Marijuana Law, Policy & Reform

Notable accounting of "legal" Delta-8 THC products

This interesting new Forbes article, "Delta-8 THC Generated $2 Billion In Revenue In Two Years, Report Finds," provides a summary of interesting economic data regarding the interesting "legal" THC products. Here are excerpts:

Delta-8 THC products have seen a surge in popularity in the past two years, resulting in over $2 billion in sales as an alternative to traditional marijuana.  According to a recent report by cannabis analytics firm Brightfield Group, the increasing popularity of delta-8 THC products is causing other cannabis industries to take notice and take action.

Delta-8 THC is a psychoactive cannabinoid derived from hemp that has been reported to produce similar but milder effects than traditional delta-9 THC contained in marijuana.  Delta-8 THC is found naturally in small amounts, but the products currently on the market are created by chemically converting CBD into the Delta-8 molecule.

Delta-8 THC products popped up following the 2018 Farm Bill, which legalized hemp cultivation with a THC level below 0.3% at the federal level.  However, the legalization brought companies to produce a wide array of products containing minor non-psychoactive cannabinoids, such as CBD and CBG, but also other cannabinoids that have milder psychoactive effects than THC, which are not categorized as illegal because they are derived from hemp.

However, there have been safety concerns raised about Delta-8 THC and similar products, as the conversion of CBD molecules into THC molecules requires a skilled chemist to ensure safety, and improper or imprecise techniques can lead to high levels of impurities in the final product.  In addition, the health effects of consuming these impurities are currently unknown.

Nevertheless, the report notes a considerable overlap among the users of CBD, cannabis, Delta-8, and other newly developed cannabinoid products.  The report indicates that 35% of CBD users have purchased psychoactive hemp-derived products within the last half-year.  Furthermore, in states where marijuana is legal, nearly a quarter of marijuana users express interest in purchasing delta-8 products in the future.  As consumers are inclined to experiment with new products, there may be a shift towards delta-8 over time, particularly if the cost difference remains favorable.

In states where marijuana is still illegal, delta-8 has emerged as a cost-effective and accessible way to experience psychoactive cannabis.  It can be obtained legally or through mail-order, providing consumers with a less risky (legally) alternative to getting marijuana illegally.  That was also confirmed by a study published last year, which showed that the public interest in delta-8-THC increased rapidly in 2020 and 2021 and was exceptionally high in those U.S. states that haven't decriminalized or legalized recreational cannabis.

However, the report notes that delta-8's increasing popularity in places where marijuana is still illegal could negatively impact support for legalization.  "If Delta-8 continues to gain popularity and build a foothold in areas where Delta-9 is restricted, legalization measures could see less popular support and grassroots fundraising, slowing progress toward full U.S. legalization," the report reads.

In addition, it seems that there is already a significant amount of confusion between delta-8 and delta-9, the main compound of marijuana, even in places where that is legal. The report observes that retailers selling delta-8 products present themselves as dispensaries and do not clarify that the compound is derived from hemp.

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

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

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

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

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

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

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

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

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

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

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

"Building Solidarity in Support of Immigrants’ Rights in the Evolving Marijuana Legislative Landscape"

As I have mentioned before, after a very busy Fall semester, I am catching up on the posting of some recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center.   And now I have just started teaching a new semester of my marijuana seminar, it is especially enjoyable to be able to highlight some of the great work that was done by students in my last class.   The title of this post is the title of this paper authored by Charlotte Kalfas who was in my marijuaan seminar last year and who now completing her 3L year at The Ohio State University Moritz College of Law.  Here is the abstract of her paper: 

This paper attempts to raise the profile of and build solidarity among disparate groups on the issue of considering how immigration law should be amended or enforced in the wake of the move towards legalization, whether on a state-by-state or federal level.  It goes into detail on perspectives and policy rationales for amending the INA to remove marijuana from disparate political perspectives -- those who are already committed to immigrants' rights, those who are already committed to marijuana legalization, and those who are less amenable to either.

For the first group, it's fairly self-explanatory: marijuana use is a deportable offense for immigrants whether or not it is legal, which makes little sense in the era of marijuana reform.  For legalization supporters, I focus on economic developments and social justice.  Allowing immigrants into the group of people who could purchase and use marijuana would both bring more revenue into the market and create a new group of folks who could work in both agricultural and retail ends of the business.  Further, given the divisive history of the connections between marijuana criminalization and immigration, noncitizens should be a key consideration in legalization legislation and regulation just as social equity programs are now for women and other minoritized people. Finally, for those who aren't familiar or amiable to either perspective, the paper dives into arguments about justice and fairness from a legal perspective, and the assertion that supporting minoritized individuals such as immigrants and people of color is beneficial for all members of the U.S.

