Marijuana Law, Policy & Reform

Another Veterans Day with veterans still not getting support when it comes to medical marijuana access

Because the US Department of Veterans Affairs prohibits its doctors to recommend medical marijuana to patients, current federal law essentially puts veterans last, not first, when it comes to access to medical marijuana.  I have regularly blogged about a range of issues relating to veterans and their access to marijuana (many posts on this topic are linked below), and this week brings more discussion of these depressingly evergreen issues:

From Politico, "VA rejects cannabis research as veterans plead for medical pot."  An excerpt:

The recent withdrawal from Afghanistan has exacerbated the demand for more understanding of using cannabis for treatment. Calls to the Veterans Crisis Line, which is operated by the VA, increased by six percent in the weeks immediately following the U.S. withdrawal from Afghanistan, and veterans of America’s longest war use cannabis at the highest rates among veterans to self-medicate their ailments.

Advocates, Hill aides and former VA staff told POLITICO the VA defers on this issue to the Justice Department, which classifies cannabis as a Schedule I drug under the Controlled Substances Act. A Schedule I drug by definition has no medicinal value, which in turn prevents the VA from treating patients with cannabis.

For veterans receiving VA health care, cannabis still occupies a gray area.  Official guidance states that veterans can talk to their VA doctor about their cannabis use without repercussions, but many vets say they fear mentioning it because it is still federally illegal.  VA doctors, meanwhile, still cannot prescribe cannabis or issue medical marijuana cards in any of the 36 states that have legalized medical marijuana.  

An average of 18 veterans a day committed suicide in 2018, according to data from the VA....  According to the VA, a number of studies have indicated that both PTSD and battlefield trauma contribute to a higher rate of suicidal ideation — and exposure to suicide, such as a friend or family member, can in turn contribute to PTSD. Many veterans and their advocates point to anecdotal evidence that cannabis successfully reduces the effects of PTSD — as well as insomnia, which can worsen PTSD symptoms — but there is yet no clinical evidence.

From Marijuana Moment, "This Veterans Day, Think About Cannabis And Veterans Healthcare (Op-Ed)." An excerpt:

Medical cannabis use would likely be even more prevalent among veterans if not for the oppositional stance that the Department of Veterans Affairs (VA) has taken. According to national survey data compiled by the Iraq and Afghanistan Veterans of America, 75 percent of respondents “would be interested in using cannabis or cannabinoid products as a treatment option if it were available.” Further, many veterans feel that they have been deterred from seeking medical cannabis due to the VA’s policy of “clinical relevance to patient care,” but “providers are prohibited from completing forms or registering veterans for participation in state-approved [medical cannabis] program[s].”

For those veterans that do acknowledge using medical cannabis, they most often report using it to mitigate their post traumatic stress, anxiety and chronic pain. Some veterans also report using it as a substitute for alcohol or other illicit drugs. Many chronic pain patients who begin using medical cannabis greatly decrease or even eliminate their use of opioids and other prescription drugs.

I feel a genuine and deep debt to anyone and everyone who serves this nation through the armed forces, and I feel strongly that veterans should be able to have safe and legal access to any and every form of medicine that they and their doctors reasonably believe could help them with any ailments or conditions.  Even though there are many issues that divide this nation, I would hope we could all come together to support treating veterans at least as well as other Americans when it comes to access to the medicine of their choice.

Some of many prior related posts:

• New American Legion survey documents strong support among veteran households for medical marijuana
• "As Trump wages war on legal marijuana, military veterans side with pot"
• "More and More US Veterans are Smoking Weed to Treat Their PTSD"
• Examining pot's potential for treatment of veterans' PTSD problems
• Will Prez-Elect Donald Trump make it legal and easier for veterans to have access to medical marijuana?
• American Legion urges federal government to reschedule marijuana
• Veterans group gets attention when urging Trump team to seek to reschedule marijuana
• American Legion, the largest US vets' organization, pressing Trump Administration on medical marijuana reform
• "Study: Can marijuana improve PTSD symptoms for veterans?"
• "Make Pot Legal for Veterans With Traumatic Brain Injury"
• Interesting look at veterans getting involved in the marijuana industry
• Head of Veterans Affairs acknowledges marijuana may be "helpful" to veterans
• "Cannabis use among military veterans: A great deal to gain or lose?"
• Disconcerting disconnect between Trumpian rhetoric and health care realities for veterans when medical marijuana involved
• "Land of the Free, Home of the (Disgruntled) Brave: The Case for Allowing Veterans Access to Medical Marijuana"

"The Impact of Medical Marijuana Legalization on Opioid Prescriptions"

The title of this post is the title of this notable new paper recently posted to SSRN authored by Hayoung Cheon, Tong Guo, Puneet Manchanda and S. Sriram.  Here is its abstract:

Since the late 1990s, opioids have been increasingly prescribed for pain treatment in the U.S as a result of aggressive marketing by pharmaceutical companies.  This has resulted in more than 450,000 opioid overdose deaths since then.  In the same time period, several U.S. states have legalized medical marijuana, a drug that can also be used for pain relief.  As a result, medical marijuana can be used as a substitute for opioids, leading to a reduction in opioid prescriptions.  On the other hand, marijuana use can lead to increased substance abuse, leading to a potential increase in opioid prescriptions.  The lack of scientific and medical knowledge along with the uncertain regulatory environment vis-a-vis medical marijuana use also makes it possible that its legalization has no impact on opioid prescriptions. 

