Marijuana Law, Policy & Reform

Split Oklahoma Court of Criminal Appeals affirms dismissal of criminal charge of child neglect brought against woman who used medical marijuana when pregnant

As reported in this local press piece, "women with state medical cards who use marijuana during pregnancy can’t be prosecuted for child neglect, the Oklahoma Court of Criminal Appeals ruled Thursday."   The ruling in State v. Agular, No. 2024 OK CR 18 (Okla. Ct. Crim. App. July 18, 2024) (available here), is an interesting read, and here are a few passages from the majority opinion:

The issue in this appeal is whether an expectant mother who holds a medical marijuana card and uses the drug while pregnant has exposed her unborn child to illegal drugs constituting the crime of child neglect, which in Oklahoma includes "the failure or omission to protect a child from exposure to . . . the use, possession, sale, or manufacture of illegal drugs." 10A O.S.Supp.2019, § 1-1-105(48)(b)(1) (emphasis added).  The Information charges Aguilar with a single felony count of child neglect by "exposing J.W.B. to controlled dangerous substances in utero, specifically Marijuana." (Emphasis added). Thus, the charging document accuses Aguilar of a crime which does not exist, i.e., child neglect by exposure to "controlled dangerous substances" as opposed to exposure to "illegal drugs[.]"  This is not a matter of semantics, and although this charging error does not determine the outcome of this appeal, the apparent confusion in terminology and definitions which led to that error is central to understanding how to properly resolve this case.

The terms "controlled dangerous substance" and "illegal drugs" are not synonymous; the former includes hundreds of prescription drugs which, like marijuana, are lawful to possess only with a prescription or other legal authorization.  The term "controlled dangerous substance" is defined in 63 O.S.Supp.2019, § 2-101(8) as any drug listed in any of the Schedules I through V of the Uniform Controlled Substances Act.  However, neither that Act nor any other provision of Oklahoma law defines the term "illegal drug", so we must ascertain the meaning of that term, and specifically, whether the marijuana use in this case is included within it so as to constitute child neglect....

We find that the most logical reading of 10A O.S.Supp.2019, § 1-1-105(48)(b)(1) is that "illegal drugs" means those drugs whose possession or use violated the law at the time of that possession or use. Hence, an expectant mother who exposes her unborn child to illegal methamphetamine could be convicted of child neglect.  See State v. Green, 2020 OK CR 18, 474 P.3d 886.  Conversely, under that definition, an expectant mother's licensed possession and use of medical marijuana would not trigger an automatic finding of neglect for failure to protect her unborn child from exposure to illegal drugs because as to her, marijuana is not an illegal drug.

One of the two dissents includes this passage providing a different view of this matter:

The child neglect statutes were undoubtedly enacted to protect children from harm. Marijuana is still an illegal Schedule I drug except for a person who holds a medical marijuana license. In this case, the baby's exposure to Appellee's use and possession of marijuana, a Schedule I drug, is illegal because the baby has no medical marijuana license. It is not the mother's use or possession of marijuana that is criminalized by the child neglect statute, but her exposure of her unborn child to the use or possession of marijuana, an illegal drug for the child.

Rounding up some recent notable marijuana legal news and commentary from various quarters

I have not blogged in this space much latety as I have been consumed with activity by the US Supreme Court and other legal developments in recent weeks.  In addition, I do not usually cover much day-to-day marijuana news because all sort of outlets cover this news (and Marijuana Moment covers it especially well).  But as these streams come together, I though it useful to do a quick post highlighting some notable marijuana legal news and commentary.  So:

From the AP, "Brazil’s Supreme Court decriminalizes possession of marijuana for personal use"

From Bloomberg Law, "Federal Cannabis Law Dispute Tossed by Massachusetts Judge"

From Harris Sliwoski, "Cannabis Law and Gun Rights: News from SCOTUS"

From Marijuana Moment, "South Dakota Law Banning Intoxicating Hemp Products Takes Effect After Judge Declines To Block It"

From Marijuana Moment, "DeSantis Seems To Concede He Vetoed Hemp Ban Bill, In Part, To Engage Industry In Marijuana Legalization Opposition Campaign"

From MinnPost, "Court decision ending cannabis odor as sole reason for search codified by Minnesota lawmakers"

From the Missouri Independent, "Missouri courts still slogging through marijuana crime expungements, long after deadline"

From MJBiz Daily, "How will Supreme Court ruling affect marijuana rescheduling?"

