Monday, April 18, 2022
The title of this post is the title of this new report available via SSRN and produced by the Drug Enforcement and Policy Center and authored by Jana Hrdinova and Dexter Ridgway. Here is its abstract:
Advocates for cannabis reform in Ohio and in other states often stress the tax revenue that can be raised through legalization. If a citizen-initiated statute currently under consideration in the Ohio General Assembly were to reach the ballot, Ohio voters are likely to hear from reform advocates about the potential tax revenue a new cannabis industry could bring to the Buckeye State. The purpose of this policy paper is to provide an initial estimate of potential cannabis tax revenue in Ohio that is informed by tax revenue data and trends from a select group of other adult-use states.
Based on our analysis, we are using Michigan FY 2021 data on cannabis tax revenue as our focal point for Ohio cannabis tax revenue estimates given the demographic and tax structure similarities; we are assuming a conservative rate of diminishing retail sales growth through year five of an operational legal adult-use program; we are using state population figures as our basis for calculating per capita cannabis tax revenue rates; and we are modeling for three different Ohio pricing scenarios. Given these assumptions, the potential annual tax revenue from adult-use cannabis in the state of Ohio ranges from $276 million in year five of an operational cannabis market to $374 million in year five of operations.
Student presentation: "Prohibition & the U.S. Economy: How Cannabis Legalization Can Help the United States Economy Recover in a Similar Fashion as the 21st Amendment"
The homestretch of students in my Marijuana Law, Policy & Reform seminar presenting on the research topics of their choice includes a focus on economic development issues. Here is how the student describes the topic and some background readings:
Warning lights are now flashing for the U.S. economy as a potential recession appears on the horizon. At 8.5%, the U.S. is seeing the highest inflation rate since 1981. It seems that causes for inflation are plentiful. COVID-19’s impact on the world’s supply chain, surging demand, production costs, relief funds, the Russian war, and an increase in wages to keep up with worker shortages are all reasons economists point to as inflation catalysts. Recently, it was reported that Americans need to budget an extra $5,200 this year to cover inflation prices. But the reality is many Americans simply cannot afford to keep up. Not everyone’s wages have increased, and many Americans are still left without jobs. Budgeting extra money when so many Americans live paycheck to paycheck or use government assistance to survive is not feasible nor sustainable.
We saw a similar crisis 100 years ago as well. From 1920 to 1933, Americans suffered through the Prohibition Era, the Stock Market Crash of 1929, and the Great Depression. During this time, Americans saw a huge downturn in the economy with hundreds of thousands of people out of the job market. Many businesses shut down. The U.S. government was spending an absurd amount of money to enforce Prohibition all while financially suffering from the loss of alcohol and excise taxes. Once Prohibition was repealed, Americans saw a boom in economy. More jobs and legal alcohol sales meant the government was simultaneously reaping the benefits of increased sales tax revenue and newly created income taxes which helped fund the New Deal and, in turn, further helped restore prosperity to the United States.
In this paper, I argue that cannabis can serve a similar purpose to the U.S. economy now as the repeal of alcohol prohibition did in 1933. Much like the Prohibition Era, the U.S. government spends an obscene amount of money enforcing cannabis prohibition. There is also a large opportunity cost in delaying federal legalization. States that have legalized cannabis recreationally have seen a huge boost in economic growth due to job creation, sales tax revenue, and property values. These dollars are then used to fund social programs, public schools, research, and public safety. Federal legalization can do the same on a much larger scale. The economy is becoming more fragile every day, public perception of cannabis has changed, and various proposed reforms have hit Capitol Hill. I argue that now, more than ever, is the time to federally legalize cannabis because it could be the saving grace that stimulates the economy in the way Americans need.
ACLU blog post from 2012: "Hundreds of Economists: Marijuana Prohibition Costs Billions, Legalization Would Earn Billions"
Blog post by university professor: "How marijuana legalization would benefit the criminal justice system"
Leafly report from 2020: "2020 Cannabis Jobs Report: Legal cannabis now supports 243,700 full-time American jobs"
Friday, April 15, 2022
Notable federal marijuana reform news with an interesting new bill while we further wait for an old one
The long-anticipated Senate bill to federally legalize marijuana will not be introduced this month, with Democratic leadership saying on Thursday that the timeline is being extended as they continue to work out various provisions “with the assistance of nearly a dozen Senate committees and input from numerous federal agencies.”
Senate Majority Leader Chuck Schumer (D-NY) has said on several occasions that the bill he’s been working on with Senate Finance Committee Chairman Ron Wyden (D-OR) and Sen. Cory Booker (D-NJ) for many months would be formally filed by the end of April. That’s no longer the case, with the leader now saying the “official introduction” will take place sometime “before the August recess.”
A discussion draft of the Cannabis Administration & Opportunity Act (CAOA) was first unveiled last year, and advocates and stakeholders have been hanging on the leader’s words as they continue to push for an end to federal prohibition. Most recently, Schumer said last week that he and colleagues were in the process of reaching out to Republican senators to “see what they want” included in the legislation.
The timeline that Schumer previewed has apparently proved too ambitious — but the hope is that by taking extra time to finalize the measure, it will help the senators overcome what are currently significant odds stacked against them to reach a high vote threshold in the chamber, where Democrats hold just a slim majority and several members of the party have indicated that they’re not supportive of legalization.
A bipartisan group of congressional lawmakers filed a bill on Thursday that would direct the attorney general to create a commission charged with making recommendations on a regulatory system for marijuana that models what’s currently in place for alcohol.