With claims data from a large health insurance company in the U.S. between 2006 and 2016, we study the effect of medical marijuana legalization on opioid prescriptions, leveraging the temporal variation in state-wise legalization.  We find that, on average, opioid prescriptions decreased after medical marijuana legalization for all three outcome metrics that we consider (number of prescriptions, total days of supply, and total dosage in MME).  We also find that the role of physicians in reducing opioid prescriptions after legalization is more prominent than their corresponding role in increasing opioid prescriptions. 

Full policy brief version of "Blowing Smoke at the Second Amendment"

Regular readers are familiar with my regular posts highlighting papers from the on-going series of student papers supported by the Drug Enforcement and Policy Center.  I am excited to now be able to highlight a partnership with the Reason Foundation to turn some of these DEPC student papers into extended policy briefs.   Ohio State College of Law‬⁩ alum Helen Sudhoff has this first full policy brief completed under the title "Blowing Smoke at the Second Amendment," which highlights constitutional problems with federal law prohibiting medical marijuana users from possessing firearms.  Here is the brief's introduction:

The federal government prohibits users of Schedule I drugs from purchasing or possessing a firearm.  Despite that most states have enacted legal medical marijuana programs, marijuana is still federally illegal and designated as a Schedule I substance with no medical value.  Individuals who use medical marijuana in accordance with their state’s licensed programs are nevertheless prohibited from purchasing or possessing a firearm under federal law.  As such, the onus is placed on medical marijuana patients to either disclose their marijuana use, which disqualifies themselves from purchasing a firearm and requires they relinquish possession of all firearms, or misrepresent their status as a marijuana user, risking fines or imprisonment.  The following discussion will address the problems inherent in the federal government’s current regulatory framework for the right to keep and bear arms in the context of medical marijuana use, circumstances that implicate the privilege against self-incrimination, and how to revise the regulatory framework in accordance with the guarantees of the Constitution.

"Ohio Medical Marijuana Control Program at Three Years: Evaluating Satisfaction and Perception"

The title of this post is the title of this terrific new report 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:

Summary

H.B 523, enacted by the Ohio General Assembly, became effective in September 2016 and made Ohio the 25th state to adopt a comprehensive medical marijuana program.  A new report from the Drug Enforcement and Policy Center (DEPC) traces the development of the Ohio Medical Marijuana Control Program (OMMCP) since the start of legal sales in January 2019 and documents continued dissatisfaction among patients and prospective patients.

By gathering key program data and reporting on a new patient survey, this research fills gaps in our understanding of the OMMCP five years after becoming law.  With multiple new marijuana reforms under discussion in Ohio, the perceived effectiveness and success of the current system among patients and potential patients may shape the long-term prospects and future of the program.

Selected Findings

• 55% of respondents reported some level of dissatisfaction with OMMCP, with 25.4% reporting being “extremely dissatisfied” and nearly 30% being “somewhat dissatisfied.”  However, when compared to previous years the overall dissatisfaction levels are declining (67% in 2019 reported being dissatisfied, compared to 62% in 2020 and 55% this year).  Additionally, the intensity of dissatisfaction has lessened.

• 72% of survey respondents with a qualifying medical condition reported that Ohio dispensaries were their primary source of medical marijuana.  For people who indicated that they purchased marijuana from other sources, the primary reason for doing so was the cost of product in Ohio dispensaries and the cost and difficulty associated with becoming a registered patient.

• High price of marijuana in Ohio dispensaries was the top reason cited by participants for their continued dissatisfaction, for not using licensed dispensaries, and for opting out of using medical marijuana.  Price of marijuana in Ohio continues to be considerably higher than in Michigan and significantly lower than in Pennsylvania.  The second and third top-cited reasons were lack of home grow and lack of employment protections, respectively.

• 81% of respondents reported having trust in the safety of products sold in Ohio dispensaries. Only 8% reported not trusting the safety of dispensary products.

• COVID-19 inspired changes, including telemedicine, online ordering and curbside pick-up have had a positive impact on patients’ satisfaction levels.

• Despite growth in sales and in the number of patients and caregivers, the number of physicians with a Certificate to Recommend has actually decreased over the last 12 months.  Ohio is now second to last in the number of physicians per 100,000 residents able to recommend medical marijuana.

Is the marijuana industry where everyone is going back to work?

The question in the title of this post is prompted by this notable lengthy new Washington Post article, fully headlined "Greener pastures: Marijuana jobs are becoming a refuge for retail and restaurant workers: An estimated 321,000 Americans now work in the legal cannabis industry, outnumbering the country’s dentists, paramedics and electrical engineers." Here are excerpts:

After a year on the front lines, Jason Zvokel traded in his 15-year career as a Walgreens pharmacist for a different kind of drugstore: a marijuana dispensary.

Now instead of administering vaccines and filling prescriptions, he’s helping customers make sense of concentrates, tablets and lozenges. His pay is 5 percent lower, he says, but the hours are more manageable. “I am so much happier,” said Zvokel, 46, who’s worked in retail since he was 18. “For the first time in years, I’m not miserable when I come home from work.”

The cannabis industry is riding a pandemic high: Marijuana dispensaries and cultivation facilities — deemed “essential” by many states at the beginning of the coronavirus crisis — became an early refuge for retail and restaurant workers who had been furloughed or laid off. The industry has continued to grow, adding nearly 80,000 jobs in 2020, more than double what it did the year before, according to data from the Leafly Jobs Report, produced in partnership with Whitney Economics.

An estimated 321,000 Americans now work in the industry, a 32 percent increase from last year, the report found, making legal marijuana one of the nation’s fastest-growing sectors. In other words: The United States now has more legal cannabis workers than dentists, paramedics or electrical engineers....

