Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Saturday, November 7, 2020

What a difference a decade makes: recalling marijuana reform efforts in 2010 California and now in 2020 South Dakota

Talking to one of my favorite people about the greatness and unpredictability of democracy in the USA, I realized that it is worthwhile to put the amazingly consistent pro-reform marijuana election results of 2020 in a bit of historical context.  For now, I will leave it to true historians to write on a broader canvas, as I just want to highlight what a difference a decade makes. 

The first very significant and well-funded campaign for statewide marijuana legalization took place in deep blue California in 2010.  Then and there, California Proposition 19 lost pretty badly with 53.5% of California voters being against legalization, and only 46.5% being in favor.  Notably, among the folks in avowed opposition to this reform were US Senators Barbara Boxer and Dianne Feinstein, then-Democratic gubernatorial candidate Jerry Brown, then CA Gov Arnold Schwarzenegger, then-Democratic Attorney General Candidate Kamala Harris, and then-Prez Obama's Attorney General Eric Holder and his drug czar Gil Kerlikowske

Fast forward only 10 years, and we have seen extraordinary political, legal and social developments on so many fronts related to marijuana prohibition, and perhaps this is no more clear than the results in deep red South Dakota in 2020.  This year the voters in South Dakota considered both Initiated Measure 26 to legalize medical marijuana, which passed by a vote of 70% for and only 30% against, and a state constitutional amendment for full legalization, which passed by a vote of 54% for and only 46% against.  To my knowledge, there were precious few political figures who spoke out in avowed opposition to either of these reforms, and I am certain that Prez Trump's Attorney General did not weigh in on these state marijuana reform ballot measures.

This is a truly remarkable political and legal story, though perhaps even more remarkable is that we have seen no formal federal legislative reforms in this arena even over a decade of extraordinary change.  I will (not-so-boldly) predict that we will see some form of federal statutory reforms over the next decade, but I am not at all confident about just when or what these reforms might look like.  I will predict that 2010 CA Democratic Attorney General Candidate Kamala Harris, who is now in 2020 Vice President Elect Kamala Harris, might end up having a lot of impact on this matter.

November 7, 2020 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Initiative reforms in states, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Wednesday, November 4, 2020

Some (too early) speculations on the (uncertain) future of marijuana reform after big state wins Election Night 2020

Ballot-map-type2-minAs of Wednesday morning after a very long 2020 Election Night, there is a lot which remains uncertain politically, but one matter is quite clear: marijuana reform is very popular all across the United States.  As noting in this post last night, marijuana reform ballot initiatives prevails by pretty large numbers in states as diverse as Arizona, Mississippi, Montana, New Jersey and South Dakota.   This Politico article, headlined "1 in 3 Americans now lives in a state where recreational marijuana is legal," provides some political context:

New Jersey and Arizona, with 8.9 million and 7.3 million residents, respectively, are the biggest wins for advocates this year.  Legalization in New Jersey is expected to create a domino effect for legalization in other large East Coast states, including Pennsylvania and New York.

South Dakota, Montana and Mississippi, while much smaller, are significant in another way: As red states, the passage of marijuana measures illustrates the shift in Republican sentiment toward marijuana.

The impact of these ballot measures will be felt in Congress, especially if Democrats regain control of the Senate.  If all the measures ultimately pass, a third of House members will represent states where marijuana is legal, as will a fourth of the Senate.  If Democrats end up in control of both chambers next year, expect those legal state lawmakers to be called upon to vote on significant changes to federal marijuana policy — including removing all federal penalties for using it.

As of this writing, it is still unclear who will be in the White House for the next four years, but it seems increasing clear that Democrats will not be in control of the Senate.  This reality leads me to speculate that, despite the big 2020 state ballot wins, it will still be quite challenging for Congress to move forward with any significant federal statutory marijuana reforms.  Whether to pursue a modest or major form of federal reform already divides Democratic lawmakers in various ways, and I doubt that Republican leadership in the Senate will be eager to prioritize or even advance various bills on this topic.  If the person in the White House decides he wants to focus on this issue, these political realities could surely change.  But, at this moment, it seems to me unlikely that a large number of lawmakers at the federal level will be keen to prioritize these matters in the short term.

But continued non-action at the federal level could actually make even more space for state-level reforms to continue apace.  As the Politico excerpt highlights, the outcome in New Jersey should increase the likelihood of traditional legislative reforms in states like New York and Pennsylvania and maybe other northeast states.  Also, the big ballot wins in red states in 2020 also makes even more likely that there will be ballot initiatives for full legalization or medical marijuana reform in a half-dozen or more states in the coming years.  Just off the top of my head, I count Arkansas, Florida, Idaho, Missouri, Nebraska, North Dakota, Ohio and Oklahoma as all real possibilities for state initiatives perhaps as early as 2022.

