Marijuana Law, Policy & Reform

Student presentation explores medical marijuana programs across US

I can hardly believe we have already reached the final week of student presentations in my Marijuana Law, Policy and Reform class. But, happily, this final week will bring a large number of presentations, and the first one slated for this final week is on medical marijuana programs around the nation. Here is how the topic is described by my student (along with background readings):

The medical marijuana space can be confusing and complex for patients, physicians, attorneys, and lawmakers due to the federal government’s prohibition on marijuana.  Every state has discretion in creating its own medical marijuana program, each one subject to the rules and regulations of state lawmakers.  Although thirty-eight states have legalized marijuana for medical use, it currently remains classified as a Schedule I substance under the Controlled Substance Act.  The discrepancy between the use of marijuana for medical purposes and its classification as a Schedule I substance, in conjunction with its federal illegality, affects the medical marijuana industry greatly.  Differing state-level medical marijuana programs create numerous barriers for patients including whether they qualify for a medical card, where they can access their treatment, and the cost and method in which they can use their medicine.  The federal illegality of cannabis also creates the issue of possible criminal prosecution for both patients and doctors in the United States.  Additionally, marijuana’s Schedule I status has created several obstacles for researchers and doctors to further their study on the efficacy and potential benefits of cannabis. 

Each of these problems only scrapes the surface of the difficulties patients and other players in the medical marijuana industry face due to the illegal status of cannabis and the disparities in medical marijuana programs.  Mitigating these differences and creating more uniform state medical marijuana laws will help create an affordable, accessible, and safer medical marijuana program for all patients, but as with every area in the marijuana space, the federal illegality and Schedule I status of marijuana remains a barrier to improving the cannabis industry.

Relevant background:

GreenHealthDocs, "Can I Use My Medical Marijuana in Another State?"

Jennie Ryan et al., "Medicinal Cannabis: Policy, Patients, and Providers"

Leafly, "Cannabis testing regulations: A state-by-state guide"

AMA Journal of Ethics, "Physicians, Medical Marijuana, and the Law"

Americans for Safe Access, "State Medical Cannabis Laws Graded by Patient Advocates in New Report"

Student presentation exploring legality of gun possession and marijuana use

Students in my Marijuana Law, Policy & Reform seminar often focus on cutting-edge issues in their class presentations on the research topics of their choice.  The second presentation slated for this week could not possibly be more cutting edge, as my student will be discussing gun possession and marijuana use.  Here is how she has described her topic along with background readings she has provided for classmates (and the rest of us):

                Although individual states have not necessarily legislated that possessing a gun is unlawful for state compliant marijuana users, cannabis’s federal illegality seems to produce this result.  The process for obtaining a gun – regardless of what state the individual resides in – requires the individual to fill out the Federal Bureau of Alcohol, Tobacco, and Firearms’ Form 4473. Form 4473 question 21g states:

"Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?  Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreation purposes in the state where you reside."

                Consequently, individuals that are fully in compliance with the marijuana laws in their home state are being stripped of their Second Amendment right, regardless of if the plant is being used for medicinal or adult use purposes.  Therefore, marijuana users who wish to possess a gun have three options: stop using marijuana entirely, stop using state compliant marijuana and instead obtain it from an illicit source, or lie.  Although ATF agents and prosecutors report that due to limited resources, they are not inclined to prioritize the nonviolent crime of lying on a form over more serious charges, lying on the form and obtaining a gun while being a marijuana user remains a federal felony offense. 

                In the wake of the 2022 Bruen holding, litigation on this matter seems to (so far) sway in favor of gun rights activists.  But there remain many unanswered questions in this area.  The implications of either a legitimization of state-legal marijuana use on the federal level (while the plant remains on Schedule I), or of an acknowledgement that the gun control/background check process can be changed, could be massive.

Links to Background Reading:

From the Washington Post, "Lying to ATF on gun-purchase form yields few prosecutions, data shows"

From the US Attorney's Office in the Western District of Oklahoma, "Federal Prosecutors Aggressively Pursuing Those Who Lie in Connection With Firearm Transactions"

From the Reason Foundation, "Medical Marijuana Patients Are Being Denied Gun Rights"

From US Congressman Alex Mooney, "There Are Two Sides Of The Fence, Use Marijuana And Give Up Gun Ownership Or Give Up Marijuana And Be A Gun Owner."

