Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Tuesday, June 11, 2019

"The State of Marijuana in The Buckeye State and Fiscal Policy Considerations of Legalized Recreational Marijuana"

The title of this post is the title of this new paper recently posted to SSRN authored by Finley Newman-James, who is a student at The Ohio State University Moritz College of Law.  This paper is the sixth of an on-going series of student papers supported by Drug Enforcement and Policy Center.  (The first five papers in this series are linked below.)  Here is this latest paper's abstract:

In 1975, Ohio’s 63rd Governor James A. Rhodes joined the growing trend of marijuana decriminalization by signing a bill passed by the legislature that supported amending the Ohio Revised Code to remove criminal penalties for use of marijuana.  This was the first big change to marijuana laws in Ohio.  Despite Ohio being one of the most conservative states in the country at the time, Rhodes brought Ohio to become the 6th state to relax punishments on marijuana use.  Since that time, a lot has changed regarding the status of cannabis in the Buckeye State.

This paper will first describe the past legal framework for marijuana along with current developments and proposed changes in the future, including a citizen’s ballot initiative that will appear on the November 2019 ballot that could potentially make sweeping changes to Ohio’s Constitution and marijuana law in Ohio.   This is then followed by an analysis of the potential benefits that recreational marijuana could have in respect to key fiscal budgetary issues facing the state of Ohio. 

Prior student papers in this series:

June 11, 2019 in Criminal justice developments and reforms, 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)

New research raises questions as to relationship between medical marijuana reform and opioid overdoses

This new study just published online in the Proceedings of the National Academy of Sciences suggests that previously encouraging findings suggesting that medical marijuana reforms contributed to a reduction in opioid overdose deaths may not hold up over time.  Here is the article's abstract:

Medical cannabis has been touted as a solution to the US opioid overdose crisis since Bachhuber et al. [M. A. Bachhuber, B. Saloner, C. O. Cunningham, C. L. Barry, JAMA Intern. Med. 174, 1668–1673] found that from 1999 to 2010 states with medical cannabis laws experienced slower increases in opioid analgesic overdose mortality.  That research received substantial attention in the scientific literature and popular press and served as a talking point for the cannabis industry and its advocates, despite caveats from the authors and others to exercise caution when using ecological correlations to draw causal, individual-level conclusions. 

In this study, we used the same methods to extend Bachhuber et al.’s analysis through 2017.  Not only did findings from the original analysis not hold over the longer period, but the association between state medical cannabis laws and opioid overdose mortality reversed direction from −21% to +23% and remained positive after accounting for recreational cannabis laws.  We also uncovered no evidence that either broader (recreational) or more restrictive (low-tetrahydrocannabinol) cannabis laws were associated with changes in opioid overdose mortality.   We find it unlikely that medical cannabis — used by about 2.5% of the US population — has exerted large conflicting effects on opioid overdose mortality.  A more plausible interpretation is that this association is spurious.  Moreover, if such relationships do exist, they cannot be rigorously discerned with aggregate data.  Research into therapeutic potential of cannabis should continue, but the claim that enacting medical cannabis laws will reduce opioid overdose death should be met with skepticism.

Some discussion of this research appears in these popular press pieces, among others:

June 11, 2019 in Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research | Permalink | Comments (0)

Thursday, June 6, 2019

Interesting CRS report on "Marijuana Use and Highway Safety"

Last month, the Congressional Research Service released this interesting short report titled simply "Marijuana Use and Highway Safety." Here is its introduction:

A growing number of Americans report that they use marijuana.  As more states decriminalize the use of marijuana, the question of what impact marijuana usage has on the risk of a driver being involved in a motor vehicle crash has become more pertinent.  In a survey, the majority of state highway safety offices rated drugged driving an issue at least as important as driving while impaired by alcohol.

When faced with the issue of driver impairment due to marijuana, some stakeholders tend to approach the issue using the analogy of driver impairment due to alcohol. However, there are important differences between the two substances.  The fact that alcohol reduces a user’s ability to think clearly and to perform physical tasks has been known for decades.  Extensive research has established correlations between the extent of alcohol consumption and impairment, including drivers’ reaction times. Much less research has been done on marijuana.  Marijuana is a more complex substance than alcohol.  It is absorbed in the body differently from alcohol; it affects the body in different ways from alcohol; tests for its presence in the body produce more complicated results than tests for the presence of alcohol; and correlating its effects with its levels in the body is much more complicated than for alcohol.

That marijuana usage increases a driver’s risk of crashing is not clearly established.  Studies of marijuana’s impact on a driver’s performance have thus far found that, while marijuana usage can measurably affect a driver’s performance in a laboratory setting, that effect may not translate into an increased likelihood of the driver being involved in a motor vehicle crash in a real-world setting, where many other variables affect the risk of a crash.  Some studies of actual crashes have estimated a small increase in the risk of crash involvement as a result of marijuana usage, while others have estimated little or no increase in the likelihood of a crash from using marijuana.

This CRS report addresses various aspects of the issue of marijuana-impaired driving, including patterns of marijuana use, the relationship and detection of marijuana use and driver impairment, and related state law and law enforcement challenges.  The report also references the congressionally required July 2017 report by the Department of Transportation’s National Highway Traffic Safety Administration (NHTSA), Marijuana-Impaired Driving: A Report to Congress (hereinafter referred to as NHTSA’s 2017 Marijuana-Impaired Driving Report to Congress), as well as other studies and research.