Reps. Dave Joyce (R-OH), Hakeem Jeffries (D-NY) and Brian Mast (R-FL) are teaming up on what’s titled the Preparing Regulators Effectively for a Post-Prohibition Adult-Use Regulated Environment Act (PREPARE) Act — an incremental reform meant to inform comprehensive cannabis policy changes in the future.
The measure will “provide lawmakers across the ideological spectrum the opportunity to engage on cannabis reform by creating a fair, honest and publicly transparent process for the federal government to establish effective regulation to be enacted upon the termination of its 85-year prohibition of cannabis,” according to a summary from the sponsors....
Here’s what the new bill would accomplish:
Require the attorney general to establish a “Commission on the Federal Regulation of Cannabis” within 30 days of the bill’s enactment. The commission would be responsible for studying federal and state regulatory models for alcohol and make recommendations about how they could inform marijuana regulations. Among other things, the commission’s report must look at the impact of marijuana criminalization, particularly as it concerns minority, low-income and veteran communities.
The panel would also examine the “lack of consistent regulations for cannabis product safety, use and labeling requirements” as well as the “lack of guidance for cannabis crop production, sale, intrastate, interstate, and international trade.“ It would also need to make recommendations on how to remedy cannabis-related banking and research barriers as well as address measures to ensure the “successful coexistence of individual hemp and cannabis industries, including prevention of cross pollination of cannabis and hemp products.”
Members would further be mandated to study and make recommendations on “efficient cannabis revenue reporting and collecting, including efficient and tenable federal revenue frameworks.” The panel would be required to issue a report to Congress within 12 months.
I have come to believe that Senator Shumer's CAOA is essentially DOA in a Senate that may not now have even 50 votes in support of full marijuana legalization, let alone the 60 needed to get past a filibuster. But the new PREPARE Act already has bipartisan support, and it seems to only call upon the federal government to take a serious and sustained look at what kind of federal regulatory rules and structures would be preferable as marijuana reform in the states continues apace. In a well-functioning Congress, I think some version of the PREPARE Act could and should be a no-brainer and likely should have been enacted a number of years ago. In the current dysfunctional Congress, I fear that we need not seriously prepare for the passage of the PREPARE Act. But one can still dream.
Thursday, April 14, 2022
I mentioned previously that a big group of Marijuana Law, Policy & Reform seminar students are scheduled to present this week on the research topics of their choice. The fifth exciting (and excitingly different) topic for this coming week's presentations is to be focused on the Fourth Amendment. Here is how the student describes the topic and some background readings:
The Fourth Amendment protects the right to be free from unreasonable searches and seizures. Warrantless searches and seizures are per se unreasonable under the Fourth Amendment, but this protection has been watered down over the past 100 years. The War on Drugs led to significant changes in Fourth Amendment law as police began using more intrusive tactics to enforce drug laws, in particular with a focus on marijuana law enforcement from the 1990s to the present. Police use tactics such as the Terry stop and frisk, warrantless vehicle searches, and drug sniffing dogs are commonly used to detect even small amounts of marijuana, and as of 2018, 89.6% of marijuana arrests were for possession only.
Giving police officers significantly lead way to decide when a search is appropriate has arguably led to racial profiling and consequently, contributed to the racial disparities we see in marijuana law enforcement today. From 2001 all the way through 2018, a Black person was almost four times as likely to be arrest for marijuana possession as a white person, despite studies showing these groups use marijuana at substantially equal rates. Further, a Black person is also more likely to be stopped by police for alleged traffic violations and more likely to be searched during a stop.
With the passage of marijuana legalization (decriminalization, medicinal legalization and recreational legalization) we have began to see some of these police practices, restoring some of the Fourth Amendment rights lost due to the war on drugs. In particular, my project will focus on whether the scent of marijuana is still sufficient to prove probable cause for a search under these various regimes, and whether a drug sniffing dog that is trained to detect marijuana can likewise provide probable cause for a vehicle search. The hope is that by eliminating these intrusive tactics (saying they do not provide probable cause), we will regain the Fourth Amendment rights lost due to the war on drugs, particularly for those who have been the most affected, people of color, and that racial disparities in marijuana law enforcement will begin to decline.
Please watch this video explaining police procedures (and misconduct) in the traffic stop of Tae-Ahn Lea. Audit the Audit, Officers Sued for Searching Vehicle During Traffic Stop, YouTube, (Sept. 30, 2019) .
Oklahoma Municipal Assurance Group (OMAG) piece analyzes the application of the Fourth Amendment in legal states. Matt Love, How Other States Apply the Fourth Amendment to Medical Marijuana (Oct. 15, 2019)
Wednesday, April 13, 2022
As students in my Marijuana Law, Policy & Reform seminar are continuing to "take over" my class through presentations on the research topics of their choice, I continue to post here background on their topic and links to relevant materials. The fourth of this coming week's presentation is focused on record clearing, and here is how the student describes the topic and provided readings:
Effective cannabis law reform cannot occur without also addressing the harm caused to those who have obtained criminal records due to harsh drug laws. For decades, people throughout Ohio and the rest of the country have been punished by the criminal justice system due to non-violent cannabis offenses. Thankfully, many states have legalized, or are in the process of legalizing cannabis. Cannabis legalization is an important step in cannabis law reform because it means people will no longer be charged for cannabis related offenses. However, legalization alone does nothing to help those who have already obtained cannabis related charges and convictions. The issue with having cannabis-related convictions is not just the fines or jail time that may come with it, but also the negative consequences of having a criminal record, which continues to affect offenders long after the case is closed. Cannabis legalization, therefore, must be accompanied by expungement reform in order to help put an end to the negative consequences that those with cannabis related criminal records are experiencing.