Student presentation examines impact of taxation schemes on medical marijuana

As we come down the homestretch in my Marijuana Law, Policy & Reform seminar, students continue to cover terrific issues in their research and class presentations.  This week in my class, the third scheduled presentation has been given this title: "Getting Too Into the Weeds?: An Analysis of the Impact of Different Taxation Schemes on Medical Marijuana Programs and the Potential Impacts of H.B. 86 in Ohio."    Here is how the student describes her topic (along with background readings):

Medical marijuana programs are at risk of ceasing to exist to any meaningful extent in many states that have legalized recreational marijuana.  There has been a consistent trend of declining registered medical marijuana patient numbers in those states post-legalization.  While there are potentially many causes of this decline, there is one policy decision each of these states has had to make that could have a large impact on the magnitude of this decline: taxation structure.  There are three common taxation structures selected by these states: sales tax, tax exemptions, and excise tax.  All three structures are supported by reasonable policy rationales.

At the end of 2023, Ohio joined the group of states that have legalized both medical and recreational marijuana use via an initiated statute.  The Ohio Legislature, in turn, has been left with the obligation to make any changes it deems necessary to Ohio’s recreational program before it becomes fully effective.  One of the proposals that is most likely to pass is House Bill 86 (H.B. 86).  Under H.B. 86, the excise tax on recreational marijuana would increase from ten percent to fifteen percent.  This may not seem like it will impact patient registration rates in Ohio, however, the language of H.B. 86 may open the door to application of this excise tax to medical marijuana sales in Ohio if it is passed as written.

To attempt to predict what will occur to Ohio’s medical marijuana program post-legalization of recreational marijuana under the ambiguous language of H.B. 86, this paper aims to determine if there is any correlation between the type of taxation scheme a state has for medical marijuana and the likelihood of its medical marijuana program surviving.

Background Materials:

Ohio House Bill 86 (specifically Section § 5739.27(A)).

Jenn Jarecki, Bob Kinzel, & Nathaniel Wilson, "Vermont Lawmakers Consider Changing Medical Cannabis Program, Retail Potency Limits"

Carol Kokinis-Graves, "State by State Sales Tax on Cannabis"

Kevin F. Boehnke, Owen Dean, Rebecca Haffajee, & Avinash Hosanagar, "U.S. Trends in Registration for Medical Cannabis and Reasons for Use from 2016-2020: an Observational Study"

"Putting Patients First: Medical Cannabis Use Patterns and Policy Protections"

The title of this post is the title of this notable new R Street policy study authored by Chelsea Boyd.  Here is  its executive summary:

Historically, cannabis has been used for medical purposes for millennia. Cannabis was introduced into western medicine in the mid-1800s but began to decline in use by the early 1900s.  It was made a Schedule I substance under the Controlled Substances Act of 1970, which effectively prevented research on its potential medical uses and benefits. Nevertheless, since 1996, more than three-quarters of states have legalized the medical use of cannabis in some form. This policy study explores what is known about medical cannabis patients’ use patterns and preferences; describes marketplace trends and medical relevance of cannabinoid content; and suggests policies that promote the availability of safe, effective and accessible medical cannabis products for patients.

Because there is limited research on cannabis as a therapeutic treatment, it is hard to make conclusive statements about effective dosing and use patterns for specific conditions or patient populations. Nevertheless, compared to non-medical users, medical cannabis patients tend to use daily, via multiple routes of administration, and do not report a desire to experience cannabis’ psychotropic effects. Medical patients also seem to prefer different cannabinoid profiles than non-medical users. Keeping in mind that, for many patients, finding the most effective use pattern is a process of trial and error, ensuring a wide variety of products with different cannabinoid ratios is one policy that can enable patients to find the most beneficial product combinations for their conditions. Similarly, because medical patient preferences are different from non-medical users, insulating medical markets from the potential pressures of the adult-use market can ensure that patients have access to products they prefer, even after a state legalizes adult use.

Additionally, when states legalize medical cannabis, they have a duty to ensure that any markets that emerge are safe. Because cannabis is regulated at the state level, there is notable variability in cannabis markets and product standards. Ensuring that each state has accurate, comprehensive and (when possible) evidence-based labeling standards can help patients make informed decisions about the products they use. States can also protect patients by regulating contaminants appropriately. Practical medical cannabis policies are necessary to ensure patient safety and allow the greatest accessibility.