June 6, 2019 in Criminal justice developments and reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

SAM releases latest big report on "Lessons Learned from State Marijuana Legalization"

The leading national group opposed to modern marijuana reform, Smart Approaches to Marijuana (SAM), has this big new report titled "Lessons Learned from State Marijuana Legalization"  Here is the short "Executive Highlights" from the start of the report:

Today’s highly potent marijuana represents a growing and significant threat to public health and safety, a threat that is amplified by a new marijuana industry intent on profiting from heavy use.

State laws allowing marijuana sales and consumption have permitted the marijuana industry to flourish, and in turn, the marijuana industry has influenced both policies and policy-makers.  While the consequences of these policies will not be known for decades, early indicators are troubling.

This report, reviewed by prominent scientists and researchers, serves as an evidence-based guide to what we currently observe in various states.  We attempted to highlight studies from all the “legal” marijuana states (i.e., states that have legalized the non-medical use of marijuana).  Unfortunately, data does not exist for several “legal” states, and so this document synthesizes the latest research on marijuana impacts in states where information is available.

Disappointingly, this report does not cover data comprehensively on any single topic from any one state nor does it effectively detail similar data across a number of states.  Rather, as seems common with SAM reports, this latest report focuses on the most troublesome data from a few states to make the case that marijuana reform is creating big problems.  In this way, the report serves as a good review of some of the strongest "data talking points" against marijuana reform, but it does not really provide a sound basis to reach sound conclusions about what lessons should be learned from modern marijuana reforms.

June 6, 2019 in History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Wednesday, June 5, 2019

Americans For Safe Access releases detailed "Patient's Guide To CBD"

2CBD_Guide_GraphicThe leading medical marijuana advocacy group, Americans for Safe Access, has this terrific new resource titled "Patient's Guide To CBD."  Though the title of this nearly 50-page report is simple, the contents provide an intricate road-map to the complicated law and science surrounding the status and import of the cannabis-plant compound known as CBD. Here is a section of the publication's introduction:

The Patient’s Guide to CBD was created by Americans for Safe Access (ASA) for the benefit of patients, prospective patients, healthcare providers, consumers, and anyone interested in learning more about CBD.  The goal of this guide is to be an informative and useful reference document that will be shared with others so that patients, doctors, and regulators can make informed decisions regarding CBD....

Patients and consumers should also be aware of the legal and regulatory status of CBD products.  As of May 2019, 47 U.S. states have passed some type of legislation permitting the use of cannabis or cannabinoids such as CBD; nevertheless, cannabis with THC in excess of 0.3% by dry weight is a Schedule I controlled substance under U.S. Federal law.  Therefore, CBD-containing products that were produced from cannabis plants that exceed the federal threshold on THC may be legal at the state level, but are federally illegal.  Additionally, even CBD products that are derived from plants containing not more than 0.3% THC by dry weight may violate laws such as the Food, Drug and Cosmetics Act and create further legal challenges for patients and consumers.

The passage of the Agriculture Improvement Act of 2018 (also known as the 2018 Farm Bill) will make industrial hemp (i.e., cannabis with no more than 0.3% THC by dry weight), including CBD-rich industrial hemp, an agricultural commodity in the United States, but the U.S. Department of Agriculture has yet to promulgate federal regulations or approve state regulations regarding the cultivation and processing of industrial hemp. Further, the U.S. Food & Drug Administration has yet to provide a pathway for the introduction of hemp-derived CBD products into the marketplace.  Therefore, it is not yet federally legal to market hemp-derived CBD as a drug, dietary supplement, food product, or cosmetic.  Patients and consumers are encouraged to stay up to date on these changing regulations to ensure that they, and their products, are in compliance with applicable laws.

Globally, the use of products containing CBD has risen dramatically as more and more people seek alternative ways to improve their health and their lives.  The data has shown an increase in the sales of products containing CBD every year, and sales are expected to continue to rise in the coming years.

June 5, 2019 in History of Marijuana Laws in the United States, Medical community perspectives, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Tuesday, June 4, 2019

Spotlighting former congressional leader John Boehner (and his cohorts) following the marijuana money

1541019214-screen_shot_2018-10-31_at_1.52.43_pmThe New York Times has this notable new account of the work of the former US House Speaker as salesman for marijuana reform.  The front-page lengthy piece, headlined "John Boehner: From Speaker of the House to Cannabis Pitchman," is an interesting read and here are a few excerpts:

John A. Boehner, the former speaker of the House, once stood second in line for the presidency and staunchly against legalized marijuana.  Now you can find the longtime Republican standing before a wall-size photo of the Capitol, making an online infomercial pitch for the cannabis industry.  “This is one of the most exciting opportunities you’ll ever be part of,” Mr. Boehner says in an endlessly streaming video for the National Institute for Cannabis Investors.  “Frankly, we can help you make a potential fortune.”

Mr. Boehner’s pro-weed epiphany coincides with the prospect of a payday as high as $20 million from the industry he once so vigorously opposed.  He sits on the board of Acreage Holdings, a marijuana investment firm whose sale to a cannabis industry giant hinges on Mr. Boehner’s ability to persuade Congress and the federal government to legalize, or at least legitimize, marijuana.

