Marijuana Law, Policy & Reform

"Convergence and Divergence of Alcohol and Marijuana Regulation in a Federalist System Post-COVID-19"

The title of thi spost is the title of this new paper now available via SSRN authored by H. Justin Pace and Eden Punch. Here is its abstract:

After the passage of the Twenty-first Amendment, the regulation of alcohol in the U.S. largely takes place at the state level.  While marijuana has been illegal at the federal level since 1937, states have been liberalizing marijuana laws at the state level since 1996 (when California legalized medical marijuana) by legalizing marijuana for medical or adult use.  Alcohol regulation, which was effectively reset in all states when alcohol was legalized at the federal level, is marked by divergence — significant variation in alcohol laws across states.  Conversely, marijuana regulation, which has slowly spread across the U.S. state-by-state over the last 28 years, is marked by convergence — new marijuana reforms increasingly resemble other reforms.

One of us has previously published scholarship arguing that the difference can be explained by a combination of interest group politics, path dependence, and, most importantly, a temporal effect.  Alcohol and marijuana regulation in the U.S. experienced an exogenous shock with the COVID-19 pandemic, which resulted in significant changes to alcohol and marijuana regulation across the nation.  This paper examines convergence and divergence in alcohol and marijuana regulation from 2020 to the present day, revisiting and reaffirming that previous theory and also applying a federalism lens to explain alcohol and marijuana regulation and predict future developments.

"The Framing of Minority Threat and Moralization to Criminalize Behavior: The Case of Cannabis in the Early 20th Century"

The title of this post is the title of this new article authored by Mike Vuolo, Brian Kelly, Maria Orsini and Joy Kadowaki recently published in the journal Social Problems.  Here is its abstract:

Understanding why particular behavior is encoded in law or other systems of rules has been a core topic of sociology since its inception.  Although differing rhetorical frames have been identified in policy debates, little research directly links such rhetoric and policy passage.  Centering framing theory, we use the case of U.S. cannabis criminalization via mixed-methods content analyses of 9,707 nationwide newspaper articles and event history analysis of state-level criminalization to make several contributions.

First, we go beyond describing rhetorical frames, demonstrating that core framing tasks were associated with spatial and temporal state-level cannabis law passage.  Second, we emphasize that consolidation of two “master frames,” legal and racial, are particularly pertinent to criminalization and permit incorporation of rhetorical minority threat into framing.  Third, an overreliance on population-based minority threat exists in the literature; however, threat can operate absent minority groups.  While demonstrating the effect of vilification of Mexican people, we show that a heterogeneous “othering” of cannabis, by attaching threat to numerous minority groups, was significant for cannabis criminalization, regardless of minority groups’ actual presence.  In addition to interrogating longstanding assumptions regarding cannabis criminalization, our analyses demonstrate the importance of framing and rhetorical racial threat in the social construction of law.

DEPC event on Aug 7: "Federal Marijuana Reform: Effects and Echoes of Rescheduling"

I am pleased to be able to spotlight another great Drug Enforcement and Policy Center (DEPC) event focused on federal marijuana reforms.  This online event,  titled "Federal Marijuana Reform: Effects and Echoes of Rescheduling," will take place on August 7, 2024 from 12 noon to 1:15 pm EDT.  The event is described this way on this event registration page (where one can directly register):

After decades-long efforts by advocates and researchers, President Biden announced in October 2022 that he instructed “the Secretary of Health and Human Services and the Attorney General to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law.”  In May 2024, the Attorney General submitted a notice of proposed rulemaking to the Federal Register, initiating a formal rulemaking process to consider the reclassification of marijuana from a schedule I to a schedule III drug under the Controlled Substances Act (CSA).

While the rulemaking process timeline has some uncertainties, many expect a final rescheduling rule could appear as soon as September or October 2024.  But what would such a move mean for modern marijuana laws, policies and practices?  Could medical marijuana products be prescribed by doctors and sold in pharmacies nationwide?  Would changes in federal laws dramatically impact current medical and recreational industries operating under disparate state systems?  And would placement in schedule III make a meaningful difference in the operation of criminal justices systems, especially for people with marijuana-related criminal convictions at the federal or state level?