November 4, 2020 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Initiative reforms in states, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Tuesday, November 3, 2020

"From Medical to Recreational Marijuana: Lessons for States in Transition"

The title of this post is the title of this exciting and timely new report authored by Dexter Ridgway and Jana Hrdinova of The Ohio State University's Drug Enforcement and Policy Center.  (The full glossy version of the report is at this link, an SSRN version can be found at this link.)  Here is the report's abstract:

As of October 2020, eleven states and the District of Columbia have undergone a transition from medical to adult-use marijuana regimes navigating the creation of a new industry within a complex and incongruous legal framework.  The collective experience of these states has created a wealth of lessons for other states that might legalize adult-use marijuana in the future.  Yet not much has been written about the process of transition and how states managed the creation and implementation of the regulatory framework for an emerging industry.

This report, which draws on interviews with current and former government officials, aims to fill this gap by documenting lessons learned and decision-making behind the policies that shaped the recreational landscape in four states: Colorado, Michigan, Nevada, and Oregon.  The purpose of this research is to provide actionable and concrete advice to states that are transitioning, or are planning for a transition, from a medical marijuana regime to an adult-use or recreational framework.  The report highlights major decision points states face in their transitions and the pros and cons of each choice, lessons learned gathered from the participants in our study, and a short discussion of major challenges each state had to face with their respective programs.y 

November 3, 2020 in Business laws and regulatory issues, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Friday, October 30, 2020

"Weed, Dogs & Traffic Stops"

The title of this post is the title of this new article recently posted to SSRN and authored by Alex Carroll.  Here is its abstract:

The Supreme Court has long characterized a dog sniff as a binary investigative technique.  For nearly four decades, the Court has held that a dog sniff conducted during a routine traffic stop is not a Fourth Amendment “search” because it reveals only the location of an illegal substance.  Marijuana, however, is now legal in thirty-four states. Accordingly, this Article closely reexamines the Fourth Amendment’s treatment of dog sniffs.

In doing so, it makes three overarching arguments.  First, a dog sniff conducted during a routine traffic stop is a nonbinary type of investigative technique in states that have legalized recreational or medicinal marijuana.  Second, a dog sniff conducted during a routine traffic stop is a Fourth Amendment “search” in those same states.  Third, law enforcement agencies operating in those states must retrain or replace their drug-detection dogs.

Moving forward, the Article further demonstrates, law enforcement agencies will encounter significant challenges associated with retraining or replacing their drug-detection dogs.  It therefore concludes by providing law enforcement agencies with ways to mitigate those challenges.  At its core, this Article offers the judiciary and law enforcement profession with a constitutional path forward.

October 30, 2020 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Wednesday, October 14, 2020

"Say 'No' to Discrimination, 'Yes' to Accommodation: Why States Should Prohibit Discrimination of Workers Who Use Cannabis for Medical Purposes"

The title of this post is the title of this notable new paper authored by Anne Marie Lofaso and Lakyn Cecil recently posted to SSRN. Here is its abstract:

This Article addresses the question of how the law should treat medical cannabis in the employment context. Using Colorado as a primary example, we argue that states such as Colorado should amend their constitutions and legislate to provide employment protections for employees who are registered medical cannabis cardholders or registered caregivers.

Part I briefly traces the legal regulation of cannabis from an unregulated medicine known as cannabis to a highly regulated illicit substance known as marijuana under the Controlled Substances Act. Our travail through this history reveals, unsurprisingly, an increasing demonization of cannabis throughout the twentieth century. That socio-legal demonization likely hindered the medical development of cannabis for at least a century. American society’s negative perception of cannabis began to yield, however, as scientific evidence of cannabis’s healing capacity gained popularity. Increased demand for medicinal cannabis resulted in a clash of perceptions between marijuana, the demonic influencer of immoral or criminal behavior, and cannabis, the angelic healer. It is this cognitive dissidence that helps explain the strange result of Brandon’s case.

Part II surveys the role of employment law in protecting employees who use cannabis for medical purposes. We explore the public policy exception to at-will employment and various federal and state disability statutes. We conclude that judges can and should apply these measures to protect workers who may be vulnerable to discharge because of their cannabis use.

Democracies cannot and should not depend on judges to make important changes in public policies, even when those changes are to common law doctrines created by judges in the first place. Part III surveys two states’ statutes—those of Nevada and Oklahoma—that protect workers who use medical cannabis from employment termination. Applying the knowledge gained from Part II, we collated what we believed to be the best language from the statutes of those two states and rewrote Colorado’s constitution in a manner that would account for employees’ interests and employer’s legitimate concerns.

Part IV acknowledges that employers may be slow to change their medical cannabis policies. With this reality in mind, we review some best practices as to how employers can accommodate cannabis use among its workers, including appropriate exceptions to an accommodation policy that take into account employer’s legitimate business interests without cutting into the essential accommodations medical cannabis users need to become or remain productive members of the U.S. workforce.

