Tuesday, November 3, 2020
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)
Wednesday, October 28, 2020
Massachusetts Supreme Judicial Court rules, based on state law, that workers' comp insurer not required to cover medical marijuana
The Supreme Judicial Court of Massachusetts issued a notable ruling yesterday in Daniel Wright's Case, No. SJC-12873 (Oct. 27 2020) (available here). The full introduction of the opinion from the unanimous court nicely highlights the issue and its resolution:
In the instant case we are asked to determine whether an insurance company may be ordered to reimburse an employee for medical marijuana expenses pursuant to a general provision of the Massachusetts workers' compensation scheme that requires reimbursement of necessary and reasonable medical expenses. The claimant, Daniel Wright, sought compensation for $24,267.86 of medical marijuana expenses to treat chronic pain stemming from two work-related injuries he sustained in 2010 and 2012. His claim was denied by an administrative judge, and the denial was affirmed on appeal by the reviewing board of the Department of Industrial Accidents (department). The reviewing board concluded that marijuana's status as a federally illicit substance preempted any State level authority to order a workers' compensation insurer to pay for Wright's medical marijuana expenses. We likewise conclude that the workers' compensation insurer cannot be required to pay for medical marijuana expenses, but do so based on the medical marijuana act itself.
We recognize that the current legal landscape of medical marijuana law may, at best, be described as a hazy thicket. Marijuana is illegal at the Federal level and has been deemed under Federal law to have no medicinal purposes, but Massachusetts, as well as the majority of States, have legalized medical marijuana and created regulatory schemes for its administration and usage. Complicating and confusing matters further, Congress has placed budgetary restrictions on the ability of the United States Department of Justice to prosecute individuals for marijuana usage in compliance with a State medical marijuana scheme, and the Department of Justice has issued, revised, and revoked memoranda explaining its marijuana enforcement practices and priorities, leaving in place no clear guidance.
The Commonwealth's original medical marijuana act, St. 2012, c. 369 (act or medical marijuana act), was carefully drafted by its sponsors to take into account this most difficult regulatory environment, with provisions specifically designed to avoid possible conflicts with the Federal government. One such provision of the law expressly states that "[n]othing in this law requires any health insurance provider, or any government agency or authority, to reimburse any person for the expenses of the medical use of marijuana." St. 2012, c. 369, § 7 (B). See G. L. c. 94I, § 6 (i). This provision recognizes that when medical marijuana patients seek to recover the costs of such use from third parties, including insurance companies engaged in interstate commerce, the regulatory environment becomes even more problematic. Under the plain language of this provision, those insurers are not required to reimburse medical marijuana expenses for a substance that remains illegal under Federal law.
We conclude that this specific language, and the Federal concerns it seeks to address and avoid, is controlling and not overridden by the general language in the workers' compensation laws requiring workers' compensation insurers to reimburse for reasonable medical expenses. A contrary reading of this specific language, which states that health insurers and government agencies and authorities are not required to reimburse medical marijuana expenses, would have been completely misleading to those who voted on it. It is one thing for a State statute to authorize those who want to use medical marijuana, or provide a patient with a written certification for medical marijuana, to do so and assume the potential risk of Federal prosecution; it is quite another for it to require unwilling third parties to pay for such use and risk such prosecution. The drafters of the medical marijuana law recognized and respected this distinction
The title of this post is the title of this great new web resource put together by the folks I have the honor to work with at The Ohio State University Moritz College of Law's Drug Enforcement and Policy Center. The resource collects and organizes information and links about the significant number of drug policy reforms proposals appearing on state ballots this election cycle. Here is introduction to the detailed state-by-state materials:
A closer look at drug policy reform decisions voters will make during the 2020 election
On election day 2020, voters will decide more than the next United States President. Drug policy and enforcement reforms will appear on numerous state-level ballots. Five states have qualifying initiatives that attempt to legalize marijuana for medical or adult-use consumption, including some states that will ask voters to decide on multiple pathways to a legal market. And marijuana reform is not the only drug-related issue on ballots. Initiatives in a few states and Washington, D.C. will ask voters to modify existing sentencing laws, decriminalize all drugs, or legalize psychedelics for adult-use and therapeutic reasons.
To gain a better understanding of what this election could mean for drug policy across the U.S., the Drug Enforcement and Policy Center (DEPC) has developed a list of key ballot initiatives reaching voters in 2020. Read on for a list of initiatives we will be watching this November in the areas of marijuana legalization, psychedelics, and criminal justice.
Plus, don’t miss our post-election event Drug Policy Implications of the 2020 Elections on November 16, 2020. Our panel of experts will discuss the 2020 election results and what they are likely to mean for drug enforcement and policy at both the state and federal level.
October 28, 2020 in Campaigns, elections and public officials concerning reforms, Initiative reforms in states, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Wednesday, September 30, 2020
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.
Tuesday, September 22, 2020
The question in the title of this post is prompted by this new Marijuana Moment piece headlined "South Dakota Voters Support Medical And Recreational Marijuana Initiatives, New Opposition Poll Finds." Here are excerpts:
A majority of South Dakota voters support separate initiatives to allow both medical and recreational marijuana that will appear on the state’s November ballot, according to a new poll funded by legalization opponents.
But when it comes to the proposed adult-use legalization amendment, opponents argue that there’s significant confusion over what it would accomplish, as most people who said they favor the measure cited therapeutic applications of cannabis as reasons they support the broad reform.
The statutory medical cannabis initiative would allow patients suffering from debilitating medical conditions to possess and purchase up to three ounces of marijuana from a licensed dispensary. They could also grow at least three plants, or more if authorized by a physician.