From CNN, "Gun form liars may go on to commit gun crimes, internal ATF research suggests"

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)

Student presentation exploring "Medical Marijuana and the Mental Health Crisis"

When students in my Marijuana Law, Policy & Reform seminar "take over" the second half of my class by giving presentations, they always cover a diverse array of cutting-edge topics.   So, this very first week of  presentations, a look at tax issues will be followed by a presentations focused on "Medical Marijuana and the Mental Health Crisis."   Here is how my student has described her topic along with background readings she has provided:

The mental health crisis in the United States is growing.  The stigmas surrounding mental health, as well as the barriers surrounding treatment, lead many individuals to self-soothe.  Drug use may be one method of choice. Medical marijuana could be an effective form of treatment, particularly for anxiety and panic disorders, but the lack of research and education about its efficacy and use make it an unrealistic option for many.

Though medical marijuana is growing in popularity as an alternative treatment method, it remains taboo throughout the world of practicing physicians.  Medical marijuana is not prescribed by a doctor – though it can be recommended (see Conant v. Walters, 309 F.3d 629 (9th Cir. 2002)) – and medical education does not present marijuana as a viable treatment option.  These limitations pose significant obstacles to both research and effective use, perpetuating a growing crisis with a limited number of answers.  This presentation will discuss the role of medical marijuana in treating mental illness, focusing on the systematic barriers that leave prescribers without authority and patients without aid.

Suggested Reading:

National Alliance on Mental Illness, "Mental Health By the Numbers"

Susan A. Stoner, Alcohol and Drug Abuse Institute, "Effects of Marijuana on Mental Health: Anxiety Disorders"

Anastasia Evanoff et. al, "Physicians-in-training are not prepared to prescribe medical marijuana," 180 Drug and Alcohol Dependence Volume 151 (Nov. 2017).

Some notable news and notes about medical marijuana programs

As students in my marijuana reform seminar know, I think medical marijuana programs do not get nearly as much attention and study as they should.  Consequently, I was pleased to see a lengthy new Politico piece on persistent medical marijuana challenges.  That got me to thinking it was a good time to do a round-up on the medical marijuana news front:

From Politico, "Dodgy science, poor access and high prices: The parallel medical world of medicinal marijuana in America"

From Marijuana Moment, "Florida’s Medical Marijuana Patient Count Grew 71 Percent In The Past Two Years"

From MJBizDaily, "Utah medical marijuana sales up nearly 60% to $118.7M in 2022"

From Missouri Independent, "Missouri appeals court orders state to issue medical marijuana growing license"

From WLKY in Kentucky, "Republican candidate for Kentucky governor announces support for medical marijuana"

From WLOX in Mississippi, "Five medical marijuana dispensaries given green light to open in Gulfport"

From WRAL in North Carolina, "Medical marijuana legalization bill passes NC Senate in bipartisan vote"

From WTEN in New York, "Medical marijuana being denied to some probationers"

From Dakota News Now in South Dakota, "House committee passes bill clarifying medical marijuana ailments"

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.

NORML’s accounting "Top Ten" marijuana policy events in 2022

The NORML folks have this effective and helpful new posting, titled "2022 Year In Review: Norml’s Top Ten Events In Marijuana Policy," which provides a useful review of 2022 reform highlights. I recommend the full post, for more of the details, but here are the headline "Top 10" items:

#10: Mississippi Becomes 37th State To Legalize Medical Cannabis Access

#9: Survey: Over 90% Of Pain Patients Report Reducing Their Opioid Intake Following Medical Cannabis

#8: Analysis: State-Legal Marijuana Industry Employs Over 428,000 Full-Time Workers

#7: Potus Signs Law Facilitating Clinical Cannabis Trials And Drug Development

#6: FBI Fails To Provide Comprehensive Marijuana Arrest Figures For The First Time

#5: Historic Percentages Of Americans Say Cannabis Should Be Legalized

#4: More Lawmakers Enact Workplace Protections For Cannabis Consumers

#3: Senate Fails To Move Safe Banking Act

#2: Tens Of Thousands Of Americans Receive Marijuana-Specific Pardons And Expungements