Panelists:

John Hudak, Director of the Maine Office of Cannabis Policy
Robert Mikos, LaRoche Family Chair in Law, Vanderbilt University Law School 
Fatima Afia, Attorney, Rudick Law Group, PLLC
Shane Pennington, Partner, Porter Wright Morris & Arthur LLP 

Moderator:
Cat Packer, Distinguished Cannabis Policy Practitioner in Residence at The Ohio State University Drug Enforcement and Policy Center and Director of Drug Markets and Legal Regulation at Drug Policy Alliance

"Drug Crimes: The Case for Abolition"

The title of this post is the title of this notable new paper authored by my Ohio State colleague Sean Hill now available via SSRN. Here is its abstract:

Nonwhite communities experience higher rates of arrest, prosecution, and incarceration than white communities for drug offenses, and these disparities have persisted even in the wake of decriminalization and legalization. Although a diverse array of political stakeholders increasingly agree that drug policies should be reformed, they are nearly unanimous in their opposition to abolition.  While select drug crimes may be worthy of reduced punishment or conversion into civil offenses, these stakeholders contend that the abolition of criminal institutions will inevitably jeopardize public safety.

This Article challenges the widespread presumption that drug law and policy correlates with the protection of the public.  Drug crimes are, instead, an essential vehicle for the subordination of nonwhite people and for the misallocation of resources across racial groups.  Part I of the article contests the presumed correlation between illicit drugs and violence and illuminates how drug criminalization erodes individual and collective safety.  Part II addresses how drug policy sustains white and American hegemony, respectively, by legitimating racist ideologies and by justifying force against marginalized people both in and outside of the country's borders.  Finally, Part III explains how abolition represents a viable path away from the harms of prohibitionist policies.

"Just Don't Do It: Why Cannabis Regulations are the Reason Cannabis Businesses are Failing"

The title of this post is the title of this new article available now via SSRN authored by Edward Adams. Here are parts of its abstract:

In the last decade, more and more states have legalized the recreational or medicinal use of cannabis and, in the coming years, many more are likely to follow.  The change that has been advocated by proponents of cannabis reform, including some organizations like NORML, the National Organization for the Reform of Marijuana Laws, that have existed since the 1970s, is finally upon us....  Due to political variation among the states and the protracted process of reform, the cutting edge of cannabis regulation is in an incredible state of flux, and the nation-wide regulatory scheme is a jumble of policy choices; many of which are directly opposite to those of neighboring states.

In attempt to impose some order on the complexities of state cannabis regulation, Part III will canvas the current legal status of the substance in the United States, including a state survey and an in-depth exploration of the various policy decisions facing states that are considering reform.  This portion will also examine some recent, incremental shifts in the federal laws that overlay what is primarily a state level regulatory scheme.  Even after looking to the past and the present, the future remains uncertain.  Many significant impediments to the reform movement remain in place.  For example, even in states where cannabis has been recreationally legalized, local governments have retained (and exercised) the power to prohibit the substance within their jurisdictions.

Part IV will contain a discussion of this and similar roadblocks to reform that lurk in the background of the dynamic environment surrounding cannabis regulation in the United States.  Through understanding the complex history of cannabis regulation and legalization, the current legal landscape, and the existing roadblocks to reform, Part V will discuss how the legal and regulatory landscape causes so many cannabis companies to fail. Cannabis reform needs to happen in order for cannabis companies to become profitable.  For now, the cannabis legal regime creates significant hurdles that result in failing companies with little chance of success. 

"The False Promise of Rescheduling"

The title of this post is the title of this timely new paper authored by Robert Mikos and now available via SSRN.  Here is its abstract:

The federal government appears poised to reschedule marijuana under the Controlled Substances Act (CSA). Advocates have suggested the move will generate substantial benefits for the state-licensed marijuana industry, which has struggled to secure basic legal and business services under federal prohibition.  But this Essay serves as a reality check.  It suggests the expectations surrounding rescheduling are highly inflated, for two reasons.

First, rescheduling still might not happen.  To reschedule marijuana, the Drug Enforcement Administration (DEA) would have to change its long-standing interpretation of key statutory scheduling criteria.  Even if the Biden Administration were willing to do that (the jury is still out), a future Administration might reconsider.  If President Biden loses the fall 2024 election, nothing would stop his successor from quickly returning marijuana to the tightly regulated Schedule I.