The proposed constitutional amendment, which couldn’t be changed by the legislature if approved by voters, would legalize marijuana for adult use. People 21 and older could possess and distribute up to one ounce, and they would also be allowed to cultivate up to three cannabis plants.
There’s strong support for each of the measures in the new prohibitionist-funded survey, which was conducted June 27-30 and announced in a press release on Thursday. Roughly sixty percent of South Dakota voters said they favor recreational legalization, while more than 70 percent said they back medical cannabis legalization, according to the No Way on A Committee, which didn’t publish detailed cross-tabs, or even specific basic top-line numbers, from the poll results.
The decision by the prohibitionist committee to release the results of a poll showing such broad support for legalization is an interesting one. Typically, ballot campaigns and candidates use polling results to demonstrate momentum, but perhaps the South Dakota group is seeking to sound the alarm and generate donations from national legalization opponents to help stop the measure. If South Dakota votes to legalize cannabis this November, that would signal that the policy can pass almost anywhere....
While the recreational measure might not have been crafted solely with patient access in mind, adults who want to use marijuana for therapeutic reasons would still stand to benefit from a regulated market — regardless of whether it’s a medical or adult-use model — so it’s possible that the survey results don’t demonstrate total confusion among those respondents. Plus, the constitutional amendment does contain language requiring the legislature to enact policies on medical cannabis as well—providing more robust constitutional protections for therapeutic use than the statutory measure alone would ensure.
Maine, Nevada and especially Alaska are arguably "reddish" or "red" states that have already fully legalized marijuana via ballot initiatives in years past. But South Dakota is really deep red, as in 2016 it voted for Donald Trump two-to-one over Hillary Clinton. If such a deep red state really does vote convincingly for full marijuana legalization, I think the prospects for federal reforms get a lot brighter no matter who is in charge at the federal level after this election.
September 22, 2020 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Initiative reforms in states, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Tuesday, September 8, 2020
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.
Monday, July 13, 2020
The Dayton Daily News has this interesting new piece on Ohio's medical marijuana program under the headline "$133M of medical pot sold in 1st year as pandemic legitimized industry." Here are excerpts:
The coronavirus pandemic has wreaked havoc on the state’s economy, but those in the medical marijuana industry say the virus legitimized the fledgling program in Ohio. The medical marijuana program, which is run by the Ohio Board of Pharmacy and the Commerce Department, was fully functional in April 2019. Sales have significantly increased over the past year.
In May of last year, about $2.2 million and about 300 pounds of medical marijuana product was sold in the state of product has been sold, according to data from the Ohio Department of Commerce. Medical marijuana sales in Ohio then jumped from $7.7 million this past February to $12.9 million in March — more than 1,500 pounds, according to the Ohio Department of Commerce. About $10.9 million of medical marijuana product was sold in April.
As of June 14, the most recent data available, a total of $133.9 million and 16,225 pounds of medical marijuana product has been sold since the program started.
The state has collected about $3.8 million in sales tax on the medical marijuana program from July 2019 to March 2020, according to the Ohio Department of Taxation. The state of Ohio’s fiscal year runs from July 1 to June 30.Permissive sales tax collected statewide in that time was $942,673, the Department of Taxation said. Permissive sales tax is collected by local entities, like the county and regional transit authority. The state wouldn’t release county-by-county sales tax data. Larry Pegram is the president of Pure Ohio Wellness.... Dispensaries were deemed essential during the statewide coronavirus shut down issued in March and lasting through May. That was huge for the medical marijuana industry, Pegram said.“That legitimized the whole program,” Pegram said. “This has become more acceptable, people are now seeing it more as an alternative medicine. ”Medical marijuana sales have increased every month the dispensaries have been open, Pegram said. There are now 51 dispensaries operating in Ohio. Six more dispensaries have provisional licenses and are working toward opening in the state.
When the pandemic first started, Pegram said people rushed to get product. But when dispensaries were deemed essential, sales settled down a bit. “It was scary at first, I think for everyone,” Pegram said. “But we realized we needed to stay open for our patients. For some of them, we are their lifeline.”...
More than 109,000 Ohioans are registered medical marijuana patients as of May 31, the most recent data available. In May of last year, 35,162 Ohioans were registered patients. About 7% of those patients are veterans. More than 600 of Ohio’s medical marijuana patients have been diagnosed with a terminal illness. Many Pure Ohio Wellness patients are seniors who use medical marijuana for pain management, Pegram said.
Licensed dispensaries reported about 81,200 unique patients who purchased medical marijuana as of May 31, according to the Ohio Automated Rx Reporting System. In May 2019, about 20,000 unique patients purchased medical marijuana.Ohioans can get a doctor’s order to use medical marijuana if they have one of the qualifying conditions, including chronic pain, Alzheimer’s, cancer, epilepsy, fibromyalgia or HIV/AIDS.Gould said he believes the Ohio Medical Board should add anxiety, autism and opioid withdrawl to the approved list of conditions.
Saturday, July 4, 2020
Kyle Jaeger has this helpful and timely piece at Marijuana Moment discussing the state of direct democracy marijuana and drug reform campaigns in the states. The piece is headlined "As Signature Deadlines Approach, Here’s Where Marijuana And Drug Policy Reform Campaigns Stand," and is worth a full read. Here are highlights:
Several drug policy reform campaigns are in the final stretch as deadlines to submit signatures for proposed ballot initiatives loom this week and next.