#1: Three More States Enact Adult-Use Legalization Laws

"Solving a Drug Epidemic with More Drugs: A Discussion on the Expansion of Medical Marijuana in Ohio and its Impact on the Opioid Crisis"

As I have recently mentioned, during a very busy semester, I have fallen a bit behind posting some recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center.  As I try to catch up in the days ahead, as I continue to relish the he chance to highlight great work by OSU law students and recent graduates.  The title of this post is the title of this new paper authored by Brianna Sweeney who is in the midst of her 3L year at The Ohio State University Moritz College of Law.  Here is its abstract of this paper: 

Ohio has suffered greatly at the hands of the opioid epidemic, but a new form of treatment could be on the rise for those who struggle with opioid use disorder (OUD).  As Ohio Senate Bill 261 has proposed “opioid use disorder” as a new qualifying condition for the recommendation of medical marijuana, the possibility emerges of medical marijuana’s positive impact on the opioid crisis.  This paper will explore the relationship between medical marijuana and the opioid epidemic, including the policy debate of medical marijuana’s advantages and disadvantages, particularly in comparison to prescribing opioids, and its ability to assist in opioid use disorder treatment.  Next, it will turn to the research on how medical marijuana laws have potentially affected opioid related death rates across the country.  Narrowing in on the pertinent issue, the research discussion will also cover how medical marijuana impacts OUD and OUD treatment.  Finally, the paper discusses the lack of conclusive research available, the need for further research, and a possible route for Ohio to take as this topic and the understanding of it evolves.  It is this paper’s hope that Ohio can provide another opportunity to prevent lives lost to opioids, contribute to the end of the epidemic, and promote future work and conversations on this topic.

Cannabis lawyering makes the cover of the ABA Journal

I was intrigued and pleased to see that the cover story of the latest issue (December/January 2022-2023) of the ABA Journal is all about cannabis lawyering.  This new piece is headlined "Lawyers are lighting up the budding cannabis industry: Justice Cannabis Co. is one of the biggest of the little guys in the rough-and-tumble, fast-paced and legally treacherous world of marijuana growing and selling."   

Becuase I do not see too many really good pieces broadly reviewing the state of cannabis lawyering, I was a little disappointed that the ABAJ article is almost entirely about the practice and experience of lawyers involved with Justice Cannabis.  Still, the ABAJ piece is an interesting read that covers a good bit of marijuana law along the way.  Here is an excerpt:

As of early February, 37 states, three territories and the District of Columbia permitted the medical use of cannabis products.  And as of November, 21 states, two territories and D.C. had approved cannabis for adult nonmedical use.

The cannabis industry generated $25 billion in revenues from legal sales in 2021 and employs more than 400,000 people nationwide.  It was expected to reach $32 billion in annual sales in 2022 and could exceed $50 billion by 2030.

It can be a lucrative and fascinating area of practice, according to attorneys such as William Bogot of Fox Rothschild, who left the Illinois Gaming Board to take on cannabis work.  It also can be frightening, says Lisa Dickinson of the Dickinson Law Firm in Spokane, Washington, who is chair of the ABA Tort Trial and Insurance Practice Section's Cannabis Law and Policy Committee. “It's still the wild, wild west,” she says.

The federal Controlled Substances Act prohibits the production, distribution, sale, use or possession of cannabis--which is classified alongside heroin and LSD as a Schedule I drug with a high likelihood of addiction and no safe dose.  The federal statute provides no exception for medical or other uses authorized or regulated by state law. The penalties for some offenses are severe.  The rapid bifurcation of state and federal law has woven deep contradictions into the legal system and American society, and it has created a thorny dilemma for cannabis businesses and the attorneys they need to help them.

For attorneys, there are two issues that have a chilling effect on their participation: The first is whether by representing a business that is breaking federal law they are violating the ethics of the profession, which could cost them their license to practice; the second is they could be charged with engaging in criminal activity, resulting in fines and prison.