Taking a particular look at the middle of US marijuana reform map as the calendar turns to 2023

Stateline has this notable new article, headlined "Motley Marijuana Laws Drive Consumers — and Revenue — Across State Lines," that gives particular (but still incomplete) attention to the fact that marijuana reform storys have become somewhat consistent on the coasts while being quite varied in the middle of the USA.   I recommend the article in full, and here is a flavor of its coverage:

Less than half a mile south of the Wisconsin border in Illinois, the Sunnyside Cannabis Dispensary bustles with activity. Cars with license plates from Wisconsin, Minnesota and other pot-banning states slide in and out of the shop’s expansive parking lot.

The bright and airy retail store is an easy hop off Interstate 90, which spans the nation’s entire northern tier. For many westbound customers, Sunnyside is the last chance to legally buy recreational, or “adult-use,” marijuana products until Montana, more than 900 miles away. And heading south from this truck-stop town to the small Illinois city of Metropolis, dispensaries likewise hug the Prairie State’s boundaries with Indiana, Iowa and Kentucky, where pot sales are outlawed.

State lines delineate the vastly varying marijuana regulations across the Midwest. Illinois, Michigan and, since December, Missouri allow recreational marijuana, while neighboring states have some of the strictest laws in the nation.  The contrasting statutes create some law enforcement concerns in states where marijuana is outlawed — when residents legally use marijuana just across the border or bring it back home. 

But many elected officials in those states say the larger problem is the loss of potential revenue from an industry that could bring visitors, jobs and tax dollars.  Public support for the liberalization of marijuana laws in this region is growing, following national trends.  Much of the debate is economic, as restrictive states see their residents paying marijuana sales and excise taxes to neighboring states.

In Illinois, which legalized adult-use marijuana in 2019, out-of-state residents account for 30% of recreational marijuana sales, according to state filings. Sales in the state have risen from just more than $400 million in fiscal 2020 to more than $1.5 billion in fiscal 2022.  Tax disbursements to local Illinois governments in fiscal 2022 reached $146.2 million, a 77% increase over 2021.

Illinois law mandates that a fourth of marijuana tax revenue be used to support communities that are “economically distressed, experience high rates of violence, and have been disproportionately impacted by drug criminalization.”  The significant revenue is a big pull for states that outlaw marijuana to consider changing their policies. But some opponents to legalized cannabis worry about what other effects marijuana sales could have on their communities....

Indiana, which has some of the nation’s toughest marijuana laws, borders two states (Illinois and Michigan) with recreational sales. “I try to enforce the laws as best I can based on what Indiana wants us to do,” said Ken Cotter, prosecutor for St. Joseph County, Indiana, along the Michigan border. The region is known as Michiana.

“I was worried that if Michigan legalizes marijuana, folks from Indiana might want to go to Michigan, get the marijuana and drive back — that's one thing. But if they then went to Michigan, legally smoked it there and then drove [under the influence], that's a whole different ball game,” Cotter said. Cotter, a Democrat, said there has not been an increase in marijuana possession cases in his jurisdiction since Michigan legalized recreational sales in 2018, but that marijuana-based DUI charges have “increased dramatically.”

But Cotter was cautious not to draw broader conclusions from his jurisdiction of 270,000 residents, stressing that more data and reporting is a pressing public safety need. That’s in line with an expansive 2021 report from the Cato Institute, a libertarian-leaning think tank based in Washington, D.C., suggesting it’s too soon to know all the effects of the changing laws.  The report noted that early studies, including those on public safety, have varied conclusions, and that data comparisons at this point can be problematic.

A recent survey by a national law firm finds some Midwestern states among those least favorable to the cannabis industry. Indiana’s laws rank 49th among states and the District of Columbia in receptiveness to cannabis, according to Thompson Coburn, a national law firm that has a cannabis practice. Wisconsin stands 47th, Kentucky 41st and Iowa 38th. In Wisconsin, for example, the first conviction for a small amount of marijuana possession is a misdemeanor, but any subsequent possession charge is a felony....

In Minnesota, where Democrats now control the governorship and both chambers of the legislature, lawmakers introduced an adult-use bill on Jan. 5. Democratic Gov. Tim Walz quickly tweeted his support: “It's time to legalize adult-use cannabis and expunge cannabis convictions in Minnesota. I’m ready to sign it into law.”

And in Wisconsin, Democratic Gov. Tony Evers told Wisconsin Public Radio in December that recreational marijuana will “be in the budget,” but that a hostile GOP-led legislature stands in the way. "Even though the people of Wisconsin by huge numbers in polling support recreational marijuana in the state of Wisconsin, I just don't know if the Republicans are there yet," Evers told WPR. "All I know is that there is talk on the Republican side, from what I've heard, around medicinal."...

Iowa appears unlikely to move toward liberalization of its marijuana laws, despite a Des Moines Register poll from 2021 showing 54% of Iowans supporting the legalization of adult-use products.

"2022 Was Marijuana Reform’s Best Year And Everyone Is Unhappy About It: How To Move Forward"

As I am gearing up for another exciting new semester of teaching my always exciting Marijuana Law and Policy seminar at The Ohio State University Moritz College of Law, I was especially drawn to this lengthy new op-ed by Justin Strekal at Marijuana Moment which has the same title as this post.  I recommend the full piece, and here are excerpts highlighting some of its main themes:

2022 was the best of times for marijuana policy reform in America—but if you read the headlines or (god forbid) log onto Twitter, you could be forgiven for thinking that it was the worst.

