you’re driving under the influence of drugs, including marijuana, then you’re risking your life — and the life of everyone else on the road.

One European study found that drivers high on marijuana were twice as likely to be responsible for a fatal crash as a sober driver.

Here in this country, the Governors Highway Safety Association put out a report back in May that says that — of those who are tested for drugs or alcohol — more drivers killed in car accidents last year tested positive for drugs than for alcohol. And by far the most common drug was marijuana, not opioids. Nearly a quarter of all drivers killed in car accidents who were tested had marijuana in their system — twice as many as tested positive for opioids.

In recent years, it has been getting worse. According to last year’s version of the report, the number of drivers killed in car accidents who tested positive for marijuana increased by nearly one-fifth from 2006 to 2016.

According to the Denver Post, the number of drivers killed in car accidents in Colorado who tested positive for marijuana doubled from 2013 to 2016. And so, in addition to the hundreds of thousands of Americans who have died of drug overdoses in recent years, another several thousand have died because of drug-impaired driving — either their own or that of someone else.

September 17, 2018 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research | Permalink | Comments (4)

Friday, September 14, 2018

Marijuana, mandatory minimums and jury nullification, oh my: split Ninth Circuit affirms panel federal convictions, though remands to address DOJ spending rider

A big, long and split decision by a panel of the Ninth Circuit yesterday in US v. Lynch, No. 10-50219 (9th Cir, Sept. 13, 2018) (available here), prompted the weak "Wizard of Oz" reference in the title of this post.  There is so much of interest in Lynch for sentencing fans and others, I cannot cover it all in this post. The majority's introduction provides a sense of the case's coverage:

Charles Lynch ran a marijuana dispensary in Morro Bay, California, in violation of federal law.  He was convicted of conspiracy to manufacture, possess, and distribute marijuana, as well as other charges related to his ownership of the dispensary.  In this appeal, Lynch contends that the district court made various errors regarding Lynch’s defense of entrapment by estoppel, improperly warned jurors against nullification, and allowed the prosecutors to introduce various evidence tying Lynch to the dispensary’s activities, while excluding allegedly exculpatory evidence offered by Lynch.  However, Lynch suffered no wrongful impairment of his entrapment by estoppel defense, the anti-nullification warning was not coercive, and the district court’s evidentiary rulings were correct in light of the purposes for which the evidence was tendered.  A remand for resentencing is required, though, on the government’s cross-appeal of the district court’s refusal to apply a five-year mandatory minimum sentence, which unavoidably applies to Lynch.

Following the filing of this appeal and after the submission of the government’s brief, the United States Congress enacted an appropriations provision, which this court has interpreted to prohibit the federal prosecution of persons for activities compliant with state medical marijuana laws. Lynch contends that this provision therefore prohibits the United States from continuing to defend Lynch’s conviction.  We need not reach the question of whether the provision operates to annul a properly obtained conviction, however, because a genuine dispute exists as to whether Lynch’s activities were actually legal under California state law. Remand will permit the district court to make findings regarding whether Lynch complied with state law.

Judge Watford dissented from the panel majority in Lynch, and his dissent starts this way:

I would reverse and remand for a new trial. In my view, the district court went too far in trying to dissuade the jury from engaging in nullification.  The court’s actions violated Charles Lynch’s constitutional right to trial by jury, and the government can’t show that this error was harmless beyond a reasonable doubt.

By its very nature, a case of this sort touches a sensitive nerve from a federalism standpoint.  At the time of Lynch’s trial in 2008, the citizens of California had legalized the sale and use of marijuana for medicinal purposes; the federal government nonetheless sought to prosecute a California citizen for conduct that arguably was authorized under state law. Because federal law takes precedence under the Supremacy Clause, the government could certainly bring such a prosecution, notwithstanding the resulting intrusion upon state sovereignty interests.  See Gonzales v. Raich, 545 U.S. 1, 29 (2005).  But the Framers of the Constitution included two provisions that act as a check on the national government’s exercise of power in this realm: one stating that “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury”; the other requiring that “such Trial shall be held in the State where the said Crimes shall have been committed.” U.S. Const., Art. III, § 2, cl. 3.  The Sixth Amendment further mandates that in all criminal prosecutions the accused shall enjoy the right to trial “by an impartial jury of the State and district wherein the crime shall have been committed.”  Thus, to send Lynch to prison, the government had to persuade a jury composed of his fellow Californians to convict.