The chain-smoking, merlot-sipping, former 12-term congressman from Ohio says he had never lit a joint in his life when he and the former Massachusetts governor William F. Weld, now a Republican candidate for president, joined Acreage’s board last year.  This year, Acreage announced plans to sell itself to Canopy Growth, a Canadian company that is the biggest cannabis holding in the world.  The deal, worth around $3 billion, based on current stock prices for both Acreage and Canopy, would create an $18 billion behemoth, industry analysts say.  Buried deep in a financial filing from Nov. 14, 2018, is Acreage’s disclosure that the two men each hold 625,000 shares in the company, which if sold after the company’s sale to Canopy would net them a fortune.

Representative Earl Blumenauer, Democrat of Oregon and a founder of the Congressional Cannabis Caucus, said he saw Mr. Boehner at a dinner on Capitol Hill the day he joined Acreage.  “I said, ‘John, where were you when we needed you?’ And he said, ‘I’ve evolved,’” Mr. Blumenauer recalled in an interview, imitating Mr. Boehner’s smoky baritone.  (Mr. Boehner had made a similar statement on Twitter earlier that day.)

“He’s nothing if not entrepreneurial,” Mr. Blumenauer said.  “The more the merrier.”  But there is a catch.   The takeover will not happen without substantial changes in marijuana policy, leaving it up to Mr. Boehner and his team of lobbyists to work their magic in Washington.

Mr. Boehner declined to be interviewed for this article.  Terry Holt, a spokesman for the National Cannabis Roundtable, which Mr. Boehner founded in February, declined to speculate on Mr. Boehner’s potential income from the sector. Mr. Boehner “sees an investment opportunity in cannabis,” Mr. Holt said. Citing statistics suggesting most Americans favor “some kind of marijuana reform,” he added, “Who wouldn’t want to be involved?”

A slew of former lawmakers agree.  Among those who have signed on in recent months to represent the weed industry are former Senator Tom Daschle of South Dakota, a longtime Democratic leader in the Senate; former Representative Dana Rohrabacher, Republican of California; former Representative Joseph Crowley, Democrat of New York; and former Representative Carlos Curbelo, Republican of Florida....

In 2016, [Boehner] joined Squire Patton Boggs, successor to the marquee Washington law and lobbying firm, as a “strategic adviser.”  About the same time, Mr. Boehner, who once handed out campaign checks from the tobacco industry to lawmakers on the House floor, joined the board of the tobacco giant Reynolds American, makers of his favorite Camel brand.

Reynolds directors with his profile earn roughly $400,000 a year, and Mr. Boehner holds other board seats, too, Mr. Holt said.  Combined with a pension derived from his $223,000 annual congressional salary, Mr. Boehner likely earns a seven-figure retirement income, even without the potential Acreage windfall.

Mr. Boehner and Mr. Weld joined Acreage’s board in April 2018, and together issued a statement: “We both believe the time has come for serious consideration of a shift in federal marijuana policy.”  For evidence, “We need to look no further than our nation’s 20 million veterans, 20 percent of whom, according to a 2017 American Legion survey, reportedly use cannabis to self-treat PTSD, chronic pain and other ailments,” they said, denouncing “the refusal of the V.A. to offer it as an alternative” to opioids.

Chanda Macias, the National Cannabis Roundtable’s first vice chairwoman and the owner and general manager of the National Holistic Health Center medical marijuana dispensary in Washington, said that she had seen more than 10,000 patients who suffer from a lack of research, education and access to medical marijuana.  “This is not about Boehner,” Ms. Macias added, “this is about saving lives.”

June 4, 2019 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Friday, May 31, 2019

Illinois poised to become first big state to legalize adult use/recreational marijuana via traditional legislation

Soc_rr_no_shadow2A couple of big states on the east coast, New Jersey and New York, saw efforts this year to fully legalize marijuana via traditional legislation falter.  But it seems that the biggest midwestern state, Illinois, got this done this legislative session as reported in this local article:

A recreational marijuana legalization bill will soon land on Gov. J.B. Pritzker’s desk after the Illinois House on Friday voted to pass the comprehensive measure.

The Illinois House voted 66-47 after more than three hours of debate. The Illinois Senate on Wednesday cleared the measure. The governor issued a statement applauding the bill’s passage and pledging to sign it. “The state of Illinois just made history, legalizing adult-use cannabis with the most equity-centric approach in the nation,” Pritzker said. “This will have a transformational impact on our state, creating opportunity in the communities that need it most and giving so many a second chance.”

While there are giant swaths of criminal justice and social equity reforms attached to the measure — including giving a second chance to thousands of people convicted of marijuana possession — practically speaking it will allow Illinois residents over 21 to buy cannabis from licensed dispensaries as soon as Jan. 1.

If signed into law, Illinois will become the first state to approve cannabis sales through the Legislature, instead of a ballot measure. There are laws regulating and taxing cannabis in nine states. In Vermont and Washington, D.C., cannabis possession and cultivation is legal but sales are not regulated.

The measure would also allow Illinoisans over 21 years old to possess 30 grams, or just over an ounce of cannabis flower, and 5 grams, or less than a quarter-ounce, of cannabis concentrates such as hash oil. Additionally, Illinoisans would be able to carry up to a half-gram of edible pot-infused products.

“It is time to hit the reset button on the war on drugs,” bill sponsor state Rep. Kelly Cassidy, D-Chicago, said during the debate. “What is before us is the first in the nation to approach this legislatively, deliberately, thoughtfully, with a eye toward repairing the harm and the war on drugs. We have an opportunity today to set the gold standard for a regulated market that centers on equity and repair.”...