"Where does the revenue from Missouri marijuana sales and license fees go?"

The title of this post is the headline of this interesting new Missouri Independent article that shows everyone where marijuana revenue is going in the Show Me State. Here are excerpts:

Since Missouri’s marijuana sales began in 2019, the state has collected nearly $100 million in revenue from taxes and program fees, according to state authorities. Etched in the state’s constitution is a road map for where the revenue can go.

The first stop is operational costs. By law, any expense it takes to run both medical and recreational marijuana programs — like salaries or professional services — all must be paid for through marijuana revenues.  That means the salaries for cannabis inspectors will never compete with that of school teachers, which come out of the state’s main pot of money, the general revenue fund. The agency that regulates the program, the Missouri Department of Health and Senior Services, told the Independent last week that their expenses have been $38.4 million to date....

After expenses, the revenue can go towards supporting veterans, funding drug addiction treatment programs and adding to the Missouri Public Defenders System’s budget.... As of April 30, there was $22.7 million in the state’s medical marijuana fund and $10.9 million in the recreational marijuana fund, according to the state treasurer’s records and DHSS.

Medical marijuana first went on the market in 2019. Since then, the medical marijuana program has brought in $85.2 million in total — $57.7 million has come from fees, including for new license applications and annual license fees, according to DHSS. And $27.4 million has come from sales tax revenue.

The constitutional amendment that legalized medical marijuana in 2018, which appeared on the ballot as Amendment 2, mandated that revenues after operational expenses go towards the Missouri Veterans Commission. So far, $27 million has gone to support veterans....

The revenue road map is a bit different for the adult-use recreational marijuana program, and it’s defined in Amendment 3 that was approved by voters in November. By law, direct revenues first go towards operational costs and then to expenses incurred by the court system for expunging certain marijuana offenses from people’s criminal records. After that, revenues will be split in three ways: Public defenders, drug addiction treatment and veterans.

Since recreational marijuana sales opened in February, the revenue collected is already at $13.8 million, and almost all is from sales taxes, according to DHSS. Marijuana monthly sales in Missouri have tripled since February, but so has the workload for DHSS. For the past two years, DHSS has had 50 full-time employees to regulate the medical marijuana program. The total employees will now be just over 170 employees — 23 for medical marijuana and 148 for recreational, Cox told The Independent.

Between the medical and recreational program, lawmakers appropriated about $32 million for operational expenses. That’s a little more than double what it’s appropriated in past years. However, DHSS has yet to ever use the full appropriated amount, though there was plenty in the fund to cover it, according to budget documents. In the fiscal year 2020, lawmakers appropriated $13.5 million for DHSS’ personal services, expenses and equipment. But the department only spent $6.3 million. In fiscal year 2021, DHSS was appropriated $13.5 million and spent $9.4 million. In fiscal year 2022, DHSS was appropriated $13.8 million and spent $8.4 million....

This year lawmakers signed off on $4.5 million for state courts to pay their employees overtime or to hire temp workers to complete the massive number of expungements required by law. They approved an additional $2.5 million in a supplemental budget on May 5. After that, $1.3 million was appropriated for each public defenders, treatment programs and veterans. And out of the medical revenues, $13 million will go towards the Veterans Commission again this year, as it did last year.

Student presentation examines autism as a potential qualifying considition for medical marijuana in Ohio

Among the many virtures of a class on marijuana law and policy, and one reason I have students do presentation on topics of their choice, is the opporutnity to look at some issue with a broad landscape approach and then at related issues with a more refined focus.  During what I can hardly believe is the final week of my class, the first student presentation will be exploring medical marijuana programs around the nation.  Then, in what is scheduled to be the fourth presentation, a different student will look specificaly at autism as a potential qualifying considition for medical marijuana in the Buckeye State.  Here is how the topic is described by my student (along with background readings):

Medical Marijuana has been legalized in Ohio since 2016, however, Autism Spectrum Disorder (ASD) remains off of the list of qualifying conditions.  ASD is a neurodevelopmental disability which effects three major domains: social interaction, communication, and behavior patterns.  As of January 2022, ASD affected 1 in 44 children.  House Bill 60 and House Bill 261 aim to expand what conditions qualify for the use of medical marijuana and, specifically, look to add ASD as one of those qualifying conditions. 

