Marijuana Law, Policy & Reform

Marijuana legalization loses resoundingly in Oklahoma special election

Marijuana reform ballot initiatives were on quite the hot streak between 2012 and 2020.  Though a handful of initiatives lost in this period, a far larger number prevailed.  Medical marijuana reforms almost always won in both red and blue states, and full legalization initiatives were also almost always successful (in part because they were mostly brought in blue states).  But, in 2022, as full legalization efforts were brought to red states, the reform initiative winning streak came to an end.  As detailed here, though Maryland and Missouri voters approved legalization measures, ballot initiatives failed in Arkansas and North Dakota and South Dakota.

And, as detailed in these special election results from Oklahoma, the full legalization ballot initiative losing streak continued tonight in the Sooner State.  And, with still a few votes yet to be counted, it appears that the initiative is losing big, by 25% points.  This New York Times article, headlined "With a Marijuana Shop on ‘Every Corner,’ Oklahoma Rejects Full Legalization," provides some context:

In the past few years, Oklahoma, long a solid bastion of conservatism, has quietly undergone a street-level transformation when it comes to marijuana. Dispensaries dot the landscape, with more than 400 in Oklahoma City alone. And that’s just for medical marijuana.

On Tuesday, voters across Oklahoma opted against going further, according to The Associated Press, rejecting a ballot initiative that would have legalized recreational marijuana use by adults 21 and over.

With the vote, Oklahoma joined a number of conservative states whose voters have recently decided against recreational marijuana legalization. Though Missouri approved a state constitutional amendment to allow for recreational marijuana in November, voters in other conservative states, including Arkansas, North Dakota and South Dakota, rejected similar proposals.

The vote on Tuesday was a setback for marijuana legalization proponents in Oklahoma who had anticipated that laissez-faire economic attitudes and growing support among younger Republicans would provide a pathway for the state to join a diverse assortment of 21 states and the District of Columbia in adopting legal recreational marijuana, from Alaska and the Mountain West to the coasts and parts of the Midwest.

But voters in Oklahoma, where nearly 10 percent of the population already has a medical marijuana card, appeared to have decided that the current level of access to the drug was enough. In the end, the measure failed. Sixty-three percent voted no, while 38 percent voted yes, with about 90 percent of ballots counted as of Tuesday night....

The state legislature passed a two-year moratorium on new medical marijuana business licenses last year. The Oklahoma Farm Bureau, which opposes recreational marijuana legalization, has said the existing marijuana industry in the state is already straining rural infrastructure.

Student presentation on "The Role of Medical Cannabis Programs in a Society Moving Towards Adult-Use Regulation"

Rounding out an exciting first week of student presentations in my Marijuana Law, Policy & Reform seminar, the fourth presentation scheduled for the coming week will look at "The Role of Medical Cannabis Programs in a Society Moving Towards Adult-Use Regulation." Here is how my student has previewed his topic along with a bunch of background readings:

Over the last three decades, cannabis has slowly become an increasingly salient topic of debate in the United States – for a litany of different reasons.  As the plant began to shed the stigma placed on it by politicians and citizens alike, pioneering researchers in the 1980s and 1990s started to take a closer look at cannabis’ properties and effects on humans (based on hundreds of years of cannabis use as medicine in eastern cultures).  Beginning with California in 1996, states began to fulfill their purposes as laboratories of democracy with respect to cannabis through legalization of medical cannabis programs based on data collected by researchers.

However, as the debate over cannabis has progressed into more modern contexts, society has become increasingly perceptive to federal de-scheduling of the drug and implementation of adult-use policies in states across the country.  As state adult-use programs have continued to grow in numbers, there is a split in opinion as to a) how medical programs should be treated moving forward; b) whether they were ever really more than a trojan horse for the eventual full legalization of cannabis across the country; c) and whether resources should continue to be applied to their improvement and growth at all, if full legalization occurs. 

This research project will focus on addressing this debate through i) an examination of history behind medical cannabis and the data supporting cannabis’ viability as a medicine; ii) determining issues present in medical cannabis programs as adult-use programs continue to burgeon; iii) potential effects of federal de-scheduling of cannabis on medical markets; and iv) examining Ohio’s medical cannabis program as a case study on the law, policy, and politics underlying the debate -- and whether Ohio’s program is worth “fixing” with the growing imminence of an adult-use regime.

