Sunday, November 20, 2022
This notable new five-page Congressional Research Service report titled "Does the President Have the Power to Legalize Marijuana?". Here is how it gets started:
Marijuana and other products derived from the cannabis plant are regulated under both federal and state law. In recent years, a significant divide has developed between federal and state regulation. Under the federal Controlled Substances Act (CSA), marijuana is strictly regulated and may not legally be used for medical or recreational purposes. In contrast, a substantial majority of states have relaxed state law prohibitions on medical or recreational marijuana.
The fall of 2022 saw two key developments in federal and state marijuana regulation. In October 2022, President Joe Biden granted clemency to certain low-level federal marijuana offenders and directed the Attorney General to review the status of marijuana under federal law. While some observers consider President Biden’s grant of clemency to represent a significant change in federal marijuana policy, as a legal matter it did little to alter the growing disparity between federal and state marijuana regulation. Then, in November 2022, voters in five states considered ballot initiatives to legalize recreational marijuana at the state level, two of which were adopted. Legislators and commentators have proposed a number of legal reforms that would alter federal marijuana regulation and potentially reduce the divergence between federal and state law.
This Legal Sidebar provides an overview of the legal status of marijuana under federal and state law, then discusses recent developments including the grant of clemency for federal marijuana possession offenses and November 2022 state ballot initiatives related to marijuana. The Sidebar concludes with an overview of selected legislative proposals related to marijuana.
This CRS document is dated November 16, 2022, so it only makes a brief reference/link to the federal research bill that was passed by Congress on that very day, the "Medical Marijuana and Cannabidiol Research Expansion Act." As of this writing (Nov 20, 2022), that bill is still awaiting the President's signature.
Thursday, November 17, 2022
Though I have already flagged this event at my other blog, I wanted to be sure to highlight here this exciting webinar scheduled for next month (December 13 starting at 12noon), which is organized by Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Last Prisoner Project. Here is a bit of the backstory and the panel lineup:
On October 6th, 2022, President Biden issued a proclamation granting pardons to over 6,500 people with federal simple possession of marijuana offenses. In an acknowledgment of the fact that the vast majority of cannabis convictions take place on the state level, President Biden simultaneously encouraged the country’s governors to use their clemency power to issue similar grants. While the President’s executive actions are an unprecedented and important step forward, there is still much more work ahead to fully redress the harms of cannabis criminalization.
Please join the Drug Enforcement and Policy Center and the Last Prisoner Project as we host a panel of experts to discuss how these pardons will affect people with cannabis convictions on their record, how states could act on the President's call, and what implications this may have for the future of cannabis and criminal justice reform in the United States.
Elizabeth G. Oyer, U.S. Pardon Attorney, U.S. Department of Justice
JaneAnne Murray, Associate Clinical Professor of Law, Director of the University of Minnesota Law School Clemency Project
Sarah Gersten, Executive Director and General Counsel, Last Prisoner Project
Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law; Executive Director of the Drug Enforcement and Policy Center
Wednesday, November 16, 2022
Congress passes marijuana research bill, the "Medical Marijuana and Cannabidiol Research Expansion Act"
With a Senate motion, the US Congress made some history today by passing a standalone piece of marijuana reform legislation. Here are the basics from Politico:
The Senate passed a bill designed to expand medical marijuana research on Wednesday by unanimous consent. Passage of the legislation, which is sponsored by Sen. Dianne Feinstein (D-Calif.) and Rep. Earl Blumenauer (D-Ore.) in their respective chambers, signaled a new era in federal cannabis policy: It’s the first standalone marijuana-related bill approved by both chambers of Congress. The House passed the bill in July, also by unanimous consent.
The bill, which will make it easier for scientists to conduct medical marijuana research and protect doctors who discuss the benefits and drawbacks of using the drug with patients, now heads to President Joe Biden’s desk....
Passage of the medical research bill by unanimous consent signals that perceptions about marijuana are changing. While expanded research is arguably the most conservative action Congress could take on marijuana, it is something that would have been unthinkable a decade ago. The bill came close to passing in September, but was held up by Sen. John Cornyn (R-Texas). Cornyn lifted the hold earlier this week.
“After working on the issue of cannabis reform for decades, finally the dam is starting to break,” Blumenauer told POLITICO in a statement. “At a time when more than 155 million Americans reside where adult-use of cannabis is legal at the state or local level and there are four million registered medical marijuana users with many more likely to self-medicate, it is essential that we are able to fully study the impacts of cannabis use.”
This Marijuana Moment article, headlined "Senate Sends Marijuana Research Bill To Biden’s Desk, With Schumer Saying He’s Having ‘Productive Talks’ On Broader Reform," highlights why this little bit of history might be a sign of things to come:
Just before the vote, Senate Majority Leader Chuck Schumer (D-NY) said on the floor that he is continuing to have “productive talks” about a broader package of cannabis reforms he hopes to pass before the end of the lame duck session.
In the meantime, while numerous marijuana measures have been filed and advanced in each chamber in recent sessions, reform has consistently stalled before reaching the president. But now, the “Medical Marijuana and Cannabidiol Research Expansion Act” is just one signature away from historic enactment.
Monday, November 14, 2022
As reported in this Marijuana Moment piece, "House Democrats and Republicans have co-published a joint memo ahead of a congressional subcommittee meeting on marijuana on Tuesday, laying out key background details on the issue that will likely inform the conversation at the meeting." Here is more:
The House Oversight Subcommittee on Civil Rights and Civil Liberties announced the meeting—titled “Developments in State Cannabis Laws and Bipartisan Cannabis Reforms at the Federal Level”—last week. And the witnesses set to testify are broadly pro-legalization.