Currently, 23 states list autism as a qualifying condition for medical marijuana use — Ohio is hopeful to be the 24th state. While there are many barriers to the recommendation of medical marijuana for autism, much of the evidence today is anecdotal.  Other countries such as Turkey analyzed the relationship between medical marijuana and Autism — the study was described to be a miracle for those with Autism.

Background materials:

Ohio House Bill 60

Ohio Senate Bill 261

Lihi Bar-Lev Schleider et al., "Real life Experience of Medical Cannabis Treatment in Autism: Analysis of Safety and Efficacy" (2019)

Autisim Science Foundation, "Use of Medical Marijuana"

Peter Hess, "Cannabis and autism, explained"

Serap Bilge & Barış Ekici, "CBD-enriched cannabis for autism spectrum disorder: an experience of a single center in Turkey and reviews of the literature" (2021)

Kentucky becomes 38th state to legalize marijuana

Under the US Constitution, any proposed amendment requires ratification by three-fourths of the states.  That means now approval of 38 of our 50 states are required to amend the Constitution. I thought it worth highlighting this math of constitutional reform in conjunction the news from Kentucky that the Bluegrass state has now become the 38th state to legalize medical marijuana.  This local piece, headlined "Kentucky bill legalizing medical marijuana signed into law," provides these details:

After a decade of failed attempts in the state legislature, a bill to legalize medical marijuana in Kentucky received final passage Thursday just hours before the adjournment of the 2023 session. Gov. Andy Beshear signed it into law Friday morning before a bipartisan crowd of legislators and advocates, making Kentucky at least the 38th state to legalize medical cannabis.

The actual implementation of the state program will not go into effect until the beginning of 2025....

Senate Bill 47 passed the House by a bipartisan 66-33 vote shortly after it cleared a House committee, with most Republicans and all but one Democrat voting to legalize and regulate the drug.  The passage was a celebration for those who had pushed for legalization in Frankfort over the past decade, coming very close in recent years.

The House had passed a medical marijuana bill two out of the last three years, only to have it die in the Senate due to lack of sufficient support in the socially conservative Republican caucus.  This year the bill started in the Senate, passing through that chamber for the first time two weeks ago by a significant margin.

In the committee meeting, longtime legalization advocate Eric Crawford — a quadriplegic since a vehicle accident 30 years ago — told legislators how marijuana is the only drug that has effectively treated his severe pain and spasms without side effects, saying he and others with serious medical conditions should not have to live in fear of obtaining and using a drug that works....

Under SB 47, the Cabinet for Health and Family Services would be responsible for the implementation, operation, oversight and regulation of the program and its cultivators, dispensaries and producers.  Patients with at least six medical conditions would be eligible to receive a medical marijuana card in Kentucky's program.  The conditions include: Any type or form of cancer regardless of stage; Chronic, severe, intractable, or debilitating pain; Epilepsy or any other intractable seizure disorder; Multiple sclerosis, muscle spasms, or spasticity; Chronic nausea that has proven resistant to other conventional medical treatments; Post-traumatic stress disorder

A patient also could be eligible if diagnosed with a medical condition or disease and the newly established Kentucky Center for Cannabis at the University of Kentucky determines they could be helped by use.  The center would determine through data and research that the patient is "likely to receive medical, therapeutic, or palliative benefits."

Card holders would have to be 18 years old or a caretaker for an eligible child.  Patients receiving medical marijuana at a dispensary would not be able to smoke it, but would be able to consume it through vaporizing or edible and topical products.

In committee, Rep. Jason Nemes, R-Louisville, a supporter who was the lead sponsor of medical marijuana bills in sessions past, warned that under the bill, patients who smoked marijuana instead of consuming it by other methods would be breaking the law and subject to losing their medical cannabis cards.  "You will lose your card if you get caught smoking and you will go to jail, as you ought to," Nemes said. "This is not a wink wink, nod nod medical program."...

In a tweet Thursday, Beshear cheered the passage of HB 551, noting that he signed an executive order last year to help some individuals with certified medical conditions avoid prosecution for possessing and using marijuana — partly out of frustration with the legislature and as an incentive for them to pass it into law....  In the signing ceremony in the Capitol rotunda Friday morning, Beshear and Republican legislators spoke about the historic nature of the moment and praised each other for pushing it into law — celebrating the fact that thousands who are in pain and suffering will be helped.