"Medical Cannabis and Autism Spectrum Disorder – Ohio's Marijuana Policy and its Intersection with the Historical Controversial Cannabis Treatment"

In a very busy semester, I have fallen a bit behind posting some recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center.  I am hopeful about catching up in the days ahead, as I continue to relish the he chance to highlight great work by OSU law students and recent graduates.  And the title of this post is the title of this paper authored by Lindsey Mead who is in the midst of her 3L year at The Ohio State University Moritz College of Law.  Here is its abstract: 

In the state of Ohio, medical marijuana is offered as a treatment option for many different illnesses and disorders including Alzheimer’s disease, Tourette’s syndrome, and Crohn’s disease.  However, one condition missing from this list of syndromes that may legally use medical marijuana as a form of treatment is autism spectrum disorder. This paper aims to understand why autism spectrum disorder is not included in this list while also analyzing relevant present legislation such as House Bill 60 and Senate Bill 261.  To answer these questions, this paper examines the benefits of treating autism with medical marijuana as well as the reasoning for why this treatment has been perceived so negatively.

"Foreshadowing an Inevitable Clash: Criminal Probation, Drug Treatment Courts, and Medical Marijuana"

The title of this post is the title of this new paper authored by Michael Sousa available via SSRN. Here is its abstract:

The criminal justice system underwent two revolutionary developments over the past twenty years – the legalization of medical marijuana at the state level, which provides criminal immunity protections for qualifying patients, and the exponential rise of drug treatment courts as alternatives to incarceration.  Traditionally, offenders serving probationary sentences are generally prohibited from using drugs as one condition of probation. But courts are now increasingly confronted with challenges to probationary conditions prohibiting the use of medical marijuana in states where it has been legalized.  The trend among courts permits the medicinal use of marijuana during probationary sentences and invalidates conditions prohibiting such use for therapeutic purposes.  Drug treatment courts are a form of probation that offer intensive treatment services for offenders with substance abuse disorders. Most drug treatment courts across the country operate on an abstinence-based model.

While to date there have been no reported challenges to prohibiting the use of medical marijuana by participants in drug treatment court programs, the legal and practical issues are brimming just below the surface, and it is only a matter of time before a clash occurs between criminal immunity provisions under state medical marijuana laws and their consequential applicability in the drug treatment court landscape.  This article takes a forward-looking approach by foreshadowing this seemingly straightforward, but complicated question: how will criminal immunity provisions under state medical marijuana laws and the judicial protections afforded to offenders on regular probation be construed by appellate courts when inevitably challenged by drug treatment court participants?  This is the first scholarly article to address the knotty legal and practical issues underlying this inquiry.  The purpose of this contribution then is to provide future scholars, appellate courts, drug treatment courts, legal actors, and drug treatment court professionals with a robust foundation to draw upon in thinking about the adaptability of medical marijuana use in the drug treatment court domain.

DEPC releases "Ohio Medical Marijuana Control Program at Four Years: Evaluating Satisfaction and Perception"

I am happy to highligth the release of a terrific new report, titled ""Ohio Medical Marijuana Control Program at Four Years: Evaluating Satisfaction and Perception," authored by Jana Hrdinova of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law.  This DEPC webpage provides this overview:

This report, a fourth in the annual series from the Drug Enforcement and Policy Center (DEPC), traces the evolution of the Ohio Medical Marijuana Control Program (OMMCP) over the last four years in terms of its growth and OMMCP patients’ and prospective patients’ satisfaction levels with the functioning and design of the program. For the first time, our survey finds respondents reporting being more satisfied with OMMCP than dissatisfied, an important milestone in OMMCP’s development. Nevertheless, the survey respondents continue to report dissatisfaction with some elements of the program, with the price of marijuana product being the most pressing concern, followed by lack of legal protections for patients and the cost and difficulty of obtaining OMMCP patient card. The final section of this report includes recommendations for policy and regulatory changes that could have a positive impact on patients’ satisfaction with OMMCP.