Several documents have been posted in advance of the meeting, including what’s described a “joint memo” from majority and minority staff that was uploaded on Sunday. Rep. Jamie Raskin (D-MD) chairs the panel, with Rep. Nancy Mace (R-SC) serving as the ranking member.
Given that leadership on the subcommittee shares bipartisan interest in advancing cannabis reform, it makes sense that the witnesses are well-known advocates for ending prohibition and that the joint memo generally provides information that makes the case for a comprehensive policy change.
It mentions several pieces of marijuana legalization legislation, including the House-passed Marijuana Opportunity, Reinvestment and Expungement (MORE) Act, Senate leadership’s Cannabis Administration and Opportunity Act (CAOA) and Mace’s States Reform Act (SRA).
“This hearing will be a bipartisan examination of the many benefits of decriminalization at the federal level, including: criminal justice reform, which will largely benefit communities of color, as well as the justice system more broadly; access for veterans through the Department of Veterans Affairs (VA); and the ability for the legal cannabis industry to access financial services,” the memo says.
The full 11-page "Joint Memo" is available at this link. It makes for an interesting read.
Thursday, November 10, 2022
US House subcommittee hearing scheduled on "Developments in State Cannabis Laws and Bipartisan Cannabis Reforms at the Federal Level"
Interestingly, on the morning of Election Day, the US House Committee on Oversight and Reform released this notice announcing that on "Tuesday, November 15, 2022, at 10:00 a.m. ET, the Subcommittee on Civil Rights and Civil Liberties will host a hybrid hearing titled 'Developments in State Cannabis Laws and Bipartisan Cannabis Reforms at the Federal Level'.” The next evening, this follow-up memo was released providing a lot more notable details about this notable congressional hearing (including a list of scheduled witnesses). Here are excerpts:
On October 6, 2022, President Biden announced that he granted a pardon to everyone convicted of simple marijuana possession under federal law and called for a review of how marijuana is scheduled under the Controlled Substances Act (CSA). Advocates for cannabis reform welcomed the President’s actions but continue to call for action in the legislative branch to decriminalize cannabis....
This hearing will be a bipartisan examination of the many benefits of decriminalization at the federal level, including: criminal justice reform, which will largely benefit communities of color, as well as the justice system more broadly; access for veterans through the Department of Veterans Affairs; and the ability for the legal cannabis industry to access financial services.
And this official website provides some more interesting background and also the expected witnesses. Here is a snippet:
On Tuesday, November 15, 2022, at 10:00 a.m. ET, Rep. Jamie Raskin, Chairman of the Subcommittee on Civil Rights and Civil Liberties, and Rep. Nancy Mace, Ranking Member of the Subcommittee on Civil Rights and Civil Liberties, will hold a hybrid hearing to examine the many benefits of cannabis decriminalization at the federal level, including addressing racial disparities in the criminal justice system, improving treatment options for veterans, and allowing marijuana companies to access traditional banking services.
Marijuana arrests account for 43% of all drug arrests, and nine in ten of those marijuana arrests are for simple possession. Although Black and white people use cannabis at roughly the same rates, Black people are nearly four times more likely to be arrested for violating marijuana possession laws, which carries life-altering implications for employment, housing, and education. Decriminalizing cannabis at the federal level and expunging criminal convictions for possession would alleviate these burdens and allow for societal advancement.
November 10, 2022 in 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)
Tuesday, November 8, 2022
I have sensed that marijuana reform ballot meansures and related topics have received more mainstream media attention than usual this election cycle. Consequently, I will not try to round up here all the mainstream press coverage and instead will just highlight a set of resources I find useful that readers might also find useful.
Of course, I need to start with the "Drugs on the Ballot: 2022" resource put together by the Drug Enforcement and Policy Center (DEPC). That resource page not only includes a detailed accounting of the measures on the ballot in 2022, but the page also has a set of terrific interactive graphics mapping out both "Marijuana Ballot Measures Over Time" and "Marijuana Legalization Over Time."
Next, I want to flag the great work of the folks at Bolts, a relatively new "digital magazine that covers the nuts and bolts of power and political change, from the local up." Bolts covers lots and lots of ground extremely well, and it recently has a piece reviewing the ballot measures headlined "Six States Are Voting on Legalizing Weed or Psychedelics."
Moving from an election site to a marijuiana one, MJBiz Daily already has lots of election coverage and has a lot more promised. Here are a few of their recent election pieces that caught my eye:
- "New adult-use marijuana markets worth more than $1.5 billion on the ballot"
- "Key congressional races the marijuana industry should watch"
- "Polls suggest mixed results for adult-use marijuana legalization ballot measures"
- "MJBizDaily to provide in-depth Election Day coverage of marijuana measures"
And, staying in the marijuana news space, Marijuana Moment will also be sure to keep delivering great election-related coverage. Here are some of its recent notable postings:
- "Live 2022 Marijuana Election Results"
- Detailed articles assembled here about all the state and many local reform initiatives
- "Congress Will Hold A Marijuana Hearing One Week After Five States Vote On Legalization Ballot Measures"
Thursday, October 6, 2022
Prez Biden asking to start "administrative process to review expeditiously how marijuana is scheduled under federal law"
In this post at my other blog, I focused on the interesting (but not really big) news, set forth in a this official statement from the White House, that Prez Biden today announce that his is "pardoning all prior federal offenses of simple marijuana possession" and that he is "calling on governors to pardon simple state marijuana possession offenses." I will likely blog more over there about the criminal justice echoes of this interesting mass pardon announcement and exhortation to governors to follow suit.