Others weren’t convinced. State Rep. Mary Flowers, D-Chicago, said “the reset button is broken.” “The fact of the matter is nothing in this bill addresses the harm that’s been done to our community,” Flowers said. “Our community is still being used for people to make a profit and get rich and give nothing to the community.”

Amid opposition, some initiatives in the initial measure, which was filed in early May, were scaled back. A House committee this week approved changes that include allowing only medical marijuana patients to have up to five plants in a home. There were also changes made within the expungement provisions, which would have initially automatically expunged hundreds of thousands of marijuana possession convictions.

Now, convictions dealing with amounts of cannabis up to 30 grams will be dealt with through the governor’s clemency process, which does not require individuals to initiate the process. For amounts of 30 to 500 grams, the state’s attorney or an individual can petition the court to vacate the conviction.

The updated language means those with convictions for cannabis possession convictions under 30 grams can get pardoned by the governor. States attorneys would then be able to petition the court to expunge the record. A judge would direct law enforcement agencies and circuit court clerks to clear their record. This only applies to those convicted with no other violent crime associated with the charge. And it only applies for convictions that have taken place when the bill takes effect on Jan. 1....

Designed to address concerns about impaired driving, the measure would also add a DUI Task Force led by Illinois State Police to examine best practices. Those would include examining emergency technology and roadside testing.

Sales from recreational marijuana is expected to bring in $57 million in this year’s budget and $140 million next year, sponsors have said. It should eventually rise to $500 million a year once the program is fully running.

May 31, 2019 in History of Marijuana Laws in the United States, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Thursday, May 30, 2019

Split Second Circuit panel gives small victory to medical marijuana users while turning away their high-profile court challenge to Schedule I placement

I have noted in a number of prior posts linked below the notable lawsuit seeking to ensure legal access to medical marijuana that was filed in federal district court in New York in July 2017 (first discussed in this post.)   In February of 2018, as noted in this post, US District Judge Alvin Hellerstein dismissed the suit, ruling the litigants had "failed to exhaust their administrative remedies” while concluding that "it is clear that Congress had a rational basis for classifying marijuana in Schedule I."  In response to that ruling, I said "plaintiffs in this suit could appeal this dismissal to the US Court of Appeals for the Second Circuit, and doing so would likely keep the case in the headlines [but] I am not optimistic it would achieve much else."  

In fact, an appeal was brought to the Second Circuit, and it did achieve something: an interesting split panel ruling that provides an interesting small victory to the plaintiffs despite ultimately failing to provide an real relief.  Specifically, the majority opinion authored by Judge Guido Calabresi in Washington v. Barr, No. 18-859 (2d Cir. May 30, 2019) (available here), gets started this way:

This is the latest in a series of cases that stretch back decades and which have long sought to strike down the federal government’s classification of marijuana as a Schedule I drug under the Controlled Substances Act (CSA), 2 U.S.C. § 801 et seq. See, e.g., Krumm v. Drug Enforcement Admin., 739 F. App’x 655 (D.C. Cir. 2018) (mem.); Ams. for Safe Access v. Drug Enforcement Admin., 706 F.3d 438 (D.C. Cir. 2013); Alliance for Cannabis Therapeutics v. Drug Enforcement Admin., 15 F.3d 1131 (D.C. Cir. 1994) (mem.).  The current case is, however, unusual in one significant respect: among the Plaintiffs are individuals who plausibly allege that the current scheduling of marijuana poses a serious, life‐or‐death threat to their health.  We agree with the District Court that Plaintiffs should attempt to exhaust their administrative remedies before seeking relief from us, but we are troubled by the Drug Enforcement Administration (DEA)’s history of dilatory proceedings.  Accordingly, while we concur with the District Court’s ruling, we do not dismiss the case, but rather hold it in abeyance and retain jurisdiction in this panel to take whatever action might become appropriate if the DEA does not act with adequate dispatch.

Judge Jacobs dissents from the panel's failure to just dismiss the lawsuit, and his opinion starts this way:

The plaintiffs seek a declaration that the classification of marijuana as a Schedule 1 substance is unconstitutional because it does not reflect contemporary learning regarding the drug’s medicinal uses.  I agree with the District Court that this case must be dismissed for failure to exhaust administrative remedies in the Drug Enforcement Agency (“DEA”).  The majority opinion does not actually disagree, though it seems to treat lack of jurisdiction as a prudential speed bump. I dissent from the majority opinion’s decision to hold the case in abeyance so that we may turn back to it if, at some future time, we get jurisdiction.

Prior related posts:

May 30, 2019 in Court Rulings, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Wednesday, May 29, 2019

"An Argument Against Regulating Cannabis Like Alcohol"

The title of this post is the title of this paper recently posted to SSRN authored by Jonathan R. Elsner, who just recently graduated from The Ohio State University Moritz College of Law. This paper is now the fifth of an on-going series of student papers supported by Drug Enforcement and Policy Center.  (The first four papers in this series are linked below.)  Here is this latest paper's abstract:

As cannabis prohibition comes to an end in the United States, federal and state governments must decide how to regulate its cultivation, distribution, and sales.  One particular option, supported by some alcohol wholesalers and distributors, is a regulatory system based on that of the alcohol industry, whereby the government mandates a distribution system consisting of three mutually exclusive tiers: manufacturers, distributors, and retailers.  This paper, however, argues against creating a regulatory framework for the nascent adult-use cannabis industry modeled after the government-mandated, three-tier distribution system established for alcohol post-Prohibition as it inherently stifles innovation and quality.