Thus, my presentation focuses on analyzing different expungement provisions that have been included in cannabis legalization laws. Although many states that have legalized cannabis have included provisions on expungement reform, some of these provisions are not as effective as they could be. Based on my research, I make the following recommendations for Ohio lawmakers to take into consideration when drafting laws on cannabis expungement. First, I recommend lawmakers to create an individual bill focused solely on cannabis expungement to avoid conflict with Ohio’s “One Subject” rule. Second, I recommend that cannabis records should be automatically expunged for any non-violent cannabis offenses as well as other offenses that can be tied to cannabis, such as paraphernalia and loitering offenses. Third, I recommend that there should be no waiting period for the expungement— all cannabis records should start to be expunged as soon as the law is passed. Lastly, I recommend that the bill should create an independent committee to carry out the expungements to avoid overburdening prosecutors and court staff.
J.J. Prescott & Sonja B. Starr, Expungement of Criminal Convictions: An Empirical Study 133 Harv. L. Rev. 2460 (2020).
Akua Amaning, Advancing Clean Slate: The Need for Automatic Record Clearance During the Coronavirus Pandemic, Center for American Progress (Jun. 25, 2020),
Mark Gillspie, Cleveland Seeks to Expunge 4k Minor Marijuana Convictions, Associated Press (April 7, 2022)
50-State Comparison: Marijuana Legalization, Decriminalization, Expungement, and Clemency, Collateral Consequences Resource Center (last updated Jan. 2022)
The third of this week's presentations put on by my Marijuana Law, Policy & Reform seminar students will be focused on how Ohio might approach how setting up a licensing scheme for the marijuana industry. Here is how the student describes this topic and some background readings:
In a regulated industry, licensing is the key that unlocks the door for (legal) opportunity. The ever-expanding cannabis industry is no exception. Those who hold licenses in this industry enjoy the benefit of legally-sanctioned conduct, while others assume the risks of operating in the black market.
Ohio is currently faced with the question of whether an adult-use cannabis market should be established within the state. As a part of answering this question, policymakers need to consider how to set up a licensing scheme for any potential industry. There are several different considerations that need to be made in approaching such a scheme. First, there is the issue of responding to different operators within the market and establishing different licenses for these various operators. Next, there is the debate over whether to establish a limited license market, and how to respond to concerns over monopolization and social equity. Lastly, policymakers must decide what qualifications will be necessary in order to obtain a license, and which actors will be excluded from such a privilege.
An Act to Control and Regulate Adult-Use Cannabis is a ballot initiative which seeks to introduce an adult-use market in Ohio, and it proposes a detailed framework for licensing this market. This project analyzes the licensing scheme that would be established in the state, should this initiative eventually be signed into law, and evaluates how this proposed scheme responds to the policy concerns that are inherent in licensing.
Tuesday, April 12, 2022
Student presentation: "Putting Marijuana Back in the Bottle: FDA’s Role in Future Marijuana Regulation"
Continuing the Marijuana Law, Policy & Reform seminar students presenting on research topics of their choice. the second topic for this coming week's presentations will be focused on the role of the FDA. Here is how the student describes her take on the topic and some background readings:
So far, FDA has been fairly hands-off when it comes to the state-driven marijuana market even though marijuana falls under many of the agency’s statutory domains. “Marijuana” is a hot commodity as consumers can attest from the plethora of products purporting to contain marijuana derivatives. Many, if not all, of these products fall under FDA’s regulatory regime.
Although FDA has issued some warning letters regarding company actions within the marijuana space, the agency has not developed a consistent theme for regulation. Once it does, some state regulations may be preempted. This would throw the current regulatory landscape into question. Such entry may also change the dynamic of the marijuana industry. For example, as companies face federal regulation, entry into the marijuana space may become more expensive and push small sellers out of the market. Conversely, a dual marijuana marketplace may be established — one that establishes itself nationwide and another that attempts to maintain the current system by only selling intra-state.
FDA does not need to completely reinvent the wheel when it comes to marijuana regulation, although it statutorily may have to consider factors unique to current state regulations. However, given the history of introducing more robust regulations onto new industries, as FDA did with tobacco industry, systems states are already finding successful, and other nations’ marijuana schemes, there are many avenues for FDA to ensure the American public is protected from unsafe products without overly disrupting the current market.
Every year that the federal government declines to implement a regulatory scheme for marijuana products, states are creating their own processes — some more and some less permissive. This paper describes the statutory basis for FDA to regulate marijuana. It also describes how future FDA regulation might interplay with current state regulation or be preempted. Next, it analyzes possible industry challenges as federal regulation becomes more prominent. Finally, it recommends how FDA may enter the regulatory space in tandem with state regulation and avoid stifling an already robust market.
Law review article: "The Surprising Reach of FDA Regulation of Cannabis, Even after Descheduling"
Law review article (by own own Prof Zettler): "Pharmaceutical Federalism"
US Food & Drug Administration webpage: "FDA Regulation of Cannabis and Cannabis-Derived Products, Including Cannabidiol (CBD)"
April 12, 2022 in Assembled readings on specific topics, Federal Marijuana Laws, Policies and Practices, Food and Drink, History of Marijuana Laws in the United States, International Marijuana Laws and Policies, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
This project 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. The final product will consist of a paper that 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 hostile to both.
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 job creation, notions of justice and fairness, and the assertion that supporting minoritized individuals such as immigrants and people of color is beneficial for all members of the U.S.
After writing the paper, I will be developing a series of issue factsheets based on the arguments and categories above to garner support for solutions to the above issues, such as encouraging readers to support certain bills, state and district level reforms to the criminal justice process, organizations doing work on this issue.