One of the fundamental attributes of trial by jury in our legal system is the power of the jury to engage in nullification — to return a verdict of not guilty “in the teeth of both law and facts.” Horning v. District of Columbia, 254 U.S. 135, 138 (1920).  The jury’s power to nullify has ancient roots, dating back to pre-colonial England.  See Thomas Andrew Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200–1800, at 236–49 (1985) (discussing Bushell’s Case, 124 Eng. Rep. 1006 (C.P. 1670)).  It became a well-established fixture of jury trials in colonial America, perhaps most famously in the case of John Peter Zenger, a publisher in New York acquitted of charges of seditious libel.  See Albert W. Alschuler & Andrew G. Deiss, A Brief History of the Criminal Jury in the United States, 61 U. Chi. L. Rev. 867, 871–74 (1994).  From ratification of the Constitution to the present, the right to trial by jury has been regarded as “essential for preventing miscarriages of justice,” Duncan v. Louisiana, 391 U.S. 145, 158 (1968), in part because the jury’s power to nullify allows it to act as “the conscience of the community,” Jeffrey Abramson, We, the Jury: The Jury System and the Ideal of Democracy 87 (1994).

Cross-posted at Marijuana Law, Policy and Reform.

September 14, 2018 in Court Rulings, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (1)

Tuesday, September 11, 2018

"Medical marijuana users are being shut out of public housing"

Section8-2The title of this post is the title of this new Vice News piece telling yet another tale at the intersection of state marijuana reforms and federal prohibitions.  Here are excerpts:

Cancer patients and other people with debilitating conditions are being forced to choose between medical marijuana and federal public housing assistance. Even though some of the most conservative states are passing laws legalizing medical weed, marijuana is still a Schedule I controlled substance on a federal level, along with heroin and ecstasy, which can make users ineligible for programs like rental assistance or public housing....

“From a civil rights perspective, you’re denying a whole class of people housing that have already been denied other aspects of living their life to the fullest potential because of the federal prohibition on cannabis,” said David Mangone, director of governmental affairs and counsel for the advocacy group Americans for Safe Access. “No one should have to choose between staying off opioids and a roof over their head”

The majority of states now allow some form of medicinal marijuana. Americans overwhelmingly favor legalizing the drug for medical use. And in New York State — which hosts North America’s largest public housing population — medical marijuana is permitted to treat debilitating conditions such as cancer, chronic pain and Amyotrophic Lateral Sclerosis (ALS).

The U.S. Department of Housing and Urban Development released a memorandum in 2011 saying new admission applications revealing legal marijuana use would be denied, no matter the circumstance. However, the memorandum gave local landlords and public housing authorities the right to determine whether they should evict existing residents for medical marijuana use.

It’s not clear how many public housing authorities have sided with tenants on the local level, nor how many applicants have been rejected due to federal marijuana laws. But as more states normalize marijuana locally, it can make users ineligible for federal programs, like housing assistance.

When the 2011 memorandum was issued, 14 states had legalized medical marijuana. Now, 31 states and the District of Columbia have legalized cannabis for medicinal purposes, and the drug is becoming a viable alternative for patients that don’t want to use opioid drugs, many of whom are elderly or disabled. “There’s a much larger population now that’s affected by this guidance,” Mangone said....

A spokesman for HUD noted that their policies haven’t changed since the 2011 memorandum; they’re unable to reconsider their policy until federal laws regarding marijuana change. As long as marijuana remains a controlled substance, the rules “still apply, even where state law allows for its use,” Brian Sullivan, HUD spokesman, said in an email.

In June, Rep. Eleanor Holmes Norton, a non-voting Democrat representing the District of Columbia, introduced legislation that would allow residents in federally subsidized housing to use legal medical or recreational marijuana in their homes. “Individuals who live in states where medical and/or recreational marijuana is legal, but live in federally-assisted housing, should have the same access to treatment as their neighbors,” Norton said at the time.

September 11, 2018 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)

Monday, September 10, 2018

"Legitimate Medicine in the Age of Consumerism"

The title of this post is the the of this new paper recently posted to SSRN and authored by Matt Lamkin.  Here is its abstract:

From the opioid epidemic and medical marijuana to abortion restrictions and physician-assisted suicide, disputes over the proper uses of medicine loom large in American life.  Nowhere is this conflict more apparent than in federal drug control policy, which is premised on a clear distinction between legitimate “medical” uses and illicit “abuse.”  Yet the Controlled Substances Act defines neither of these foundational concepts . While it is tempting to imagine medicine’s scope is limited to treating or preventing disease – rendering nontherapeutic drug use “abuse” – in fact medical practice has always included interventions that are not aimed at healing.  This trend has only accelerated as medical practice has become increasingly consumer-oriented.  From Adderall to Xanax, patients now routinely seek prescriptions not to treat diagnosable illnesses, but to relieve stress, improve productivity, and otherwise enhance quality of life.