Suggested background:

Britannica ProCon.org, "Timeline on Medical Cannabis Progression" (Focus 1974 – Present) 

Antonio Waldo Zuardi, "History of cannabis as a medicine: a review" (published in 2006)

New York Times article on California’s Prop 215, "Medical Marijuana Use Winning Backing" (Oct. 1996)

Third Way Report, "America’s Marijuana Evolution" (Aug. 2017)

Hannah Carliner et al., "Cannabis use, attitudes, and legal status in the U.S.: A review" (published in 2017)

Mayo Clinic, "Medical Marijuana" 

National Academies of Sciences, Engineering, and Medicine, Chapter 4 on State of Evidence, "Therapeutic Effects of Cannabis and Cannabinoids" (published in 2017) 

News report on 'fixing' Ohio’s medical cannabis program, "Lawmakers look to solve issues with Ohio's medical marijuana program" (May 2022)

Americans for Safe Access releases "2022 State of the States Report: An Analysis of Medical Cannabis Access in the United States"

My wonderful marijuana seminar is about to turn to a close examination of the laws, policies and practices around medical marijuana reforms, and I am incredible grateful that the folks at Americans for Safe Access (ASA) unveiled their latest comprehensive annual report on medical marijuana reform just in time for our collective review. This new 150+ page report, titled "2022 State of the States Report: An Analysis of Medical Cannabis Access in the United States," provides both a national and state-by-state perspective on medical marijuana reforms.  This ASA press release about the report provides a bit of an overview:

The report evaluates the effectiveness of each state cannabis program from a patient perspective and assigns a grade using a rubric that reflects the key issues affecting patient access, broken down into more than 100 categories, including: barriers to access, civil protections, affordability, health and social equity, and product safety. The report also assigns penalties for harmful policies. ASA distributes the report to state legislators and regulators in every state, as well as hundreds of health and patient organization across the country.

Despite an increase in registered patient numbers and states with medical cannabis programs, the report highlights the fact that states are still falling short in creating programs that fulfill the needs of all patients-- the average grade among states was only 46.16% with Maryland earning the highest score of 75.71%. The report also highlights new issues facing patients including a decline in legislative improvements to state medical cannabis programs and the negative impacts recreational adult-use laws are having on medical cannabis access.

The report also offers solutions to improve state programs including legislative and regulatory language. Since the first edition in 2014, advocates and state legislators have utilized ASA’ report to pass new legislation and regulations to improve medical cannabis access. This year’s report offers policymakers a Medical Cannabis Equity Checklist with legislative improvements for states with recreational adult-use programs or those considering adopting such programs, to ensure patient access is not harmed.... ASA recognizes that state policymakers and regulators have been tasked with creating the infrastructure for a supply chain that remains illegal at the federal level and are now addressing a new health concern of the seemingly federally legal, unregulated cannabinoid market. In 2022 alone, 99 pieces of legislation were introduced regarding the unregulated cannabinoid market. The State of the States report calls on state legislatures to join patient advocates in calling on Congress to pass comprehensive federal legislation, and offers steps to do so in the “State's Government's Role in Ending Federal Prohibition” section.

"Building Solidarity in Support of Immigrants’ Rights in the Evolving Marijuana Legislative Landscape"

As I have mentioned before, after a very busy Fall semester, I am catching up on the posting of some recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center.   And now I have just started teaching a new semester of my marijuana seminar, it is especially enjoyable to be able to highlight some of the great work that was done by students in my last class.   The title of this post is the title of this paper authored by Charlotte Kalfas who was in my marijuaan seminar last year and who now completing her 3L year at The Ohio State University Moritz College of Law.  Here is the abstract of her paper: 

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

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

Taking a particular look at the middle of US marijuana reform map as the calendar turns to 2023

Stateline has this notable new article, headlined "Motley Marijuana Laws Drive Consumers — and Revenue — Across State Lines," that gives particular (but still incomplete) attention to the fact that marijuana reform storys have become somewhat consistent on the coasts while being quite varied in the middle of the USA.   I recommend the article in full, and here is a flavor of its coverage:

Less than half a mile south of the Wisconsin border in Illinois, the Sunnyside Cannabis Dispensary bustles with activity. Cars with license plates from Wisconsin, Minnesota and other pot-banning states slide in and out of the shop’s expansive parking lot.