October 14, 2020 in Employment and labor law issues, Medical Marijuana Commentary and Debate | Permalink | Comments (0)

Wednesday, September 30, 2020

"Cannabis and Coronavirus: Impact on Medical Cannabis Industries in Three States"

The title of this post is the title of this new paper recently posted to SSRN and authored by Samuel DeWitt, a student 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:

The COVID-19 pandemic, while detrimental to the American economy as a whole, positively impacted the cannabis industry in many ways.  This paper examines how the pandemic changed the medical cannabis industries in three states where medical cannabis programs were recently implemented -- Ohio, Pennsylvania, and Maryland. 

In all three states, cannabis dispensaries were declared essential businesses and have remained in operation throughout the pandemic.  Due to the necessities of social distancing and minimizing contact, the medical cannabis programs in these states implemented new, innovative measures such curbside pickup, online ordering technology, drive-thru windows, delivery systems, and telehealth consultations.  Additionally, some states loosened restrictions on supply limits and caregiver registration, making medical cannabis more accessible to patients.  This paper suggests that many of these changes should remain permanent after the pandemic ends because they have modernized and, in some cases, legitimized, the cannabis industries in these states.

September 30, 2020 in Business laws and regulatory issues, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (2)

Tuesday, September 8, 2020

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

The title of this post is the title of this great new report, available via SSRN, authored by colleagues of mine at the Drug Enforcement and Policy Center, Jana Hrdinova, Stephen J. Post and Dexter Ridgway.  Here is its abstract:

Medical marijuana became legal in Ohio on September 8, 2016 when House Bill 523 (HB 523) became effective. This bill created the framework for the Ohio Medical Marijuana Control Program (OMMCP), and the architects of HB 523 promised the program would be “fully operational” within two years.  But as of July 15th, 2020, the OMMCP was still not fully operational, creating concerns around persistent delays and the overall functionality of the program.

After a year and a half of partially operating, the OMMCP continues its slow rollout.  With possible future marijuana reforms on the horizon, the perceived effectiveness and success of the current system among Ohioans may shape the long-term future of the program.  To our knowledge, the Harm Reduction Ohio (HRO) report1 released in September 2019 was the first concerted effort to survey patients and potential patients to evaluate their experiences and satisfaction with the OMMCP to date.  This report looks at how people potentially impacted by the OMMCP perceive its performance and whether there have been changes in their satisfaction levels as compared to last year’s survey data.  Our updated survey allows for a new examination into the efficacy of the structure of Ohio’s Medical Marijuana Control Program and how this state’s initial experience with marijuana reform can inform the larger national conversations currently underway.

September 8, 2020 in Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Monday, September 7, 2020

Noticing the notable "red state" realities of marijuana reform ballot initiatives in 2020

Download (26)The Daily Beast has this new piece highlighting that the bulk of the marijuana reform initiatives on the ballot in 2020 are in so-called red states. The piece is fully headlined "Marijuana Is Making Its Mark on Ballots in Red States: Republican-led legislatures have opposed legalization measures, so proponents are going right to the voters." Here are excepts:

Montana and a handful of other states this fall [will] decide whether to legalize recreational or medical marijuana. Five of the six states with ballot questions lean conservative and are largely rural, and the results may signal how far America’s heartland has come toward accepting the use of a substance that federal law still considers an illegal and dangerous drug.

Since Colorado first allowed recreational use of marijuana in 2014, 10 other states have done the same. Most are coastal, left-leaning states, with exceptions like Nevada, Alaska and Maine. An additional 21 states allow medical marijuana, which must be prescribed by a physician.

This year, marijuana advocates are using the November elections to bypass Republican-led legislatures that have opposed legalization efforts, taking the question straight to voters. Advocates point to a high number of petition signatures and their own internal polling as indicators that the odds of at least some of the measures passing are good....

Mississippi and Nebraska voters will decide on medical marijuana measures. South Dakota will be the first state to vote on legalizing both recreational and medical marijuana in the same election.

Montana, Arizona and New Jersey, all medical marijuana states, will consider ballot measures in November to allow recreational sales, a move opponents consider evidence of a slippery slope....

The Marijuana Policy Project is helping to coordinate the Montana legalization effort. Its deputy director, Matthew Schweich, said the organization does so only when polling suggests at least half of voters would support the measure. “It’s becoming normalized for people,” Schweich said. “People know that other states are legalizing it and the sky has not fallen.”

An effort to legalize marijuana in rural, conservative states would have been an uphill battle even a few years ago. But several factors have worked toward changing attitudes there, Schweich said. They include a gradually increasing acceptance in red states of neighbors that have legalized recreational pot—and seeing the tax revenue that legal marijuana brings. But perhaps the biggest catalyst toward normalizing pot use is having an established medical marijuana program, Schweich said.

After 15 years, Montana’s medical cannabis program is firmly rooted and has survived several legislative attempts to restrict it or shut it down. According to the Montana Department of Public Health and Human Services, more than 500 marijuana providers were serving 38,385 people as of July, which represents nearly 4 percent of the state’s population....

In Mississippi, 20 medical marijuana bills have failed over the years in the Statehouse. This year, 228,000 state residents signed petitions in support of a medical marijuana initiative to allow possession of up to 2.5 ounces of marijuana to treat more than 20 qualifying medical conditions. In response, lawmakers put a competing measure on the ballot that would restrict marijuana use to terminally ill patients and require them to use only pharmaceutical-grade marijuana products.