That surge in cannabis hiring has put pressure on traditional employers — particularly in the 18 states and the District where recreational marijuana use is legal — to ease drug testing requirements. Amazon, the nation’s second-largest private employer, said in June that it would stop screening employees for cannabis use and would support federal legislation to legalize marijuana. A number of other employers, including retailers, restaurants and city governments have also dropped such requirements in an effort to attract workers in a labor market where job openings outpace the number of unemployed Americans 10.9 million to 8.4 million.

Workers’ rights groups are pressing for broader unionization in the cannabis industry, calling it a critical time to establish well-paying jobs with proper protections. With the right policies, they say, the industry could become a pipeline to middle-class jobs, much like the manufacturing industry used to be....

Brianna Price recently left a job as a grocery stocker to become a “budtender” — an industry term for a sales associate — at a dispensary. She’s been promoted three times in the year she’s worked there, and now oversees all purchasing and a staff of nine.

“It’s the best job I’ve ever had,” said Price, 31, of Midland, Mich., who worked as a paralegal for eight years before she was laid off early in the pandemic. She took a part-time job at the supermarket chain Aldi, but says it paid so little that she had to move back in with her parents. There were other downsides, too: Her shifts often started at 5 a.m. and sometimes consisted of standing outside, wiping down shopping carts for hours on end....

At the Hempire Collective in Loomis, Mich., where she works, sales have more than doubled in the last year, to roughly $500,000 a month, according to co-owner Mario Porter. He’s expanded his dispensary staff from seven to 12, and expects to hire more this year. Many of his new employees, he said, come from retail jobs that they left during the pandemic.

"Cannabis as Treatment for Chronic Pelvic Pain in Women: An Opportunity for the Cannabis Wellness Industry"

The title of this post is the title of this new paper recently posted to SSRN and authored by Jamie Feyko, a rising 3L at The Ohio State University Moritz College of Law.  (This paper is yet another in the on-going series of student papers supported by the Drug Enforcement and Policy Center.)   Here is this latest paper's abstract:  

In a healthcare landscape that routinely ignores women’s pain, many women turn to cannabis to manage their otherwise debilitating chronic pelvic pain caused by conditions such as endometriosis and polycystic ovary syndrome.  This paper explores how the Controlled Substances Act wrongly characterized cannabis as having “no medicinal value” and the effects this federal illegality still has on women seeking alternative pain management therapies for chronic pelvic pain.  Additionally, this paper explains why and how cannabis helps relieve such pain through discussing the effects of cannabinoids like THC and CBD on the body’s inflammatory response and the body’s endocannabinoid system.  Women, as the leading consumers in our society, have expressed a need and a desire for products that provide relief from chronic pelvic pain and increase sexual pleasure.  The 2018 Farm Bill opened the doors to CBD businesses looking to break into the women’s sexual and reproductive wellness market.  The market for women-centric CBD pain relief and sexual enjoyment is far from saturated, and this paper encourages those in the CBD industry (or those looking to enter the industry) to take note.

Highlighting all the great content in BULR's issue on "Marijuana Law 2020: Lessons From the Past, Ideas for the Future"

I just noticed that all the terrific written products of a terrific symposium at Boston University School of Law have now been posted online here.  Specifically, the May 2021 issue of the Boston University Law Review has these contributions from the event titled "Marijuana Law 2020: Lessons From the Past, Ideas for the Future"

Interstate Commerce in Cannabis by Robert A. Mikos

Health Equity, Federalism, and Cannabis Policy by Nicole Huberfeld

Marijuana Taxation: Theory and Practice by Benjamin M. Leff

Racial Myths of the Cannabis War by George Fisher

Hotboxing the Polar Bear: The Energy and Climate Impacts of Indoor Marijuana Cultivation by Gina S. Warren

Cannabis Legalization and Social Equity: Some Opportunities, Puzzles, and Trade-Offs by Beau Kilmer et al.

Cannabis Banking: What Marijuana Can Learn from Hemp by Julie Andersen Hill

Hitting the Trip Wire: When Does a Company Become a “Marijuana Business”? by Lauren A. Newell

Equity in Cannabis Agriculture by Ryan B. Stoa

Medical Cannabis and the Age of Majority by Katharine Silbaugh

Marijuana Legalization and the Role of the Massachusetts Legislature by Sean J. Kealy

Erasing Evidence of Historic Injustice: The Cannabis Criminal Records Expungement Paradox by Julie E. Steiner

"Higher Me: Marijuana Regulation in the Workforce and the Need for State Legislated Employee Protections"

The title of this post is the title of this new paper recently posted to SSRN and authored by Lily Boehmer, a recent graduate of The Ohio State University Moritz College of Law.  (This paper is yet another in the on-going series of student papers supported by the Drug Enforcement and Policy Center.)   Here is this latest paper's abstract:  

Although illegal under federal law, states have increasingly pushed the cannabis legality boundary by legalizing the use of recreational and medicinal marijuana at the state level. In the space between diverging federal and state law, such actions have created a dire situation for employees; employees in states that have legalized the use of marijuana can be fired for arguably legal conduct. Legalization of hemp and cannabidiol (CBD) products increase the risk of termination and litigation for employees and employers. State legalization is not what it purports it to mean.

This paper examines the current legal framework of cannabis regulation, discusses the historical, legal precedent of an employer’s right to terminate an employee in contrast to recent case law providing protection and hope to employees, and analyzes why some employers have stopped marijuana drug testing in response to faulty testing and diminished applicant pools.  Ultimately, this paper argues that, absent federal legalization of marijuana, states must protect employees’ off-duty marijuana use through express state legislation.  Legalization cannot be fully actualized until employees can use marijuana without employment repercussions.