But here, where we focus on "Marijuana Law, Policy & Reform," I want to focus on the interesting (and perhaps really) news that Prez Biden has also leaned into rescheduling of marijuana via this part of his statement:
Third, I am asking 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. Federal law currently classifies marijuana in Schedule I of the Controlled Substances Act, the classification meant for the most dangerous substances. This is the same schedule as for heroin and LSD, and even higher than the classification of fentanyl and methamphetamine – the drugs that are driving our overdose epidemic.
Finally, even as federal and state regulation of marijuana changes, important limitations on trafficking, marketing, and under-age sales should stay in place.
I have been asked a few questions already about how long it will take to conduct an "administrative process to review expeditiously how marijuana is scheduled under federal law." My sense is that it will take years, not months, and that there is sure to be lots of debate over the science and politics of rescheduling even if there is a broad consensus that marijuana should no longer be on schedule I. This Marijuana Moment piece, headlined "DOJ To ‘Expeditiously’ Act On Biden’s Marijuana Pardon Directive, While HHS ‘Looking Forward’ To Scheduling Review," covers a bit of the process and the politics:
The Justice Department and U.S. Department of Health and Human Services (HHS) say they will quickly act to follow President Joe Biden’s new directive to review marijuana’s federal scheduling status and process mass cannabis possession pardons.
Within an hour after the president made the surprise announcement, a DOJ spokesperson released a statement saying the department would abide by the cannabis directive in an expedited fashion.... “Also, in accordance with the President’s directive, Justice Department officials will work with our colleagues at the Department of Health and Human Services as they launch a scientific review of how marijuana is scheduled under federal law,” the agency said.
HHS Secretary Xavier Becerra separately said in a tweet — posted as precisely 4:20 PM ET — that he’s “looking forward to working with Attorney General Garland to answer [Biden’s] call to action to review how marijuana is scheduled under federal law.”...
Biden’s scheduling review—which would be conducted by DOJ and HHS—could reshape federal marijuana policy depending on the final recommendation. Biden has faced numerous calls from advocates to use his executive authority to unilaterally initiate that process.
The agencies could ultimately recommend moving marijuana from the strictest classification of Schedule I under the Controlled Substances Act (CSA) to a lower schedule or no schedule at all.
Biden has said he supports rescheduling to Schedule II, but advocates have pushed for complete descheduling, which would effectively end prohibition.
Wednesday, September 28, 2022
John Hudak has this interesting new piece over at Brookings discussing the continued failure of marijuana reform becoming a significant campaign issues in this year's congressional races. The piece is titled "Congressional candidates’ silence on cannabis reform," and is worth a full read. Here is how the piece starts and concludes:
Cannabis reform has grown in popularity with voters, activists, and state legislators; cannabis is now legal for medical use in 38 states and DC and for adult-use in 19 states and DC. Despite those advances in state level reforms and in the broader conversation nationwide, Congress has failed to pass a major piece of legislation addressing the issue, and many voters and activists wonder why.
One argument is that federal level officials — in the executive branch and in Congress — simply don’t care enough about the issue to address it. To consider this question, I included a coding about cannabis reform in Brookings Primaries Project in 2022. The Brookings Primaries Project examines the publicly stated views—via the websites and social media presence — of all candidates running in U.S. congressional primary races. We coded each candidate on a four-point scale: whether they supported legalization or decriminalization of cannabis, whether they supported medical legalization only, whether their position was complex or indecipherable, and whether they failed to mention the issue at all.
The results provide three general takeaways. First, primary candidates for Congress do not consider the issue important enough to elevate to be included on their website or on social media. Second, on average, candidates who do engage on the issue are at least not harmed by staking out a public position. Third, stark differences exist between Democratic primary candidates for Congress and Republican primary candidates for Congress....
It is clear that among all candidates, all Democrats, and all Republicans, taking no public position on cannabis was the most popular strategy during the 2022 congressional primaries. However, among candidates who chose to take a clear position on cannabis, Republicans were more likely to oppose legalization than support it, and the reverse is true for Democratic primary candidates who took a position on cannabis.
In sum, cannabis as a political issue has risen in importance over the past 25 years. As state legislatures and voters via referenda have enacted changes to cannabis laws, the issue has become more popular even in the halls of Congress. However, cannabis reform advocates’ frequent stupefaction at the lack of progress at the federal level bumps up against a stark reality. Most candidates for federal office do not see cannabis as an issue prominent enough to discuss, and deep partisan differences still remain among elected officials, even as support for cannabis in the general public has exploded in recent years. And the true motivator for a member of Congress to take or change a position — whether voters hold their feet to the fire over an issue — has not yet become a reality in the vast majority of Congressional races across the United States.
September 28, 2022 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)
Thursday, September 22, 2022
Legalization ballot initiative sidelined by state Supreme Court in Oklahoma, while initiative cleared to go forward in neighboring Missouri
As students in my marijuana seminar know (too) well, I find the modern history of marijuana reform throughout the United States to be a fascinating legal and political story. And sometimes I view some of the regional variations in these stories to be especially remarkable, and one such recent example comes from the center of our great nation. Specifically, I am referencing here the notably different outcomes of legal challenges to state ballot legalization initiatives in neighboring Oklahoma and Missouri. Though these states share a (small) border, they are not sharing the same outcomes in lawsuits challenging efforts to put marijuana legalization before votes, as reported in this Marijuana Moment articles:
An initiative to legalize marijuana in Missouri is officially cleared for ballot placement following a month-long legal back-and-forth between the campaign and prohibitionists. A lawsuit filed last month sought to keep the Legal Missouri 2022 reform proposal off the ballot after it was certified by the secretary of state. But after two lower courts dismissed the challenge, the state Supreme Court on Tuesday delivered the final word that the legal battle is over.