Second, even if it happens, rescheduling to a lower schedule under the CSA will not greatly improve the fortunes of the marijuana industry.  The CSA will continue to impose a litany of restrictions on the manufacture and sale of marijuana.  What is more, the Food Drug and Cosmetic Act (FDCA) will still ban all interstate commerce in the drug.  (Marijuana would still not be approved by the Food and Drug Administration, post-rescheduling.)  If firms in the industry fail to comply with the rules imposed by these two statutes — as seems almost inevitable — they could still be denied banking, bankruptcy protection, intellectual property protection, contract enforcement, and other key services, just as they are today.  The Essay suggests that only Congress can remove all these challenges. To obtain more impactful and comprehensive reforms to federal marijuana policy, advocates should eschew the false promise of administrative rescheduling and focus instead on convincing Congress to enact reform legislation.

Widespread new reporting that DEA is rescheduling marijuana to Schedule III under the Controlled Substances Act

As reported in this new AP article, the "U.S. Drug Enforcement Administration will move to reclassify marijuana as a less dangerous drug, The Associated Press has learned, a historic shift to generations of American drug policy that could have wide ripple effects across the country."  Here is more on a legal developments that has been expected, but is still a very big deal:

The DEA’s proposal, which still must be reviewed by the White House Office of Management and Budget, would recognize the medical uses of cannabis and acknowledge it has less potential for abuse than some of the nation’s most dangerous drugs. However, it would not legalize marijuana outright for recreational use. The agency’s move, confirmed to the AP on Tuesday by five people familiar with the matter who spoke on the condition of anonymity to discuss the sensitive regulatory review, clears the last significant regulatory hurdle before the agency’s biggest policy change in more than 50 years can take effect.

Once OMB signs off, the DEA will take public comment on the plan to move marijuana from its current classification as a Schedule I drug, alongside heroin and LSD. It moves pot to Schedule III, alongside ketamine and some anabolic steroids, following a recommendation from the federal Health and Human Services Department. After the public comment period and a review by an administrative judge, the agency would eventually publish the final rule....

Biden and a growing number of lawmakers from both major political parties have been pushing for the DEA decision as marijuana has become increasingly decriminalized and accepted, particularly by younger people. A Gallup poll last fall found 70% of adults support legalization, the highest level yet recorded by the polling firm and more than double the roughly 30% who backed it in 2000. The DEA didn’t respond to repeated requests for comment.

Schedule III drugs are still controlled substances and subject to rules and regulations, and people who traffic in them without permission could still face federal criminal prosecution. Some critics argue the DEA shouldn’t change course on marijuana, saying rescheduling isn’t necessary and could lead to harmful side effects....

Federal drug policy has lagged behind many states in recent years, with 38 having already legalized medical marijuana and 24 legalizing its recreational use. That’s helped fuel fast growth in the marijuana industry, with an estimated worth of nearly $30 billion. Easing federal regulations could reduce the tax burden that can be 70% or more for businesses, according to industry groups. It could also make it easier to research marijuana, since it’s very difficult to conduct authorized clinical studies on Schedule I substances.

The immediate effect of rescheduling on the nation’s criminal justice system would likely be more muted, since federal prosecutions for simple possession have been fairly rare in recent years. But loosening restrictions could carry a host of unintended consequences in the drug war and beyond.

Critics point out that as a Schedule III drug, marijuana would remain regulated by the DEA. That means the roughly 15,000 cannabis dispensaries in the U.S. would have to register with the DEA like regular pharmacies and fulfill strict reporting requirements, something that they are loath to do and that the DEA is ill equipped to handle.

Then there’s the United States’ international treaty obligations, chief among them the 1961 Single Convention on Narcotic Drugs, which requires the criminalization of cannabis. In 2016, during the Obama administration, the DEA cited the U.S.’ international obligations and the findings of a federal court of appeals in Washington in denying a similar request to reschedule marijuana. 

"Budding cannabis law courses are growing — but not fast enough"

Though I am done teaching my Marijuana Law, Policy & Reform seminar for this semester, I am still having a grand time working with students on their final papers.  And all the work by and with my students all semester long deeply reinforces my sense that marijuana courses in law school can serve as a terrific way to cover all sorts of legal doctrines and policies and pragmatic issues that lawyers can and will confront in many settings.  With these matters in mind, I am so very pleased to see this new ABA Journal article with the headline that serves as the title fo this post.  Here are some excerpts:

Inspired by President Joe Biden’s call to review cannabis’ classification as a Schedule I controlled substance and many states’ moves to legalize weed for medical and general use, an increasing number of law schools around the country are offering cannabis law courses.