While the coronavirus pandemic dealt serious blows to marijuana, psychedelics and other drug reform groups in jurisdictions across the country, forcing some to end their campaigns, activists in Arizona, Idaho, Nebraska, Oregon and Washington, D.C. are still in the game, with some running against the clock to turn in enough valid signatures to qualify and others now waiting for officials to validate petitions they’ve already submitted. That’s in addition to measures that have already qualified for November ballots in states like Mississippi, New Jersey and South Dakota.
The proposed ballot measures would accomplish everything from legalizing cannabis to decriminalizing psychedelics such as psilocybin and ayahuasca. Here’s a status update on where they stand:
Arizona Deadline: July 2
Smart & Safe Arizona is a campaign to put marijuana legalization on the November ballot, and it seems to be in good shape to qualify....
Idaho Deadline: TBD
While the original deadline to submit signatures for an initiative to legalize medical marijuana passed on May 1, a federal judge recently ruled that the state must make accommodations for a separate non-cannabis ballot campaign due to signature gathering complications caused by the coronavirus pandemic and the government’s response to it. Activists feel the ruling will also apply to the marijuana measure....
Nebraska Deadline: July 3
Activists behind an initiative to legalize medical cannabis in the state turned in 182,000 raw signatures on Thursday — well more than the 121,669 valid submissions needed to qualify for the ballot....
Oregon Deadline: July 2
A campaign to legalize psilocybin mushrooms for therapeutic purposes already submitted signatures that they feel will qualify them for the ballot....
Washington, D.C. Deadline: July 6
Washington, D.C. activists are continuing to collect signatures for a proposed measure to make enforcement of laws against various entheogenic substances such as psilocybin, ayahuasca and ibogaine among the city’s lowest law enforcement priorities....
Here’s the status of other drug policy campaigns that have either succeeded or failed so far this year:
The Oregon Secretary of State’s office announced on Tuesday that a campaign to decriminalize currently illicit drugs and expand substance misuse treatment has qualified for the ballot.
Prior to the COVID-19 outbreak and stay-at-home mandates, measures to legalize marijuana for medical and recreational purposes qualified for South Dakota’s November ballot.
Mississippi activists gathered enough signatures to qualify a medical cannabis legalization initiative for the ballot—though lawmakers also approved a competing (and from advocates’ standpoint, less desirable) medical marijuana proposal that will appear alongside the campaign-backed initiative.
The New Jersey legislature approved putting a cannabis legalization referendum before voters as well.
Montana activists recently turned in more than 130,000 signatures to qualify a pair of marijuana initiatives—one to legalize the plant for adult use and another stipulating that individuals must be 21 or older to participate — for the November ballot. The state is currently validating those submissions.
A campaign to legalize marijuana in Arkansas will not qualify for the ballot this year, a spokesperson told Marijuana Moment on Tuesday.
Activists behind an initiative to decriminalize currently illicit drugs and expand access to treatment services in Washington State said last week that they will no longer be pursuing the ballot due to the coronavirus pandemic. Instead, they are seeking to enact the policy change through the legislature during the next session starting January 2021.
An effort to place a psilocybin legalization measure on California’s ballot ended after the coronavirus pandemic presented petitioning difficulties and officials didn’t agree to a request to allow electronic signature gathering.
A campaign to legalize cannabis in Missouri officially gave up its effort for 2020 due to signature collection being virtually impossible in the face of social distancing measures.
North Dakota activists ended their push to place a marijuana legalization measure on the 2020 ballot and will instead seek qualification for 2022.
July 4, 2020 in Campaigns, elections and public officials concerning reforms, Initiative reforms in states, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Tuesday, June 30, 2020
The question in the title of this post is the headline of this effective new Leafly article, which builds off the research noted in this prior post about the "right" minimum age for legal access to recreational cannabis. Here are excerpts:
When it comes to legal cannabis, the random collection of ages across North America is curious. Every US state that allows recreational cannabis sales requires customers to be at least 21 years old. In Canada the minimum age is 19, except in Alberta (where it’s 18) and Québec (which started at 18 but raised it to 21 earlier this year).
In most jurisdictions, medical marijuana is legal for people age 18 and older, with a doctor’s recommendation.
What difference does it really make if someone is 18, 19 or 21? A research team at Memorial University in Newfoundland, Canada, recently investigated the question. Instead of looking at the immediate health and safety of young adults, they assessed later life outcomes — namely educational attainment, lifetime cigarette smoking habits, and general physical and mental health. In their study, the Memorial University team concluded that the ideal minimum legal age for cannabis was 19....
Health experts cite THC exposure in adolescents causes changes to the brain’s folding patterns, decreased neural connectivity, thinning of the cortex and lower white matter, among other symptoms. However, one recent study suggests any changes to brain structure caused by cannabis use in adolescence cleared up by the time subjects were in their 30s.
Another ongoing study in the Saguenay region of Quebec took MRI scans of over 1,000 adolescent brains in 2002, and the same subjects are currently being re-evaluated as adults — results pending.
If the serious nature of brain health is such a risk, why not just make cannabis illegal until a person’s mid-20s? In the real world, policymakers have to weigh human nature’s penchant for the forbidden with appropriate rules and consequences. In an ideal world, sure — and in this ideal world underage kids never go looking for cannabis from illicit sources, either. In the real world, though, policymakers have to weigh human nature’s penchant for the forbidden with appropriate rules and consequences. In an ideal world, alcohol would also be outlawed for health reasons, but we all know how Prohibition worked out.
Prior to the Oct. 2018 opening of legal cannabis sales in Canada, a government task force took a hard look at the best-legal-age question. That group found that the higher the minimum legal age, the more likely adolescents will seek out unregulated sources, risking both consumption of potentially more dangerous products and also incarceration.