Oklahoma voters will not get the chance to vote on a marijuana legalization initiative in November, with the state Supreme Court on Wednesday rejecting the campaign’s lawsuit that sought to secure ballot placement this year. However, justices also dismissed two separate legal challenges to the ballot title, clearing the initiative’s path for a vote during the state’s next general or special election.
Legal battles over initiatives are never unusual, and a range of legal tripwires can often attend efforts to bring ballot measures directly to voters on any topic. But I surmise that these kinds of challenges to marijuana reform measure have found growing success, perhaps unsurprisingly, as initiative move from bluer to redder states. Judges and other legal actors in bluer states can often seem more welcoming of ballot initiatives in this arena (and we have seen politicians in Maryland and New Jersey place marijuana reform initiatives on the ballot), whereas these actors in redder states sometime seem far more keen to keep voters from having a chance to directly weigh in on these issues.
September 22, 2022 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Initiative reforms in states, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Saturday, July 16, 2022
The back end of this week brought some news from Congress regarding federal marijuana reform efforts. Marijuana Moment has the essential news and helpful context in two lengthy pieces, which are linked below and briefly excerpted:
The U.S. House of Representatives on Thursday approved several marijuana reform amendments as part of a large-scale defense bill, including proposals to protect banks that work with state-legal cannabis businesses and allow U.S. Department of Veterans Affairs (VA) doctors to issue medical marijuana recommendations....
What remains to be seen is which, if any, of these amendments makes it through conference after the Senate advances its version of NDAA. The chamber has generally been viewed as a barrier to enacting drug policy reform, especially with Republican minority leadership frequently challenging amendment germaneness.
The introduction of a long-awaited Senate bill to federally legalize marijuana is imminent, with two Senate sources telling Marijuana Moment on Thursday that the legislation could be filed “as early as next week.”
It’s been a year since Senate Majority Leader Chuck Schumer (D-NY), Senate Finance Committee Chairman Ron Wyden (D-OR) and Sen. Cory Booker (D-NJ) first released a draft version of comprehensive legislation to end federal cannabis prohibition and promote social equity in the industry. And on Thursday, Bloomberg reported that the bill’s introduction would be coming next week....
The timeline for the introduction of CAOA has been repeatedly pushed back as leadership has worked to gather input on various provisions and build bipartisan buy-in.... Details about any changes to the bill since it was released last year are still being heavily guarded. But it’s expected to contain the key components: removing cannabis from the Controlled Substances Act, imposing a federal tax on marijuana sales, promoting equity in the industry and providing an avenue for relief for those who have faced federal cannabis convictions.
Once the measure is introduced, its path to passage is still murky. There’s a fair level of skepticism about the prospects of reaching the 60-vote threshold needed to pass CAOA through the Senate.
Monday, June 13, 2022
The question in the title of this post is prompted by this interesting Marijuana Moment article headlined "New Details On Congressional Marijuana Omnibus Bill Emerge As Lawmakers Work For 60 Senate Votes." Here are some of the intriguing particulars from an extended piece worth reading in full:
Two key congressmen made waves in the marijuana community on Thursday by disclosing that there are high-level talks underway about putting together a wide-ranging package of incremental marijuana proposals that House and Senate lawmakers believe could be enacted into law this year. But multiple sources tell Marijuana Moment that issues under consideration go further than the banking and expungements reforms that were at the center of the public discussion that has emerged.
The dueling pushes for comprehensive legalization and incremental reform — a source of tension among advocates, lawmakers and industry insiders over many months — may actually result in something actionable and bipartisan by the end of the current Congress, those familiar with the bicameral negotiations say. That said, no deal is set in stone and talks are ongoing.
In addition to the banking and expungements proposals that made waves when discussed publicly at a conference on Thursday by two key House lawmakers, there are also talks about attaching language from other standalone bills dealing with issues such as veterans’ medical cannabis access, research expansion, marijuana industry access to Small Business Administration (SBA) programs and broader drug sentencing reform....
Reps. Ed Perlmutter (D-CO) and Dave Joyce (R-OH) first publicly disclosed that there were discussions about crafting a bipartisan cannabis package at an International Cannabis Bar Association conference on Thursday, with Joyce revealing a recent meeting he had about the idea with Schumer.
Perlmutter, sponsor of the Secure and Fair Enforcement (SAFE) Banking Act, said that his legislation to safeguard financial institutions that work with state-legal marijuana businesses would be part of the package under consideration, but he also said at the time that members are interested in including Joyce’s Harnessing Opportunities by Pursuing Expungement (HOPE) Act to incentive state and local governments to expunge prior marijuana records, as well as proposals to provide veterans with access to medical cannabis and expand marijuana research.
But those four issues — banking, expungements, research and veterans — noted earlier by Law360, are only part of what’s on the table, sources who have been involved in the negotiations but requested anonymity, told Marijuana Moment on Friday. They stressed, however, that a deal has not yet been reached and talks are tentative at this point.
Another possible component that lawmakers have discussed including in the omnibus legislation would be a proposal to give cannabis businesses access to SBA loans and services that are available to every other industry. It’s a reform that Sen. Jacky Rosen (D-NV) in particular has consistently advocated for, including in a recent letter to the head of SBA.
While it’s not clear what stage the negotiations over the prospective marijuana package is at, a congressional source said that Rosen has spoken with Schumer about her interest in advancing the issue as he’s worked to navigate the congressional cannabis waters.
“These talks are very serious,” a source involved in criminal justice reform said. “I would say this is one of the most serious bipartisan, bicameral conversations that we’ve seen occur in our time in this space.”
To be clear, Senate leadership isn’t giving up the push for the broader CAOA legalization bill at this point. Nor is Perlmutter fully conceding passing the SAFE Banking Act on a sooner timetable, either as standalone legislation or as part of a large-scale manufacturing bill called the America COMPETES Act that’s currently in a bicameral conference committee....