This Orwellian doublethink is understandable if you look at it through the lens of a minute-by-minute analysis, or by only looking at the stock prices of the young, dominant players in the emerging cannabis industry. But we must keep the long game in mind when we think about ending the 85-year policy of marijuana prohibition and criminalization....

I have been a supporter of the SAFE Banking Act since I started at NORML in 2016, and I even took pro-SAFE meetings with groups that have since evolved their positions on the bill and are now demanding reforms to its underlying structure.

Back then, the purpose of the effort was to advance an aspect of legalization and the regulated marketplaces in Congress at a time when neither chamber had a leader who explicitly said they supported reform, be it SAFE or comprehensive. In other words, being for SAFE Banking was a form of harm reduction, not a cure.

Since the 115th Congress, a lot has changed. This includes the funding power of the reform movement, which has shifted dramatically in recent years, with the number of earnest advocates from the Drug Policy Alliance, Marijuana Policy Project and Americans for Safe Access shrinking, for example.  On the flip-side, K Street lobby shops are hiring new suits seemingly every month, many of whom never thought about marijuana prohibition before being paid by a private company or trade association to do so....

As for what the Republican flip in the House means for this reported agreement between Schumer and Daines? What about comprehensive reform?  Well, I’m not going to give you a percentage likelihood because only snake oil salespeople treat Congress like a betting market.

Whatever comes next in the House majority, it’s important to remember that 51 percent of House Republicans already voted for SAFE in the last Congress, including leaders like Reps. Kevin McCarthy (R-CA), Elise Stefanik (R-NY), Dave Joyce (R-OH), Bryon Donalds (R-FL), Kevin Hern (R-OK) and many others....

Because democracy is a verb and, as recent and ongoing events clearly show, things are not working well in America.  But for the first time ever, there is actually a pathway to accomplish something pertaining to marijuana law reform — but only if the monied interests are willing to live up to the rhetoric they espouse.

"Labor Protections Under Federal Cannabis Prohibition and the Future of Cannabis Unions"

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

America’s legal cannabis market is growing exponentially and more states are beginning to legalize cannabis products.  Currently, the legal cannabis industry supports 428,059 workers nationally, and it is predicted that a mature cannabis market would support 1.5 million to 1.75 million workers.  However, it can be unclear what legal protections are offered to these workers under a federal prohibition regime. 

The basic right of workers to form a union is protected by the National Labor Relations Act (“NLRA”). However, the NLRA does not protect agricultural workers, and it is not clear which positions in the cannabis industry are considered “agricultural.”  In addition, it is unclear whether the National Labor Relations Board will consistently exert jurisdiction over retail workers in a federally prohibited recreational marijuana industry.  This paper will evaluate the applicability of the NLRA to the cannabis industry, the policy concerns surrounding the use of labor peace agreements to fill in gaps left by federal labor laws, and what widespread unionization could mean for a quickly growing sector of the economy.

NORML’s accounting "Top Ten" marijuana policy events in 2022

The NORML folks have this effective and helpful new posting, titled "2022 Year In Review: Norml’s Top Ten Events In Marijuana Policy," which provides a useful review of 2022 reform highlights. I recommend the full post, for more of the details, but here are the headline "Top 10" items:

#10: Mississippi Becomes 37th State To Legalize Medical Cannabis Access

#9: Survey: Over 90% Of Pain Patients Report Reducing Their Opioid Intake Following Medical Cannabis

#8: Analysis: State-Legal Marijuana Industry Employs Over 428,000 Full-Time Workers

#7: Potus Signs Law Facilitating Clinical Cannabis Trials And Drug Development

#6: FBI Fails To Provide Comprehensive Marijuana Arrest Figures For The First Time

#5: Historic Percentages Of Americans Say Cannabis Should Be Legalized

#4: More Lawmakers Enact Workplace Protections For Cannabis Consumers

#3: Senate Fails To Move Safe Banking Act

#2: Tens Of Thousands Of Americans Receive Marijuana-Specific Pardons And Expungements

#1: Three More States Enact Adult-Use Legalization Laws

Reviewing the latest stories of big federal marijuana reforms not getting done in this Congress

It has been an interesting couple of months for discussions of marijuana reforms at the federal level.  Prez Biden got the federal reform conversation amped up in early Fall when he pardoned low-level marijuana possession offenders and ordered administrative review of marijuana Schedule I status under the CSA (basics here).  Then, with the November midterm election giving control of the House to Republicans in the next Congress, formal and informal discussions of broad and narrow federal statutory marijuana reforms grew along with suggestions of including reforms in lame-duck bills (basics here and here).