Jamie Grantham, spokesperson for Mississippians for Compassionate Care, called the measure an effort by the state to split the vote and derail legalization efforts. “I’m passionate about this because it’s a plant that God made and it can provide relief for those who are suffering,” said Grantham, who described herself as a conservative Republican. “If this is something that can be used to help relieve someone’s pain, then they should be able to use it.”

But opposition is starting to build. Langton, the Mississippi Board of Health member, is working with Mississippi Horizon, a group fighting legalization. Langton said he opposes the original initiative because he believes it’s “overly broad” and would allow dispensaries within 500 feet of schools and churches. It could also put Mississippi on a path toward legalized recreational use, he said. He added: “They say that marijuana is a natural plant, but poison ivy is natural, too. Just because something is natural doesn’t mean it is good for you.”

September 7, 2020 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Initiative reforms in states, Medical Marijuana Commentary and Debate, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Sunday, August 2, 2020

Is the COVID pandemic really "eating away at the illicit marijuana market"?

The question in the title of this post is prompted by the headline of this new Politico piece which is fully headlined "The pandemic is eating away at the illicit marijuana market: Legal sales have boomed since March, though it’s hard to say how many customers previously bought from illegal dealers."  Here are excerpts:

The legal marijuana industry has spent years battling illegal sellers who have eaten away at its market share and undercut its prices. But the coronavirus has proven to be a boon for legal pot shops, as customers fear the risks associated with inhaling questionable products and are nervous about letting sellers into their homes.

Legal operations have moved quickly to take advantage of the situation, seizing on relaxed rules to expand shopping options in states across the country, including curbside pickups and deliveries. Also, pandemic-frazzled Americans are simply getting stoned more often.

“It's understandable that people may be more hesitant to get their products from sources that are unregulated,” said Kris Krane, CEO of 4Front Ventures, which operates dispensaries in multiple states. “They may not want to go to their dealer’s house, or they may not want to have their dealer come into their house, at a time when people are social distancing and not supposed to be interacting with people that they don't know.”

In addition, cities that never allowed pot shops in their towns, even in states where marijuana is legal, are rethinking the local bans in search of fresh tax revenue. And more people than ever are registered as medical marijuana patients: Florida added nearly 5,000 patients a week in June, and more than 50,000 since March.

The data is murky — credible sales figures on illegal marijuana transactions are inherently difficult to come by — and it’s likely that those sales are also booming as anxious Americans smoke more weed while hunkered down. But many close industry watchers believe the current circumstances are pushing more Americans into state-legal markets. Revenues are expected to hit $17 billion this year, according to New Frontier Data — a 25 percent spike over 2019.

Mitch Baruchowitz, managing partner at cannabis investment firm Merida Capital Partners, argued in a paper in May that the pandemic is “cannibalizing” the illegal market. He hasn’t seen anything in the ensuing months to change that assessment. “The vast majority of the current growth in the cannabis space is being driven by consumers transitioning from the black market to the legal market,” Baruchowitz wrote.

The boom in sales is driven in large part by new legal markets, particularly the start of recreational sales in Illinois and Michigan. But even some states with relatively mature markets have seen big spikes in sales. In Oregon, for example, monthly revenues jumped from just below $70 million during the first two months of this year to more than $100 million in May and June....

Even with this year’s rapid growth, however, the legal marijuana market is still dwarfed by illegal sales, which New Frontier estimates at $63 billion for this year. Nowhere is the underground weed market a bigger problem than in California, where it’s estimated that 80 percent of marijuana sales are still from illegal sources — and most industry officials are deeply skeptical that the pandemic will significantly alter that reality in the short term....

Michigan faces a similar problem in quashing illegal sales: The vast majority of cities in the state — including Detroit — still don’t allow recreational pot shops to operate. In addition, marijuana cultivation is still ramping up in the state, since full legalization only took effect in December. “Demand, especially in the adult-use market, is still higher than the supply as the production in the industry continues to grow,” said Andrew Brisbo, executive director of Michigan’s Marijuana Regulatory Agency. “That keeps prices still higher than I think they will be in the long term.”

Industry officials are divided on whether the pandemic is eroding the illicit marijuana market, but there’s little doubt that the current economic troubles will push more states to consider legalization. That’s in large part because states' desperation for cash is only going to grow. Even if marijuana taxes would only make a difference at the margins, it undoubtedly will prove enticing to lawmakers.

Some New York lawmakers are pushing this idea, after legalization efforts failed in each of the last two years. They’ll likely face even greater pressure to enact recreational sales if New Jersey voters pass a recreational legalization referendum in November, as expected. Even in deep red states, the idea is likely to get a good look. A Republican lawmaker in Oklahoma has argued the state should look at allowing recreational sales, suggesting it could raise $100 million per year.