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

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

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

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

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

Suggested background:

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

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

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

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

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

Mayo Clinic, "Medical Marijuana" 

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

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

Some notable news and notes about medical marijuana programs

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In shadow of full legalization initiative, Ohio legislature again discussing broad expansion of medical marijuana program

Last year brought lots of chatter in the Buckeye State remarding marijuana reform, but not much legal reform actually was completed.  A proposed ballot initiate for full legalization got bumped a year because of the timing of signature collection, and other bills proposing full legalization did not advance in the Ohio General Assembly.  But there was some momentum behind a bill to significantly expand the state's medical marijuana program in the Ohio legislature in 2022, though that bill only passed one house of the legislature and so did not make it to Gov DeWine's desk.

But, as this local article details, these Ohio marijuana reform issues and possibilities are all already garnering attention early in 2023.  Here are excerpts from the article with the key details:

A newly introduced Ohio Senate bill would create a 13-member medicinal cannabis oversight commission, as well as a new state agency, in hopes of being more responsive to the state’s medical marijuana industry and expand the diagnoses for which it could be prescribed.

Senate Bill 9 is similar to Senate Bill 261 from last legislative session in that they both are trying to update the state’s 6-year-old law that legalized medical marijuana in Ohio. However, the oversight board is new in SB 9.

Currently, the Ohio Department of Commerce, the State Medical Board of Ohio and the Ohio Board of Pharmacy oversee regulations and licensing in the marijuana program. “What we’ve found is that many of the growers want to expand and grow more,” said Sen. Stephen Huffman, who is sponsoring the bill with fellow Republican Sen. Kirk Schuring. “There’s more growers, there’s more demand. They put an application into the Department of Commerce, and it sits there for 18 months, two years. Hopefully this takes the bureaucracy out of this and streamlines things and make it a better-functioning industry.”

SB 9 comes as the legislature also must decide what to do about a recreational marijuana initiated statue proposal. The legislature has until May 3 to pass a law based on the proposal, backed by a group of medical marijuana licensees. If the General Assembly does nothing, which is likely as GOP leaders have said they’re not interested in the proposal, then the Coalition to Regulate Marijuana Like Alcohol can collect signatures to get on the ballot for voters to decide the matter. The coalition believes it has wide support from Democrats and Republicans in Ohio.

Under SB 9, the Medical Marijuana Oversight Commission would oversee the Division of Marijuana Control. The Division of Marijuana Control would fall under the Ohio Department of Commerce....

SB 9 would allow medical marijuana for patients with autism spectrum disorder and opioid use disorder, in addition to conditions for which medical marijuana has already been approved. The new bill additionally allows medical marijuana for other conditions that physicians, in their discretion and medical opinion, determine are debilitating to a patient.

A similar provision was in SB 261, stating that drug was allowed for conditions if a doctor determines “the patient’s symptoms may reasonably be expected to be relieved from medical marijuana.” SB 261 passed the Senate in December 2021. It died in the House, though, in the session that ended late last year.

SB 261 allowed marijuana cultivators to expand grow space. The larger square footage isn’t in SB 9 but Huffman, who is a physician from Miami County, said he’s willing to discuss amending his bill with more grow space. “In my discussions with Sen. Schuring, we felt this would be a positive move and positive change for the industry,” Huffman said. “At the same time hopefully members of the House will be comfortable with it.”

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

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

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

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

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

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

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

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

Reviewing just some of the dynamic marijuana reform stories from the states

The stories of marijuana reform in the United States are still mostly dynamic state stories, and here is just a handful of state stories from big states making headlines in just the last few days:

From California, "The casualties of California legalizing pot: Growers who went legal"

From Florida, "Florida Gov. DeSantis wants pot companies to pay more"

From Michigan, "Marijuana growing moratorium?: Supply and demand could lead to changes in Michigan"

From New York, "New Yorkers with pot convictions will now be the first to get to sell it"

From Virginia, "Inside the ‘wild, wild west’ of Virginia’s marijuana market"

And, of course, there are at least a half-dozen additional states with marijuana reform initiatives on the ballot this fall.  This Hill article provides an overview of these state stories under this full headline: "Voters in these states may soon decide whether to legalize marijuana: Six states could have ballot measures up for vote in the November midterm elections, and should they pass, will join 19 others in legalizing recreational marijuana."