In the 2022-2023 academic year, 45 law schools—or about 22% of the 197 ABA-accredited schools—offered a combined total of 47 cannabis law courses, according to research by the Ohio State University Moritz College of Law’s Drug Enforcement and Policy Center.  Although that’s an increase of 24 schools compared to four years earlier in the 2018-2019 academic year, some professors think that even more are needed. “We’re still playing catch-up,” says Robert Mikos, a professor at the Vanderbilt University Law School who has taught a class on marijuana law and policy for more than 10 years....

As the weed business grows, so does the need for lawyers. There are jobs in this field, and they extend far beyond representing cannabis dispensaries, says Mikos ...  Opportunities include working for government regulatory agencies tasked with supervising the licensed cannabis industry, working as advocates and representing investors whose holdings touch the industry, such as real estate that a dispensary wants to rent....

In the classroom, professors must balance theory with myriad practical and ethical issues embedded in the ever-changing state laws and federal regulation, they say. Intersections with cannabis law include constitutional law, taxes, intellectual property, real estate, the environment and workers’ rights.

Most cannabis law classes are directed at upper-level students.  “It’s a great capstone course,” Mikos says. “If you’re a 3L, you might have encountered already constitutional law, criminal law, corporations or administrative law. Now, you get to put that into practice and put it all together in a very concrete way.”

Student presentation exploring Delta-8 THC products

As noted in this prior post, there is an on-going debate in Ohio (as well as in many other jurisdictions) about so-called Delta-8 or "intoxicating hemp" products.  Helpfully, the last planned presentation for this week in my Marijuana Law seminar is going to cover issues surrounding Delta-8, and here are some resources that she provided for some background:

Background information about Delta-8:

Leas, EC. The Hemp Loophole: A Need to Clarify the Legality of Delta-8-THC and Other Hemp-Derived Tetrahydrocannabinol Compounds. Am J Public Health. 2021 Nov;111(11):1927-1931.

FDA and DEA Regulation:

FDA advises against use: 5 Things to Know about Delt-8 Tetrahydrocannabinol – Delta-8 THC. Food and Drug Administration. May 5, 2022.

Coverage of warning letters sent to Delta-8 brands by FDA.

Good summary of case interpreting "hemp" to include Delta-8 products under Farm Bill 

Good summary of possible DEA Interpretation

Coverage of the push from the states for federal regulation

Report on study regarding Delat-8 use and state regulation

Noting the peer pressure realities around marijuana policy reforms

A range of research suggests peers can play an important role in influencing substance use behaviors. But this new Marijuana Moment article, headlined "Pennsylvania Governor Says Lawmakers ‘Don’t Even Have A Choice’ But To Legalize Marijuana As Other States Move Ahead," got me to thinking about how state substance use policy reforms can be influenced by peer pressure.  Here is how the article starts:

Pennsylvania’s governor says he thinks officials in the state “don’t even have a choice anymore” on legalizing marijuana, and he feels there’s bipartisan momentum that lawmakers should leverage to get the job done.

With neighboring states such as Ohio enacting legalization in recent years, Pennsylvania Gov. Josh Shapiro (D) said last week that “this really comes down to an issue now of competitiveness,” as the state is currently “losing out on 250 million bucks a year in revenue that could go to anything from economic development, education, you name it.”

“The reality is, as long as we have safeguards in place to make sure our children aren’t getting their hands on it—it’s just like, we don’t want our kids out drinking, right?” he said. “And a lot of that is going to be a burden on parents and schools and others to make sure we educate on that. Then I think this is something we’ve got to compete on.”

“I actually think we don’t even have a choice anymore given the way in which this is moving so quickly across our region and across the country,” Shapiro told WILK News Radio, adding that he’s personally “evolved on” the issue and wants a legal cannabis market “focused on lifting up Pennsylvania businesses in the process—not these big national conglomerates—and we’re empowering people in local communities to it that I think some good can come from it.”...

“It’s obviously wildly popular across the country and certainly in polling regionally and in the states. So if someone’s going to be against it, I think they’re going to have to justify that to their constituents as well,” he said. “There does seem to be an emerging bipartisan consensus that we’ve got to compete on this issue, and we’ll see if we can get it done. We’re going to work hard.”...