"The Public Health Effects of Legalizing Marijuana"

The title of this post is the title of this new paper authored by D. Mark Anderson and Daniel I. Rees available via SSRN. Here is its abstract:

Thirty-six states have legalized medical marijuana and 14 states have legalized the use of marijuana for recreational purposes.  In this paper, we review the literature on the public health consequences of legalizing marijuana, focusing on studies that have appeared in economics journals as well as leading public policy, public health, and medical journals.  Among the outcomes considered are: youth marijuana use, alcohol consumption, the abuse of prescription opioids, traffic fatalities, and crime.  For some of these outcomes, there is a near consensus in the literature regarding the effects of medical marijuana laws (MMLs).  As an example, leveraging geographic and temporal variation in MMLs, researchers have produced little credible evidence to suggest that legalization promotes marijuana use among teenagers.  Likewise, there is convincing evidence that young adults consume less alcohol when medical marijuana is legalized.  For other public health outcomes such as mortality involving prescription opioids, the effect of legalizing medical marijuana has proven more difficult to gauge and, as a consequence, we are less comfortable drawing firm conclusions.  Finally, it is not yet clear how legalizing marijuana for recreational purposes will affect these and other important public health outcomes.  We will be able to draw stronger conclusions when more post-treatment data are collected in states that have recently legalized recreational marijuana.

Notable working group releases new "Principles for Federal Cannabis Regulations & Reform"

As detailed in this new Drug Policy Alliance press release, today "the Federal Cannabis Regulations Working Group released its Principles for Federal Cannabis Regulations & Reform," outlining what a federal regulatory framework — grounded in justice and social equity—should look like." Here is more from the DPA release:

The working group was convened by the Drug Policy Alliance at the beginning of this year.

Throughout a series of meetings and in-depth conversations, the group — made up of cannabis state regulators, public health professionals, criminal justice reform advocates, civil rights attorneys, people working with directly impacted communities in the cannabis industry, re-entry advocates, academics and an expert involved in Canada’s cannabis regulation — has identified key principles that should guide the development of federal cannabis regulation policies.  The principles document encourages and provides guidance on issues related to racial justice, equity, preventing underage use, elimination of lifelong consequences, medical use, taxation, research and more.  This release precedes the group’s continued effort to develop and roll out a more comprehensive set of recommendations for Congress on crucial issues such as — but not limited to — which federal agency should regulate cannabis (and to what extent), what kind of product should cannabis be regulated as, expungement, workforce development, medical use, non-commercial activity, and enforcement.

It will be very interesting to see if how forthcoming federal marijuana reform bills meet up with this two-page statement of principles.

"Hitting the Trip-Wire: When Does a Company Become a 'Marijuana Business'?"

The title of this post is the title of this new article authored by Lauren Newell recently posted to SSRN.  Here is its a abstract:

Like the alcohol industry during Prohibition, the marijuana industry is a profitable one.  And, like bootlegging was then, selling marijuana in the United States now is illegal.  Despite the number of states that have legalized or decriminalized the sale of marijuana for medical or recreational use under state law, marijuana sales remain illegal as a matter of federal law under the federal Controlled Substances Act of 1970 (CSA).  Individuals and entities that violate the CSA face substantial potential criminal and civil liability, including prison time and fines, alongside a host of additional negative consequences arising in business law, tax, bankruptcy, banking, and other sources.  The negative consequences marijuana businesses face have been discussed in detail elsewhere.  This Article asks a different question: not, what are the negative consequences, but rather, when do those negative consequence attach?  In other words, when does a company become a “Marijuana Business”?

For purposes of this discussion, a Marijuana Business is an entity that participates, contributes, or assists, directly or indirectly, in the retail and/or medical marijuana industry to an extent that exposes it, its owners, and its agents to potential criminal and civil liability and other negative business consequences.  In short, these are the companies that should be worried about the fact that they are engaging in an industry that is illegal under federal law.  To identify the circumstances that result in a company’s being a Marijuana Business, this Article analyzes seven hypothetical companies that directly participate in the marijuana industry or support others that do.  For each, it asks whether the facts are sufficient to establish criminal liability either directly under the CSA or indirectly under criminal conspiracy or aiding and abetting liability theories.  Part I briefly introduces criminal liability under the CSA, along with the two complicity theories.  Part II analyzes the hypothetical companies’ actions and determines whether they are Marijuana Businesses.  Part III concludes with factors that courts and companies can look toward to determine whether those companies are indeed Marijuana Businesses.

After strong bipartisan approval in US House again, will US Senate finally take up SAFE Banking Act?

A big week for discussion of marijuana reform got off to a big start thanks to a vote in the US House of Representatives.  This effective Marijuana Moment piece, headlined "U.S. House Approves Marijuana Banking Bill For Fourth Time, Setting Up Senate Consideration," provides these details:

The U.S. House of Representatives on Monday approved a bill to protect banks that service state-legal marijuana businesses from being penalized by federal regulators.  After receiving an initial voice vote earlier in the afternoon, members passed the legislation by a final recorded vote of 321-101.

The legislation, which was reintroduced by Rep. Ed Perlmutter (D-CO) and a long bipartisan list of cosponsors last month, was taken up under a process known as suspension of the rules, which does not allow for amendments and requires a 2/3rd supermajority to pass....