This buzz did result in one tangible reform, as Congress in November passed and Prez Biden in December signed the Medical Marijuana and Cannabidiol Research Expansion Act.  But, though historic and important, this research reform bill is unlikley to be all that impactful and consequential anytime soon.  And hopes for the passage of the SAFE Banking Act and other possible reforms were finally fully dashed this week, raising the possibility that we may not see big federal marijuana reforms coming from Congress for many, many more years.

Of course, Marijuana Moment has great coverage of all the action, and here are some of the pieces that discuss a significant failure in the modern marijuana reform movement:

"Marijuana Banking Left Out Of Federal Spending Bill, Congressional Sources Confirm"

"Congress Keeps Ban On D.C. Marijuana Sales While Failing To Act On Cannabis Banking And Expungements"

"Schumer Blames GOP For Marijuana Banking Failure, But Says He’ll ‘Go Back At It Next Year’"

"Democrats Blew The Opportunity For Federal Cannabis Reform (Op-Ed)"

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

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

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

Is significant marijuana reform coming from Congress now very unlikely for now very many years?

As mentioned in this post from the past weekend, lots and lots of folks had seeemingly come to believe that significant federal marijuana reform was quite likely to get enacted in Congress this month.  But this new Politco piece, headlined "How the plan to pass a weed package went awry, " not only explains why the prospects for reform are dim this month, but perhaps for many years to come.  Here are excerpts:

Democrats almost had a weed deal — for real this time.  For weeks, a bipartisan group of senators worked to negotiate a historic package in the office of Senate Majority Leader Chuck Schumer.  The ideologically diverse crew included Sens. Steve Daines (R-Mont.), Jeff Merkley (D-Ore.), Dan Sullivan (R-Alaska) and Rand Paul (R-Ky.).

The bargain they ultimately reached represents the broad spectrum of cannabis issues: banking, guns and criminal record expungements.  The package gave progressives, libertarians and conservatives all something to be happy about.  But in the final days of negotiations over the National Defense Authorization Act, which they hoped would serve as a must-pass vehicle for the cannabis package, enthusiasm evaporated.  The unraveling of the plan was sparked by top Republicans attacking cannabis banking legislation that was the centerpiece of the deal....

The SAFE Banking Act, which the cannabis package revolves around, would allow banks to offer financial services to the weed industry....  SAFE was then paired with the HOPE Act — a bill introduced by Reps. Dave Joyce (R-Ohio) and progressive stalwart Alexandria Ocasio-Cortez (D-N.Y.) that creates grants for expungements at the state level, lending it a “states rights” component.  Finally, the GRAM Act — introduced by late Alaska GOP Rep. and former co-chair of the Congressional Cannabis Caucus Don Young — was thrown in. It would protect marijuana users’ right to own a firearm.

Support was there: At least 10 Republicans have co-sponsored or signaled they support the SAFE Act to date.  Co-sponsor Sen. Kevin Cramer (R-N.D.) said in November he was open to SAFE and HOPE, especially if Daines was on board.  On Thursday, Daines said conversations were productive and Paul claimed that there were more than 60 votes for the package.

But the potential deal began to fall apart when key Republican senators took aim at the cannabis banking provision.  On Monday, staffers for Sen. Chuck Grassley (Iowa), the ranking member on the Senate Judiciary Committee, and other senators involved in the deliberations met with representatives from the Justice Department to discuss concerns about how agency officials would enforce the bill.  Following that meeting, Grassley’s office released a statement attacking the bill.

Then on Tuesday, Senate Minority Leader Mitch McConnell took to the floor to rip Democrats for trying to add extraneous proposals to the defense spending bill. “We’re talking about a grab bag of miscellaneous pet priorities, like making our financial system more sympathetic to illegal drugs,” he said.

Even stalwart supporters got cold feet about attaching the cannabis package to the NDAA. Cramer and Tommy Tuberville (R-Ala.), who both support the banking bill, said a defense spending package wasn’t the place for it.  “It dilutes the proper role of this place,” Cramer said, suggesting that the deal be given a full committee markup and floor time instead.

The NDAA isn’t the last piece of legislation that will likely be passed in the lame duck, but the same obstacles will apply to an omnibus funding package that’s being negotiated.  Simply put, if McConnell remains opposed to SAFE, it won’t make it into a major package.

But the bill isn’t dead yet: Paul is still bullish on its prospects, saying he is confident there are more than 60 senators in favor of SAFE if it were to receive a standalone floor vote.  Democrats left this until the last minute, though, and the chances that the Senate can find any floor time for a standalone SAFE “plus” package before the end of the year are slim....

Daines said he’s focused on getting something passed before the end of the year, but other GOP supporters, including Tuberville, said they may just need to deal with it in the next year.  Republicans are set to take over the House in January, dimming the chances for SAFE. House Minority Leader Kevin McCarthy has voted in favor of the bill, but he hasn’t signaled that cannabis is something he wants to spend time on.

It may be that after more than three years of trying to see SAFE passed, Democrats took a gamble with the lame duck and ran out of time to get it passed.