Law Review Student Comment (2015): "Nonserious Marijuana Offenses and Noncitizens: Uncounseled Pleas and Disproportionate Consequences"
Press article providing historical context (2019): "The Surprising Link Between U.S. Marijuana Law and the History of Immigration"
Advocacy group report detailing the personal harm of the current deportation laws and scale of the issue (2015): "A Price Too High - US Families Torn Apart by Deportations for Drug Offenses"
Wednesday, April 6, 2022
Student Presentation Analyzing Ohio Senate Bill 261 and Oklahoma’s Free Market Experiment in Medical Marijuana
As my Marijuana Law, Policy & Reform seminar continues with student presentations on their research topics, the third of this coming week's presentations is focused on what the student calls the "free market" approaches to medical marijuana. Here is how the student describes the topic along with background materials:
Ohio Senate Bill 261 seeks to improve Ohio’s existing Medical Marijuana Control Program. If passed, Senate Bill 261 would multiply the number of licensed dispensaries, increase the number of qualifying conditions, enable physicians to remotely recommend medical marijuana via telehealth, and create the Division of Marijuana Control, which would divest the Board of Pharmacy of its current responsibilities. While not expressly stated, Senate Bill 261 would embrace a free-market approach to medical marijuana in a similar fashion to Oklahoma, which has often been described the “Wild Wild West of Weed.” The overarching theme of this presentation is the public perception of such a medical marijuana regime and whether Senate Bill 261 is giving the patients what they want.
Creating more competition in Ohio’s medical marijuana industry is a chief concern among many patients, who often argue that further competition is needed to lower prices. The vast majority of Ohio patients agree that products sold by dispensaries are currently too high. The expansion of the number of licensed dispensaries and provisions aiming at improving cultivators are likely to create more competition and lead to lower prices. But will the expansion of up to 300 licensed dispensaries in Ohio lead to market saturation and thus make it hard for dispensaries to make any money? This presentation argues that this is an overblown concern in Ohio, unlike it is in Oklahoma.
This presentation also analyzes the qualifying condition provisions, as well as scrutinizing the bill for things that it lacks, such as proscribing standards for doctors or expunging the past criminal records of licensed patients. Overall, the presentation finds that Senate Bill 261 was carefully crafted to pass the Ohio legislature by focusing on market-oriented and patient-driven concerns and concludes by suggesting that the result will positively transform Ohio’s medical marijuana industry from a market perspective.
Background information about Senate Bill 261: Summary of S.B. 261 from Ohio Legislative Service Commission
Local press article about the Bill: “Marijuana bill could cut prices, increase access”
Great local press article on medical marijuana in Oklahoma: “How Recreational Is Oklahoma’s Medical Marijuana Market?”
Text of Oklahoma medical marijuana initiative: Oklahoma’s State Question 788
Monday, April 4, 2022
My Marijuana Law, Policy & Reform seminar continues with student presentations on the research topics of their choice. The second of this coming week's presentations is focused on patent protection for marijuana plants. Here is how the student describes the topic and the provided readings:
Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. Intellectual properties are one of the most valuable assets for the companies and there are multiples ways one can protects this asset. And how would businesses in Cannabis go about protecting it’s IP rights under current law, and how much would it effect federal reforms and how would reforms effect IP industries?
Different IP requires different protections, like trademark, copyright, and patent. And the one I will be focusing on will be patent protection. Patent protection is most desired of all IP protections as it grants 20 years of monopoly from date of filing. However, for marijuana related IP to be protected under patent, there are multiple hoops to overcome. As a plant, it is very difficult to claim a patent. Furthermore, patents are exclusively governed by federal law, and under federal law marijuana is still illegal, as a Schedule 1 drug under the Controlled Substances Act. With patent, could provide incentives for researching marijuana and to be able to have enough scientific data to remove it form schedule 1 drug.
This does not mean that getting patent for marijuana is impossible. There are multiple ways to get over the barriers. And there are some successful examples of marijuana patent. This include government owned marijuana patent. And this patents not only provide economic benefits to patentees but also to the public as it will provide incentive to have more research done on the marijuana.
Background information about marijuana patent law: “Basics of Marijuana Patent law”
Examples and introduction to obstacles of marijuana patent and examples of marijuana patent: “Twelve Cannabis Plant Patents and Counting”
Information about plant patents in general: “General information about 35 U.S.C. 161 plant patents”
News report of government owned marijuana patent: “Feds patented medical pot…while fighting it”
Sunday, April 3, 2022
My Marijuana Law, Policy & Reform seminar is in its homestretch, and there are scheduled for the coming weeks a host of student presentations on the research topics of their choice. As I often mention, before their presentations, students are expected to provide in this space some background on their topic and links to some readings or other relevant materials. The first of this coming week's presentations is focused on native tribes involved in marijuana activities. Here is how the student describes the topic and the provided readings:
Native Americans have the highest poverty rate in the United States and the percentage of American Indians and Alaska Natives living in poverty is nearly twice the rate of the nation. In addition, the U.S. Commission on Civil Rights “reported that -- due to things like historical discriminatory policies, insufficient resources, and inefficient federal program delivery -- Native Americans continue to rank near the bottom of all Americans in terms of health, education, and employment.” Some tribes have begun to look towards the marijuana marketplace as a different way to generate revenue for their tribe and to encourage economic development.