Effective review of the state of new state marijuana reforms in 2022

With lots of bills being introduced and debated at the federal level, it is dangerously easy to overlook the fact that marijuana reform in the US has been almost exclusively a state story for a quarter century and is likely to remain mostly a state story even if some federal bills actually become law in coming months and years.  Thus, it is especially useful that Politico recently produced this effective round up of some recent state developments under the full headline "Where cannabis legalization efforts stand across the country: Gains in state legislatures slowed down in 2022, but advocates still have the ballot."  I recommend the full piece, and here is how it gets started:

With most legislative sessions across the country already wrapped up for the year, the results are clear: “Elected officials remain far behind the times,” said Karen O’Keefe, state policy director for Marijuana Policy Project. If it were left up to voters, O’Keefe believes, every state would have some form of legal cannabis by now.

As it stands, 19 states have embraced full legalization, while 19 others have enacted medical marijuana programs. But many of the remaining holdouts are staunchly conservative states where legalization skepticism runs deep among lawmakers.

Perhaps the biggest setback for industry advocates this year was Delaware, where a bill to remove penalties for possession passed with supermajorities in both chambers, only to be vetoed by the Democratic governor, John Carney. Recreational legalization efforts also came up short in Ohio, Hawaii and New Hampshire, while medical bills failed in Kansas, South Carolina, Tennessee and Kentucky.

Some legislative efforts were doomed from the outset, particularly Democratic-sponsored adult-use bills introduced in GOP-dominated state legislatures such as Louisiana, Wisconsin and Indiana.

But not all hope is lost for pro-legalization advocates. At least a half dozen states could have legalization questions on their November ballots. If all of those campaigns succeed, half of the states in the country would allow adults to possess — and eventually purchase — weed legally.

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

As I continue to catch up on posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center, I continue to have the chance to highlight great work by OSU law students and recent graduates.  The title of this post is the title of this paper authored by Nathan Ecker who recently graduated from The Ohio State University Moritz College of Law.  Here is its abstract:

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

Student Presentation Analyzing Ohio Senate Bill 261 and Oklahoma’s Free Market Experiment in Medical Marijuana

As my Marijuana Law, Policy & Reform seminar continues with student presentations on their research topics, the third of this coming week's presentations is focused on what the student calls the "free market" approaches to medical marijuana.   Here is how the student describes the topic along with background materials:

Presentation Summary

Ohio Senate Bill 261 seeks to improve Ohio’s existing Medical Marijuana Control Program.  If passed, Senate Bill 261 would multiply the number of licensed dispensaries, increase the number of qualifying conditions, enable physicians to remotely recommend medical marijuana via telehealth, and create the Division of Marijuana Control, which would divest the Board of Pharmacy of its current responsibilities.  While not expressly stated, Senate Bill 261 would embrace a free-market approach to medical marijuana in a similar fashion to Oklahoma, which has often been described the “Wild Wild West of Weed.”  The overarching theme of this presentation is the public perception of such a medical marijuana regime and whether Senate Bill 261 is giving the patients what they want.

Creating more competition in Ohio’s medical marijuana industry is a chief concern among many patients, who often argue that further competition is needed to lower prices.  The vast majority of Ohio patients agree that products sold by dispensaries are currently too high.  The expansion of the number of licensed dispensaries and provisions aiming at improving cultivators are likely to create more competition and lead to lower prices.  But will the expansion of up to 300 licensed dispensaries in Ohio lead to market saturation and thus make it hard for dispensaries to make any money?  This presentation argues that this is an overblown concern in Ohio, unlike it is in Oklahoma.

This presentation also analyzes the qualifying condition provisions, as well as scrutinizing the bill for things that it lacks, such as proscribing standards for doctors or expunging the past criminal records of licensed patients.  Overall, the presentation finds that Senate Bill 261 was carefully crafted to pass the Ohio legislature by focusing on market-oriented and patient-driven concerns and concludes by suggesting that the result will positively transform Ohio’s medical marijuana industry from a market perspective.