Essentially, the three-tier distribution system creates an unnatural layer of government-mandated middlemen, distributors and wholesalers, who perpetuate market inefficiencies that benefit themselves, along with large corporations, to the detriment of consumers and small-to-medium-sized businesses.  The beer industry, now dominated by two breweries offering largely undifferentiated products, provides a cautionary tale regarding the effects of the three-tier distribution system to those developing the regulatory structure for the adult-use cannabis industry.

Prior student papers in this series:

May 29, 2019 in Business laws and regulatory issues, History of Alcohol Prohibition and Temperance Movements, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Arizona Supreme Court clarifies that state medical marijuana law includes resins and hashish

Last year, an intermediate appellate court in Arizona ruled that a medical marijuana patient could still be criminal prosecuted for possession of hashish because, in the court's view, the Arizona Medical Marijuana Act retained a distinction between cannabis and marijuana and preserved the criminality of the former.  But yesterday, in Arizona v. Jones, No. CR-18-0370-PR (Ariz. May 28, 2019) (available here), the Arizona Supreme Court ruled unanimously that "AMMA’s definition of marijuana includes both its dried-leaf/flower form and extracted resin, including hashish."  Here is an excerpt from the tail end of the opinion:

AMMA appeared on the 2010 ballot as Proposition 203.  The accompanying ballot materials stated Proposition 203’s purpose was to “protect patients with debilitating medical conditions . . . from arrest and prosecution” for their “medical use of marijuana.” Ariz. Sec’y of State, 2010 Publicity Pamphlet 73 (2010).  Proposition 203 was intended to allow the use of marijuana in connection with a wide array of debilitating medical conditions, including “cancer, glaucoma, . . . amyotrophic lateral sclerosis, Crohn’s disease, [and] agitation of Alzheimer’s disease,” including “relief [from] nausea, vomiting and other side effects of drugs” used to treat debilitating conditions.  Id. It is implausible that voters intended to allow patients with these conditions to use marijuana only if they could consume it in dried-leaf/flower form.  Such an interpretation would preclude the use of marijuana as an option for those for whom smoking or consuming those parts of the marijuana plants would be ineffective or impossible. Consistent with voter intent, our interpretation enables patients to use medical marijuana to treat their debilitating medical conditions, in whatever form best suits them, so long as they do not possess more than the allowable amount....

We hold that the definition of marijuana in § 36-2801(8) includes resin, and by extension hashish, and that § 36-2811(B)(1) immunizes the use of such marijuana consistent with AMMA.  We reverse the trial court’s ruling denying Jones’s motion to dismiss, vacate the court of appeals’ opinion, and vacate Jones’s convictions and sentences.

May 29, 2019 in Court Rulings, Medical Marijuana State Laws and Reforms, State court rulings, Who decides | Permalink | Comments (0)

Tuesday, May 28, 2019

Split Colorado Supreme Court gives notable new interpretation of limits on drug-sniffing searches due to marijuana legalization

ImgLast week, the Colorado Supreme issued a lengthy split ruling in Colorado v. McKnight, 2019 CO 36 (Col. May 20, 2019) (available here) which concludes that the state's marijuana reform initiative impacted criminal procedure rules related to drug-detection dog sniffs.  The court's ruling is summarized this way before the lengthy majority and dissenting opinions begins:

In this opinion, the supreme court considers the impact of the legalization of small amounts of marijuana for adults who are at least twenty-one years old on law enforcement’s use of drug-detection dogs that alert to marijuana when conducting an exploratory sniff of an item or area.

The supreme court holds that a sniff from a drug-detection dog that is trained to alert to marijuana constitutes a search under the Colorado Constitution because that sniff can detect lawful activity, namely the legal possession of up to one ounce of marijuana by adults twenty-one and older.  The supreme court further holds that, in Colorado, law enforcement officers must have probable cause to believe that an item or area contains a drug in violation of state law before deploying a drug-detection dog that alerts to marijuana for an exploratory sniff.

The supreme court concludes by determining that there was no probable cause in this case to justify the sniff of the defendant’s truck by a drug-detection dog trained to alert to marijuana, and thus, the trial court erred in denying the defendant’s motion to suppress.  The supreme court further concludes that the appropriate remedy for this violation of the Colorado Constitution is the exclusion of the evidence at issue.  Thus, the supreme court affirms the court of appeals’ decision to reverse McKnight’s judgment of conviction.

This lengthy local press report about the ruling provides lots of context about how much is contested about this ruling. The extended headline of the press piece highlights its themes: "Did the Colorado Supreme Court just throw the state’s marijuana-legalization regime into question? The chief justice seems to think so. A case about drug-sniffing dogs could turn into a watershed moment in Colorado marijuana law. Or not. Legal experts are split."

May 28, 2019 in Court Rulings, Criminal justice developments and reforms, Recreational Marijuana State Laws and Reforms, State court rulings | Permalink | Comments (0)

Wednesday, May 22, 2019

"Half-Baked: The Science and Politics of Legal Pot"

The title of this post is the title of this new article authored by Joelle Anne Moreno and now available via SSRN. Here is its abstract:

Weed, herb, grass, bud, ganja, Mary Jane, hash oil, sinsemilla, budder, and shatter.  Marijuana – whether viewed as a medicine or intoxicant – is fast becoming a part of everyday life, with the CDC reporting 7,000 new users every day and the American market projected to grow to $20 billion by 2020.  Based on early campaign rhetoric, by that same year the U.S. could have a pro-marijuana president.