Other sources told Marijuana Moment that they’ve been involved in conversations about potentially adding to the in-progress cannabis package language that would provide for record sealing of federal misdemeanor convictions, as would be prescribed under the standalone Clean Slate Act from Rep. Lisa Blunt Rochester (D-DE). It’s the type of reform that presumably would not compromise GOP support given the widespread recognition that offenses like simple possession should not lead to long-term consequences like the loss of access to housing and job opportunities.
June 13, 2022 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Political perspective on reforms, Who decides | Permalink | Comments (0)
Monday, June 6, 2022
The question in the title of this post is prompted by this recent news, as well covered by Marijuana Moment:
Several leading marijuana businesses and stakeholders are banding together to sue the federal government over what they believe to be unconstitutional policies impeding their operations, according to the CEO of one of the companies. And, he says, they’ve retained a prominent law firm led by an attorney who has been involved in numerous high-profile federal cases.
There have been various attempts to upend federal prohibition through the court system, but what makes this emerging effort especially notable is that the coalition of multi-state operators (MSOs) in the cannabis industry will apparently be represented by the firm Boies Schiller Flexner LLP.
David Boies, the chairman of the firm, has a long list of prior clients that includes the Justice Department, former Vice President Al Gore and the plaintiffs in a case that led to the invalidation of California’s ban on same-sex marriage, among others. The prominent firm’s willingness to take on the case from the marijuana industry would be a firm indicator that they see merit to the issue at hand.
Abner Kurtin, founder and CEO of Ascend Wellness Holdings, told Marijuana Moment in a phone interview on Friday that this is an “industry-wide effort,” with at least six major cannabis operators “favorably disposed” to joining the suits — one of which would focus on stopping the federal government from impeding intrastate cannabis commerce and another challenging a tax provision known as 280E that blocks the industry from taking tax deductions that are available to any other company.
Because these suits have not yet been filed, it is too early to predict whether or when they might impact federal policy or politics. But this posting from Andrew Smith at Harris/Bricken concludes with an effective accounting of why these suits are worth watching:
The lawsuits come at an opportune time, as many federal bills to legalize cannabis use at the federal level are stuck in either the House of Representatives or the Senate (see our recent summaries here and here). In addition, Kurtin mentioned that the lawsuits will be argued from a perspective of states’ rights, which will likely garner support from both political parties and appeal to the Supreme Court’s conservative majority.
Ultimately, the lawsuits to end cannabis prohibition represent another angle — which avoids the various hurdles of legislative approval — for federal prohibitions on cannabis to be overturned. Even if the litigation fails, it should exert even more pressure on Congress to Act. But the potential agreement of a highly regarded constitutional law firm to represent a coalition of major players in the cannabis world signals the potential merits of their claims.
Friday, May 20, 2022
Ninth Circuit panel holds (in trademark dispute) that "delta-8 THC products are lawful under the plain text of the Farm Act"
In this post a few month ago, I noted the growth of so-called delta-8 THC products and all the legal uncertainty around them. Yesterday, in an important ruling, a Ninth Circuit panel directly address question about the legality of delta-8 products under federal law. In AK Futures LLC v. Boyd Street Distro, LLC, No. 21-56133 (9th Cir. May 19, 2022) (available here), a trademark dispute prompted the panel to fully engage the arguments surrounding whether the 2018 Farm Bill served to legalize cannabis products without the standard delta-9 THC, and the opinion ultimately embraces the claim that delta-8 THC products derived from hemp CBD are legal products under federal law. Here are some key passages from the opinion:
[T]he parties dispute whether the possession and sale of delta-8 THC is permitted under federal law and, consequently, whether a brand used in connection with delta-8 THC products may receive trademark protection. AK Futures argues that delta-8 THC falls under the definition of hemp, which was legalized by the 2018 Farm Act. Boyd Street argues a contrary interpretation of the Act based on agency documents and congressional intent....
AK Futures argues the Farm Act’s definition of hemp encompasses its delta-8 THC products so long as they contain no more than 0.3 percent delta-9 THC. Plain meaning supports this interpretation.... Importantly, the only statutory metric for distinguishing controlled marijuana from legal hemp is the delta-9 THC concentration level....
The Farm Act’s definition of hemp does not limit its application according to the manner by which “derivatives, extracts, [and] cannabinoids” are produced. Rather, it expressly applies to “all” such downstream products so long as they do not cross the 0.3 percent delta-9 THC threshold....
Regardless of the wisdom of legalizing delta-8 THC products, this Court will not substitute its own policy judgment for that of Congress. If Boyd Street is correct, and Congress inadvertently created a loophole legalizing vaping products containing delta-8 THC, then it is for Congress to fix its mistake. Boyd Street’s intent-based argument is thus unsuccessful. With that, neither of Boyd Street’s counterarguments dissuade us from the conclusion that AK Futures is likely to succeed on the merits of its trademark claim.
Thursday, May 19, 2022
I am so happy to be able to continue catching up on posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center. To that end, the title of this post is the title of this paper authored by Caroline Rice, a rising 3L at The Ohio State University Moritz College of Law. Here is its abstract:
Although most professional sport leagues amongst the Big Four (National Football League, National Basketball Association, Major League Baseball, and National Hockey League) have restrictions on athletes’ use of cannabis, many professional athletes have spoken out about turning to cannabis as relief for the chronic pain caused by playing professional sports. This paper explores how as a result of cannabis being wrongly classified as a Schedule I drug on the Controlled Substances Act, professional leagues followed suit restricting cannabis use and leaving athletes with rigid marijuana testing policies and an overuse of prescription painkillers. This paper then analyzes the medicinal benefits of marijuana use for professional athletes, and subsequently argues for further use of cannabis in professional sports in the United States.