Background materials:

Background information about Senate Bill 261: Summary of S.B. 261 from Ohio Legislative Service Commission

Local press article about the Bill: “Marijuana bill could cut prices, increase access”

Great local press article on medical marijuana in Oklahoma: “How Recreational Is Oklahoma’s Medical Marijuana Market?”

Text of Oklahoma medical marijuana initiative: Oklahoma’s State Question 788

Register now for "Ohio Cannabis Reform in Focus"

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

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

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

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

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

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

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

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

Welcoming Ohio Representative Juanita O. Brent to marijuana law seminar class at Moritz College of Law

I am extraordinarily excited that my (always exciting) Marijuana Law and Policy seminar at The Ohio State University Moritz College of Law is now entering its student presentation phase. This means in the coming weeks I will be blogging about the topics that students have researched and presenting here materials they have assembled providing background readings and information.

Adding to my excitement for the start of student presentations is the fact that the first student has arranged for a special visitor to come speak to our class next week.  Here are the details about the speaker at the focal point for the planned class discussion:

Cleveland Heights native Representative Juanita O. Brent from District 12 is set to speak with The Ohio State University, Moritz College of Law’s marijuana law seminar class regarding her sponsored bill – House Bill 60 – and, more generally, marijuana law in the State of Ohio on March 3, 2022.   The class looks forward to asking Representative Brent questions about her legislative work relating to treating autism spectrum disorder with medical marijuana and hearing her  views on the future of medical marijuana and recreational marijuana in the State of Ohio.

On January 25, 2022, Representative Brent announced the committee passage of House Bill 60 – a bipartisan bill that would authorize medical marijuana for autism spectrum disorder.  House Bill 60 was introduced by the 134th General Assembly during the Regular 2021-2022 Session by Representative Brent and Bill Seitz, a Republican Representative from District 30.  The goal of the bill is “[t]o amend section 3796.01 of the Revised Code to authorize the use of medical marijuana for autism spectrum disorder.”  “Autism spectrum disorder” is to be included under Subsection (6)’s “Qualifying medical condition[s],” permissible under Section 3796.01 of the Ohio Revised Code. Today, Section 3796.01 of the Ohio Revised Code continues to read without including autism as a qualified medical condition for medical marijuana use until its official vote on the House floor.

Representative Brent is in her second term as a legislator.  In the 133rd General Assembly, Representative Bill helped author House Bill 285, which established a driver’s license reinstatement fee.  This bill became law in 2020 and has helped thousands of Ohioans remove suspended driver’s licenses because of Representative Brent’s efforts. Representative Brent is the Frist Vice-President of the Ohio Legislative Black Caucus.  In her position as a legislator, she also serves as a Ranking Member of the Agriculture and Conservation Committee, as well as sits on the Transportation and Public Safety and Commerce and Labor Committees.  Representative Brent prides herself on representing District 12 and prioritizing justice and equity in her work, including adult-use cannabis.

Background resources:

"Rep. Brent applauds committee passage of her bill to legalize medical marijuana for autism spectrum disorder"

Text of Ohio H.B. No. 60, 134th General Assembly, Reg. Sess. 2021-22 

Webpage for House Bill 60 to "Authorize medical marijuana for autism spectrum disorder"

Juanita O. Brent Biography  and Juanita Brent background 

Guest post: "First Circuit Splits with Ninth Circuit Over Meaning of Rohrabacher-Farr Amendment"

I was very pleased to have received this morning following terrific guest post content from Professor Scott Bloomberg of the University of Maine School of Law about a notable recent federal circuit court ruling:

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Since December 2014, Congress has included a rider in its annual appropriations acts that prohibits the Department of Justice (“DOJ”) from expending funds to prevent states from “implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, § 537, 133 Stat. 13, 138 (2019).  The rider — most commonly known as the Rohrabacher-Farr Amendment — is an important source of protection from federal prosecution for medical marijuana businesses and users.

Until recently, the only federal circuit court to interpret the Rohrabacher-Farr Amendment was the Ninth Circuit.  In 2016 in United States v. McIntosh, the court held that the amendment only prohibited the DOJ from prosecuting marijuana businesses that strictly complied with their states medical marijuana rules.  This strict compliance standard meant that if a business stepped out of line — including, in theory, if it only extended a toe over the line — the DOJ could prosecute the business for federal drug crimes.