Despite its growing acceptance and popularity, marijuana remains illegal under federal law.  Like heroin, LSD, and ecstasy, marijuana is a DEA Schedule I drug reflecting a Congressional determination that marijuana is both overly addictive and medically useless.

So what is the truth about pot?  The current massive pro-marijuana momentum and increased use, obscures the fact that we still know almost nothing about marijuana’s treatment and palliative potential.  Marijuana’s main psychoactive chemical is THC; but it also contains over 500 other chemicals with unknown physiological and psychological effects that vary based on dosage and consumption method.  Medical marijuana may be legal in 32 states and supported by 84% of Americans, but federal constraints shield marijuana from basic scientific inquiry.  This means that lawmakers and voters are enthusiastically supporting greater access to a drug without demanding critical scientific data.  For policymaking purposes, this data should include marijuana’s short and long-term brain effects, possible lung and cardiac implications, chemical interactions with alcohol and other drugs, addiction risks, pregnancy and breast-feeding concerns, and the effects of secondhand smoke.

This Article treats marijuana as a significant contemporary science and law problem.  It focuses on the fundamental question of regulating a substance that has not been adequately researched.  The Article examines the extant scientific data, deficiencies, and inconsistencies and explains why legislators should not rely on copycat laws governing alcohol or prescription narcotics.  It also explores how marijuana’s hybrid federal (illegality)/state (legality) raises compelling theoretical and practical Constitutional questions of preemption, the anti-commandeering rule, and congressional spending power.  Marijuana legalization has, thus far, been treated as a niche academic concern.  This approach is short-sighted and narrowminded.  Marijuana regulation implicates the reach of national drug policy, the depth of state sovereignty, and the shared obligation to ensure the health and safety of our citizenry.

May 22, 2019 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (1)

Tuesday, May 21, 2019

New research suggests CBD can reduce craving and anxiety for those with heroin use disorder

Long-time readers know I have long been covering the (never-quite-clear) connection between modern marijuana reform and the modern opioid crisis.  (Just some of many, many prior posts on this front are linked below.)   Today brings notable research news on this front, which is already getting a lot of attention from the mainstream press in articles from CNN, from NBC News, from Newsweek, and from US News & World Report, among others.  All these stories are about a new study published in The American Journal of Psychiatry from multiple authors under this catchy title: "Cannabidiol for the Reduction of Cue-Induced Craving and Anxiety in Drug-Abstinent Individuals With Heroin Use Disorder: A Double-Blind Randomized Placebo-Controlled Trial."  Here is the study's abstract:

Objective:

Despite the staggering consequences of the opioid epidemic, limited nonopioid medication options have been developed to treat this medical and public health crisis. This study investigated the potential of cannabidiol (CBD), a nonintoxicating phytocannabinoid, to reduce cue-induced craving and anxiety, two critical features of addiction that often contribute to relapse and continued drug use, in drug-abstinent individuals with heroin use disorder.

Methods:

This exploratory double-blind randomized placebo-controlled trial assessed the acute (1 hour, 2 hours, and 24 hours), short-term (3 consecutive days), and protracted (7 days after the last of three consecutive daily administrations) effects of CBD administration (400 or 800 mg, once daily for 3 consecutive days) on drug cue–induced craving and anxiety in drug-abstinent individuals with heroin use disorder. Secondary measures assessed participants’ positive and negative affect, cognition, and physiological status.

Results:

Acute CBD administration, in contrast to placebo, significantly reduced both craving and anxiety induced by the presentation of salient drug cues compared with neutral cues. CBD also showed significant protracted effects on these measures 7 days after the final short-term (3-day) CBD exposure. In addition, CBD reduced the drug cue–induced physiological measures of heart rate and salivary cortisol levels. There were no significant effects on cognition, and there were no serious adverse effects.

Conclusions:

CBD’s potential to reduce cue-induced craving and anxiety provides a strong basis for further investigation of this phytocannabinoid as a treatment option for opioid use disorder.

Some (of many) prior related posts:

May 21, 2019 in Medical community perspectives, Medical Marijuana Data and Research | Permalink | Comments (0)

NFL perhaps ready for new approach to marijuana as it agrees to explore use of drug for pain management

Download (25)Though he graduated from law school earlier this month,  Lucian Lungu, a helpful student from my marijuana seminar this past semester, made sure that I did not miss this week's interest news emerging from the NFL.  Indeed, Lucian was kind enough to draft this guest post covering the news with some links:

The National Football League (NFL), widely regarded as the strictest on marijuana among the four major, professional sports leagues, has seemingly began to actually move toward, possibly, implementing a new marijuana policy.  On May 20, 2019, the NFL and NFL Players Association released a press release (available here) detailing the formation of two new committees concentrating on pain management  and mental health care.  The pain management news, as explained below, related to its marijuana policy.

The Joint Pain Management Committee will seemingly attempt to provide a solution for the widespread, dangerous, although legal, use of prescription drugs in the NFL by creating new league-wide regulations as well as a Prescription Drug Monitoring Program.  (The problematic use of prescription drugs should be a reason in itself for the NFL to soften its marijuana policy.)  In addition, this Committee will also engage in pain management and alternative therapy research, which includes “look[ing] at marijuana,” according to Allen Sills, NFL Chief Medical Officer.  Additionally, every team will have a Pain Management Specialist who will work with players based on their individualized needs.