In a separate interview with KDKA News Radio that the governor’s office also promoted last week, Shapiro noted that his office estimates that Pennsylvania could bring in $250 million in tax revenue annually from cannabis sales. “The reality is we are leaving all that money on the table. We are falling behind other states,” he said. “I think it’s another story of us not being as competitive as we need to be, and I think its time has come.”

“It’s time to shut down the black market. It’s time to take the strain off of cops. It’s time to be competitive. And this is a way to do that,” the governor said. “We can’t let Ohio and the other states around us keep eating our lunch on this or any other issue. As I’ve said many times, I’m competitive as hell and this is one of those areas. We’ve got to compete it.” A staffer in Shapiro’s office similarly remarked on the need to legalize marijuana after Ohio voters approved the reform at the ballot last November.

Marking new era (and new generation) substituting marijuana for alcohol?

When I first started paying attention to marijuana reforms and its potential impacts, I recall a number of public health experts suggesting that greater use of marijuana could end up a public health benefit if marijuana was used as a substitute for alcohol, but greater use would likely be a public health problem if used as a supplement to alcohol.  Against that backdrop, all these new press stories about trends in the start of 2024 seemed worth flagging:

From Bloomberg, "Weed Sales Boom in Dry January as People Drink Less"

From Forbes, "Almost Half Of Those Doing Dry January Use Cannabis — Can It Help You Quit Alcohol?"

From Fortune, "Gen Z’s buyers’ strike on alcohol turns ‘Dry January’ into skyhigh new year"

From Kiplinger, "Dry January Can Boost Weed Sales: This Week in Cannabis Investing"

From Modern Retail, "Cannabis beverage brands capitalized on Dry January interest"

From the New York Times, "What Does Being Sober Mean Today? For Many, Not Full Abstinence."

From Vice, "The Rise of 'Sober But', the Dry January Where You Still Do Drugs"

Now for some marijuana year-in-preview pieces

In this post last week, I rounded up a number of press pieces provided a review of big marijuana reform developments in 2023.  It seems only fitting to follow up a number of 2024 preview pieces.  So here goes:

From Cannabis Business Times, "5 Cannabis Policy Reform Efforts to Watch in 2024"

From Forbes, "2024 Cannabis And Psychedelics Predictions"

From the Green Market Report, "Cannabis Industry Executives Share Predictions for 2024"

From Leafly, "30 weed predictions very likely to come true in 2024"

From MJBizDaily, "Rescheduling marijuana and the next states to legalize: 7 predictions for 2024"

From Marijuana Moment, "More States Set To Legalize Marijuana And Psychedelics In 2024 As Federal Cannabis Scheduling Review Concludes"

Reviewing some marijuana year-in-review stories

It may be a smidge early for a complete review of all the 2023 year-in-review stories relating to marijuana issues.  But I have seen enough pieces in this space to justify this review of some reviews:

From Forbes, "A Look At Cannabis In 2023"

From MJBiz Daily, "MJBizDaily’s most popular cannabis business stories of 2023"

From NORML, "2023 Year In Review: NORML’s Top Ten Events In Marijuana Policy"

And, unsurprisingly, Marijuana Moment has so much year-in-review coverage that they needed three sepearate pieces:

"These Were The Biggest Federal And Congressional Marijuana Policy Developments Of 2023"

"New Legalization Laws, Marijuana Sales Records And The Other Top State Developments Of 2023"

"Marijuana Legalization Advancements In Several Countries Were Among The Biggest International Cannabis News Stories Of 2023"

"The Social Equity Paradigm: The Quest for Justice in Cannabis Legalization"

The title of this post is the title of this new article authored by William Garriott and Jose Garcia-Fuerte now available via SSRN. Here is its abstract:

Today, many states have adopted a commercial-based approach to cannabis legalization which reflects the market for alcohol to govern the production, distribution, and consumption of the cannabis plant and its derivatives.  As a result, legalization has prioritized economic benefits and structures over justice concerns that would dismantle the old infrastructure of prohibition. This continues to shape the way legalization is unfolding across the United States.

One impact of this market-based approach is the push for social equity within the cannabis industry.  Though poor people and people of color have disproportionately suffered under prohibition, it is those least likely to have been targeted — wealthy and/or white people — that have disproportionately benefited from legalization.