Thursday, May 12, 2022
The title of this post is the title of this new Jurist commentary that I had the honor of co-authoring with Jana Hrdinová. Here are excerpts:
California’s 1996 ballot initiative protecting medical marijuana users from state criminal prosecution kicked off the modern marijuana reform era in the United States. In part due to federal prohibition, state medical marijuana laws prompted an array of interesting and intricate legal questions. Some issues concerned the reach of federal law after state reforms. Could doctors be punished by federal authorities for recommending marijuana to patients consistent with state law? Could groups providing marijuana to patients raise a medical necessity defense if subject to federal prosecution? Other issues arose at the intersection of novel drug laws and other state laws. Could an employer lawfully fire an employee with a valid medical recommendation simply for testing positive for marijuana? Could police officers lawfully search a car based simply on the smell of marijuana?
Lawyers and courts have been grappling with these and countless other legal questions across the nation as an ever-growing number of states have legalized marijuana for various uses. Many constitutional questions about potential conflicts between federal and state authority and individual rights have occupied federal courts all the way up the US Supreme Court. A wide array of state law issues have not just occupied state courts, but state administrative bodies and legal ethics panels as well, all seeking to sort out just when and how lawyers can advise or even play a role in the developing marijuana industry.
A full quarter century after California’s first state-level reform, three dozen states have now joined California in legalizing marijuana for a range of medical uses, representing over 70 percent of the US population. And 18 states plus the District of Columbia, representing over 40 percent of the US population, have also legalized cannabis for recreational use. A large, new cannabis industry has come with a number of complex regulatory and policy issues. State policymakers and public lawyers now confront the challenge of developing licensing schemes and regulatory rules to protect public health and safety, designing effective tax rates and business structures, and advancing equitable goals ranging from expunging old convictions to helping disadvantaged communities participate in the industry. Private lawyers helping marijuana businesses must figure out how to raise capital, navigate licensing requirements, and structure acquisitions in the face of diverse state laws and persistent federal prohibition. Lawyers are also called to review and revise workplace rules about marijuana use, to advise landlords, hospitals, and other venues concerning marijuana use on their properties, and to address myriad other novel issues in this dynamic field.
And yet, with so many new legal questions to grapple with and such rich policy areas to debate, remarkably few law schools are cultivating a modern curriculum by offering courses on cannabis law and policy for the next generation of lawyers. Beginning in 2018, our center (the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law) has conducted an annual survey of law school curriculum to trace the evolution of teaching in the area of cannabis law and policy. We have surveyed law schools’ online course schedules and contacted registrar offices by email. We were surprised initially that barely one in ten law schools offered even a single class in this arena; during the academic year 2018-2019, only 21 out of 201 accredited law schools offered 24 cannabis-specific courses to their students. This number grew to 29 schools offering 33 courses in 2019-2020, and growth continued with 35 schools offering 35 courses in 2020-2021 and finally 37 schools offering 38 courses in our most recent accounting in 2021-2022. But even though the number of offered courses has grown over the last four years, law schools still lag significantly behind the fast-moving pace of cannabis legalization. While now close to 75 percent of US states have some form of legalized marijuana, less than 20 percent of law schools in the US offer instruction on cannabis law.
Tuesday, April 12, 2022
Student presentation: "Putting Marijuana Back in the Bottle: FDA’s Role in Future Marijuana Regulation"
Continuing the Marijuana Law, Policy & Reform seminar students presenting on research topics of their choice. the second topic for this coming week's presentations will be focused on the role of the FDA. Here is how the student describes her take on the topic and some background readings:
So far, FDA has been fairly hands-off when it comes to the state-driven marijuana market even though marijuana falls under many of the agency’s statutory domains. “Marijuana” is a hot commodity as consumers can attest from the plethora of products purporting to contain marijuana derivatives. Many, if not all, of these products fall under FDA’s regulatory regime.
Although FDA has issued some warning letters regarding company actions within the marijuana space, the agency has not developed a consistent theme for regulation. Once it does, some state regulations may be preempted. This would throw the current regulatory landscape into question. Such entry may also change the dynamic of the marijuana industry. For example, as companies face federal regulation, entry into the marijuana space may become more expensive and push small sellers out of the market. Conversely, a dual marijuana marketplace may be established — one that establishes itself nationwide and another that attempts to maintain the current system by only selling intra-state.
FDA does not need to completely reinvent the wheel when it comes to marijuana regulation, although it statutorily may have to consider factors unique to current state regulations. However, given the history of introducing more robust regulations onto new industries, as FDA did with tobacco industry, systems states are already finding successful, and other nations’ marijuana schemes, there are many avenues for FDA to ensure the American public is protected from unsafe products without overly disrupting the current market.
Every year that the federal government declines to implement a regulatory scheme for marijuana products, states are creating their own processes — some more and some less permissive. This paper describes the statutory basis for FDA to regulate marijuana. It also describes how future FDA regulation might interplay with current state regulation or be preempted. Next, it analyzes possible industry challenges as federal regulation becomes more prominent. Finally, it recommends how FDA may enter the regulatory space in tandem with state regulation and avoid stifling an already robust market.