Here are a few of many notable findings from the report:

• 56.1% of respondents reported some level of satisfaction with OMMCP, with 15.3 % reporting being “extremely satisfied” and 40.8% being “somewhat satisfied.” Only 35.5% of respondents expressed some degree of dissatisfaction with OMMCP, a significant change from last year when 55.1% of people reported being dissatisfied.
• If averaged over the 13 months, an Ohio patient paid $4.08 more per gram of plant product in an Ohio dispensary than a Michigan resident in a Michigan dispensary, and $3.57 less per gram than a marijuana medical patient in Pennsylvania.
• The OMMCP recorded a 44% increase in the number of patients with active recommendation and active registration growing over the past 12 months. But the number of physicians with a certificate to recommend has declined over the same time period to 641 from 651 a year earlier. The patient to doctor ratio in Ohio now represents the lowest among states with a similarly aged program.
• The top three policy changes that would most positively affect patients’ satisfaction with OMMCP would be the adoption of legal protections for patients, followed by state allowance for self-cultivation, and provision of home delivery under OMMCP.
• Since January 2019, the state of Ohio collected over $132 million in revenue, with the state tax and local tax accounting for approximately $64 million, medical marijuana businesses application and licensing fees accounting for another $46 million and patient and caregiver fees making up the remaining $22 million.
• 84% of respondents reported having trust in the safety of products sold in Ohio dispensaries. Only 7.2% reported not trusting the safety of dispensary products.

"The Right Prescription: High Cost Savings and Other Benefits from Medicare and Medicaid Coverage of Medical Marijuana"

As I continue to catch 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, I continue to have the chance to highlight great work by OSU law students and recent graduates.  The title of this post is the title of this paper authored by Nathan Ecker who recently graduated from The Ohio State University Moritz College of Law.  Here is its abstract:

As medical marijuana usage continues to grow, coverage options under federal and private health insurance schemes have wilted away.  Despite the expanding list of qualifying conditions for medical marijuana, patients seeking coverage under Medicare, Medicaid, or other governmental health insurance programs are consistently denied funding under these plans.  Instead, patients are forced to either rely on “traditional pharmaceuticals” or incur the out-of-pocket expenses for medical marijuana.  However, by expanding health insurance coverage to include medical marijuana, medical treatment options would expand, and the government would experience significant cost savings.  This Paper examines the benefits to expanding Medicare and Medicaid coverage to encompass medical marijuana and suggests possible solutions for implementation.

"Legal-ish: An Analysis of Cannabis Law in Ohio and Recommendations for the Future of State Drug Reform"

Continuing to catch 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 means continuing to highlight great work by OSU law students and recent graduates.  The title of this post is the title of this paper authored by John Berk who just this month graduated from The Ohio State University Moritz College of Law.  Here is its abstract:

While bans on marijuana have been eliminated in a majority of states over the past several years, Ohio continues to be stuck in the past with a limited medical program that imposes strict limitations on cultivators, dispensaries and patients.  Full legalization in Michigan and Illinois have been hugely successful, but Ohio’s timid approach has had mixed results due to overregulation and outdated ideas about cannabis users.  It is time for Ohio to move boldly on drug reform in the cannabis space with full legalization, eliminating excessive regulation, creating aggressive criminal justice reform and possibly legalizing other substances before it is left behind by its neighbors.

"Why Now? Medicine, Media, and Mysticism in Past and Present American Thought on Psychedelic Drugs"

With the Spring semester coming to a close, this space will no longer be needed to highlight all the research topics and presentation plans of students in my Marijuana Law, Policy & Reform seminar.  And so, I can now return to, and catch 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 Aaron Roberts, a third-year student at The Ohio State University Moritz College of Law.

The public perception of psychedelic substances has become considerably more favorable in recent years.  This shift can be seen in decriminalization measures passed in several U.S. cities as well as Oregon’s commitment to establish a state-licensed psilocybin-assisted psychotherapy program.  These dramatic developments beg the question: Why now? Three particular aspects of psychedelic drugs have shaped the public response to them in the modern era: the established medical potential of psychedelics, the shift in media treatment of these substances, and their “entheogenic,” or spirituality-inducing, properties.  This paper examines these three factors historically.  Additionally, this paper relates ayahuasca specifically to each of the three areas. Ayahuasca is a useful case study due to its intense psychoactive effects, its onetime popularization, and its longer history of ritualistic, shamanic use. 