If a new marijuana policy gets adopted, it will almost certainly occur during negotiations on the next collective bargaining agreement in 2021.  Nevertheless, this latest development is a great step forward for a league whose commissioner, just three years ago when asked about the NFL's restrictive policy, state that, “we believe it’s the correct policy, for now …”  It looks like the “for now” period has passed, and major changes could be coming to a league in dire need of an adjustment.

 

May 21, 2019 in Medical Marijuana Commentary and Debate, Sports | Permalink | Comments (0)

New issue brief calls for "Using Marijuana Revenue to Create Jobs"

Download (25)As detailed in this press release, yesterday "the Center for American Progress released a new issue brief calling for states and the federal government to use marijuana tax revenue to fund the creation of thousands of public sector jobs in low-income communities of color that have been historically deprived of economic opportunity due to discriminatory drug enforcement."  Here is more from the release:

The issue brief proposes a tangible way to pay for the creation of jobs in communities that have experienced the heaviest consequences of disparate criminal enforcement of marijuana.  The authors calculate that annual tax revenues from the regulated marijuana market in California and Washington state, for example, could create nearly 20,000 jobs.  This number is sure to increase as more and more Americans — 68 percent, according to a 2018 CAP/GBAO Strategies poll — favor marijuana legalization and more states consider legalizing the recreational use of marijuana as well as creating a regulated marijuana market.

The proposal is an outgrowth of CAP’s 2018 report, “Blueprint for the 21st Century: A Plan for Better Jobs and Stronger Communities,” which called for a massive investment in public sector  job creation and a jobs guarantee for highly distressed communities.

The brief further describes the need to ensure that any marijuana legalization effort leads with provisions that ensure racial equity and correct injustices that have resulted from the war on drugs.  Key recommendations include providing automatic and cost-free expungements of marijuana arrest and conviction records; reinvesting in essential services for communities most harmed by the war on drugs; and promoting equitable licensing systems and funding for minority-owned businesses.  These measures would greatly help people who face barriers to economic opportunity, employment, and other basic necessities due to the collateral consequences of a marijuana-related conviction.

The full eight-page issue brief is titled “Using Marijuana Revenue to Create Jobs” and is authored by Maritza Perez, Olugbenga Ajilore, and Ed Chung. Here is its conclusion:

Today, states are raking in billion-dollar profits for activity that sent millions of African American and Latinx individuals into the criminal justice system, trapping their families and communities in poverty for generations.  The movement to legalize marijuana presents an opportunity both to achieve justice for and to build economic opportunity in these communities.  Creating public sector jobs and other policies outlined in this issue brief acknowledge the economic impact that the war on drugs has had on low-income people of color.  With these policies, elected leaders can begin to address the structural barriers that states must rupture so that individuals from some of their most vulnerable communities have equal access to economic opportunity.

May 21, 2019 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Taxation information and issues | Permalink | Comments (0)

Encouraging research on "Medical Marijuana Laws and Suicide"

Download (24)I just saw a report on this notable research reporting on the relationship between marijuana reform and suicide in California in the years before and after the legalization of medicial marijuana in 1996.  Just published in the Archives of Suicide Research, this article is titled " "Medical Marijuana Laws and Suicide," and is authored by Bradley J. Bartos, Charis E. Kubrin, Carol Newark & Richard McCleary.  Here is the article's abstract: 

Objective: To estimate the causal effect of a medical marijuana initiative on suicide risk.  In 1996, California legalized marijuana use for medical purposes. Implementation was abrupt and uniform, presenting a “natural experiment.”

Method:  Total, gun and non-gun suicides were aggregated by state for the years 1970-2004.  California’s control time series was constructed as a weighted combination of the 41 states that did not legalize marijuana during the time-frame.  Post-intervention differences for California and its constructed control time-series were interpreted as the effects of the medical marijuana law on suicide. Significance of the effects were assessed with permutation tests.

Results: The 1996 legalization resulted in mean annual reductions of 398.9 total suicides, 208 gun suicides, and 135 non-gun suicides.  The effect estimates for total and gun suicides were statistically significant (p<.05) but the effect estimate for non-gun suicides was not (p≥.488).

Conclusions: Since the effect for non-gun suicides was indistinguishable from chance, we infer that the overall causal effect was realized through gun suicides.  The mechanism could not be determined, however.  Participation in the medical marijuana program legally disqualifies participants from purchasing guns.  But since most suicides involve guns, it is possible the effect on total suicide is driven by gun suicide alone.

May 21, 2019 in Medical Marijuana Data and Research | Permalink | Comments (0)

Monday, May 20, 2019

"Marijuana in the Workplace: Distinguishing Between On-Duty and Off-Duty Consumption"

The  title of this post is the title of this paper recently posted to SSRN authored by Tyler G. Aust, who just recently graduated from The Ohio State University Moritz College of Law.  This  paper is now the four of what will be an on-going series of student papers supported by Drug Enforcement and Policy Center.  (The first three papers in this series are linked below.) Here is this latest paper's abstract:

The proliferation of legal marijuana foretells an uncertain future for businesses that implement zero-tolerance drug policies.  In states where recreational marijuana is legal, businesses still have the power to enforce drug policies through employment contracts.  That changed in Maine, where state law prohibits employers from making adverse employment decisions based solely on an employee’s off-duty use of marijuana.  As legalization efforts sweep across the Midwest, it is unclear whether other states will follow Maine’s model.  Some businesses have already relaxed pre employment marijuana testing amid labor shortages.  To prepare for the future, employers should revise their drug policies to distinguish between on-duty and off-duty marijuana consumption and allow employees to use marijuana outside of the workplace.