As physicians increasingly prescribe psychoactive drugs to help healthy people obtain desirable mental states, distinguishing legitimate drug use from recreational abuse becomes ever more difficult.  Having failed to acknowledge this challenge, the DEA, courts, and scholars have not offered a principled way to make this distinction, rendering drug control policy increasingly incoherent.  As a result, doctors face criminal prosecution without clear standards governing prescribing, potentially valuable interventions are arbitrarily barred from the market, and millions seek the benefits of drugs without professional medical guidance to mitigate their risks.

Rather than being limited to therapeutic aims, medicine is better understood as the application of a loosely-defined set of knowledge and interventions that the law entrusts to specific professionals, with accompanying duties to use these tools to benefit patients.  Medical practice includes treating and preventing illnesses, but can also include enhancing social and cognitive functioning and promoting the well-being of people whose challenges do not rise to the level of disorders.  Discarding a narrow conception of medicine does not require abandoning the enforcement of drug laws or the policing of doctors. But acknowledging the expansiveness of medicine’s domain does argue for clarifying the scope of physicians’ criminal liability and pursuing new strategies for harnessing drugs’ benefits while mitigating their risks.

September 10, 2018 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Wednesday, August 29, 2018

BuzzFeed reporting Trump Administration effort to assemble "data demonstrating the most significant negative trends" and "threats" posed by marijuana reforms

Avatars-000114258398-2fkvx7-t500x500BuzzFeed News has this important scoop on an important effort by the Trump Administration to develop data and arguments against marijuana reform.   The full title of the article provides a basic summary: "Inside The Trump Administration’s Secret War On Weed: The Marijuana Policy Coordination Committee wants to counteract positive marijuana messages and identify problems with state legalization initiatives, according to documents obtained by BuzzFeed News."  The whole piece is today's must-read, and here are highlights:

The White House has secretly amassed a committee of federal agencies from across the government to combat public support for marijuana and cast state legalization measures in a negative light, while attempting to portray the drug as a national threat, according to interviews with agency staff and documents obtained by BuzzFeed News.

The Marijuana Policy Coordination Committee, as it’s named in White House memos and emails, instructed 14 federal agencies and the Drug Enforcement Administration this month to submit “data demonstrating the most significant negative trends” about marijuana and the “threats” it poses to the country.

In an ironic twist, the committee complained in one memo that the narrative around marijuana is unfairly biased in favor of the drug. But rather than seek objective information, the committee’s records show it is asking officials only to portray marijuana in a negative light, regardless of what the data show.

“The prevailing marijuana narrative in the U.S. is partial, one-sided, and inaccurate,” says a summary of a July 27 meeting of the White House and nine departments. In a follow-up memo, which provided guidance for responses from federal agencies, White House officials told department officials, “Departments should provide … the most significant data demonstrating negative trends, with a statement describing the implications of such trends.”

As several states have approved laws allowing adults to use and purchase cannabis, critics have contended lax attitudes will promote drug abuse, particularly among youth, and they have pressed for a federal crackdown. The White House at one point said more pot enforcement would be forthcoming, though President Donald Trump has never said he was onboard with that agenda and he announced in June that he "really" supports new bipartisan legislation in Congress that would let state marijuana legalization thrive.

However, the committee’s hardline agenda and deep bench suggest an extraordinarily far-reaching effort to reverse public attitudes and scrutinize those states. Its reports are to be used in a briefing for Trump “on marijuana threats.”

“Staff believe that if the administration is to turn the tide on increasing marijuana use there is an urgent need to message the facts about the negative impacts of marijuana use, production, and trafficking on national health, safety, and security,” says the meeting summary....

Coordinated by White House Office of National Drug Control Policy, the committee met on July 27 with many of the largest agencies in the federal government, including the departments of Justice, Homeland Security, Health and Human Services, and State. An unclassified summary of the meeting, obtained by BuzzFeed News, says the memo is “predecisional and requires a close hold.” And it says the notes were not to be distributed externally.

The White House followed up the next week by sending agencies and other departments — including the departments of Defense, Education, Transportation and Veterans Affairs, as well as the Environmental Protection Agency — instructions to submit two-page, bulleted fact sheets that identify marijuana threats and issues with the initiatives by Aug. 10....