Florida official sues feds, stressing Second Amendment and Rohrabacher-Farr Amendment, on gun purchasing limits for medical marijuana patients

This interesting NBC News piece reports on an interesting new federal lawsuit under the headline "Top Florida Democrat sues Biden administration over marijuana and guns: Agriculture Commissioner Nikki Fried's lawsuit targets a federal requirement that prohibits medical marijuana users from purchasing firearms." Here are excerpts:

Florida’s lone statewide elected Democrat, Agriculture Commissioner Nikki Fried, plans to sue the Biden administration Wednesday to try to block a federal rule that prohibits medical marijuana users from buying guns or maintaining concealed-carry permits. NBC News obtained a draft copy of the lawsuit.

The lawsuit targets a federal form that asks whether the gun buyer is an unlawful user of drugs and specifies that marijuana is illegal under federal law. A person allowed by the state to use marijuana must then check “yes,” which results in denial of the purchase. Lying by checking “no” runs the risk of a five-year prison sentence for making a false statement.

Fried, whose office oversees concealed weapons permits and regulates some aspects of medical marijuana, argues in her lawsuit that the form violates the Second Amendment rights of lawful medical marijuana patients and runs afoul of a congressional budget prohibition on federal agents’ interfering with state-sanctioned cannabis laws.

The suit has ramifications beyond Florida: At least 37 states have legalized medical marijuana, and recreational use is legal in 18 states, as well as Guam and Washington, D.C. The lawsuit is timed to land on April 20 — a nod to the slang reference of "420" for marijuana.

The suit is laden with political opportunity for Fried, who became the only Democrat elected statewide in 2018 when she ran on an unabashedly pro-cannabis platform. Two years before, 71 percent of Florida voters legalized medical marijuana, and polls show a majority favor legalization of recreational use. Florida also has 2.5 million concealed weapons permit holders, according to Fried’s office.

“Medical marijuana is legal. Guns are legal. This is all about people’s rights,” Fried said in a statement to NBC News. “And I don’t care who I have to sue to fight for their freedom.”

In her official capacity as agriculture commissioner, Fried is bringing the suit with three citizens who have been affected by the federal rules. It names the acting head of the Bureau of Alcohol, Tobacco, Firearms and Explosives and Attorney General Merrick Garland as defendants. While it’s rare for a Democrat to sue a Democratic administration during an election year, Fried said the issue can no longer wait because of the volume of complaints her office has received.

A spokesperson for ATF said the agency “can’t speculate on possible litigation or discuss any pending litigation” but implicitly blamed federal lawmakers for not changing the Controlled Substances Act and the Gun Control Act, which respectively regulate marijuana and firearms....

Fried’s former pollster, Keith Frederick, said any risks for her by bucking the Biden administration are offset because she’s raising her profile by embracing a popular issue. “You can have the best affordable housing plan possible, but once you get to point No. 2, people’s eyes glaze over, and they stop paying attention,” Frederick said. “People care about this.”

Support for medical marijuana and cannabis legalization cuts across party lines, as does opposition to the conflicting regulations in state and federal law. Gun rights are also generally popular in Florida.

Fried’s lawsuit notes that even conservative Supreme Court Justice Clarence Thomas groused in an unrelated case about the “half-in, half-out regime that simultaneously tolerates and forbids use of marijuana.” “This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary,” Thomas said.

Other plaintiffs have tried and failed to sue the federal government over gun purchases. Fried’s lawsuit singles out the most recent lawsuit for presenting “a thin and stale factual record” that improperly ignored a federal study concluding that “marijuana use does not induce violent crime.” In addition, unlike the other unsuccessful federal case, Fried’s lawsuit argues that the form violates the so-called Rohrabacher-Farr Amendment, which prohibits ATF from enforcing anti-cannabis policies in states that have opted for legalization.

The full lawsuit is available at this link.  The complaint runs 33 pages, followed by more than 200 pages of notable attachment.  

Student presentation on marijuana reform and the Fourth Amendment

I mentioned previously that a big group of Marijuana Law, Policy & Reform seminar students are scheduled to present this week on the research topics of their choice. The fifth exciting (and excitingly different) topic for this coming week's presentations is to be focused on the Fourth Amendment. Here is how the student describes the topic and some background readings:

The Fourth Amendment protects the right to be free from unreasonable searches and seizures.  Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, but this protection has been watered down over the past 100 years.  The War on Drugs led to significant changes in Fourth Amendment law as police began using more intrusive tactics to enforce drug laws, in particular with a focus on marijuana law enforcement from the 1990s to the present.  Police use tactics such as the Terry stop and frisk, warrantless vehicle searches, and drug sniffing dogs are commonly used to detect even small amounts of marijuana, and as of 2018, 89.6% of marijuana arrests were for possession only.