Because marijuana businesses are largely precluded from accessing traditional financial institutions and have to operate on a mostly cash-only basis, that makes them targets of crime — a point that advocates, regulators and banking representatives have emphasized.  “Even if you are opposed to the legalization of cannabis, you should support this bill,” Perlmutter added.  “American voters have spoken and continue to speak — and the fact is, you can’t put the genie back in the bottle.  Prohibition is over.”...

Rep. Patrick McHenry (R-NC) spoke in opposition to the legislation, stating that “regardless of your position on this bill, I do think the fact remains that cannabis is a prohibited substance under Schedule I of the Controlled Substances Act — and let me further state, by enacting this legislation, we’re effectively kneecapping law enforcement enforcement and legalizing money laundering.”

But in a sign of the bipartisan nature of this reform, Rep. David Joyce (R-OH) took to the floor to defend the legislation. He said “I’m proud to help lead this common sense and overdue effort.”

“At a time when small businesses are just beginning to recover from the economic destruction caused by COVID-19, the federal government should be supporting them, not standing in their way,” he said.

McHenry was the only lawmaker to rise against the bill on the floor, yielding all additional opposition time to other Republican members who actually spoke in support of it.

Just before the debate started on Monday, the governors of 20 states and one U.S. territory — as well as bankers associations representing every state in the country and a coalition of state treasurers — sent letters to House leadership, expressing support for the reform legislation.

The vote marks the fourth time the House has approved the Secure and Fair Enforcement (SAFE) Banking Act. Lawmakers passed it as a standalone bill in 2019 and then twice more as part of coronavirus relief legislation.  At no point did the measure move forward in the Senate under Republican control last session, however.

But this time around, advocates and industry stakeholders are feeling confident that the bill’s path will not end in the House.  With Democrats now in control of both chambers and the White House, there are high expectations that the proposal will make its way through the Senate and onto the president’s desk.

I am hopeful, but not at all optimistic, that this bill will move forward in the Senate with Democrats now in control of the chamber.  Senate leader Chuch Schumer is expected to release a comprehensive marijuana reform bill "soon" and that bill will likely be a priority for Senators and advocates most eager to see federal marijuana reforms.  Senators and others backing broader reforms could potentially view the SAFE Banking Act as an insufficient reform that could undercut momentum for bigger reforms.

Effective accounting (with great visuals) of marijuana "legalization in three degrees"

This new and extended Law360 piece authored by Julie Werner-Simon provides an interesting accounting of the landscape of marijuana legalization.  The piece is titled "3 Degrees Of Legalization Show True Prevalence Of Cannabis," and merits a full review (in part because it has a number of original graphics of interest). Here are excerpts (along with one of the graphics):

Across the political spectrum and the wide swath of the U.S. — including far-flung territories — just shy of 7 million of America's almost 335 million inhabitants live in a place where marijuana usage is completely illegal.

Although marijuana has been federally illegal for 50 years since the administration of President Richard Nixon and the implementation of the Controlled Substances Act, that has not stopped U.S. states and territories from taking things into their own hands.

Marijuana legality across America is more endemic, with graduated levels of permissiveness than the binary state-legal adult recreational and medical marijuana delineations first reveal....

First-degree states and territories are those which have legalized adult recreational use.  In first-degree regimes, adults of the state or territory can legally purchase marijuana without the need to show any medical preconditions.

Second-degree states and territories are places that have legalized, implemented or established implementation dates for medical marijuana programs, which provide broad patient access to marijuana for the treatment of multiple medical conditions.  Second-degree programs vary enormously but, generally, second-degree states and territories permit patients at a minimum, to possess and smoke medical marijuana.

In America, second-degree regions ultimately evolve into places having coexisting adult use first-degree programs....

Rounding off the trifecta are the third-degree states that comprise an even smaller number of places with severely limited access, or SLA, to medical marijuana products.  This third category, which includes only states and no territories, typically permits restricted marijuana use to a limited number of universities or research institutions or for limited medical purposes by a patient population comprised primarily of those with incurable diseases, seizure disorders or epilepsy.

Some, but not all, SLA states cap the quantity of THC in any medical use of the marijuana product in that state, or restrict the amount a patient can receive in a set period, and some make it illegal to smoke medically authorized marijuana product.

SLA status, the third-degree designation, is often a precursor to becoming a second-degree medical use state. SLA communities can become accustomed to having restricted programs, with some even referring to their SLAs as medical marijuana programs....

There is no dispute about the distinctions between first-degree and second-degree states, but the muddled lines between what constitutes second-degree and third-degree regimes cause the variations in the answer to the question: Where is marijuana illegal?

From a visitor's perspective, the bulk of SLA states would reasonably appear to be fully illegal when, in fact, there are narrow legal grounds for some to use or study marijuana in those states.

Applying the three-degree analysis, there are only three states and one U.S. territory where marijuana is entirely illegal, that is, verboten for use in any form.  These are Idaho, Nebraska, Kansas and American Samoa. That's fewer than 7 million people in all of America living in places without some degree of marijuana legalization....

With all this activity on the state and territory level, the marijuana investment bonanza, as well as the advent of a new administration and an ever-so-slight Democratic majority in the U.S. Senate, surely a thawing of the federal prohibition of marijuana is not far behind?

Not so fast and not tomorrow.  There will be no early groundhog spring[56] for marijuana in 2021.  The life and death consequences of COVID-19 have made it America's top priority; marijuana legalization has taken a backseat. Yet there will likely be incremental actions occurring after COVID-19 fiscal relief and increased vaccination levels and before the 2022 midterms....

Mandeep Trivedi, a well-regarded corporate valuator of marijuana businesses has said, where marijuana is concerned "[t]he almighty dollar is an almighty force."  It is the dollar that has caused inroads into the once impregnable view that supporting marijuana legalization is political suicide.