Tribes that have been able to build successful marijuana enterprises have seen great benefits. The Las Vegas Paiute in 2017 opened a 15,800 square foot dispensary called NuWu Cannabis Marketplace which has since been deemed a blueprint for the industry and brings in over $5 million in sales per month. A designated amount of the profits from the company goes to the Paiutes’ general fund to support things like medical and educational expenses of tribe members. However, some tribes have faced extensive legal barriers to their attempts to tap into this potential financial gain. Federal raids and threatened state intervention has left some Native American communities weary of even thinking about entering into this realm.
Marijuana is still illegal under federal law and the federal government is in charge of regulating tribes. However, Congress can transfer its jurisdiction over tribes to the states if it chooses and in some states it has given them exclusive jurisdiction, through Public Law 280, over all crimes committed on reservations. The interaction between state and federal law and the overall lack of clarity often leaves tribes to make tough decisions in this space with little guidance. This presentation explores the legal issues implicated with tribal marijuana and discusses what has happened when tribes have entered or tried to enter the market.
- Student Note, "Indian Country Complexities and the Ambiguous State of Marijuana Policy in the United States"
- GAO Issue Summary, "Tribal and Native American Issues"
- From The Guardian, "‘The tribe has taken over’: the Native Americans running Las Vegas’s only cannabis lounge"
- From Ask Growers, "Native American Tribes Create Financial Empires in Booming Cannabis Industry"
- From Marijuana Moment, "Senators Urge Biden Attorney General to Respect Indian Tribes’ Marijuana Policies"
- From the AP, "Flandreau: Tribal medical pot cards leading to arrests"
Friday, April 1, 2022
A little under 18 months ago, as noted here, the US House had a historic vote on the MORE Act, which would remove marijuana from the Controlled Substances Act and do a lot of other notable reforms. The bill passed in early December by a margin of 228 in favor, 164 against (largely along party lines with 222 Democrats, 5 Republicans and libertarian Rep. Justin Amash in support and 158 Republicans and 6 Democrats against). With much fanfare, the MORE Act was brought to the floor again, and Politico has this report on how this new vote went:
The House passed a far-reaching marijuana legalization bill on Friday by a 220-204 vote, largely along party lines and still with no real path to President Joe Biden’s desk.
It marks the second time in less than two years that the House passed legislation to decriminalize cannabis, scrap some old marijuana-related convictions and allow states to make their own decisions about whether to establish marijuana markets. But Democrats seem no closer to fulfilling a major campaign promise, passing a party-line bill that has little chance of getting the necessary Republican support to pass the Senate.
“I was a supporter of the War on Drugs — I’ve been here a long time,” House Majority Leader Steny Hoyer said on the House floor on Friday, pointing out that Black Americans are four times more likely than white people to be arrested for low level cannabis crimes. “This bill is a matter of justice and equal opportunity… so that Americans and America can become a better, stronger, more fair, and more just America.”
Majority Leader Chuck Schumer plans to introduce his own cannabis bill soon, but does not currently have the Democrat votes to pass it, let alone the Republicans needed to overcome a filibuster. Today’s vote highlighted the growing rift between the parties — and even among Democrats — on how to address cannabis policy. Despite growing support among GOP lawmakers for legalization and polling that shows two-thirds of Americans back that stance, just three Republicans voted for the Marijuana Opportunity Reinvestment and Expungement Act. That was fewer than the five GOP lawmakers who backed the bill in 2020 — two are no longer in Congress.
The MORE Act debate underlined a fundamental question that divides the parties: When changing the nation’s drug laws, should the federal government also take steps to provide financial incentives to individuals and communities who were most harshly impacted by the war on drugs?
Republicans say no. “You’re not going to be able to get Republicans on board… the way that the MORE Act is done,” said Rep. Nancy Mace (R-S.C.), who introduced a bill last year that decriminalizes cannabis and expunges some records but does not create federal grant programs. The federal social equity efforts were a major reason for her “nay” vote on Friday. “You’ve got to have Republicans on board if we’re going to have any chance of getting it done in the Senate.”
For many Democrats, however, the equity grant programs are nonnegotiable. “This is a major criminal justice reform bill,” said Rep. Barbara Lee (D-Calif.), one of the co-chairs of the Congressional Cannabis Caucus. “So negotiating that away — to leave [affected communities] behind — that to me is just immoral.”
In fact, House Speaker Nancy Pelosi on Thursday went so far as to frame the MORE Act as a criminal justice reform bill. In her weekly news conference, she touted the criminal justice and economic provisions of the bill, and explained that the lack of similar provisions in the George Floyd Justice in Policing Act was one reason that it failed in the upper chamber.
The Senate — where Schumer, Sen. Cory Booker (D-N.J.) and Sen. Ron Wyden (D-Ore.), are working on their own comprehensive cannabis bill — is even tougher ground for weed. Booker and Schumer have drawn a line in the sand on marijuana policy, refusing to even hold a hearing on a cannabis banking bill the House has approved six times because it does not address criminal justice reform.
But Democrats’ pursuit of their perfect bill worries some pro-cannabis lawmakers and advocates, who do not see a clear path forward for sweeping drug policy changes under Republican leadership in either chamber — especially the Senate. Given that Democrats may not control both houses of Congress come January, the window for federal cannabis policy change may not be open much longer.
“We need those social equity programs,” one moderate Democrat lawmaker said, granted anonymity to speak candidly about his leadership’s strategy. “Nonetheless, if I have to choose between nothing and something that, going forward, will not put our children, our neighbors or friends in jail — I’ll choose the latter.”
Conspicuously absent from the “ayes” on Friday were some of the most pro-cannabis Republican voices on Capitol Hill, including Mace and Rep. Dave Joyce of Ohio, a co-chair of the Congressional Cannabis Caucus. Joyce’s office circulated a memo among Republicans earlier this week outlining his critiques of the MORE Act and why he intended to vote against it — and inviting discussion on Republican approaches to marijuana policy.