Law review article: "The Surprising Reach of FDA Regulation of Cannabis, Even after Descheduling"
Law review article (by own own Prof Zettler): "Pharmaceutical Federalism"
US Food & Drug Administration webpage: "FDA Regulation of Cannabis and Cannabis-Derived Products, Including Cannabidiol (CBD)"
April 12, 2022 in Assembled readings on specific topics, Federal Marijuana Laws, Policies and Practices, Food and Drink, History of Marijuana Laws in the United States, International Marijuana Laws and Policies, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Wednesday, February 2, 2022
As reported here by Marijuana Moment, the "governor of Mississippi on Wednesday signed a bill to legalize medical marijuana, making the state the 37th to enact the policy change in the country." Here is a bit more:
The legislature approved the measure last week with solid margins, advancing the reform more than one year after voters approved medical cannabis legalization at the ballot. That initiative was struck down by the state Supreme Court for procedural reasons, prompting lawmakers to take it up legislatively.
In a social media post, Gov. Tate Reeves (R) said that there’s “no doubt that there are individuals in our state who could do significantly better if they had access to medically prescribed doses of cannabis.” However, he reiterated concerns that there are “also those who really want a recreational marijuana program that could lead to more people smoking and less people working, with all of the societal and family ills that that brings.”
More details and context can be found in this MJBizDaily piece headlined "Mississippi governor signs medical cannabis legalization bill into law." Here is an excerpt:
The law is effective immediately, and the market could launch before year-end....
The measure, Senate Bill 2095, calls for license applications to be accepted within 120 days, or 150 days in the case of dispensaries. But the bill, passed by lawmakers last week, is more restrictive than what voters approved at the ballot box in 2020....
Alabama and Louisiana are the other two states in the Deep South that have legalized medical cannabis. MJBizDaily has its own definitions of what constitutes a medical cannabis state, and by that definition, Mississippi becomes the 39th to legalize such a program.
Wednesday, January 26, 2022
The question in the title of this post is prompted by all the press buzz about the decision by Amazon to formally endorse Rep Nancy Mace's States Reform Act. This New York Post piece, headlined "Amazon endorses GOP bill that would legalize marijuana on federal level," provides some context:
Amazon has endorsed a Republican-backed bill in Congress on Tuesday that would legalize marijuana on a federal level, leaving states to decide whether to prohibit or regulate it. Rep. Nancy Mace’s (R-SC) States Reform Act would remove cannabis as a federal Schedule I substance and introduce a new 3% federal tax on the substance.... “Every state is different and every state should be able to dictate their cannabis laws,” Mace told The Post in an interview. “This bill would get the federal government out of the way.”...
Mace, a freshman Congresswoman who previously worked for Donald Trump’s 2016 presidential campaign, told The Post that she was approached by Amazon representatives after she introduced the bill. She said the company was motivated to endorse her bill because legal issues around marijuana can make hiring difficult. “They’re looking at it from a workers perspective,” Mace said in an interview. “The prohibitions at the federal level really do affect their workforce.”
Amazon told Mace that it is not interested in selling marijuana on its website, according to the Congresswoman. “That is not their goal, not their intention,” Mace said of the prospect of Amazon pushing pot. “They said that right off the bat.” In June, Amazon stopped testing many job applicants for marijuana and said that it would support efforts to legalize the drug....
Mace expects Democrats, many of whom have supported weed legalization for years, to come out in support of her bill. She argued that Republicans are also likely to support her bill because it gives more power to states — and because weed legalization is extremely popular nationwide. “Even in my very red state of South Carolina, statewide, medical cannabis is at an approval rating of 70%,” she said. “If we’re going to do cannabis reform at the federal level, Republicans need to have a seat at the table.”
This lengthy new Forbes article, headlined "Republican Congresswoman Nancy Mace Is On A Mission To Legalize Cannabis — And Amazon Just Got Behind Her," discusses further Rep Mace, the States Reform Act, and some of the current political realities as of early 2022. I recommend the full piece, and here are some excerpts:
The cannabis industry also adores Mace and her bill, which is pro-business. (She proposes a 3% federal excise tax—compared to Schumer’s 10% tax—which would generate an estimated $3 billion in annual tax revenue by 2030.) Still, her bill is unlikely to become law, and Mace is under no pot-addled delusion that its passage is a sure thing. Her broader goal is to get as many Republicans as possible on board with cannabis reform and show the GOP that legalization is a good campaign issue in 2022 and beyond....
Mace’s bill also attempts to heal some of the inequities of America’s war on drugs, which disproportionately affects people of color. She estimates that if her bill were to pass, and some 2,800 federal prisoners incarcerated for non-violent cannabis crimes were released and another 1,100 or so people who get put in prison for similar crimes each year are not incarcerated, the government would save nearly $600 million over five years....
Cannabis legalization has historically been a progressive issue, but Mace wants to make it a Republican talking point. Kim Rivers, the CEO of Florida-based Trulieve, which has 160 dispensaries across eight states, welcomes Mace’s approach. “Cannabis is not a red or blue issue,” says Rivers. “And cannabis reform has done well consistently in conservative states. It sends a significant message that cannabis is not partisan.”...
Despite all of this momentum, Mace knows the States Reform Act is unlikely to go forward before the midterm elections, but her goal is to show a “proof of concept” that there are enough votes on the Republican side to get meaningful reform across the finish line in Congress.
When asked what it means that cannabis is now more popular than President Trump in red states—74% of Mississippians, for example, voted for the state’s medical marijuana ballot initiative while nearly 58% of Mississippians voted for Trump—she says it’s a signal to Republicans that they need to get on board with legalization.
“It means that if you don't do it, you're full of shit,” Mace says. “There's no reason not to do this. And if you are anti-marijuana, this is not forcing you to do it. It's not forcing your state to legalize it. But if it is legal in your state, then we're going to tax it and regulate it.”