All economic indices show that marijuana legalization generates oodles of much-needed cash for governments.  The experiences of the legalized states, from the first- through the third-degree, prove this maxim. Federal government coffers depleted by COVID-19 costs, the payment of stimulus relief funds and the 2018 federal tax cuts are in need of replenishment. Marijuana can make this happen.

There are 20 months until the 2022 midterms.  The soil is tilled for receptivity to a more mature marijuana industry operating under coexisting federal and state regulation and taxation systems.  Even for the most conservative of political actors, this groundswell will be hard to resist.  Marijuana has gone mainstream; its tie-dye stigma has diminished while action from the federal government has been incentivized.  Federal marijuana legalization will ultimately have its day.

US Senate caucus releases notable new report, "Cannabis Policy: Public Health and Safety Issues and Recommendations"

As reported in detail via this Marijuana Moment piece, headlined "Senate Marijuana Report Highlights Legalization’s Popularity And Risks, While Criticizing DEA Research Barriers," this notable new report on marijuana policies was released today by the Senate Caucus on International Narcotics Control.  Here is part of the story:

A U.S. Senate drug caucus released a report on Wednesday that recognizes broad voter support for marijuana legalization and expresses criticism of existing policies that inhibit research into cannabis, taking direct aim at the Drug Enforcement Administration’s (DEA) role in impeding studies.  But because of what they see as the risks of cannabis use, lawmakers also want the federal government to consider recommending THC caps on state-legal products.

Sens. Dianne Feinstein (D-CA) and John Cornyn (R-TX) co-chair the Senate Caucus on International Narcotics Control, which released the document, and neither are generally viewed as allies of the legalization movement.  The report, which was first reported by Politico, largely focuses on the need to boost research into the effects of cannabis, with members voicing concern about issues such as impaired driving, THC potency and marijuana use by vulnerable populations. At the same time, however, it acknowledges the “increasing popularity” of legalization and outlines some of the benefits of enacting the policy change.

“Despite its increasing popularity—91 percent of Americans believe cannabis should be legalized for either medical or recreational purposes—cannabis remains illegal at the federal level,” it says. “Nonetheless, the U.S. cannabis industry is thriving. Cultivation and sales have largely shifted from Mexican cartels to U.S.-based businesses operating in licit, state markets (though a sizeable [sic] black market remains).”

“Experts estimate the licit cannabis market employs more than 200,000 individuals and will produce as much as $24 billion in profits 2025, nearly $9 billion of which will be from medical cannabis sales,” the caucus wrote.

The report discusses at length the need for further research into marijuana and points to a number of barriers — including the Drug Enforcement Administration’s position on international treaties — that have stymied studies into the plant. Members wrote that because “cannabis may hold both promise and peril” it is “imperative to increase the research base associated with cannabis, and that this research should be used to guide future policy so that appropriate regulations can be put in place to mitigate any negative public health consequences.”...

Overall, the report identifies five issues around marijuana policy and offers corresponding recommendations. It is far from universally favorable to cannabis reform—with much discussion on risks associated with impaired driving and youth consumption, for example—but it reflects how the rhetoric around marijuana is continuing to evolve in Congress, even in traditionally conservative panels like the one that produced the new document.

“Despite growing acceptance and accessibility of this drug and its derivatives, there is still much we don’t know about the effects of marijuana usage,” Cornyn said in a press release. “It’s critical for policymakers to understand the public safety implications of increased marijuana use before diving in to the complex and difficult job of changing federal policy, and it is my hope that this report will help inform these important policy decisions in the future.”

Feinstein said that she hopes the report will “speed final passage” of a marijuana research bill she introduced alongside Sen. Chuck Grassley (R-IA) in February. She said the legislation, an earlier version of which cleared the Senate toward the end of last year but which was not merged with a separate House-passed bill in time to be enacted, would mark “an important step to ensure that Congress is well-informed about this policy area.”

"Blowing Smoke at the Second Amendment"

The title of this post is the title of this new paper recently posted to SSRN and authored by Helen K. Sudhoff, a 3L at The Ohio State University Moritz College of Law.  (This paper is yet another in the on-going series of student papers supported by the Drug Enforcement and Policy Center.)   Here is this paper's abstract:

The Second Amendment to the United States Constitution codified the preexisting right to keep and bear arms, meaning the right was enshrined within the scope it was understood to have at its inception.  When enacted, the Second Amendment broadly protected the right to keep and bear arms for self-defense, only restricting gun ownership for certain classes of people, such as the mentally ill or felons.  However, these historical restrictions never encompassed marijuana users or possessors.  Quite the opposite, many of the founding fathers grew or manufactured cannabis themselves.  Despite this discrepancy, the Federal Government enacted § 922(g) in the Gun Control Act prohibiting gun owners and applicants who are medical marijuana patients from owning or possessing a firearm.  Further, such individuals must voluntarily disclose their medical marijuana use to the government, restricting their right to keep and bear arms and implicating the Fifth Amendment’s Privilege Against Self-Incrimination.  This paper will explore the consequences of the enactment and continued enforcement of § 922 against an individual’s right to keep and bear arms while possessing or using medical marijuana in accordance with their state’s medical programs.

"Cannabis Croynism"

The title of this post is the title of this notable new report just released by the Government Accountability Institute.  Here is part of the report's executive summary:

Cannabis legalization in the United States has come a long way . In 1996, California became the first state to legalize marijuana for medicinal use only.  This past November, five more states legalized marijuana, and 47 of the 50 states now allow its recreational or medical use.  While governments this Spring were imposing lockdowns and closures of most businesses, churches and schools to combat the COVID-19 epidemic, marijuana dispensaries joined pharmacies and liquor stores as “essential businesses” that must remain open in California.