Departments were told to “identify marijuana threats; issues created by state marijuana initiatives; and consequences of use, production, and trafficking on national health, safety, and security.” The agencies should also provide an example of a “story, relating an incident or picture, that illustrates one or more the key areas of concern related to use, production, and trafficking of marijuana,” the White House guidance says. The agencies were asked to describe how the drug poses threats to their department and the consequences of marijuana “on national health and security.”...

None of the 14 agencies BuzzFeed News contacted for this story, the DEA, or the White House denied the marijuana committee’s existence.

John Hudak, a senior fellow at the Brookings Institution, blasted the committee’s slanted approach to the facts and the “alienating effort on behalf of the president. ” “This is a terrible political move by the administration,” he told BuzzFeed, saying that the committee’s agenda betrays Trump’s pledges to protect states from federal intervention — a position with overwhelming public support.  Hudak added it would be “policy malpractice” to only collect one-sided data.  “The coordination of propaganda around an issue that the president ostensibly supported is fairly unprecedented.”

“This is a president who is not serious about states rights and regulatory reform in areas like drug policy, and is not serious about telling the truth to the American people or members of Congress from his own party," Hudak said, pointing to Colorado Sen. Cory Gardner, a Republican, who authored legislation that would protect states rights on marijuana and has praised Trump on the issue.

I share John Hudak's concerns about the one-sided approach to collecting data that is apparently afoot inside the Trump Administration. But I am more generally inclined to complain about the last three administrations for their collective failure to take seriously and consider studying all the state policy initiatives that have developed in this space.  State-authorized medical marijuana use has been going on now for more than two decades, and the array of state legal and policy developments in the marijuana space are too great to even take in completely.  The feds for years should have been trying to study and assess the import and impact of state innovations, and I suppose I am a bit pleased to see someone is finally really trying to pay attention.  I sure wish the folks inside the Beltway could pay attention without minds already made up, but I suppose there is a limit to what one can hope to get from our tax dollars at work.

August 29, 2018 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (1)

Thursday, August 23, 2018

"Harmonizing Federal Tax Law and the State Legalization of Marijuana"

The title of this post is the title of this new paper authored by Daniel Rowe now available via SSRN. Here is its abstract:

As states legalize marijuana and cannabis-derived products, both for medical and recreational use, the punitive federal tax effect of section 280E makes it economically impossible for many marijuana-related businesses to function profitably. By disallowing the deduction of otherwise legitimate business expenditures, the Internal Revenue Code places such businesses in a situation where they are potentially paying federal income tax on their gross receipts despite netting much less in actual income.  This article explores the disproportionate tax burden on marijuana sellers and the growing tension between current federal tax law and states’ legalization of marijuana.

This article recommends the amendment of section 280E to eliminate this burden.  It is structured in four parts.  Part II discusses the history and legislative intent behind section 280E. It delves into the differing tax treatment for illegal drug traffickers versus that of other illegal activities.  Part III describes the effects of section 280E, both intended and unintended, on state-legal marijuana sellers as well as on the overall marijuana industry.  It explains how the original intent of section 280E, specifically as it relates to marijuana sellers, has been undermined by the changing public attitude towards marijuana and the rise of legal medical and recreational marijuana facilities.  This part also considers the onerous tax regime placed on state-legal marijuana businesses due to the inability to deduct ordinary expenses, and how this regime could be counter-productive to overall tax policy.  Part IV describes several alternative solutions to eliminate the reach of section 280E to state-legal marijuana businesses.  It concludes with the recommendation to amend section 280E to make it inapplicable to activities that are statutorily legal in the states in which they are conducted.

August 23, 2018 in Federal Marijuana Laws, Policies and Practices, Taxation information and issues | Permalink | Comments (1)

"Up in Smoke: Removing Marijuana From Schedule I"

The title of this post is the title of this new paper authored by David Katner now available via SSRN.  Here is its abstract:

With over 600,000 marijuana arrests nationwide, and more Americans being incarcerated than for any other crime in the nation's history, the Controlled Substances Act of 1970 should be amended to eliminate the inclusion of cannabis or marijuana from Schedule I.   Americans spent nearly $6 billion on "legal" cannabis last year alone, and the trend among states has been to legalize the use of cannabis for both medicinal purposes and recreational purposes.   The initial prohibition, the Marijuana Tax Act of 1937  was largely influenced by racially charged propaganda and a lack of any scientific studies of the substance.  By removing the substance altogether from federal regulatory control, states would be allowed to determine for themselves how to regulate the use and dissemination of the substance.  The adoption of state laws recognizing the various medical benefits of the marijuana plant will not have full force until the federal regulatory scheme has been altered.

August 23, 2018 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)