I have never been a fan of the McIntosh court’s strict compliance standard.  I don’t think it is workable in practice and I find it to be a rather unsound interpretation of the Rohrabacher-Farr Amendment.  So, when the First Circuit had an opportunity to interpret the Amendment in United States v. Bilodeau, I decided to submit an amicus brief arguing as much.

The brief explains that the strict compliance standard offers little real protection for marijuana businesses given the complex state regulatory codes with which they must comply. What’s more, even if the compliance standard were loosened (say, companies only had to remain in “material compliance” rather than “strict compliance” to avoid the risk of prosecution) tethering the DOJ’s ability to prosecute medical marijuana businesses to a business’s non-compliance with state law creates an inherent problem.  Under a standard that bases the DOJ’s authority to prosecute businesses on whether that business has complied with state medical marijuana rules, the best way for a state to shield its medical marijuana businesses from federal prosecution is to not have any medical marijuana rules.  The more carefully a state regulates medical marijuana, the more likely its businesses are to be subject to federal prosecution.  That incentive structure may not only prevent states from “implementing their own State laws that authorize” medical marijuana, it also flies in the face of the DOJ’s Cole Memo, which instructs states to regulate marijuana closely.

The McIntosh court’s strict compliance standard also relies on an artificial distinction between a state’s “laws that authorize” medical marijuana and a state’s enforcement of such laws.  According to the court, when the DOJ prosecutes medical marijuana businesses that fail to comply with a state’s medical marijuana rules, the DOJ does not prevent the state from implementing the “laws that authorize” medical marijuana because the business’s conduct was not authorized by those laws. But laws authorizing states to enforce violations of their “laws that authorize” medical marijuana cannot be so easily divorced from the underlying laws.  Enforcement rules are intertwined with the underlying laws for many reasons. Most significantly, a looming threat of federal prosecution would deter many businesses from ever entering the state’s marketplace.  The threat would also undermine the state’s enforcement authority over those businesses that do—after all, what rational business would admit to even the most menial of regulatory violations if doing so would open a risk of federal prosecution?

In light of these problems with the strict compliance standard, my amicus brief urged the First Circuit to adopt a more expansive interpretation of the Rohrabacher-Farr Amendment. I argued that the Amendment creates a blanket prohibition on the DOJ’s authority to prosecute state-licensed medical marijuana businesses for marijuana-related offenses (with some limited exceptions).

The First Circuit last week handed down its opinion in Bilodeau, which departed from the McIntosh court’s strict compliance standard but did not go quite as far as I urged.  As Judge Kayatta explained, the Ninth Circuit’s strict compliance standard affords the DOJ more power to undermine states’ medical marijuana laws than Congress could have intended.

With federal prosecution hanging as a sword of Damocles, ready to drop on account of any noncompliance with Maine law, many potential participants in Maine's medical marijuana market would fasten fearful attention on that threat.  The predictable result would be fewer market entrants and higher costs flowing from the expansive efforts required to avoid even tiny, unintentional violations.  Maine, in turn, would feel pressure to water down its regulatory requirements to avoid increasing the risk of noncompliance by legitimate market participants.

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[Moreover, Maine’s medical marijuana] rules were not drafted to mark the line between lawful activity and cause for imprisonment.  Rather, as with most every regulated market, Maine declined to mandate severe punishments (such as, for example, the loss of a license) on participants in the market for each and every infraction, no matter how small or unwitting….  To turn each and every infraction into a basis for federal criminal prosecution would upend that decision in a manner likely to deter the degree of participation in Maine's market that the state seeks to achieve.

After departing from the strict compliance standard, the court declined to clearly demarcate when the DOJ can (and cannot) prosecute medical marijuana businesses.  Instead, the court reasoned that, under the facts of this case, the DOJ could subject the defendants to federal criminal punishment because their alleged conduct also constitute a crime under Maine’s marijuana laws.

The First Circuit’s interpretation of the Rohrabacher-Farr Amendment in Bilodeau should bring some comfort to medical marijuana businesses in the First Circuit.  The interpretation gives the DOJ less discretion to prosecute medical marijuana businesses than does the Ninth Circuit’s strict compliance standard.  This increased protection could become all the more important if a Presidential administration less friendly to marijuana takes power.  (And, for marijuana law professors, Bilodeau and McIntosh present an excellent opportunity for a class exercise on statutory interpretation!)