While he was the first governor to issue a statewide shelter-in-place order, Governor Gavin Newsom of California kept marijuana available.  Other states would soon follow: Thirty states in total that issued statewide stay-at-home orders would allow dispensaries of some kind, including recreational, to remain open.

While some claim that cannabis dispensaries were truly as important as pharmacies, which also remained open during statewide lockdowns, other factors may have contributed to this decision.  Whatever its medicinal and recreational benefits, cannabis has evolved into a nearly $21 billion industry that lobbies, pressures, and rewards politicians who look out for it.

In August 2019, the FBI announced it was investigating public corruption in the cannabis industry through pay-to-play bribery schemes. This announcement came at a time when the debate in the United States over the pros and cons of legalizing pot had mostly concluded. Officials in many states have routinely ignored federal laws prohibiting the use of marijuana, effectively giving regulatory authority over marijuana to individual states.

There are now far more states where marijuana is fully legal than where it is illegal.  Twelve states have decided through referendum, and two states through legislative action, to legalize recreational use of marijuana.  Just three states – Nebraska, Kansas, and Idaho – still prohibit any use of marijuana, while the remaining forty-seven states have opted for legalization in some form.

With this new authority, state officials must now create specific regulations.  Where states have approved legal marijuana, politicians must make licensing rules for detailing which businesses may distribute such products, and who may purchase them. As with any new market, laws and regulations inevitably will pick the winners and losers in this emerging industry, whose value may be as high as $35 billion by 2025.

As with any economic activity regulated by the government, affected businesses seek an advantage by hiring insiders who have access to those close to the regulatory process.  They also make campaign contributions to well-positioned politicians.

And while most cannabis-related regulatory and legislative action is happening at the state level, some national level political figures have leveraged their positions to make money from cannabis legalization.  For example, in 2017, Paul Pelosi Jr., the son of House Speaker Nancy Pelosi, was named Chairman of the Board of Directors of Freedom Leaf, Inc., a consulting firm advising the budding marijuana industry.  The following year, the company entered the CBD distribution business, while Pelosi purchased more than $100,000 in company stock.

Former Republican Speaker of the House John Boehner, who staunchly opposed legalizing marijuana in Congress, is now bullish on the industry.  “This is one of the most exciting opportunities you’ll ever be part of,” he says in a video announcing his new National Institute for Cannabis Investors.  “Frankly, we can help you make a potential fortune.”  Boehner stands to earn an estimated $20 million if his group succeeds in persuading the federal government to legitimize marijuana.

Still, for now, the states are where most of the action on marijuana distribution is found, and where the greatest threat of political corruption exists.  The Government Accountability Institute (GAI), whose mission is to expose cronyism, reviewed the process related to legalizing marijuana in seven states.  For each state we reviewed, GAI focused on identifying the relationships between policy decisions that benefited advocates of marijuana legalization and the transfer of money and other benefits from marijuana-related businesses and lobbyists to elected officials.

While each state possessed a unique set of circumstances related to legalizing marijuana, our research found striking similarities in how cronyism in these states occurred.  For example, in several states, elected officials and government employees made decisions that ultimately benefited them financially.

"Guidance Documents: The Sirens of the Cannabis Odyssey"

The title of this post is the title of this notable new paper authored by Troy Sims recently posted to SSRN.  Here is its abstract:

The growing cannabis industry in the United States has presented both economic opportunity and legal complexity. States that allow medical or recreational cannabis conflict with federal regulations and lawyers who represent cannabis businesses are caught in an ethical maze.  This article discusses an often-overlooked cause of this complexity: guidance documents from the Department of Justice.  The rapid growth of the cannabis industry correlates with a series of memos issued by the Department of Justice, one of which is known as the “Cole Memorandum”, and all of which have been rescinded.  The ambiguities and shortcomings of current administrative law have played a large part in creating the confusing legal status of the cannabis industry.  Resolutions must reflect this reality to adequately address the ethical, financial, and legal problems in the cannabis industry. 

Catching up on a remarkable political moment for marijuana reform with the help of Marijuana Moment

The folks at Marijuana Moment have lots of great timely coverage of how various aspects of our new political landscape are leading to new discussions of marijuana reform possibilities.  In an effort to catch up on a lot of fronts quickly, I will here post headlines and links (and my thanks for MM's effective and timely journalism):

At the federal level:

• "What The New Democratic-Controlled Senate Means For Federal Marijuana Legalization In 2021"

• "Biden AG Pick Merrick Garland Wants To Defer To DEA On Marijuana Science And Classification"

• "Biden’s Commerce Secretary Pick Wants Marijuana Sold In Government-Run Stores"

At the state level:

• "Connecticut Governor Renews Pledge To Pursue Marijuana Legalization In 2021 State Of The State Speech"

• "Dozens Of Iowa Democratic Officials Push For Marijuana Legalization In 2021"

• "New York Governor Unveils Updated Marijuana Legalization Plan For 2021"

• "Top Rhode Island Senator Backs Private Marijuana Sales Model As Another Lawmaker Puts 95 Percent Odds On Legalization"

• "Virginia Lawmaker Introduces Bill To Legalize Marijuana In 2021"

Diving into Oklahoma's experience as "Hottest Weed Market"

In a handful of prior posts (linked below), I have flagged Oklahoma as a red state to watch closely as a vanguard of modern medical marijuana reforms.  And so now I am pleased, but not surprised, to see this lengthy Politico magazine profile of deveopments in the Sooner state.  The piece's full headline highlights its themes: "How One of the Reddest States Became the Nation’s Hottest Weed Market; Oklahoma entered the world of legal cannabis late, but its hands-off approach launched a boom and a new nickname: ‘Toke-lahoma.’"  I recommend a full read, and here are excerpts:

Oklahoma is now the biggest medical marijuana market in the country on a per capita basis.  More than 360,000 Oklahomans — nearly 10 percent of the state’s population — have acquired medical marijuana cards over the last two years.  By comparison, New Mexico has the country’s second most popular program, with about 5 percent of state residents obtaining medical cards.  Last month, sales since 2018 surpassed $1 billion.