The bright and airy retail store is an easy hop off Interstate 90, which spans the nation’s entire northern tier. For many westbound customers, Sunnyside is the last chance to legally buy recreational, or “adult-use,” marijuana products until Montana, more than 900 miles away. And heading south from this truck-stop town to the small Illinois city of Metropolis, dispensaries likewise hug the Prairie State’s boundaries with Indiana, Iowa and Kentucky, where pot sales are outlawed.

State lines delineate the vastly varying marijuana regulations across the Midwest. Illinois, Michigan and, since December, Missouri allow recreational marijuana, while neighboring states have some of the strictest laws in the nation.  The contrasting statutes create some law enforcement concerns in states where marijuana is outlawed — when residents legally use marijuana just across the border or bring it back home. 

But many elected officials in those states say the larger problem is the loss of potential revenue from an industry that could bring visitors, jobs and tax dollars.  Public support for the liberalization of marijuana laws in this region is growing, following national trends.  Much of the debate is economic, as restrictive states see their residents paying marijuana sales and excise taxes to neighboring states.

In Illinois, which legalized adult-use marijuana in 2019, out-of-state residents account for 30% of recreational marijuana sales, according to state filings. Sales in the state have risen from just more than $400 million in fiscal 2020 to more than $1.5 billion in fiscal 2022.  Tax disbursements to local Illinois governments in fiscal 2022 reached $146.2 million, a 77% increase over 2021.

Illinois law mandates that a fourth of marijuana tax revenue be used to support communities that are “economically distressed, experience high rates of violence, and have been disproportionately impacted by drug criminalization.”  The significant revenue is a big pull for states that outlaw marijuana to consider changing their policies. But some opponents to legalized cannabis worry about what other effects marijuana sales could have on their communities....

Indiana, which has some of the nation’s toughest marijuana laws, borders two states (Illinois and Michigan) with recreational sales. “I try to enforce the laws as best I can based on what Indiana wants us to do,” said Ken Cotter, prosecutor for St. Joseph County, Indiana, along the Michigan border. The region is known as Michiana.

“I was worried that if Michigan legalizes marijuana, folks from Indiana might want to go to Michigan, get the marijuana and drive back — that's one thing. But if they then went to Michigan, legally smoked it there and then drove [under the influence], that's a whole different ball game,” Cotter said. Cotter, a Democrat, said there has not been an increase in marijuana possession cases in his jurisdiction since Michigan legalized recreational sales in 2018, but that marijuana-based DUI charges have “increased dramatically.”

But Cotter was cautious not to draw broader conclusions from his jurisdiction of 270,000 residents, stressing that more data and reporting is a pressing public safety need. That’s in line with an expansive 2021 report from the Cato Institute, a libertarian-leaning think tank based in Washington, D.C., suggesting it’s too soon to know all the effects of the changing laws.  The report noted that early studies, including those on public safety, have varied conclusions, and that data comparisons at this point can be problematic.

A recent survey by a national law firm finds some Midwestern states among those least favorable to the cannabis industry. Indiana’s laws rank 49th among states and the District of Columbia in receptiveness to cannabis, according to Thompson Coburn, a national law firm that has a cannabis practice. Wisconsin stands 47th, Kentucky 41st and Iowa 38th. In Wisconsin, for example, the first conviction for a small amount of marijuana possession is a misdemeanor, but any subsequent possession charge is a felony....

In Minnesota, where Democrats now control the governorship and both chambers of the legislature, lawmakers introduced an adult-use bill on Jan. 5. Democratic Gov. Tim Walz quickly tweeted his support: “It's time to legalize adult-use cannabis and expunge cannabis convictions in Minnesota. I’m ready to sign it into law.”

And in Wisconsin, Democratic Gov. Tony Evers told Wisconsin Public Radio in December that recreational marijuana will “be in the budget,” but that a hostile GOP-led legislature stands in the way. "Even though the people of Wisconsin by huge numbers in polling support recreational marijuana in the state of Wisconsin, I just don't know if the Republicans are there yet," Evers told WPR. "All I know is that there is talk on the Republican side, from what I've heard, around medicinal."...