Joyce’s office said he reached out to Democrats to try and forge consensus on the best approach to overhauling federal cannabis laws. He sent a letter to Judiciary Chair Jerry Nadler (D-N.Y.), the chief sponsor of the MORE Act, in February — offering to work with him to create a bill that was more palatable to Republicans. Joyce’s office said they also had one meeting with Nadler’s staff to discuss their primary concerns with the bill, but were not invited back for any further discussion. Nadler’s office declined an interview request for this story. His office told POLITICO that the chair asked many Republican lawmakers to cosponsor the MORE Act, but did not answer questions about the letter from Joyce or requests from Republicans to change the bill.
It’s unclear how many additional Republican votes Mace and Joyce could bring to the legislation — between their two decriminalization bills they have four additional Republican cosponsors. But Joyce’s office said the bill, as it stands, is “too impractical and too flawed” to even start a conversation with GOP members who are interested in changing America’s drug laws.
Mace says her cannabis reform bill — the States Reform Act — polls better among Republican primary voters in her district than broad federal legalization, but she is also facing a tough primary in May and was recently targeted by Super PAC ads on her support for cannabis legalization.
Despite declining GOP support for the MORE Act, Democrats’ nerves on cannabis legislation have calmed. When a vote on the bill was scheduled in September 2020, moderate Democrats balked, worried that voting to legalize weed could hurt their reelection chances. But the politics around cannabis have changed so rapidly nationwide that those concerns appear to have evaporated.
In fact, six Democrats voted against the bill in 2020, but only two voted against the MORE Act on Friday. One of the lawmakers who previously voted against the bill — Rep. Conor Lamb of Pennsylvania — is in a tough primary race with Lt. Gov. John Fetterman for the Democratic nomination for Pennsylvania’s open Senate seat. Fetterman has campaigned vocally on cannabis legalization, both for his state and federally. This time around, Lamb voted in favor of the bill.
Because I am very much on board with the let's do something "if I have to choose between nothing and something," I am deeply disappointed that the House leadership decided this symbolic vote was more important than trying to forge a federal reform bill that could have at least a small chance of moving forward. (As the headline of this post indicates, I think what really proved symbolic about this vote is that the MORE Act got less support in April 2022 than it did in December 2020.) If, as many expect, the GOP takes over Congress next year, it will be interesting to watch if any real compromise marijuana reform bills become more broadly discussed or if instead blanket marijuana prohibition continues to remain the law of the land at the federal level.
Tuesday, March 29, 2022
As we inch closer and closer to full marijuana legalization, we should all be asking an important question: what happens to the people with criminal records for doing the very things that will soon be legally a-ok?In recent years, record clearing has gained a lot of steam, and not just in the marijuana space. This is probably in large part because we know that a clear criminal record makes someone a more attractive job applicant, tenant, and more. Prior drug convictions may also prevent someone from accessing public housing and other benefits.As a primer to understanding the complex world of record clearing, I am delighted to invite Hannah Miller into our class. Ms. Miller is the Program Manager for Opportunity Port, a new initiative started by Columbus City Council last year that streamlines the record clearing process for individuals in central Ohio. Opportunity Port is not specific to clearing marijuana-related records. But, in Ohio, the record sealing process generally applies the same way to most types of non-violent offenses, whether they involved marijuana or not.I look forward to hosting Ms. Miller, as she will be able to provide a local twist on the story of record clearing for our class.
Tuesday, March 22, 2022
The second student presentation this week in my Marijuana Law, Policy & Reform seminar is focused on labor issues in the marijuana industry. Here is how the student describes the topic and provided readings:
On Thursday, February 3, 2022, cannabis workers employed at the Herbology dispensary in Newark voted 8-2 to become the first unionized dispensary in Ohio. The Sunnyside dispensary in Cincinnati followed soon after, voting to unionize on February 9, 2022. Not only is there new interest in unionization in the Ohio cannabis industry, but recreational marijuana legalization is gaining momentum and the national cannabis market is growing rapidly. The legal cannabis industry currently supports 428,059 workers nationally, and it is predicted that a mature cannabis market would support 1.5 million to 1.75 million workers.
The right for workers to unionize is protected by the National Labor Relations Act (“NLRA”). However, the NLRA does not protect agricultural workers. 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.
To cover this gray area, six states have laws that encourage or require licensed cannabis businesses to adopt labor peace agreements (“LPA’s”) with their employees, and Ohio is considering implementing a similar requirement. However, the effectiveness of LPA’s is contested, as they may impose too many restrictions upon business owners while not providing the full scope of protection that employees would enjoy under the NLRA. The validity of these LPA’s has not yet been contested in court, but in the interim, they may provide some level of union protection for otherwise unprotected workers. This paper will evaluate the policy concerns surrounding the use of LPA’s in the cannabis industry, as well as what widespread unionization could mean for a quickly growing sector of the economy.
Economic Policy Institute, "The Cannabis Industry Could be a Model of Good Jobs — if Policymakers Strengthen Works’ Right to Unionize"
Leafly, "Jobs Report 2022"
Saturday, March 19, 2022
Student presentation exploring "Expansion of Medical Marijuana in Ohio and its Impact on the Opioid Crisis"
After a Spring Break break, students in my Marijuana Law, Policy & Reform seminar are back to taking over my class through presentations on the research topics of their choice. As I have mentioned, before their presentations, students are expected to provide in this space some background on their topic and links to some readings or relevant. The first of this coming week's presentation is title "Solving A Drug Epidemic with More Drugs: A Discussion on the Expansion of Medical Marijuana in Ohio and its Impact on the Opioid Crisis." Here is how the student describes the topic and provided readings:
Ohio’s current Medical Marijuana Control Program has identified 25 qualifying conditions for the recommendation of medical marijuana. Ohio Senate Bill 261 proposes to expand that list of qualifying conditions to include “opioid use disorder.”