January 26, 2022 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Monday, January 24, 2022
I have recently seen two good new press reviews of the essential politics of federal marijuana reform as of January 2022 and of a key practical issue that has been a concern since the start of modern state marijuana reforms. Here are full headlines, links and excerpts from these pieces:
From Politico, "Big Weed is on the brink of scoring big political wins. So where are they?: Competing agendas have stifled the effectiveness of the burgeoning industry on Capitol Hill."
Marijuana advocates are stuck in the weeds. Cannabis policy has never had a rosier outlook on Capitol Hill: Democrats control both Congress and the White House, seven new states just legalized recreational marijuana, and the cannabis industry has gained powerful new allies in companies like Amazon and conservative groups like Americans for Prosperity that are backing federal reform. The industry has even lured powerful advocates like former GOP House Speaker John Boehner and former Democratic Senate Majority Leader Tom Daschle to help push its agenda.
But nearly one year into this Congress, not one piece of cannabis legislation has been sent to the president's desk. There is growing fear among advocates that the window to act is closing. Industry lobbyists and legalization advocates say the movement has been stymied by a lack of consensus on the legislative strategy. Liberal advocacy groups are pushing for a comprehensive overhaul of federal cannabis policies with the aim of helping people harmed by criminal enforcement, while industry groups are seeking any piecemeal policy victory that could provide momentum toward more sweeping changes.
“There are certain people who are willing to forgo any of it if they don’t get all of it,” said one marijuana lobbyist, speaking on condition of anonymity in order to candidly discuss the industry’s struggles. The lobbyist noted that such a viewpoint is not universally shared, causing a disagreement “that’s stunting the legalization effort.”
From Bloomberg, "U.S. Grapples With How to Gauge Just How High Cannabis Users Are"
“Everybody wants a cannabis breathalyzer — something like what we have for alcohol where you breathe into a device and it tells a THC level and whether that means you’re impaired or not,” said Jodi Gilman, an associate professor in psychiatry at Harvard Medical School and lead author of the imaging study. “But that’s not how it works for cannabis, we need a new paradigm.”
Companies have been trying to crack the stoned-test for a while. Hound Labs, which makes a marijuana breathalyzer, said in September it had raised $20 million to scale its product. Cannabix Technologies Inc. recently reported it had made headway creating a more portable device, while Lifeloc Technologies Inc. said it was finalizing the platform for a rapid marijuana breathalyzer that could be used for roadside testing.
There are concerns, however, that tests based on THC levels may be unfair to those who have it in their system but aren’t actually impaired. This can be the case for some who consumed cannabis days ago, or with frequent users who’ve built up a tolerance — who may use it for medical reasons. “You wouldn't want to penalize that person,” Gilman told me. “What this technology will do is differentiate impaired from not-impaired, which is different than distinguishing cannabis from no-cannabis.”
January 24, 2022 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical community perspectives | Permalink | Comments (0)
Thursday, December 30, 2021
From Marijuana Moment, "Here Are The Biggest Marijuana, Psychedelics And Drug Policy News Stories Of 2021"
I recommend both of these pieces in full, but I will here highlight a few of the top-10 from the NORML review that gives particular attention to my concerns about the intersection of marijuana reform and criminal justice.
#1: Five More States Enact Adult-Use Legalization Laws
Legislatures in five states — Connecticut, New Jersey, New Mexico, New York, and Virginia — enacted laws in 2021 legalizing adult-use marijuana possession and regulating retail cannabis markets. These legislative victories marked a significant change from past years, when similar laws were enacted almost exclusively via citizens’ initiatives, not by legislative action. In total, 18 states — comprising nearly one-half of the US population — have now adopted laws regulating adult use marijuana production and retail sales.
“State lawmakers have learned that advocating for adult-use legalization laws is a winning political issue that is popular with their constituents, regardless of their age, race, or political affiliation,” NORML’s Deputy Director Paul Armentano said.
#2: State Officials Vacate Over Two Million Cannabis Convictions
Officials in multiple states have moved to either expunge or seal the records of over two million people with cannabis convictions. Specifically, officials in New York announced vacating an estimated 400,000 convictions. In Virginia, officials have similarly taken steps to seal some 400,000 convictions. In New Jersey, officials have expunged over 360,000 marijuana-related convictions. Officials in Illinois have vacated an estimated 500,000 cannabis convictions, while California officials have expunged over 200,000 convictions. In all, more than a dozen states have enacted legislation in recent years facilitating the process of having past marijuana convictions either expunged or sealed from public view.
In December, US Representatives Dave Joyce (R-OH) and Alexandria Ocasio-Cortez (D-NY) introduced federal legislation to provide funding to state and local governments for the purposes of expunging the records of those with marijuana-related convictions. Following the bill’s introduction, NORML’s Political Director Justin Strekal said, “This bipartisan effort represents the growing consensus to reform marijuana policies in a manner that addresses the harms inflicted by prohibition. There is no justification for continuing to prevent tens of millions of Americans from fully participating in their community and workforce simply because they bear the burden of a past marijuana conviction.”....
#4: Marijuana Arrests Decline Precipitously
The number of persons arrested in the United States for violating marijuana laws declined 36 percent between 2019 and 2020, according to data released in September by the US Federal Bureau of Investigation. According to the agency, police made an estimated 350,150 arrests for marijuana-related violations in 2020. That total is down more than 50 percent from peak levels in 2008, when police made over 800,000 marijuana-related arrests. Marijuana-related arrests were least likely to occur in 2020 in western states — most of which have legalized the possession of the substance.
“As more states move toward the sensible policy of legalizing and regulating cannabis, we are seeing a decline in the arrest of non-violent marijuana consumers nationwide,” NORML’s Executive Director Erik Altieri said. He added, however, “While these numbers represent a historic decline in arrests, even one person being put into handcuffs for the simple possession of marijuana is too many.”