Iowa appears unlikely to move toward liberalization of its marijuana laws, despite a Des Moines Register poll from 2021 showing 54% of Iowans supporting the legalization of adult-use products.

"2022 Was Marijuana Reform’s Best Year And Everyone Is Unhappy About It: How To Move Forward"

As I am gearing up for another exciting new semester of teaching my always exciting Marijuana Law and Policy seminar at The Ohio State University Moritz College of Law, I was especially drawn to this lengthy new op-ed by Justin Strekal at Marijuana Moment which has the same title as this post.  I recommend the full piece, and here are excerpts highlighting some of its main themes:

2022 was the best of times for marijuana policy reform in America—but if you read the headlines or (god forbid) log onto Twitter, you could be forgiven for thinking that it was the worst.

This Orwellian doublethink is understandable if you look at it through the lens of a minute-by-minute analysis, or by only looking at the stock prices of the young, dominant players in the emerging cannabis industry. But we must keep the long game in mind when we think about ending the 85-year policy of marijuana prohibition and criminalization....

I have been a supporter of the SAFE Banking Act since I started at NORML in 2016, and I even took pro-SAFE meetings with groups that have since evolved their positions on the bill and are now demanding reforms to its underlying structure.

Back then, the purpose of the effort was to advance an aspect of legalization and the regulated marketplaces in Congress at a time when neither chamber had a leader who explicitly said they supported reform, be it SAFE or comprehensive. In other words, being for SAFE Banking was a form of harm reduction, not a cure.

Since the 115th Congress, a lot has changed. This includes the funding power of the reform movement, which has shifted dramatically in recent years, with the number of earnest advocates from the Drug Policy Alliance, Marijuana Policy Project and Americans for Safe Access shrinking, for example.  On the flip-side, K Street lobby shops are hiring new suits seemingly every month, many of whom never thought about marijuana prohibition before being paid by a private company or trade association to do so....

As for what the Republican flip in the House means for this reported agreement between Schumer and Daines? What about comprehensive reform?  Well, I’m not going to give you a percentage likelihood because only snake oil salespeople treat Congress like a betting market.

Whatever comes next in the House majority, it’s important to remember that 51 percent of House Republicans already voted for SAFE in the last Congress, including leaders like Reps. Kevin McCarthy (R-CA), Elise Stefanik (R-NY), Dave Joyce (R-OH), Bryon Donalds (R-FL), Kevin Hern (R-OK) and many others....

Because democracy is a verb and, as recent and ongoing events clearly show, things are not working well in America.  But for the first time ever, there is actually a pathway to accomplish something pertaining to marijuana law reform — but only if the monied interests are willing to live up to the rhetoric they espouse.

New CRS report (incompletely) reviews "Recent Developments in Marijuana Law" in Fall 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.

"President Biden's Pardons: What It Means for Cannabis and Criminal Justice Reform"

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.

Panelists:

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

Moderator:

Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law; Executive Director of the Drug Enforcement and Policy Center

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.

On eve of hearing, House staff releases "joint memo" extolling federal marijuana reform

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.

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.

Marijuana Moment has good coverage of this planned hearing in pieces here and here.

Rounding up helpful resources on another Election Day full of importance for marijuana reform

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"

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.

Interesting accounting of the disinclination of congressional candidates to talk about cannabis

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.

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:

"Missouri Marijuana Legalization Initiative Will Appear On November Ballot After State Supreme Court Rejects Prohibitionists’ Challenge"

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 Supreme Court Says Marijuana Legalization Won’t Be On November Ballot, But Will Be Voted On In Future Election"

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.

Notable (and consequential?) news from Capitol Hill on federal marijuana reforms

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:

"House Approves More Marijuana Amendments To Defense Bill, Including Banking And Veterans Medical Access"

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.

"Senate Marijuana Legalization Bill ‘Could Come’ Next Week, But Congressional Sources Push Back On Report About Timeline"

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.

Might some kind of "omnibus" federal marijuana reform bill get through Congress this year?

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.

Might litigation be the means to ending blanket federal marijuana prohibition?

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. 

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.

"Long Overdue, Cannabis Needs to Have a Place in Professional Sports"

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.