August 2, 2020 in Business laws and regulatory issues, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (4)

Tuesday, June 30, 2020

"Marijuana and Its Movement: Issues with Transporting a Legally Ambiguous Substance"

The title of this post is the title of this new paper recently posted to SSRN and authored by Joshua Gmerek, a recent graduate 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:

Regardless of whether you are a commercial truck driver performing a job, a patient driving to get her medicine, or a citizen who just recreationally enjoys marijuana, the rules surrounding the transportation of marijuana are important.  California became the first state to legalize the medical use of marijuana in 1996, and the prevalence of medical and recreational marijuana legalization has only expanded since then.  At this point, some product or chemical compound from the cannabis plant is virtually everywhere in the United States, yet the transportation of these products has not been comprehensively debated by the public, let alone legislated. 

This article is focused on exploring the unique legal landscape surrounding the transportation of marijuana, hemp, and cannabidiol (CBD) from both a business and individual perspective.  By showcasing examples of how businesses and individuals have been impacted by the unclarity in this area, the goal is to convey that nothing about transporting these products is risk-free and that there is unnecessary conflict between state and federal law.

June 30, 2020 in Business laws and regulatory issues, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Tuesday, June 16, 2020

"Struggling Through the Pandemic: Cannabis Social Equity During Covid-19"

Thumbnail_COVID-19_Social Equity During COVID-19_for-socialThe title of this post is the title of this new report that the team at Ohio State's Drug Enforcement & Policy Center has just gotten online via SSRN.  I was pleased to be play a part in this work, and here is the report's abstract:

In March 2020, in response to the COVID-19 national emergency, states across the United States began issuing shelter-in-place orders curtailing operations of individual businesses based on “essential” and “non-essential” classification.  Virtually all states with legalized medical cannabis, and the majority of adult-use states, allowed cannabis establishments to remain open albeit often with significant restrictions on their operations.  Yet, the cannabis industry, and small, minority-owned or social equity designated businesses in particular, are not insulated from the broader economic shockwaves spreading through the country. 

In April 2020, the Drug Enforcement and Policy Center conducted a survey asking patients/consumers and cannabis industry professionals about the challenges they were experiencing and government responses.  Hoping to fill a gap in early discussions of the impact of the COVID-19 crisis, we were especially interested in the impact on cannabis industry participants designated as social equity businesses.  The results indicate that the COVID-19 pandemic has both introduced tremendous new challenges for the cannabis industry and exacerbated long-standing difficulties for businesses in this arena.  If small, minority-owned and social equity businesses are to survive, they need to be treated by the system like any other regular small business venture.  While regulations and safeguards are necessary, these businesses need to be able to operate as a true business, rather than a semi-legal venture with no access to loans, banking, insurance, tax relief, and flexible deliverable modes.

June 16, 2020 in Business laws and regulatory issues, Medical Marijuana Commentary and Debate, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Wednesday, May 20, 2020

Lots of notable public health analyses of marijuana reforms in June 2020 issue of World Psychiatry

A number of notable new papers are now available online from the June 2020 issue of World Psychiatry. Here are titles and links to all the pieces (most of which are just a few pages and all of which seem worth checking out):

Assessing the public health impacts of legalizing recreational cannabis use: the US experience by Wayne Hall and Michael Lynskey

Considering the health and social welfare impacts of non‐medical cannabis legalization by Benedikt Fischer, Chris Bullen, Hinemoa Elder and Thiago M. Fidalgo

To legalize or not to legalize cannabis, that is the question! by Marta Di Forti

Mapping and mitigating the health risks of legalizing recreational cannabis use: a call for synergy between research and policy by Eva Hoch and Valentina Lorenzetti

Recreational cannabis legalization presents an opportunity to reduce the harms of the US medical cannabis industry by Keith Humphreys and Chelsea L. Shover

Cannabis and public health: a global experiment without control by Jürgen Rehm and Jakob Manthey

Being thoughtful about cannabis legalization and social equity by Beau Kilmer and Erin Kilmer Neel

The effects of recreational cannabis legalization might depend upon the policy model by Rosario Queirolo

Legalizing recreational cannabis use: a promising journey into the unknown by Jan C. van Ours

Assessing the public health effects of cannabis use: can legalization improve the evidence base? by Matthew Hickman, Lindsey A. Hines and Suzie H. Gage

May 20, 2020 in Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Tuesday, May 5, 2020

"Reconsidering Federal Marijuana Regulation"

The title of this post is the title of this new article authored by Paul J. Larkin, Jr. available via SSRN.  Here is its abstract:

The Controlled Substances Act (CSA) prohibits the cultivation and distribution of marijuana by placing it in a category (Schedule I) reserved for drugs that are unhelpful and dangerous.  In so doing, the CSA approached this problem from the wrong direction.  People use drugs for medical or recreational purposes, and each one requires a separate legal scheme.