Giving police officers significantly lead way to decide when a search is appropriate has arguably led to racial profiling and consequently, contributed to the racial disparities we see in marijuana law enforcement today.  From 2001 all the way through 2018, a Black person was almost four times as likely to be arrest for marijuana possession as a white person, despite studies showing these groups use marijuana at substantially equal rates.  Further, a Black person is also more likely to be stopped by police for alleged traffic violations and more likely to be searched during a stop.

With the passage of marijuana legalization (decriminalization, medicinal legalization and recreational legalization) we have began to see some of these police practices, restoring some of the Fourth Amendment rights lost due to the war on drugs.  In particular, my project will focus on whether the scent of marijuana is still sufficient to prove probable cause for a search under these various regimes, and whether a drug sniffing dog that is trained to detect marijuana can likewise provide probable cause for a vehicle search.  The hope is that by eliminating these intrusive tactics (saying they do not provide probable cause), we will regain the Fourth Amendment rights lost due to the war on drugs, particularly for those who have been the most affected, people of color, and that racial disparities in marijuana law enforcement will begin to decline.

Background:

Please watch this video explaining police procedures (and misconduct) in the traffic stop of Tae-Ahn Lea. Audit the Audit, Officers Sued for Searching Vehicle During Traffic Stop, YouTube, (Sept. 30, 2019) .

Oklahoma Municipal Assurance Group (OMAG) piece analyzes the application of the Fourth Amendment in legal states. Matt Love, How Other States Apply the Fourth Amendment to Medical Marijuana (Oct. 15, 2019)

ACLU Report: A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform (2020) 

Student presentation exploring "Expansion of Medical Marijuana in Ohio and its Impact on the Opioid Crisis"

After a Spring Break break, students in my Marijuana Law, Policy & Reform seminar are back to taking over my class through presentations on the research topics of their choice.  As I have mentioned, before their presentations, students are expected to provide in this space some background on their topic and links to some readings or relevant.  The first of this coming week's presentation is title "Solving A Drug Epidemic with More Drugs: A Discussion on the Expansion of Medical Marijuana in Ohio and its Impact on the Opioid Crisis."  Here is how the student describes the topic and provided readings:

Summary:

Ohio’s current Medical Marijuana Control Program has identified 25 qualifying conditions for the recommendation of medical marijuana.  Ohio Senate Bill 261 proposes to expand that list of qualifying conditions to include “opioid use disorder.”

Ohio declared a public health emergency in 2010 due to the rising opioid overdose deaths and currently ranks as one of the top states with a high opioid death rate.  At the root of the opioid epidemic is the proliferation of over-prescription methods to treat chronic pain with opioid pain killers.  The question emerges — if medical marijuana may be recommended to treat chronic pain and opioid use disorder, could medical marijuana provide a solution to the opioid crisis?

Other states have gone before Ohio to add “opioid use disorder” as a qualifying condition for medical marijuana. There may be hope medical marijuana can serve as a form of treatment for those struggling with opioid addiction and an alternative for managing the disease and pain.  From a policy perspective, the idea seems hopeful, but further research is needed to ensure any potential relationship between medical marijuana and the opioid crisis.

The goal is to work through some of the research available on this relationship and develop a comprehensive discussion on the potential benefits and risks of using medical marijuana in the realm of opioids.

Background Reading:

News Article: "Legal marijuana either eases opioid crisis or makes it worse. The evidence is split."