Because I am not an expert in congressional procedure, I do not know if there would be a way in 2023 for a SAFE+ package of reforms to make its way through the new Congress as a stand alone bill.  But I do know that if Senate Minority Leader McConnell and and the future House Speaker McCarthy are not excited about moving forward any federal marijuana reform legislation, then no such legislation will move forward in the next Congress.   And, as political prognosticators know, there is a pretty good chance that Senate Minority Leader Mitch McConnell could become Senate Majority Leader Mitch McConnell come January 2025.  Thus, an oppositional Senator McConnell could very well scuttle any federal cannabis reform efforts for the next four years and maybe longer.

That said, Prez Biden and his agencies can possibly move forward with reforms under the CSA without Congress involved.  And, like the research bill that became law recently, there may be smaller reforms (included needed criminal justice measures) that Senator McConnell and other marijuana skeptics may not aggressively oppose.  And, with the red states of Oklahoma and Ohio possibly embracing full legalization in 2023, the broad politics here are always in flux.  So, I do not think that all is lost with federal reform even as the plans and paths get much less certain.

Of course, 23 months ago, when Prez Biden was picking his cabinet and the Democrats won the Georgia run-offs to take control of the Senate, many believed federal marijuana reforms coming from a Democratic-controlled Congress would be right around the corner.  Fast forward to the end of 2022, and Congress in a few weeks will no longer be controlled entirely by Democrats, and they have remarkably little to show on cannabis reform for their time in full control.

Cannabis lawyering makes the cover of the ABA Journal

I was intrigued and pleased to see that the cover story of the latest issue (December/January 2022-2023) of the ABA Journal is all about cannabis lawyering.  This new piece is headlined "Lawyers are lighting up the budding cannabis industry: Justice Cannabis Co. is one of the biggest of the little guys in the rough-and-tumble, fast-paced and legally treacherous world of marijuana growing and selling."   

Becuase I do not see too many really good pieces broadly reviewing the state of cannabis lawyering, I was a little disappointed that the ABAJ article is almost entirely about the practice and experience of lawyers involved with Justice Cannabis.  Still, the ABAJ piece is an interesting read that covers a good bit of marijuana law along the way.  Here is an excerpt:

As of early February, 37 states, three territories and the District of Columbia permitted the medical use of cannabis products.  And as of November, 21 states, two territories and D.C. had approved cannabis for adult nonmedical use.

The cannabis industry generated $25 billion in revenues from legal sales in 2021 and employs more than 400,000 people nationwide.  It was expected to reach $32 billion in annual sales in 2022 and could exceed $50 billion by 2030.

It can be a lucrative and fascinating area of practice, according to attorneys such as William Bogot of Fox Rothschild, who left the Illinois Gaming Board to take on cannabis work.  It also can be frightening, says Lisa Dickinson of the Dickinson Law Firm in Spokane, Washington, who is chair of the ABA Tort Trial and Insurance Practice Section's Cannabis Law and Policy Committee. “It's still the wild, wild west,” she says.

The federal Controlled Substances Act prohibits the production, distribution, sale, use or possession of cannabis--which is classified alongside heroin and LSD as a Schedule I drug with a high likelihood of addiction and no safe dose.  The federal statute provides no exception for medical or other uses authorized or regulated by state law. The penalties for some offenses are severe.  The rapid bifurcation of state and federal law has woven deep contradictions into the legal system and American society, and it has created a thorny dilemma for cannabis businesses and the attorneys they need to help them.

For attorneys, there are two issues that have a chilling effect on their participation: The first is whether by representing a business that is breaking federal law they are violating the ethics of the profession, which could cost them their license to practice; the second is they could be charged with engaging in criminal activity, resulting in fines and prison.

Notable new talk about SAFE Banking Act and HOPE Act getting added to "must-pass" defense bill

New reporting by Axios and Politico suggest that US Senators on both sides of the aisle are working to get notable marijjuana reform measures included in this year's (must-pass) National Defense Authorization Act.  The Politico piece, headlined "Senators push for SAFE Banking in defense bill," starts this way:

A landmark bill that would make it easier for banks and other financial institutions to service the cannabis industry could finally be poised for passage.  The SAFE Banking Act could be included in the National Defense Authorization Act that Congress is expected to take up next week.

Republican senators had a “productive” meeting about the legislation on Thursday with Majority Leader Chuck Schumer, Sen. Steve Daines (R-Mont.) told POLITICO. Sen. Sherrod Brown (D-Ohio), chair of the Senate Banking Committee, said he "hopes" it is in the NDAA.

The final decision is likely to be made on Monday, when the House Rules Committee meets to tee up the compromise version of the NDAA for a vote on the House floor as early as Tuesday. A final version of the defense bill was expected to be filed Friday, but has been delayed as House and Senate leaders iron out last-minute issues around what outside bills should be attached.

The Axios piece adds these details:

The targeted legislation is the result of the pairing of two bills —Secure and Fair Enforcement (SAFE) Banking Act and the Harnessing Opportunities by Pursuing Expungement (HOPE) Act—that would attract both conservatives and progressives across Congress.