Prior related post:
June 30, 2020 in Business laws and regulatory issues, International Marijuana Laws and Policies, Medical community perspectives, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Thursday, April 9, 2020
For my paper, I'll be looking at the regulatory frameworks states have developed for edibles. After some background on edibles and their significance to the marijuana industry, I'll discuss the varying levels regulations that states have employed. Then I discuss the three major types of regulations for edibles: (1) testing; (2) packaging and labeling; and (3) THC content. Finally, I conclude by assessing the effectiveness of each type and making my own recommendations for moving forward.
For background, please see the resources below:
Alice G. Walton, Is Eating Marijuana Really Riskier than Smoking It?, FORBES (June 4, 2014).
Jeff Rossen & Jovanna Billington, Rossen Reports Update: Edible Marijuana That Looks Like Candy Is Sending Kids to the ER, TODAY (Sept. 16, 2017).
Robert J. MacCoun & Michelle M. Mello, Half-Baked--The Retail Promotion of Marijuana Edibles, 372 NEW ENG. J. MED. 989 (2015).
Mike Montgomery, Edibles Are the Next Big Thing for Pot Entrepreneurs, FORBES (July 19, 2017).
Ryan Vandrey et al., Cannabinoid Dose and Label Accuracy in Edible Medical Cannabis Products, 313 JAMA 2491-93 (2015).
Daniel G. Barrus et al., Tasty THC: Promises and Challenges of Cannabis Edibles, RTI PRESS 6 (Nov. 2016).
April 9, 2020 in Assembled readings on specific topics, Business laws and regulatory issues, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Wednesday, March 4, 2020
Noting how blanket federal prohibition serves to thwart continued progress of medical marijuana reforms
This new Roll Call article, headlined "States turn to unenforced federal law to slow medical marijuana legalization," effectively reviews how federal prohibition still serves to impact medical marijuana reforms efforts in a number of states. I recommend the lengthy article in full, and here are excerpts:
Since 2014, Congress has protected patients and cannabis programs from federal marijuana prosecutions in states that allow it for medical use. Medical marijuana’s unique legal status involves a little-known provision called the Rohrabacher-Farr amendment that Congress renews every year in spending laws. It says the Justice Department cannot use federal funds to prevent states from implementing their own medical marijuana laws.
Yet marijuana’s continued status as a Schedule I substance — the most severe drug category — remains fodder for those opposed to legalizing medical marijuana in other parts of the country.... In states considering the issue this year, including Alabama and Tennessee, opponents continue to cite the drug’s Schedule I status.
In Tennessee, House Speaker Cameron Sexton, a Republican, said in January that he won’t take up medical marijuana because “it’s against federal law.” A commission created by the Alabama Legislature to advise lawmakers on cannabis policy last year recommended that the state adopt a medical marijuana plan this session, and it published draft legislation to do so. But opponents on the commission said the top reason for their objections was “the fact that marijuana remains a Class I Controlled Substance under state and federal law.”
Alabama Attorney General Steve Marshall inflamed debate further in January when he wrote a letter in opposition to legislators. “State laws that allow any use of marijuana, medical or recreational, are in direct conflict with duly enacted and clearly constitutional law,” Marshall wrote. “Thus, state marijuana statutes enacted in violation of the law are damaging to the law itself.”...
Such arguments underscore why Congress is considering a number of bills to deschedule marijuana entirely or reschedule it in order to better study it. They face long odds in the Senate, which has yet to move on a House-passed bill that is limited to offering protections for banks that do business with marijuana companies.
But advocates for legalization say federal prohibition is a red herring, and that states shouldn’t have to comply with a federal drug law the Drug Enforcement Administration is barred from enforcing. “States are authorizing conduct that is prohibited under federal law, so at first blush, I can see how this could be confusing and surprising, but at this point, two-thirds of the country have implemented comprehensive medical marijuanalaws,” says Karen O’Keefe, state policy director for the Marijuana Policy Project, a pro-legalization advocacy group that lobbied for the Rohrabacher-Farr amendment. The rider halted most raids involving medical marijuana in states with legalization.
The patients and providers who cultivate, process and dispense the cannabis these patients rely on in these states for the treatment of debilitating illness do not have to fear federal charges as long as they are in compliance with state law, says Sean Khalepari, regulatory affairs coordinator for the pro-medical marijuana group Americans for Safe Access.
But the unusual nature of the provision is not well understood, some say.... Although the amendment serves as a shield against federal prosecution, “I think it can be misunderstood that this rider does not in and of itself legalize medicinal marijuana at the federal level,” says Jeffrey Vanderslice, who worked as an aide to Rohrabacher in 2014. Since the Justice Department technically retains the ability to prosecute medical marijuana — even in states that have legalized it, if a business or individual doesn’t comply with state law — advocates are hoping for more certainty on the federal level eventually.
Meanwhile, the Trump administration’s interpretations and actions have contributed to the confusion. In 2018, the administration rescinded guidance by the Obama administration known as the Cole memorandum, which directed Justice to deprioritize prosecuting state-legal marijuana businesses. Trump’s reversal stoked worry and confusion among supporters of legalization.
The office of the attorney general has since turned over from Jeff Sessions, a severe critic of marijuana, to William Barr. Barr said during a Senate hearing in 2019 that he operates under the Cole memo, but leaves significant discretion to U.S. attorneys in each state. Meanwhile, the White House has sought the repeal of Rohrabacher-Farr in each of its budgets, including in Trump’s fiscal 2021 budget proposal. Congress has always bucked that recommendation.