Medical Marijuana Use: For more than 50 years, Congress has entrusted to the Commissioner of Food and Drugs the decision whether a particular drug is “safe” and “effective” and therefore can be sold throughout the nation.  The reason is that those decisions require the scientific expertise of professionals in the fields of medicine, biochemistry, and the like, not the legal knowledge of Justice Department lawyers or the moral sensibilities of the electorate.  Congress should leave to the judgment of the FDA Commissioner the decision how federal law should regulate medical-use marijuana.

Recreational Marijuana Use: American society permits alcohol and tobacco to be sold under regulation.  For alcohol, the Twenty-First Amendment empowers states to decide whether and how to sell liquor without much room for supplementary federal regulation.  For tobacco, the Family Smoking Prevention and Tobacco Control Act of 2009 authorizes the FDA Commissioner to regulate the distribution of tobacco products.  Congress should consider whether to follow the same approach here.  There are various factors relevant to that decision.  For example, long-term marijuana use can lead some users to become dependent on, or addicted to, the drug, or to suffer serious mental disorders, such as psychosis.  Legalizing recreational marijuana use also will increase the number of roadway accidents attributable to cannabis intoxication. Whether the benefits of recreational marijuana use outweigh those harms is the question that Congress should answer.

May 5, 2020 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)

Thursday, April 30, 2020

"How weed became 'whatever': Leagues are ditching old policies"

MlbAs a time with no actual sports, it is nice to have a good excuse to check out ESPN's website where one now finds this very lengthy article sharing the title of this post. The lengthy piece is worth reading in full, and here are excerpts (with my emphasis added):

The marijuana stigma that plagued [Ricky] Williams' NFL career is eroding, if not gone entirely from an enforcement standpoint.  In January, Illinois became the 11th state to legalize recreational marijuana.  Now, of the 123 teams across MLB, the NBA, NHL and NFL, 50 play in states or provinces where recreational marijuana is legal (40.6%). Another 51 teams play in jurisdictions where medical marijuana is legal (41.5%).  That's 82% of teams (101 of 123) that are playing in cities where a player can walk down the street, go into a dispensary, and legally purchase either recreational or medicinal marijuana -- just like they were buying a six pack of beer.

The only states in which any of the four major pro league teams play where there are no broad laws legalizing marijuana are Indiana, Georgia, North Carolina, Tennessee, Texas and Wisconsin.

Sports leagues have adapted.  Last year, we wrote about the NHL's marijuana approach -- predicated on treatment, not punishment -- which at the time was the most progressive in professional sports.  Today?  It's actually the norm.

The NFL ratified a new CBA in March with a drug policy quite similar to the NHL model.  The NFL significantly raised the threshold for positive tests (from 35 nanograms to 150) and eliminated its previous window of testing, which spanned from April to August to the first two weeks of training camp. In other words, if players want to smoke weed in the offseason, they are free to do so.  But most importantly: Players are no longer suspended solely for marijuana.  If a player were to test positive, his case is reviewed by a panel of medical experts who determine if the player needs medical treatment.  "Certainly, we see that society is changing its views, but views only change because key facts become more and more obvious to the people who make policy," NFLPA executive director DeMaurice Smith said.

MLB and its union negotiated a new drug policy in December 2019 following Tyler Skaggs' death.  While the new policy added testing for opioids, fentanyl and cocaine, plus synthetic weed -- with positive tests being referred to a treatment board -- cannabinoids were taken off the league's drugs of abuse list.  That wasn't a huge deal for MLB players, who were only previously tested for marijuana if there was "reasonable cause."  It was, however, monumental for minor leaguers, who were regularly tested and faced steep fines and suspensions -- including a 50-game ban for a first-time offense, 100 games for a second and a lifetime ban for the third strike.  "The way the league had the rules set up, it was ridiculous," said longtime MLBPA agent Joshua Kusnick.  "I can't even imagine how many guys' careers were ruined over marijuana. I personally had clients whose careers were derailed because of it.  If you were a fringy prospect and you were popped for marijuana, you were released because teams didn't want to deal with it.  And if you were released, you couldn't serve your suspension.  So who is going to sign you if you had 50 games to wait?"

The NBA's policy has remained the same -- and is now actually the harshest in North American professional sports.  A first positive test means a player must enter the marijuana program.  The second positive test calls for a $25,000 fine.  The third infraction is a five-game suspension, and five more games are added to each ensuing violation (10 games for a fourth positive test, 15 games for a fifth, etc.).  However, the NBA does not test players during the offseason, and the union and league agreed to not test players during the league's coronavirus hiatus.

April 30, 2020 in History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Sports, Who decides | Permalink | Comments (0)

Thursday, April 23, 2020

Student presentation on "CBD and its efficacy as a sleep aid"

Wednesday, April 22, 2020

Student presentation on "Marijuana Reform and Gun Ownership"

This will be another exciting week as students in my Marijuana Law, Policy & Reform seminar are finishing up their presentations on research topics of their choice. The fourth presentation slated for this week will focus on how marijuana reforms intersect with gun ownership. Here is the student's description of his topic and some background readings he has provided:

My presentation will focus on the interaction between legal marijuana and gun ownership.  I will begin by analyzing federal firearms laws and their practical implementation by the Bureau of Alcohol, Tobacco, and Firearms (ATF). I then look through examples of the conflicts these laws present in states which have legalized marijuana, and how federal laws currently prohibit any individual from exercising both their right to consume marijuana in legal states and their right to own a firearm under the Second Amendment. For some background reading, here are some helpful links:

Paul Barach, Why Can’t Medical Cannabis Patients Own Guns?, PotGuide (Jan. 17, 2020). 