The latest changes to the bill ensure that the legislation does not unintentionally make it harder for law enforcement to prosecute other crimes involving other drugs or money laundering.

Schumer and the bipartisan group plan to attach this legislation to a must-pass year-end bill like the annual National Defense Authorization Act.

Schumer and Sen. Jeff Merkley have been working with Republicans for months, including Sens. Steve Daines, Rand Paul, and Dan Sullivan.

Prez Biden formally signs into law new "Medical Marijuana and Cannabidiol Research Expansion Act"

As reported in this Marijuana Moment piece, "President Joe Biden has officially signed a marijuana research bill into law, making history by enacting the first piece of standalone federal cannabis reform legislation in U.S. history." Here is more:

The bill cleared the House in April and the Senate last month, and a White House spokesperson confirmed to Marijuana Moment that the president intended to sign it. On Friday, he did just that.

The law gives the U.S. attorney general 60 days to either approve a given application or request supplemental information from the marijuana research applicant. It also creates a more efficient pathway for researchers who request larger quantities of cannabis....

Reps. Earl Blumenauer (D-OR) and Andy Harris (R-MD) sponsored the House version of the research legislation, which is substantively identical to a Senate bill from Sens. Dianne Feinstein (D-CA), Brian Schatz (D-HI) and Chuck Grassley (R-IA) that previously cleared that chamber....

The four co-chairs of the Congressional Cannabis Caucus — Blumenauer and Reps. Barbara Lee (D-CA), Dave Joyce (R-OH) and Brian Mast (R-FL) — released a joint statement following the president’s signing.

“For decades, the federal government has stood in the way of science and progress—peddling a misguided and discriminatory approach to cannabis. Today marks a monumental step in remedying our federal cannabis laws,” they said. “The Medical Marijuana and Cannabidiol Research Expansion Act will make it easier to study the impacts and potential of cannabis.”...

In a press release, Schatz said that “the medical community agrees that we need more research to learn about marijuana’s potential health benefits.” “Our new law will remove excessive barriers that make it difficult for researchers to study the effectiveness and safety of marijuana, and hopefully, give patients more treatment options,” he said.

Blumenauer and Harris previously championed a separate cannabis research bill that advanced through their chamber in April. Unlike that legislation, however, the newly approved bill notably does not include a provision that scientists had welcomed that would have allowed researchers to access cannabis from state-legal dispensaries to study.

The research legislation further encourages the Food and Drug Administration (FDA) to develop cannabis-derived medicines. One way it proposes doing so is by allowing accredited medical and osteopathic schools, practitioners, research institutions, and manufacturers with a Schedule I registration to cultivate their own cannabis for research purposes.

The Drug Enforcement Administration (DEA) is now mandated to approve applications to be manufacturers of marijuana-derived, FDA-approved drugs under the bill. Manufacturers will also be allowed to import cannabis materials to facilitate research into the plant’s therapeutic potential.

Another section requires the Department of Health and Human Services (HHS) to look at the health benefits and risks of marijuana as well as policies that are inhibiting research into cannabis that’s grown in legal states and provide recommendations on overcoming those barriers.

The bill further states that it “shall not be a violation of the Controlled Substances Act (CSA) for a State-licensed physician to discuss” the risk and benefits of marijuana and cannabis-derived products with patients.

"Medical Cannabis and Autism Spectrum Disorder – Ohio's Marijuana Policy and its Intersection with the Historical Controversial Cannabis Treatment"

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

In the state of Ohio, medical marijuana is offered as a treatment option for many different illnesses and disorders including Alzheimer’s disease, Tourette’s syndrome, and Crohn’s disease.  However, one condition missing from this list of syndromes that may legally use medical marijuana as a form of treatment is autism spectrum disorder. This paper aims to understand why autism spectrum disorder is not included in this list while also analyzing relevant present legislation such as House Bill 60 and Senate Bill 261.  To answer these questions, this paper examines the benefits of treating autism with medical marijuana as well as the reasoning for why this treatment has been perceived so negatively.

New CRS report (incompletely) reviews "Recent Developments in Marijuana Law" in Fall 2022

This notable new five-page Congressional Research Service report titled "Does the President Have the Power to Legalize Marijuana?". Here is how it gets started:

Marijuana and other products derived from the cannabis plant are regulated under both federal and state law.  In recent years, a significant divide has developed between federal and state regulation.  Under the federal Controlled Substances Act (CSA), marijuana is strictly regulated and may not legally be used for medical or recreational purposes.  In contrast, a substantial majority of states have relaxed state law prohibitions on medical or recreational marijuana.

The fall of 2022 saw two key developments in federal and state marijuana regulation.  In October 2022, President Joe Biden granted clemency to certain low-level federal marijuana offenders and directed the Attorney General to review the status of marijuana under federal law.  While some observers consider President Biden’s grant of clemency to represent a significant change in federal marijuana policy, as a legal matter it did little to alter the growing disparity between federal and state marijuana regulation.  Then, in November 2022, voters in five states considered ballot initiatives to legalize recreational marijuana at the state level, two of which were adopted.  Legislators and commentators have proposed a number of legal reforms that would alter federal marijuana regulation and potentially reduce the divergence between federal and state law.