Tuesday, February 18, 2020
The title of this post is the headline of this new Salon article that seems to effectively review where marijuana reform initiatives already have qualified, or might still qualify, for the ballot in fall 2020. Here is the wind up and the essentials (click through for lots of details and lots of links):
It's tough to push a legalization bill through the state legislative process. A single recalcitrant committee head can kill a bill, and even committed proponents can fail to reach agreement, squabbling over issues such as taxation, which agencies will have regulatory power, and ensuring social justice in the industry. And so the bill ends up dying. Of the 11 states that have so far legalized marijuana, only Illinois and Vermont have done it via the legislature, and in Vermont, they only legalized possession and cultivation, not a taxed and regulated market.
It could be different this year because 2020 is an election year, and that means residents of a number of states will or could have a chance to vote directly on whether to legalize marijuana without having to wait for the politicos at the statehouse to ratify the will of the people..... While there are serious prospects for legalization at the statehouse in a handful of state this year — think Connecticut, New Mexico, New York, and Rhode Island — a number of other states are seeing marijuana legalization or medical marijuana initiative campaigns get underway, and several states in each category have already qualified for the ballot. That an initiative campaign is underway is no guarantee it will make it onto the ballot — a well-funded legalization initiative in Florida just came up short on signatures for this year — but it is a signal that it could be. Here's where things stand on 2020 marijuana reform initiatives as of mid-February.
States where marijuana legalization will be on the ballot
States where marijuana legalization could be on the ballot
States where medical marijuana will be on the ballot
States where medical marijuana could be on the ballot
Come November, will we see how many of these efforts come to fruition, but we should be adding at least a state or two to the ranks of both the medical marijuana states and the legalization states — and that's not counting what occurs at statehouses around the country.
Thursday, February 13, 2020
As noted in prior posts here and here, this week I have asked students in my marijuana reform seminar to reflect on how policymakers should assess the efficacy of medical marijuana programs. Potentially important to this inquiry is figuring out just what basic metrics should matter — metrics related both to the operation of medical marijuana programs and to the program's potential impact on individual and community well-being.
Reflecting on these questions always lead me back to a range of challenging (and useful) policy questions about what fundamental values are of greatest importance as we consider and operationalize any form of marijuana reform. Of course, there are always going to be plenty of basic medical research questions (and uncertainty) about whether and for whom marijuana might provide health benefits (after all, this article suggests medical science cannot conclusively answer whether adults should be drinking milk). But beyond (or intertwined with) uncertainty about the medical use of marijuana, how should policy makers approach these (or many other) potentially important metrics:
-- Is the raw number of patients in medical marijuana programs, or the number of a particular type of patients, fundamental to judging the success of medical marijuana programs?
-- Should self-reports or health-care worker reports of patient satisfaction or the cost of this form of health care relative to others be central to assessing efficacy?
-- Should reductions (or increases) in opioid overdoses or other salient community health problems be a central consideration?
-- How about potential health care cost savings (or cost increases) for the state?
-- How about other possible public health and safety concerns ranging from increased marijuana use by teens, or more reports of substance use disorders, or more accidents involving impaired drivers or even increased crimes around dispensaries?
-- How about tax revenues or number of jobs created as an important metric for medical marijuana programs (since we see this often discussed for recreational programs)?
-- How should social equity and social justice concerns impact these issues: e.g., should we worry if only privileged people have access to and profit from medical marijuana and/or if arrest rates for low-level marijuana possession go up after a state implements a medical marijuana program?
I am sure I am leaving out lots of other important issues in this spitballing of metrics that might be important when evaluating medical marijuana programs. I eagerly welcome feedback and suggestions on this front from all readers.
A few recent related posts:
- How should policymakers assess the efficacy of medical marijuana programs? What are key metrics?"
- Does official public data about Ohio's Medical Marijuana Control Program show its efficacy? Its ineffectiveness?
Wednesday, February 12, 2020
Does official public data about Ohio's Medical Marijuana Control Program show its efficacy? Its ineffectiveness?
In a post from few days ago, I asked "How should policymakers assess the efficacy of medical marijuana programs? What are key metrics?". I have asked students in my marijuana reform seminar to reflect on these questions, and I am wondering if official data on Ohio's "Medical Marijuana Control Program" can help answer these question in the Buckeye State.
Specifically, here is link to a graphic that compares some data on Ohio's medical marijuana program from January 2019 and January 2020. Because the 2019 data is from the "first day of sales," we see great growth in listed number over the course of a year (e.g., registered patients grew from 12,721 to 73,967). Is this a mark of success for a program that became law in mid 2016? Or does this show how slowly (or poorly) the program got launched?
Or consider this page of cumulative data as of Feb 7, 2020
- 19 Level I provisional licenses
- 13 Level II provisional licenses
- 57 Provisional licenses
- 49 Provisional licensees have received a Certificate of Operation
Patients & Caregivers (as of 12/31/2019)
- 83,857 Recommendations
- 78,376 Registered patients
- 5,617 Patients with Veteran Status
- 4,398 Patients with Indigent Status
- 449 Patients with a Terminal Diagnosis
- 55,617 Unique patients who purchased medical marijuana (as reported to OARRS by licensed dispensaries)
- 8,259 Registered Caregivers
- 590 Certificates to Recommend
- 43 provisional licenses
Sales Figures (as of 2/3/2020)
- 8,174 lbs. of plant material
- 393,726 units of manufactured product
- 68.1 million in product sales
- 534,913 total receipts
- Historical Sales Data
Are any of these numbers especially important in judging the success of Ohio's medical marijuana program? What other metrics would be important to judging the success of Ohio's medical marijuana program?