To meet that demand, Oklahoma has more than 9,000 licensed marijuana businesses, including nearly 2,000 dispensaries and almost 6,000 grow operations.  In comparison, Colorado — the country’s oldest recreational marijuana market, with a population almost 50 percent larger than Oklahoma — has barely half as many licensed dispensaries and less than 20 percent as many grow operations.  In Ardmore, a town of 25,000 in the oil patch near the Texas border, there are 36 licensed dispensaries — roughly one for every 700 residents.  In neighboring Wilson (pop. 1,695), state officials have issued 32 cultivation licenses, meaning about one out of 50 residents can legally grow weed.

What is happening in Oklahoma is almost unprecedented among the 35 states that have legalized marijuana in some form since California voters backed medical marijuana in 1996.  Not only has the growth of its market outstripped other more established state programs but it is happening in a state that has long stood out for its opposition to drug use.  Oklahoma imprisons more people on a per-capita basis than just about any other state in the country, many of them non-violent drug offenders sentenced to lengthy terms behind bars.  But that state-sanctioned punitive streak has been overwhelmed by two other strands of American culture — a live-and-let-live attitude about drug use and an equally powerful preference for laissez-faire capitalism....

Oklahoma has established arguably the only free-market marijuana industry in the country.  Unlike almost every other state, there are no limits on how many business licenses can be issued and cities can’t ban marijuana businesses from operating within their borders.  In addition, the cost of entry is far lower than in most states: a license costs just $2,500.  In other words, anyone with a credit card and a dream can take a crack at becoming a marijuana millionaire....

The hands-off model extends to patients, as well.  There’s no set of qualifying conditions in order to obtain a medical card.  If a patient can persuade a doctor that he needs to smoke weed in order to soothe a stubbed toe, that’s just as legitimate as a dying cancer patient seeking to mitigate pain.  The cards are so easy to obtain — $60 and a five-minute consultation — that many consider Oklahoma to have a de facto recreational use program.

But lax as it might seem, Oklahoma’s program has generated a hefty amount of tax revenue while avoiding some of the pitfalls of more intensely regulated programs.  Through the first 10 months of this year, the industry generated more than $105 million in state and local taxes.  That’s more than the $73 million expected to be produced by the state lottery this fiscal year, though still a pittance in comparison to the overall state budget of nearly $8 billion.  In addition, Oklahoma has largely escaped the biggest problems that have plagued many other state markets: Illegal sales are relatively rare and the low cost to entry has made corruption all but unnecessary.

Prior related posts:

• Oklahoma voters resoundingly pass medical marijuana initiative
• Highlighting how extraordinary the approval of medical marijuana was in Oklahoma
• Medical marijuana proving very popular in Oklahoma
• Two very different tales of state medical marijuana reform in Oklahoma and West Virginia

Hoping this is the last Veterans Day in which veterans lack equal access to medical marijuana

Because the US Department of Veterans Affairs prohibits its doctors to recommend medical marijuana to patients, current federal law essentially puts veterans last, not first, when it comes to access to medical marijuana.  Regular readers know I have regularly blogged about a range of issues relating to veterans and their access to marijuana (many posts on this topic are linked below).  I feel a genuine and deep debt to anyone and everyone who serves this nation through the armed forces, and I feel strongly that veterans should be able to have safe and legal access to any and every form of medicine that they and their doctors reasonably believe could help them with any ailments or conditions.

Especially in the wake of a big election in which so many Americans voted to allow greater legal access to marijuana, I hope that Veterans Day 2020 will be the last one in which veterans do not get the services and respect that they deserve in this arena.  Even though there are many issues that divide this nation, I would hope we can all come together to support treating veterans at least as well as other Americans when it comes to access to the medicine of their choice.

Some recent prior related posts:

• New American Legion survey documents strong support among veteran households for medical marijuana
• "As Trump wages war on legal marijuana, military veterans side with pot"
• "More and More US Veterans are Smoking Weed to Treat Their PTSD"
• Examining pot's potential for treatment of veterans' PTSD problems
• Will Prez-Elect Donald Trump make it legal and easier for veterans to have access to medical marijuana?
• American Legion urges federal government to reschedule marijuana
• Veterans group gets attention when urging Trump team to seek to reschedule marijuana
• American Legion, the largest US vets' organization, pressing Trump Administration on medical marijuana reform
• "Study: Can marijuana improve PTSD symptoms for veterans?"
• "Make Pot Legal for Veterans With Traumatic Brain Injury"
• Interesting look at veterans getting involved in the marijuana industry
• Head of Veterans Affairs acknowledges marijuana may be "helpful" to veterans
• Disconcerting disconnect between Trumpian rhetoric and health care realities for veterans when medical marijuana involved
• "Land of the Free, Home of the (Disgruntled) Brave: The Case for Allowing Veterans Access to Medical Marijuana"