Law Review Article: "From Opioids to Marijuana: Out of the Tunnel and into the Fog"

Study: "Medical cannabis laws and opioid analgesic overdose mortality in the United States, 1999-2010"

Study: "Association between medical cannabis laws and opioid overdose mortality has reversed over time"

Study: "Association between fatal opioid overdose and state medical cannabis laws in US national survey data, 2000-2011" 

Register now for "Ohio Cannabis Reform in Focus"

The quoted portion of the title of this post is the title of this exciting event taking place next month, on April 7, 2022 from noon-2:30 pm as a  hybrid even in person in Saxbe Auditorium in Drinko Hall at The Ohio State University Moritz College of Law and also on Zoom.  Folks can and should Learn More and Register at this link.  Here are the basics about the event:

The year 2022 might see significant cannabis reforms in the state of Ohio, both to the existing medical marijuana regime as well as the proposed legalization of adult-use marijuana. Please join the Drug Enforcement and Policy Center for two expert panels that will put focus on these two possible routes to reform and the implications they may have for patients and Ohioans alike.

Medical Marijuana Reform panel
noon-1:10 p.m. EDT

After three years of operation, the Ohio Medical Marijuana Control Program continues to grow and yet continues to be plagued by high levels of patient dissatisfaction due to access limits and high costs. The recent approval of dozens of new dispensary licenses comes as major reform bills have been introduced in the Ohio General Assembly with the aim of improving the Ohio MMCP's functionality for both patients and the cannabis industry. Please join our panel of experts as we discuss on-going and proposed reforms, why they are needed and how they could impact the various stakeholders.

Panelists:
Ohio Senator Steven Huffman
Andrew Makoski, Administrative Attorney, Ohio Department of Commerce
Additional panelist TBA

Adult-Use Marijuana Reform panel
1:20-2:30 p.m. EDT

The fall of 2021 was eventful when it comes to Ohio marijuana reform proposals. Two major bills were introduced in the Ohio General Assembly, and a voter-initiated statute campaign collected enough signatures to be sent to the General Assembly for considerations. Yet, despite polling suggesting public support for these kinds of reforms, the Ohio political leadership appears unlikely to advance adult-use legalization in 2022. Please join us for a panel of experts and policy advocates as they discuss the future of marijuana legalization in Ohio as a matter of politics and policy, including the arguments for and against reform and the possible consequences of action or inaction on the part of Ohio General Assembly.

Panelists:
Ohio Representative Ron Ferguson
Thomas Haren, Partner, Frantz Ward
Jodi Salvo, Director of Substance Use Prevention Services, OhioGuidestone

Reviewing the need for, and barriers to, additional medical marijuana research

Students in my Marijuana Law, Policy & Reform seminar are continuing to "take over" my class through presentations on the research topics of their choice, and are continuing to provide in this space some background on their topic and links to some readings or relevant materials. The second of our presentations taking place this week will focus on medical marijuana research, and here is how my student has described his topic along with background readings:

Medical Marijuana and the federal government have a long, complicated history.  By complicated, I mean not complicated at all.  Marijuana has been illegal at the federal level ever since the Controlled Substances Act was signed into law.  Medical marijuana research in the U.S. has so far been limited, although two FDA approved, marijuana-derived drugs have been on the market since the 1980’s.  The overwhelming consensus is that the research space is not nearly as large as it could be, given the large user base, and that potential therapeutic effects of marijuana are largely unknown.

Even though its medicinal use goes back millennia.  Even today, many users self-report more managed symptoms from a variety of diseases and ailments; nausea and vomiting, chronic pain, and spasticity.  Researchers in the United States would like to further study some of these self-reported medicinal benefits of marijuana, but they claim that the federal government makes marijuana research too hard to be worth the effort.

This paper and my accompanying presentation begin by discussing the brightest research areas for medical marijuana consumption, and why those are not enough.  Then I will explore why marijuana has not received as much attention as the scientific community would like to give it.  Finally, I will discuss potential legislative fixes.

Sources and Background Reading

N.I.D.A., What is the scope of cannabis (marijuana) use in the United States? (2022).

Nat’l Academies of Sciences, Eng’g, and Med., Health and Med. Div., The Health Effects of Cannabis and Cannabinoids: The Current State of Evidence and Recommendations for Research (2017)

U. of Mississippi, Marijuana Research (2022)

21 U.S.C. § 811

Michael H. Andreae et al., An Ethical Exploration of Barriers to Research on Controlled Drugs, 16 Am. J. Bioeth. 36 (2016).

Caleb Hellerman, Scientists Say the Government’s Only Pot Farm Has Moldy Samples – and no Federal Testing Standards (2017)