Sunday, February 9, 2020
The question in the title of this post are questions I have asked students in my marijuana reform seminar to be considering this week. I am not sure I have good answers to these questions, so I am hoping my students can help answer them.
Notably, the group Americans for Safe Access (ASA) produces an annual report that gives letter grades to all states based on various criteria relating to medical marijuana programs. (The 2019 version of this lengthy and informative report is summarized in this ASA blog post.) But ASA is a medical marijuana advocacy group that grades states based primarily on how accessible marijuana is to individuals who want access -- i.e., ASA is focused on whether programs "ensure that all patients have access to the medicine they need" -- and it is not a given that all policymakers would be keen to adopt the ASA's grading criteria. (Tellingly, in these ASA reports, states with recreational marijuana programs consistently get the highest grades).
The Drug Enforcement & Policy Center last Fall released this survey report that "revealed immense dissatisfaction with the Ohio medical marijuana system" among likely medical marijuana consumers. But again, the views of likely consumers may not be the best metric for assessing the efficacy of a medical marijuana program. In some coming posts, I will focus on some existing data related to Ohio's and (some other states') medical marijuana program to further explore just what metrics ought to be key to assessing the virtues (and vices?) of these programs.
Monday, February 3, 2020
NORML releases new scorecard of Governors based on "comments and voting records in 2019 specific to matters of marijuana policy"
Last week the acvocacy group NORML released here its "2020 Gubernatorial Scorecard" which constitutes an "extensive database assign[ing] a letter grade 'A' through 'F' to states' governors based upon their comments and voting records in 2019 specific to matters of marijuana policy." Here is part of the executive summary:
Public opinion in support of marijuana law reform, including adult-use legalization, is at an all-time high. Nonetheless, few federal lawmakers are espousing views on cannabis policy that comport with those of the majority of their constituents. As a result, most legislative activity specific to marijuana policy takes place at the state level. America's governors are our nation's most powerful state-elected officials and they often play a key role in this ongoing legislative debate. Here is where each of them stands on issues surrounding cannabis policy.
Thirty-two US governors received a passing grade of 'C' or higher (22 Democrats, 10 Republicans); last year, only 27 Governors received a grade of 'C' or higher.
Of these, nine US governors -- all Democrats -- received an 'A' grade.
Twelve governors received a 'B' grade (11 Democrats, 1 Republican)
Eleven governors received a 'C' grade (9 Republicans, 2 Democrats)
Ten governors -- nine Republicans and one Democrat -- received a 'D' grade
Eight governors -- all Republicans -- received a 'F' grade
Among Democratic Governors, 39 percent received an 'A.' Ninety-six percent of Democratic Governors received a grade of 'C' or higher.
Among Republican Governors, only 37 percent received a grade of a 'C' or higher. Thirty percent received a failing grade.
Political support among US governors for marijuana policy reform continues to grow. However, this support is more partisan than ever before. No Republicans are on record in support of adult-use legalization and few are in favor of regulating medical cannabis access. By contrast, a large percentage of Democrats are supportive of both issues. This partisan divide is not similarly reflected among the general public. According to national polling data compiled by Gallup in October 2019, 66 percent of the public -- including majorities of self-identified Democrats, Republicans, and Independents -- favor adult-use legalization. Bipartisan support among the public for medical marijuana legalization is even stronger. Until this public support is similarly reflected among lawmakers, many cannabis-specific legislative reforms – in particular adult-use legalization proposals – will continue to meet resistance at the state level.
February 3, 2020 in Campaigns, elections and public officials concerning reforms, Medical Marijuana State Laws and Reforms, Political perspective on reforms, Polling data and results, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Monday, January 20, 2020
Highlighting another troublesome spot at the intersection of marijuana reform and criminal justice systems
Regular readers know that, because of my work in the criminal justice arena, I often come to marijuana reform stories with an extra focus on how marijuana law and policy impact criminal justice system. Though I am particularly interested in topics covered in my Federal Sentencing Reporter article, "Leveraging Marijuana Reform to Enhance Expungement Practices," regarding how marijuana reform efforts may be impacting criminal record expungement efforts, there are so many other interesting (and troublesome) spots where marijuana reform intersects with criminal law and practice.
This recent Marshall Project piece looks at one of these spots in a piece headlined "People on Probation and Parole Are Being Denied Perfectly Legal Medical Weed: Despite statewide legalization, some counties ban probationers and parolees from using medical marijuana. So the chronically ill turn to less effective and more addictive prescription drugs." Here are excerpts:
Following years of research demonstrating that marijuana can be a life-changing treatment for people with cancer, Alzheimer’s, multiple sclerosis, PTSD, eating disorders, nausea and epilepsy, and that it is neither physically addictive nor an evident danger to public safety, the drug has been legalized for medical use in 33 states and for adults over 21 to smoke recreationally in 11. Yet for most people on probation or parole — even in precisely these same states — drug testing remains the rule, and jail time the potential punishment.
The argument that many parole and probation authorities make for this seeming contradiction is that regardless of whether marijuana has been legalized in their state, it remains illegal at the federal level, and that if you’re under government supervision for committing a crime, you should at the very least have to follow all state and federal laws. Some parole and probation officials also point out that they drug-test their own officers, so the people they oversee should be held to at least the same standard.
“I don’t know of any paroling authorities who are casual about marijuana — it’s part of their institutional culture, and old habits are hard to break,” said Edward E. Rhine, a former corrections official in multiple states and an expert on parole at the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota Law School. “Obviously most people couldn’t conceive of marijuana being allowed inside a prison, even if that prison is in a state where it has been legalized.”