Open Letter to All Federal Firearms Licensees, Bureau of Alcohol, Tobacco, Firearms and Explosives (Sept. 21, 2011).

Aimee Green, Medical Marijuana Cardholders Can’t Be Denied Concealed Gun License Solely Because they Use Pot, Oregon Supreme Court Rules, OregonLive (May 19, 2011).

Mike Lowe, Mixed Legality of Marijuana on State, Federal Levels Leaves Gun Owners in Limbo, WGN9 (Jan. 9, 2020).

April 22, 2020 in Assembled readings on specific topics, Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Thursday, April 16, 2020

Student presentation on "Transportation of Hemp and Marijuana"

With the semester winding down, numerous students in my Marijuana Law, Policy & Reform seminar are scheduled for presentations on research topics of their choice this week.   The fourth presentation slated for this week will focus on the transportation of cannabis.  Here is part of the student's description of the issue and some background readings he has flagged:

For all the discussion that has been had about the legalization of marijuana, we have not sufficiently discussed how these products should be moved around. The goal of my presentation is to explore this issue by looking at cases that have unfolded and the policies of institutional players. For some background, please see:

Hemp Suppliers at Odds With Hazy Regulations” 

The Great American Cannabis Experiment” 

Inability To Ship Across State Lines Hurts Cannabis Businesses, Especially Small Operators” 

Travelers caught with weed in Chicago airports won’t be busted, police say” 

April 16, 2020 in Assembled readings on specific topics, Business laws and regulatory issues, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Tuesday, April 14, 2020

Student presentation on "The history of marijuana in Canada"

Students in my Marijuana Law, Policy & Reform seminar continue "taking over" through presentations on research topics of their choice, and I will continue providing in this space background on their topics and links to relevant materials they provide. The first presentation this week will focus on the country to the north, and here is how the students working on this big topic describes their plans along with background readings they have provided:

The presentation will focus on medical marijuana in Canada. Like with the United States, the national attitude towards medical marijuana in Canada has evolved over the years.  It was only four short years after California effectively legalized medical marijuana in 1996, that a Canadian court ruled Canadians had a right to use medical marijuana.  It took almost two decades after that court ruling for marijuana to be fully legalized in Canada. Because marijuana is legal in Canada, there is much that can be learned from research conducted in the country.  Research on illegal drugs is often met with push back from the government.  Full legalization has opened the door for all aspects of research into the effectiveness of marijuana for treating all kinds of illnesses.  This research is necessary to facilitate a better understanding of marijuana and it benefits world-wide.

Sources:

"Canada Goes From Weed Prohibition To Legalization In 95 Years"

"A timeline of some significant events in the history of marijuana in Canada"

"Legal Medical Marijuana States and DC: Laws, Fees, and Possession Limits"

Government of Canada, "For people registered or designated to produce cannabis for medical purposes"

Government of Canada, "Information for Health Care Professionals: Cannabis (marihuana, marijuana) and the cannabinoids"

"Ontario cannabis stores to close after removal from ‘essential’ list"

"In COVID-19 fight, medical cannabis retailer eyes use of cannabinoids in clinical trial"

April 14, 2020 in Assembled readings on specific topics, International Marijuana Laws and Policies, Medical Marijuana Commentary and Debate | Permalink | Comments (0)

Wednesday, April 8, 2020

"Charlotte Figi, 13-year-old Coloradan whose CBD journey inspired medical marijuana reform, dies of COVID-19"

This is really sad

Charlotte Figi, the young Colorado Springs girl whose battle with Dravet syndrome inspired changes to medical marijuana laws, has died of complications from the coronavirus, according to a nonprofit organization co-founded by her mother. She was 13 years old.

Realm of Caring, the nonprofit that focuses on medical cannabis research and education, attributed Figi’s death to “COVID-19 complications” in a Facebook post. A message posted to the Facebook page of Charlotte’s mother, Paige Figi, on behalf of the Figi family says, “Charlotte is no longer suffering. She is seizure-free forever.”

Neither El Paso County nor state health officials have publicly announced the death of a 13-year-old Coloradan due to COVID-19; Charlotte would be the youngest person to date to die in Colorado in connection with the coronavirus.

Charlotte was one of Colorado’s many medical marijuana refugees, whose family moved to the state following the legalization of cannabis. From the time she was an infant, she suffered from frequent and severe seizures because of Dravet syndrome, including many that required hospitalization. But at age 5, Paige Figi gave her cannabidiol, the non-psychoactive compound in cannabis known more commonly as CBD, and Charlotte’s condition changed overnight.