Ohio declared a public health emergency in 2010 due to the rising opioid overdose deaths and currently ranks as one of the top states with a high opioid death rate. At the root of the opioid epidemic is the proliferation of over-prescription methods to treat chronic pain with opioid pain killers. The question emerges — if medical marijuana may be recommended to treat chronic pain and opioid use disorder, could medical marijuana provide a solution to the opioid crisis?
Other states have gone before Ohio to add “opioid use disorder” as a qualifying condition for medical marijuana. There may be hope medical marijuana can serve as a form of treatment for those struggling with opioid addiction and an alternative for managing the disease and pain. From a policy perspective, the idea seems hopeful, but further research is needed to ensure any potential relationship between medical marijuana and the opioid crisis.
The goal is to work through some of the research available on this relationship and develop a comprehensive discussion on the potential benefits and risks of using medical marijuana in the realm of opioids.
Law Review Article: "From Opioids to Marijuana: Out of the Tunnel and into the Fog"
Wednesday, March 16, 2022
The quoted portion of the title of this post is the title of this exciting event taking place next month, on April 7, 2022 from noon-2:30 pm as a hybrid even in person in Saxbe Auditorium in Drinko Hall at The Ohio State University Moritz College of Law and also on Zoom. Folks can and should Learn More and Register at this link. Here are the basics about the event:
The year 2022 might see significant cannabis reforms in the state of Ohio, both to the existing medical marijuana regime as well as the proposed legalization of adult-use marijuana. Please join the Drug Enforcement and Policy Center for two expert panels that will put focus on these two possible routes to reform and the implications they may have for patients and Ohioans alike.
Medical Marijuana Reform panelnoon-1:10 p.m. EDT
After three years of operation, the Ohio Medical Marijuana Control Program continues to grow and yet continues to be plagued by high levels of patient dissatisfaction due to access limits and high costs. The recent approval of dozens of new dispensary licenses comes as major reform bills have been introduced in the Ohio General Assembly with the aim of improving the Ohio MMCP's functionality for both patients and the cannabis industry. Please join our panel of experts as we discuss on-going and proposed reforms, why they are needed and how they could impact the various stakeholders.
Panelists:Ohio Senator Steven Huffman Andrew Makoski, Administrative Attorney, Ohio Department of Commerce Additional panelist TBA
Adult-Use Marijuana Reform panel1:20-2:30 p.m. EDT
The fall of 2021 was eventful when it comes to Ohio marijuana reform proposals. Two major bills were introduced in the Ohio General Assembly, and a voter-initiated statute campaign collected enough signatures to be sent to the General Assembly for considerations. Yet, despite polling suggesting public support for these kinds of reforms, the Ohio political leadership appears unlikely to advance adult-use legalization in 2022. Please join us for a panel of experts and policy advocates as they discuss the future of marijuana legalization in Ohio as a matter of politics and policy, including the arguments for and against reform and the possible consequences of action or inaction on the part of Ohio General Assembly.
Panelists:Ohio Representative Ron Ferguson Thomas Haren, Partner, Frantz Ward Jodi Salvo, Director of Substance Use Prevention Services, OhioGuidestone
March 16, 2022 in Campaigns, elections and public officials concerning reforms, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
Friday, March 11, 2022
I have the great honor and pleasure of being in Austin for about 24 hours to serve as a presenter on this panel at SXSW, titled "Post Pot Legalization: The Good, The Bad & The Ugly." The panel is part of a series of great panels presented by Stand Together Trust tomorrow, and here is the description of my panel:
Marijuana reform has been a long-time coming policy priority in the eyes of the nation. It is an issue that has united a number of unlikely allies and deepened divides. There’s no question that marijuana is on track to become fully legalized – the question becomes what happens next?
This group of experts, influencers, policymakers and academics will offer insights into upcoming trends including the good, the bad and inevitable of how a post-legalized America will move forward.
I am so looking forward to the discussion during this panel, and I have been told that records will be available sometime after the event.
Monday, March 7, 2022
Students in my Marijuana Law, Policy & Reform seminar are continuing to "take over" my class through presentations on the research topics of their choice, and are continuing to provide in this space some background on their topic and links to some readings or relevant materials. The second of our presentations taking place this week will focus on medical marijuana research, and here is how my student has described his topic along with background readings:
Medical Marijuana and the federal government have a long, complicated history. By complicated, I mean not complicated at all. Marijuana has been illegal at the federal level ever since the Controlled Substances Act was signed into law. Medical marijuana research in the U.S. has so far been limited, although two FDA approved, marijuana-derived drugs have been on the market since the 1980’s. The overwhelming consensus is that the research space is not nearly as large as it could be, given the large user base, and that potential therapeutic effects of marijuana are largely unknown.
Even though its medicinal use goes back millennia. Even today, many users self-report more managed symptoms from a variety of diseases and ailments; nausea and vomiting, chronic pain, and spasticity. Researchers in the United States would like to further study some of these self-reported medicinal benefits of marijuana, but they claim that the federal government makes marijuana research too hard to be worth the effort.