To change this dynamic, social equity advocated have argued for a suite of policies that we term “the social equity paradigm.”  These policies are multifaceted and take various forms, but focus on three priorities: (1) increasing access to the industry, (2) addressing criminal records, and (3) re-investing cannabis tax revenues into disproportionately impacted communities.  All three priorities reflect the shortcomings of the market-based legalization model. They also reflect the principle of equity, which in this context simply means that those disproportionately harmed by prohibition should receive disproportionate benefit under legalization.

This article surveys the social equity paradigm across the country, and discusses the many legal, political, and social challenges confronting the paradigm that may require a shift in the approach to social equity.  The article provides recommendations for how the principles of the social equity paradigm can be sustained while avoiding the challenges that seek to undermine it.

"Putting Patients First: Medical Cannabis Use Patterns and Policy Protections"

The title of this post is the title of this notable new R Street policy study authored by Chelsea Boyd.  Here is  its executive summary:

Historically, cannabis has been used for medical purposes for millennia. Cannabis was introduced into western medicine in the mid-1800s but began to decline in use by the early 1900s.  It was made a Schedule I substance under the Controlled Substances Act of 1970, which effectively prevented research on its potential medical uses and benefits. Nevertheless, since 1996, more than three-quarters of states have legalized the medical use of cannabis in some form. This policy study explores what is known about medical cannabis patients’ use patterns and preferences; describes marketplace trends and medical relevance of cannabinoid content; and suggests policies that promote the availability of safe, effective and accessible medical cannabis products for patients.

Because there is limited research on cannabis as a therapeutic treatment, it is hard to make conclusive statements about effective dosing and use patterns for specific conditions or patient populations. Nevertheless, compared to non-medical users, medical cannabis patients tend to use daily, via multiple routes of administration, and do not report a desire to experience cannabis’ psychotropic effects. Medical patients also seem to prefer different cannabinoid profiles than non-medical users. Keeping in mind that, for many patients, finding the most effective use pattern is a process of trial and error, ensuring a wide variety of products with different cannabinoid ratios is one policy that can enable patients to find the most beneficial product combinations for their conditions. Similarly, because medical patient preferences are different from non-medical users, insulating medical markets from the potential pressures of the adult-use market can ensure that patients have access to products they prefer, even after a state legalizes adult use.

Additionally, when states legalize medical cannabis, they have a duty to ensure that any markets that emerge are safe. Because cannabis is regulated at the state level, there is notable variability in cannabis markets and product standards. Ensuring that each state has accurate, comprehensive and (when possible) evidence-based labeling standards can help patients make informed decisions about the products they use. States can also protect patients by regulating contaminants appropriately. Practical medical cannabis policies are necessary to ensure patient safety and allow the greatest accessibility.

Ohio votes for legalizing marijuana by a (surprisingly?) large margin for a red state

Ohio was long considered a swing or bellwether state, though the state has started trending quite "red" with Donald Trump and state GOP candidates carrying the state by significant margins in recent years.  This recent "red" trend would seem to make the Buckeye State's vote today on marijuana legalization especially significant.  Specifically, as of this writing just before midnight, a marijuana legalization initiative, Issue 2, has secured a nearly 13% point victory with 93% of the votes reported.  As detailed in this NY Times accounting, Yes on Issue 2 has garnered 56.5% of the Ohio vote, even a higher percentage that the abortion rights initiative also on the Ohio 2023 ballot (which still is passing handily at 55.8%)

Marijuana legalization initiatives had recently been a losing proposition in deep red states like Arkansas and Oklahoma and North Dakota and South Dakota.  But light red Missouri legalized marijuana by initiative in 2022, and Ohio tonight follow the same path despite the fact that nearly all the state's GOP leaders advocated against the marijuana legalization initiative.

For many reasons, I will be quite interested to see how Ohio moves forward with implementation of its legalization initiative.

Tulsa Law Review examining "Contemporary Cannabis: Wading Through a Post-Prohibition Era"

I was asked to post this call for papers, which I am happy to do:

Tulsa Law Review, in conjunction with the University of Tulsa College of Law and the University of Tulsa, is hosting a Symposium on Cannabis Law and Policy on March 1, 2024.