This Legal Sidebar provides an overview of the legal status of marijuana under federal and state law, then discusses recent developments including the grant of clemency for federal marijuana possession offenses and November 2022 state ballot initiatives related to marijuana.   The Sidebar concludes with an overview of selected legislative proposals related to marijuana.

This CRS document is dated November 16, 2022, so it only makes a brief reference/link to the federal research bill that was passed by Congress on that very day, the "Medical Marijuana and Cannabidiol Research Expansion Act." As of this writing (Nov 20, 2022), that bill is still awaiting the President's signature.

"Association of Recreational Cannabis Legalization With Alcohol Use Among Adults in the US, 2010 to 2019"

The title of this post is the title of this interesting new article just published in JAMA Health Forum. This research was authored by Vandana Macha, Rahi Abouk and Coleman Drake. Here is its abstract:

Importance  In the US, cannabis use has nearly doubled during the past decade, in part because states have implemented recreational cannabis laws (RCLs).  However, it is unclear how legalization of adult-use cannabis may affect alcohol consumption.

Objective  To estimate the association between implementation of state RCLs and alcohol use among adults in the US.

Design, Settings, and Participants  This was a cross-sectional study of 4.2 million individuals who responded to the Behavioral Risk Factor Surveillance System in 2010 to 2019.  A difference-in-differences approach with demographic and policy controls was used to estimate the association between RCLs and alcohol use, overall and by age, sex, race and ethnicity, and educational level.  Data analyses were performed from June 2021 to March 2022.

Exposures  States with RCLs, as reported by the RAND−University of Southern California Schaeffer Opioid Policy Tools and Information Center.

Main Outcomes and Measures  Past-month alcohol use, binge drinking, and heavy drinking.

Results  Of 4.2 million respondents (median age group, 50-64 years; 2 476 984 [51.7%] women; 2 978 467 [58.3%] non-Hispanic White individuals) in 2010 through 2019, 321 921 individuals lived in state-years with recreational cannabis laws.  Recreational cannabis laws were associated with a 0.9 percentage point (95% CI, 0.1-1.7; P = .02) increase in any alcohol drinking but were not significantly associated with binge or heavy drinking.  Increases in any alcohol use were primarily among younger adults (18-24 years) and men, as well as among non-Hispanic White respondents and those without any college education.  A 1.4 percentage point increase (95% CI, 0.4-2.3; P = .006) in binge drinking was also observed among men, although this association diminished over time.

Conclusions and Relevance  This cross-sectional study and difference-in-differences analysis found that recreational cannabis laws in the US may be associated with increased alcohol use, primarily among younger adults and men.

"President Biden's Pardons: What It Means for Cannabis and Criminal Justice Reform"

Though I have already flagged this event at my other blog, I wanted to be sure to highlight here this exciting webinar scheduled for next month (December 13 starting at 12noon), which is organized by Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Last Prisoner Project.  Here is a bit of the backstory and the panel lineup:

On October 6th, 2022, President Biden issued a proclamation granting pardons to over 6,500 people with federal simple possession of marijuana offenses.  In an acknowledgment of the fact that the vast majority of cannabis convictions take place on the state level, President Biden simultaneously encouraged the country’s governors to use their clemency power to issue similar grants.  While the President’s executive actions are an unprecedented and important step forward, there is still much more work ahead to fully redress the harms of cannabis criminalization.

Please join the Drug Enforcement and Policy Center and the Last Prisoner Project as we host a panel of experts to discuss how these pardons will affect people with cannabis convictions on their record, how states could act on the President's call, and what implications this may have for the future of cannabis and criminal justice reform in the United States.

Panelists:

Elizabeth G. Oyer, U.S. Pardon Attorney, U.S. Department of Justice

JaneAnne Murray, Associate Clinical Professor of Law, Director of the University of Minnesota Law School Clemency Project

Sarah Gersten, Executive Director and General Counsel, Last Prisoner Project

Moderator:

Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law; Executive Director of the Drug Enforcement and Policy Center

Congress passes marijuana research bill, the "Medical Marijuana and Cannabidiol Research Expansion Act"

With a Senate motion, the US Congress made some history today by passing a standalone piece of marijuana reform legislation.  Here are the basics from Politico:

The Senate passed a bill designed to expand medical marijuana research on Wednesday by unanimous consent. Passage of the legislation, which is sponsored by Sen. Dianne Feinstein (D-Calif.) and Rep. Earl Blumenauer (D-Ore.) in their respective chambers, signaled a new era in federal cannabis policy: It’s the first standalone marijuana-related bill approved by both chambers of Congress.  The House passed the bill in July, also by unanimous consent.

The bill, which will make it easier for scientists to conduct medical marijuana research and protect doctors who discuss the benefits and drawbacks of using the drug with patients, now heads to President Joe Biden’s desk....