This paper and my accompanying presentation begin by discussing the brightest research areas for medical marijuana consumption, and why those are not enough. Then I will explore why marijuana has not received as much attention as the scientific community would like to give it. Finally, I will discuss potential legislative fixes.
Sources and Background Reading
N.I.D.A., What is the scope of cannabis (marijuana) use in the United States? (2022).
Nat’l Academies of Sciences, Eng’g, and Med., Health and Med. Div., The Health Effects of Cannabis and Cannabinoids: The Current State of Evidence and Recommendations for Research (2017)
U. of Mississippi, Marijuana Research (2022)
Michael H. Andreae et al., An Ethical Exploration of Barriers to Research on Controlled Drugs, 16 Am. J. Bioeth. 36 (2016).
Friday, March 4, 2022
As long-time readers know, students in my Marijuana Law, Policy & Reform seminar "take over" the second half of my class through presentations on the research topics of their choice. Before their presentations, students are expected to provide in this space some background on their topic and links to some readings or relevant materials. The first of our presentations taking place this week will focus on professional sports and advertising, and here is how my student has described her topic along with background readings she has provided for her classmates (and the rest of us):
For decades, the NFL and other leagues amongst the Big Four professional sport leagues have embraced alcohol, specifically beer, in league and team sponsorships and advertisements. The NFL even has Bud Light as its “Official Beer of the NFL.” Before that, it was tobacco companies who provided the professional sport leagues with millions of dollars in advertising revenue. While tobacco faded out of the sport scene, alcohol emerged and has since held a strong presence despite policymakers’ concerns about promoting and connecting a harmful substance to athletic achievement, on a national stage reaching children.
The professional sport leagues have shied away from letting players use marijuana for any purpose despite its legality in state marketplaces. This has long been a fight for the leagues’ athletes, who want and should be able to have access to cannabis for pain management. But it then comes as no surprise that the leagues have also prevented cannabis advertising from infiltrating the leagues, their teams, and players.
It is with this background, as well as prior research in players’ use of cannabis (stay tuned for its posting to the DEPC Student Paper Series), that I turned to explore another potential connection between marijuana and professional sports — this time through advertising.
This paper and presentation starts out by discussing the long history of alcohol and tobacco advertising in professional sports. It then turns to current federal and state restrictions on marijuana advertising, looking to the legal limitations that leagues must abide by. To make it easier to digest, this section makes connections to existing alcohol and tobacco advertising laws. Subsequently, this paper looks to the current league policies for marijuana advertising, highlighting the NFL’s approach. Finally, this paper looks to the future of marijuana advertising, it’s implications on the sport industry, and makes recommendations for cannabis advertising in professional sports.
For the most part, there are still a lot of unanswered questions that sport industry professionals will have to deal with. While the law provides some guidelines and can help predict league behavior, there are a lot of opportunities available for both leagues, teams, and athletes in this space. Those options are explored in this paper and presentation.
Tobacco and Alcohol
- "Sponsorship of Sport by Tobacco and Alcohol Companies: A Review of the Issues"
- "Alcohol Sponsorships And Athlete Endorsements In Sports"
Cannabis and Sport Leagues
- "Is Now the Time for Sports Leagues to Embrace Sponsorship from Cannabis Brands?"
- "The Super Bowl won’t be lit: no cannabis ads allowed"
Friday, February 25, 2022
Welcoming Ohio Representative Juanita O. Brent to marijuana law seminar class at Moritz College of Law
I am extraordinarily excited that my (always exciting) Marijuana Law and Policy seminar at The Ohio State University Moritz College of Law is now entering its student presentation phase. This means in the coming weeks I will be blogging about the topics that students have researched and presenting here materials they have assembled providing background readings and information.
Adding to my excitement for the start of student presentations is the fact that the first student has arranged for a special visitor to come speak to our class next week. Here are the details about the speaker at the focal point for the planned class discussion:
Cleveland Heights native Representative Juanita O. Brent from District 12 is set to speak with The Ohio State University, Moritz College of Law’s marijuana law seminar class regarding her sponsored bill – House Bill 60 – and, more generally, marijuana law in the State of Ohio on March 3, 2022. The class looks forward to asking Representative Brent questions about her legislative work relating to treating autism spectrum disorder with medical marijuana and hearing her views on the future of medical marijuana and recreational marijuana in the State of Ohio.
On January 25, 2022, Representative Brent announced the committee passage of House Bill 60 – a bipartisan bill that would authorize medical marijuana for autism spectrum disorder. House Bill 60 was introduced by the 134th General Assembly during the Regular 2021-2022 Session by Representative Brent and Bill Seitz, a Republican Representative from District 30. The goal of the bill is “[t]o amend section 3796.01 of the Revised Code to authorize the use of medical marijuana for autism spectrum disorder.” “Autism spectrum disorder” is to be included under Subsection (6)’s “Qualifying medical condition[s],” permissible under Section 3796.01 of the Ohio Revised Code. Today, Section 3796.01 of the Ohio Revised Code continues to read without including autism as a qualified medical condition for medical marijuana use until its official vote on the House floor.
Representative Brent is in her second term as a legislator. In the 133rd General Assembly, Representative Bill helped author House Bill 285, which established a driver’s license reinstatement fee. This bill became law in 2020 and has helped thousands of Ohioans remove suspended driver’s licenses because of Representative Brent’s efforts. Representative Brent is the Frist Vice-President of the Ohio Legislative Black Caucus. In her position as a legislator, she also serves as a Ranking Member of the Agriculture and Conservation Committee, as well as sits on the Transportation and Public Safety and Commerce and Labor Committees. Representative Brent prides herself on representing District 12 and prioritizing justice and equity in her work, including adult-use cannabis.