A handful of states where marijuana is now legal, though, have taken action to make it available to people on probation or parole. Arizona’s supreme court ruled in 2015 that medical marijuana patients cannot be arrested or jailed for taking their medication, even if they are under court supervision. An Oregon appeals court in 2018 issued a similar decision. Within Pennsylvania, where there isn’t yet any such ruling statewide, different counties have different policies.... In other states where there haven’t been major court cases, county courts and even individual probation officers are often responsible for deciding whether to drug-test — and possibly jail — those under their control. Some do so only when marijuana or drugs were related to someone’s underlying crime.
The ACLU of Pennsylvania [is] challenging the court rule in Lebanon County that prohibits parolees and probationers who have a prescription for medical marijuana from using it.... The ACLU’s position is that these counties’ rules contradict the letter and intent of Pennsylvania’s 2016 medical marijuana law, which protected medical marijuana patients from any criminal sanction. The legislation expressly prohibited people in prison from possessing pot, but did not expressly exclude those on parole or probation. The lawyers also point out that people under court supervision can still use opioids with a prescription — which is far more of a public health concern in this day and age, especially in Pennsylvania....
In Colorado, where anyone can smoke a joint freely, a parolee named Mark Paulsen is still being tested for marijuana — even though he is about to die. In 2009, Paulsen, a former mechanic who is an alcoholic, blacked out while drinking and attacked two acquaintances with a knife (neither was killed). He was sentenced to prison for a decade, records show. There, his hepatitis of the liver worsened, becoming end-stage cirrhosis by the time he was released last year.
Paulsen, 64, is now on parole outside Denver. He is visibly ill, jaundiced and constantly bleeding. He has peach-sized tumors in his abdomen, which he says make walking around feel like jumping up and down with heavy, jagged rocks in his belly. And his nausea is so severe that he has at times gone weeks without eating solid food. “The always-there-ness” of the stomach pain, he said, “is what gets you.”
As he waits to die, there have been all the challenges familiar to people on parole. He got out of prison with no money or health insurance, and has to go to the emergency room instead of to a specialist because he’s in such immediate pain, he says. There, he has racked up insurmountable medical debt.
The only things that would ease his symptoms are opioids or medical marijuana, but the former is something that doctors have been wary to prescribe, amid a nationwide epidemic. The latter, Paulsen believes, would seem the solution. (He also has been sober ever since his crime and is not “drug-seeking,” he emphasizes.) Yet every morning, he has to call his parole office, he says. If he is randomly selected that day, he must ride the bus an hour and a half, those sharp rocks in his stomach jostling, to take a drug test. And if he fails one, he could be sent back to prison for whatever time he has left before dying.
A spokeswoman for the Colorado Department of Corrections said that if a parolee has a prescription for medical marijuana, the agency in most instances is willing to “work with” that person to avoid being sanctioned for using it. She later added, “Our parole team is going to reach out directly to Mr. Paulsen to see what assistance they can provide.”
Taking stock of 2020 marijuana reform prospects in various states (and noting some significant omissions)
Jeff Smith over at MJBizDaily has this helpful article (with a helpful graphic) under the headline "Several states could legalize cannabis sales in 2020 as marijuana industry eyes lucrative East Coast market." The article maps out the ten or so states that might move forward with adult-use legalization regimes in 2020 and also reviews the handful of states in which medical marijuana legalization might move forward this year. Here is a snippet from the start of the piece:
Up to a dozen states could legalize adult-use or medical marijuana in 2020 through their legislatures or ballot measures, although only about a handful will likely do so.
Much of the cannabis industry’s focus will home in on a possible recreational marijuana domino effect along the East Coast, which could create billions of dollars in business opportunities. Adult-use legalization efforts in New York and New Jersey stalled in 2019, but optimism has rekindled this year.
Potential legalization activity runs from the Southwest to the Dakotas to the Deep South. Mississippi in particular has a business-friendly medical cannabis initiative that has qualified for the 2020 ballot.
If even a handful of these state marijuana reforms move forward this year, it becomes that much more likely that some form of federal reform will have to follow. That reality is one of the theme of this lengthy new Politico article which also provides an accounting of potential state reforms under the full headline "Marijuana legalization may hit 40 states. Now what?: Changes in state laws could usher in even more confusion for law enforcement and escalate the pressure on Congress to act." Here is an excerpt:
More than 40 U.S. states could allow some form of legal marijuana by the end of 2020, including deep red Mississippi and South Dakota — and they’re doing it with the help of some conservatives. State lawmakers are teeing up their bills as legislative sessions kick off around the country, and advocates pushing ballot measures are racing to collect and certify signatures to meet deadlines for getting their questions to voters.
Should they succeed, every state could have marijuana laws on the books that deviate from federal law, but people could still be prosecuted if they drive across state lines with their weed, because the total federal ban on marijuana isn’t expected to budge any time soon. The changes could usher in even more confusion for law enforcement and escalate the pressure on Congress to act. Federal bills are crawling through Congress, with Senate Majority Leader Mitch McConnell firmly against legalization....
“We’re cautiously optimistic that we can win more marijuana reform ballot initiatives on one Election Day than on any previous Election Day,” said Matthew Schweich, deputy director of the Marijuana Policy Project. Schweich cited growing public support for the issue among both liberals and conservatives. The measures that make the ballot could drive voter turnout at the polls and by extension affect the presidential election.
Liberal states that allow ballot petitions have largely voted to legalize marijuana, including California, Oregon and Massachusetts. “Now, we’re venturing into new, redder territory and what we’re finding is voters are ready to approve these laws in those states,” said Schweich, who, along with leading legalization campaigns in Maine, Massachusetts and Michigan, served as the co-director of the medical marijuana legalization campaign in Utah. “If we can pass medical marijuana in Utah, we can pass it anywhere.”