Passage of the medical research bill by unanimous consent signals that perceptions about marijuana are changing.  While expanded research is arguably the most conservative action Congress could take on marijuana, it is something that would have been unthinkable a decade ago.  The bill came close to passing in September, but was held up by Sen. John Cornyn (R-Texas). Cornyn lifted the hold earlier this week.

“After working on the issue of cannabis reform for decades, finally the dam is starting to break,” Blumenauer told POLITICO in a statement.  “At a time when more than 155 million Americans reside where adult-use of cannabis is legal at the state or local level and there are four million registered medical marijuana users with many more likely to self-medicate, it is essential that we are able to fully study the impacts of cannabis use.”

This Marijuana Moment article, headlined "Senate Sends Marijuana Research Bill To Biden’s Desk, With Schumer Saying He’s Having ‘Productive Talks’ On Broader Reform," highlights why this little bit of history might be a sign of things to come:

Just before the vote, Senate Majority Leader Chuck Schumer (D-NY) said on the floor that he is continuing to have “productive talks” about a broader package of cannabis reforms he hopes to pass before the end of the lame duck session.

In the meantime, while numerous marijuana measures have been filed and advanced in each chamber in recent sessions, reform has consistently stalled before reaching the president. But now, the “Medical Marijuana and Cannabidiol Research Expansion Act” is just one signature away from historic enactment.

Latest Gallup polling highlights "Marijuana Views Linked to Ideology, Religiosity, Age"

The quoted portion of the title of this post is the title of this new Gallup report on its latest polling on opinions regarding marijuana.  Here are excerpts:

Americans' support for marijuana legalization remains at the record-high 68% recorded each of the past two years.

When Gallup first asked about legalizing marijuana in 1969, 12% of Americans were in favor. Support grew from there, reaching 31% in 2000 and surpassing the majority level in 2013. Since 2016, at least six in 10 have been in favor. The latest results are based on an Oct. 3-20 Gallup poll.

Combining data for the past five years, from 2018 through 2022, allows for a more robust analysis of demographic differences in views about marijuana legalization than is possible from a single poll. Using this aggregate, Gallup finds support for legalization averaged 67% among the general population but varied significantly by subgroup. Conservative, religious and older Americans are the least supportive, while liberal, nonreligious and younger Americans are the most supportive.

Specifically, subgroups whose support for legalization exceeds the national average by 10 or more percentage points include those with no religious preference (89%), self-identified liberals (84%), Democrats (81%), young adults (79%) and those who seldom or never attend religious services (78%).

Groups whose support is at least 10 points below the national average include those who attend church weekly (46%), conservatives (49%), Republicans (51%), older adults (53%) and Hispanic adults (56%)....

Given the importance of ideology and age in predicting individuals' support for marijuana legalization, ideological subgroups of different ages show some of the largest intergroup differences in attitudes.

At every age level, conservatives are less likely than moderates or liberals to support making marijuana legal. However, majorities of younger conservatives (those under age 50) favor legalization, compared with 32% of older conservatives.

Age differences among political moderates are more modest, with 20 points separating the oldest (62%) and youngest (82%) moderates. That contrasts with a 33-point gap between the oldest and youngest conservatives. Liberals, on the other hand, show similarly high support -- 81% or higher -- regardless of age.

On eve of hearing, House staff releases "joint memo" extolling federal marijuana reform

As reported in this Marijuana Moment piece, "House Democrats and Republicans have co-published a joint memo ahead of a congressional subcommittee meeting on marijuana on Tuesday, laying out key background details on the issue that will likely inform the conversation at the meeting." Here is more:

The House Oversight Subcommittee on Civil Rights and Civil Liberties announced the meeting—titled “Developments in State Cannabis Laws and Bipartisan Cannabis Reforms at the Federal Level”—last week. And the witnesses set to testify are broadly pro-legalization.

Several documents have been posted in advance of the meeting, including what’s described a “joint memo” from majority and minority staff that was uploaded on Sunday. Rep. Jamie Raskin (D-MD) chairs the panel, with Rep. Nancy Mace (R-SC) serving as the ranking member.

Given that leadership on the subcommittee shares bipartisan interest in advancing cannabis reform, it makes sense that the witnesses are well-known advocates for ending prohibition and that the joint memo generally provides information that makes the case for a comprehensive policy change.

It mentions several pieces of marijuana legalization legislation, including the House-passed Marijuana Opportunity, Reinvestment and Expungement (MORE) Act, Senate leadership’s Cannabis Administration and Opportunity Act (CAOA) and Mace’s States Reform Act (SRA).

“This hearing will be a bipartisan examination of the many benefits of decriminalization at the federal level, including: criminal justice reform, which will largely benefit communities of color, as well as the justice system more broadly; access for veterans through the Department of Veterans Affairs (VA); and the ability for the legal cannabis industry to access financial services,” the memo says.

The full 11-page "Joint Memo" is available at this link.  It makes for an interesting read.