 

April 8, 2020 in History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate | Permalink | Comments (0)

Friday, March 27, 2020

"Cannabis finds its moment amid coronavirus outbreak"

CoronavirusandcannabisgraphicThe title of this post is the title of this notable new Politico piece.  Here are excerpts:

Cannabis is turning out to be the one thing the coronavirus can’t destroy.

Marijuana sales are booming, with some states seeing 20 percent spikes in sales as anxious Americans prepare to be hunkered down in their homes potentially for months. Weed sellers are staffing up too, hiring laid-off workers from other industries to meet demand. And in the midst of a historic market meltdown, stock prices for cannabis companies have surged, in some cases doubling since the public health crisis began.

“We are hiring because we are having to shift our business a bit,” said Kim Rivers, CEO of Trulieve, which is valued at $1 billion. The company is staffing up its delivery fleet, retail workers, and people to handle increased inventory shipments. “Now is a great time [to apply], particularly if you’re in a business that has seen layoffs.”

Nearly all of the 33 states with legal medical or recreational markets have classified marijuana businesses as an essential service, allowing them to remain open even as vast swaths of the retail economy are shuttered. San Francisco and Denver initially announced plans to shut down dispensaries, but immediately backpedaled after a public furor.

Weed shops are essentially being treated the same as pharmacies, reflecting a dramatic shift in cultural perceptions about the drug over the last decade. “It is a recognition that it has taken on much greater significance around the country,” said Rep. Earl Blumenauer (D-Ore.), a longtime Capitol Hill champion for cannabis. “This is something that makes a huge difference to the lives of hundreds of thousands of people every day. I do think that this might be part of a turning point.“

Concerns about whether smoking pot is the smartest response to a pandemic that’s causing severe lung injuries in tens of thousands of Americans have been largely drowned out. "Public opinion has pushed lawmakers to think about cannabis — and particularly medical cannabis — in different ways than they used to," said John Hudak, a cannabis policy expert at the Brookings Institution, and author of Marijuana: A Short History. "A lot of state policymakers are trying to get this right and they obviously see the risk of shutting down a dispensary to be higher than the rewards of shutting down a dispensary."...

The burgeoning industry does face some stiff financial headwinds: The massive stimulus package moving through Congress this week to help beleaguered businesses shuts out cannabis companies from taking advantage of its benefits, reflecting the continued federal illegality of marijuana. Prior to the recent boom in sales, the industry had been in financial turmoil, with many companies laying off workers and scuttling acquisitions as they ran short on cash. “I'm frustrated Senate Republicans refused to allow us to include them in this legislation, but we aren't giving up," Sen. Patty Murray (D-Wash.) said Wednesday.

In addition, some medical experts question the wisdom of allowing uninhibited access to marijuana during a massive public health crisis. They worry that customers flocking to pot shops could spread the virus, that stoned customers will engage in risky behavior and that smoking pot will worsen the lung damage for people who do become infected. “If you keep the pot stores open, you're just adding fuel to the fire,” said Karen Randall, an emergency room doctor in Colorado. “You're having a whole bunch of people who are trashing their lungs.”...

The federal government said Thursday that a staggering 3.3 million people applied for unemployment benefits last week. While the cannabis industry can’t do much to remedy that bloodletting, some companies are looking to hire people who have recently lost their jobs. Harborside — which operates three shops in the Bay Area — found itself suddenly understaffed as delivery requests increased by 45 percent and phone calls exploded from around 100 to 8,000 per day.... Harborside has hired 10 employees in the last few weeks — some of whom were directly laid off as a result of the coronavirus — and plans to hire at least six more. The largest increase was in their delivery fleet, going from four drivers to 10.

And they’re not alone. “Two and a half weeks ago, our sales just exploded,” said Zachary Pitts, CEO of California cannabis delivery service Ganja Goddess. “People are leaning on delivery more now … even though storefronts are still open in California.” Pitts estimated that he’s increased his workforce by about 15 percent in recent weeks, and is working on hiring more. The company has suspended normal vetting processes and is instead relying on trusted referrals....

As states move to declare marijuana an essential business, the gulf between state and federal policy has never been wider. Congress is poised to enact a $2 trillion stimulus package this week, but the cannabis industry will not see a cent. “In the same way that cocaine dealers in the United States who are suffering under Covid-19 are not going to be eligible for relief under the stimulus bill, cannabis companies won't either,” said Hudak of the Brookings Institution. “Illegal businesses do not access legal funding.”

The cannabis industry generated $15 billion in sales last year and employs 340,000 people. Employers and workers pay federal taxes, and are required to comply with other coronavirus-related measures such as paid sick leave coverage. But for cannabis companies to access assistance made available through the stimulus package, Congress or the administration would need to dictate their inclusion. A spokesperson for Sen. Jeff Merkley (D-Ore.) said he wants to include such a provision in a future coronavirus aid package. Similarly, Murray said she is “exploring what can be done in the upcoming appropriations process to help them through this crisis and beyond."

March 27, 2020 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Political perspective on reforms, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)