Prior student papers in this series:

May 20, 2019 in Business laws and regulatory issues, Employment and labor law issues, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Fitting headlines mark the many challenges of the next era of modern marijuana reforms

There is so much media coverage of so many marijuana related issues that I barely have time to keep up with my reading, let alone blog about all the interesting stories.  (E.g., I keep meaning to blog about the New York Times Magazine's CBD cover story.)  But in the last day, I saw three lengthy and connected stories that relate to the intersection of marijuana reform, politics and social justice that seems to have come now to define the realities and challenges of this space.  The headlines of the three pieces help capture the themes:

In addition to recommending all these pieces, I will seek to summarize them by just saying it has always been clear to me that effective and sound legal reform in this space is very, very hard and calls for lots and lots of folks working very, very hard to get it as right as possible from the outset and then continuing to work very, very hard to assess and refine reform regimes. 

May 20, 2019 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Friday, May 17, 2019

Noting diverse employment law realities for medical marijuana users in diverse states

Governing has this effective new piece on employment law's intersection with marijuana reforms under the headline "Can Medical Marijuana Get You Fired? Depends on the State." The subheadline highlights a theme of the piece: "Less than half of the states where the drug treatment is legal protect patients from employment discrimination. Courts have generally sided with employers -- until recently." Here are excerpts:

In most states, you can use medical marijuana without getting arrested -- but it could still get you fired.  While 33 states have legalized cannabis for medicinal purposes, fewer than half of them protect patients from being fired or rejected for a job because of a positive cannabis test or simply because they're registered on a medical marijuana database.  This legal haziness has sparked lawsuits across the country.

Courts have generally sided with employers, says Peter Meyers, a law professor at George Washington University.  This was the case in 2006 in Oregon and in 2009 in Montana.  More recently, however, judges have shifted their verdicts in favor of employees.  In New Jersey last month, an appeals court ruled that medical marijuana use is covered under the state's ban on disability-based employment discrimination.  This case follows similar rulings in Connecticut, Massachusetts and Rhode Island. As more states legalize the drug treatment, the battle will continue in the workplace.

“The big problem is [marijuana] remains illegal federally except for narrow exceptions,” says Meyers, who has written about the constitutionality of drug testing. “There’s this conflict, and a lot of the court rulings have deferred to federal law. It’s a very confusing situation.”  The legal contradiction has left a lot of employers, and employees, uncertain about what rules to follow.

Bipartisan legislation to protect medical marijuana patients from employment discrimination has been introduced in Congress, but it only applies to federal workers and has yet to gain traction. With the federal government unlikely to change its marijuana policy any time soon, states are left to make their own rules.  In 14 of them, medical marijuana patients have explicit employment protections either through legislation or court rulings, according to the Marijuana Policy Project.

That leaves 19 states where people may have to choose between this treatment option and a job.  One of them is California, which was the first state to legalize medical marijuana, in 1996, but doesn't have explicit workplace protections.  The state Supreme Court ruled in 2008 that an employer could reject a job candidate with a positive cannabis test -- even if they had a prescription.  Bills seeking to override that decision have been tossed around without success.

Even where employment protections exist, they have limitations.  Arkansas law, for example, says an employer can't discriminate based on a person’s past or present status as a marijuana patient.  But companies can still ban employees from taking it at work.  In Oklahoma, employers can't penalize employees or applicants for a positive drug test -- unless failing to penalize someone would cause the employer to “imminently lose a monetary- or licensing-related benefit under federal law or regulation.”...

Despite the widespread legalization of medical cannabis, there are a number of reasons employers pause when it comes to having people who use it on their staff.  Some aren't fully aware of their state's protections, and others might fear losing out on federal funding.  “A lot of people are concerned about whether marijuana users will be less productive [at] work or if there will be more workplace accidents,” says Karen O’Keefe, state policies director for the Marijuana Policy Project.

But unlike many other drugs, THC, the active ingredient in marijuana, can be detected for 30 days or longer after use, so workplace drug tests don't necessarily portray a person’s current level of impairment.  As medical marijuana becomes less taboo, more employers will likely change their drug policies.  Already, fewer employers -- particularly those facing staff shortages -- are requesting preemployment tests for marijuana.

May 17, 2019 in Business laws and regulatory issues, Employment and labor law issues, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Wednesday, May 15, 2019

"Harm Reduction in Domestic Violence: Does Marijuana Make Assaults Safer?"

The title of this post is the title of this interesting new paper now available via SSRN authored by Jacob Kaplan and Li Sian Goh.  Here is its abstract:

While all forms of domestic violence can be uniquely traumatizing, incidents resulting in serious injury can lead to lasting physical, mental, and financial consequences for the victim.  Hence, it is surprising that most literature on the effects of policy intervention on domestic violence treats such incidents as homogeneous rather than considering differing levels of victim injury.  This study provides evidence that decriminalization of marijuana leads to substantial declines in victim injury.  Among domestic violence assaults where the victim suffered a serious injury, there was a significant decline in incidents where the offender was under the influence of alcohol or used a weapon.

May 15, 2019 in Criminal justice developments and reforms, Recreational Marijuana Data and Research | Permalink | Comments (0)