National organizations like his are eschewing swing states like Florida and Ohio, where the costs of running a ballot campaign are high during a presidential election. They are intentionally targeting states with smaller populations. For advocates, running successful campaigns in six less-populous states means potentially 12 more senators representing legal marijuana states. “The cost of an Ohio campaign could cover the costs of [four to six] other ballot initiative campaigns. Our first goal is to pass laws in as many places as we can,” Schweich said.
They can’t take anything for granted, however. In Florida, where polling says two-thirds of voters want to legalize pot, one effort to gather enough signatures for a 2020 ballot measure collapsed last year, and a second gave up on Tuesday, saying there’s not enough time to vet 700,000 signatures. Organizers are looking to 2022. And many legislative efforts to legalize marijuana came up short in 2019, including in New York and New Jersey. Those efforts were derailed in part over concerns about how to help people disproportionately harmed by criminal marijuana prosecutions, despite broad support from Democratic-controlled legislatures and the governors.
I fully understand the strategic and economic reasons why MPP and other national marijuana reform activist groups have chosen not to focus on big purple states like Florida and Ohio for full legalization campaigns. But these two states have unique long-standing and well-earned reputations as national swing states. Only if (when?) these kinds of big (reddish-purple) states go the route of full legalization will I think federal reform becomes unavoidable.
January 20, 2020 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)
Wednesday, January 15, 2020
The Ohio Health Issues Poll (OHIP) is conducted every year to learn more about the health opinions, behaviors and status of Ohio adults. In 2016 Ohio legalized medical marijuana. It became available in early 2019....
OHIP in 2019 asked Ohio adults about their knowledge of marijuana use among friends and family members, their perception of harm and their participation in the medical marijuana program....
OHIP asked “Do you have a friend or family member who regularly uses marijuana?” About half of Ohio adults said yes (46%).
OHIP also asked, “How much do you think people risk harming themselves by regularly using marijuana?” About half of Ohio adults (47%) said they think regularly using marijuana is a great deal or somewhat harmful.
Responses varied the person knows someone who regularly uses marijuana. Three in 10 Ohio adults (30%) who have a friend or family member who regularly uses marijuana perceive marijuana as harmful. That compares with 6 in 10 Ohio adults (61%) who do not know someone who regularly uses marijuana.
OHIP asked several questions to learn how many Ohioans had explored the new medical marijuana options. OHIP asked, “Have you ever sought information about whether you have a medical condition that can be treated with medical marijuana in the state of Ohio?” About 8 in 10 Ohio adults (83%) have not sought medical marijuana information. Ohio adults who do not perceive marijuana as harmful are more likely (26%) than those who perceive marijuana as harmful (8%) to seek information.
OHIP then asked, “Has your doctor written you a recommendation for the use of medical marijuana?” Very few Ohio adults (2%) reported this. Among those who did, OHIP asked “Have you completed your registration with the Ohio Medical Marijuana Patient and Caregiver Registry?” Very few Ohio adults did.
Wednesday, January 8, 2020
Is rooting for Bengals or Browns a sign of insanity or really just a medical marijuana qualifying condition?
I moved to central Ohio from the east coast in 1997. I had my reasons to start following the Cincinnati Bengals upon first arriving in the Buckeye state (I grew up in Maryland in the 1980s and formed a connection with Boomer Esiason). And I could not help but also be keen on the Cleveland Browns when the team returned to action in 1999. But, fast forward 23 years, and I have not seen either of Ohio's professional football teams even manage to win a single playoff game over this very long period. (Do not feel too bad for me, the OSU Buckeyes have given me plenty of victories to savor.)
Why do I tell this familiar tale of sporting woe in this space. Well, this amusing Cincinnati Enquirer article, headlined "Bengals, Browns seasons got you down? Medical marijuana proposed as treatment," reports on why it is relevant to the work of marijuana reform in the Buckeye state:
Long-suffering Bengals and Browns fans know the pain of defeat — over and over again. At least one person thinks they should be able to treat that misery with medical marijuana.
A petition to make "Bengals/Browns Fans" an official medical marijuana condition was submitted last month to the State Medical Board of Ohio.
Don't get your hopes up: It probably won't go anywhere. The board requires information from experts who specialize in studying the condition, relevant medical or scientific evidence and letters of support from doctors.
The board could not provide more information Monday about the petition, including who submitted it and their argument for why the board should add the "condition."
Last year, more than 100 petitions for new conditions were submitted. Those were winnowed to five: anxiety, autism spectrum disorder, depression, insomnia and opioid use disorder. All five were rejected by the board.
This time around, the board received 28 petitions. The latest batch includes conditions already approved in Ohio, such as chronic pain and PTSD. Petitions were again submitted for the conditions rejected last year. Repeat petitions must include new "scientific information" to be considered again.
Rob Ryan, who heads pro-cannabis coalition Ohio Patient Network, re-submitted a petition for opioid use disorder but he doesn't expect a different outcome. Ryan, who lives in Blue Ash and sometimes roots for the Bengals, didn't have a strong opinion of the football fan condition idea. "Maybe they should sell marijuana as well as beer at the stadium," Ryan said, chuckling. "It might calm the crowd down." But he hopes his proposal has a better shot.
Medical board attorneys will review the petitions to determine whether they meet the minimum requirements, such as including letters from supporting physicians. A medical board committee plans to decide in February which conditions will be reviewed by experts and voted on by the board later this year.