Theme: Contemporary Cannabis: Wading Through a Post-Prohibition Era

Tulsa Law Review invites interested parties to write and submit relevant articles for publication consideration in our 2024 Symposium Issue.  One panel will focus on evidentiary and interdisciplinary issues with the increasing legalization of cannabis at the medical and recreation level.  The other panel will discuss legalization at the state level and its effects on corporate and banking spheres.

With the recent announcement of the US Department of Health and Human Services’ recommendation to reclassify marijuana as a Schedule III substance, we are excited to facilitate a thoughtful discussion and a variety of papers surrounding this timely topic.

Questions and paper proposals should be submitted to Cameron Skinner, Tulsa Law Review symposium editor, [email protected]

"A Prescription for Progress? Would a Schedule III Reclassification of Psychoactive Cannabis Help or Hurt State Operators?"

The title of this post is the title of this timely new paper now on SSRN and authored by Benton Bodamer, who is a member of Dickinson Wright PLLC and an Adjunct Professor of Law at OSU and affiliated with the Drug Enforcement Policy Center. Here is its abstract:

On August 30, 2023, the U.S. Department of Health and Human Services (HHS) concluded a scheduling review of psychoactive cannabis and recommended that the Drug Enforcement Administration “reschedule” psychoactive cannabis from Schedule I to Schedule III under the Controlled Substances Act.  The next 6 to 12 months could be among the most transformative for the U.S. cannabis industry, but progress is unlikely to come without regulatory confusion, conflicts of federal laws, and unintended consequences.  This paper aims to answer major questions that remain following the release of HHS’s statement, including why psychoactive cannabis was on Schedule I given its medical uses, whether a move to Schedule III effectively legalizes existing state-compliant cannabis companies, if relief from 280E tax or advertising restrictions are likely, and whether a move to Schedule III opens up banking for existing cannabis companies.  The paper ends with a look at the road ahead.

"Ending Federal Marijuana Prohibition Through Administrative Action"

The title of this post is the title of this notable new paper authored by Scott Bloomberg, Alexandra Harriman and Shane Pennington.  Here is its abstract:

In October 2022, President Biden requested that the Secretary of Health and Human Services and the Attorney General initiate a procedure to review how marijuana is scheduled under the federal Controlled Substances Act (“CSA”).  The announcement was historic.  After more than fifty years of federal prohibition, decades of advocacy and litigation from reform groups, and dozens of stalled efforts in Congress, a President finally decided to wield the Executive Power with an eye towards rescheduling or descheduling marijuana.  But just how far does that power go?

That question has been severely underexplored in legal scholarship.  Indeed, our Article is the first to fully navigate the thicket of statutory and administrative law that dictates the scope of the President’s power to unilaterally reschedule or deschedule marijuana.  In doing so, we conclude that the CSA’s administrative drug-scheduling procedure is much broader than prior scholarship has led on.  We identify several avenues for the President to move marijuana to a less restrictive schedule and highlight a narrower pathway to deschedule marijuana entirely.

These findings are of immediate relevance.   They can help guide the Executive Branch as it reconsiders how marijuana is scheduled and will prove useful to courts when the Biden Administration’s eventual decision is, inevitably, subjected to judicial review.

"Federalism, Limited Government, and Conservative Outcomes: The Republican Case for Marijuana Legalization"

I continue to be excited to post some the latest papers from the on-going series of student papers supported by the Drug Enforcement and Policy Center in order to highlight great work by OSU law students and recent graduates on many important and cutting-edge topics.   The title of this post is the title of this paper authored by Jesse Green, who is about to start his final year as a student at The Ohio State University Moritz College of Law.  Here is its abstract:

Marijuana legalization is sweeping the United States by storm.  Almost half of the states have legalized recreational marijuana and an overwhelming majority have legalized medical marijuana.  However, a partisan divide in both recreational and medical marijuana legalization is present.  Democrats tend to be quicker to support legalization, while Republicans tend to be slower to embrace it.  And importantly, marijuana remains illegal at the federal level as a Schedule I controlled substance.

This paper lays out the key Republican arguments in favor of marijuana legalization.  After detailing the political realities of marijuana legalization in the United States, it addresses the benefits of keeping legalization efforts within the legislative process instead of letting the issue be subject to direct democracy.  This paper then concludes by providing specific Republican-supported policies that marijuana legalization can help advance.