Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Friday, April 12, 2019

Medical marijuana proving very popular in Oklahoma

Oklahoma-cannabis-glut-1This local article spotlights the (surprising?) popularity of medical marijuana in the Sooner State under the headline "Oklahoma Medical Marijuana Authority estimated licensing 80,000 patients in year one. It's on track for 150,000."  Here are excerpts:

The Oklahoma Medical Marijuana Authority last year projected licensing 40,000 to 80,000 patients in its first year of operations. But in a surprise to OMMA personnel, the agency surpassed the 80,000-patient mark last week and could reach 150,000 by its first anniversary if the current pace of applications remains steady.

"We're probably averaging just over 5,000 a week," OMMA Director Adrienne Rollins said Thursday, which represents an increase of about 1,000 applications per week since early February, when OMMA shuttered its call center to free up time for application reviews. "We thought we would really be hammered in the very beginning and then it would start to level out. But as the number of physicians who are getting on board as far as recommending has increased, we've seen our numbers drastically increase," Rollins said. "I think at this point we're on track to have potentially 150,000."...

OMMA Communications Director Melissa Miller provided documentation to the Tulsa World showing the number of licensed patients in Oklahoma this week is more than 20 percent higher than it was the week of March 18. Miller said about 150 business license requests are submitted each week on average in recent weeks. Rollins said five OMMA employees specialize in reviewing those types of applications....

Rollins, who became the OMMA's director in October, said her department received about 3,500 patient applications between Aug. 26 and the first week of September. The number of submissions remained manageable until the winter holiday season, which is when Rollins said she noticed a "big jump" ahead of the expected widespread opening of dispensaries across the state.

By February, the OMMA closed its customer service call center, reassigning those five employees to review applications at least on a temporary basis. The move, Rollins said, means the OMMA can make decisions on up to 500 more patient applications per weekday. Of continuing to keep the call center shuttered, she said it was a "drastic change" from the OMMA's desires but maintained it was necessary to ensure applications are reviewed within the 14-day limit provided in State Question 788.

The House Rules Committee on Thursday passed a heavily amended version of Senate Bill 1030, which has a clause that if signed into law would expand the business applicant decision time to 90 days.

April 12, 2019 in Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Spotlighting racial and regional differences in modern marijuana reform dynamics

I am very sad that presentations in my my Marijuana Law, Policy & Reform seminar have wrapped up, but that reality gives me a bit more time and space here to catch up on the marijuana law, policy and reform stories that most catch my eye.  One such important story that I missed a few weeks ago comes here from Stateline under the headline "African-Americans Missing Out on Southern Push for Legal Pot."  I recommend the extended article in full, and here are some excerpts:

Medical cannabis laws typically lay out the conditions for which the drug may be prescribed. But the laws in Arkansas and Florida — the only Southern states that have legalized medical cannabis — don’t cover sickle cell disease, which causes acute pain and disproportionately affects African-Americans. The bills advancing in Tennessee and Kentucky also exclude that condition. Three states that have legalized medical but not recreational cannabis — Connecticut, Ohio and Pennsylvania — allow sickle cell disease patients to use it....

Black legalization advocates also fear that even if medical cannabis becomes legal, white politicians won’t regulate licensing and permitting in a way that ensures equitable opportunities for people of color. “Without that, it’ll be more of the same,” said Dr. Felecia Dawson, a board-certified physician who closed her Georgia-based OB-GYN practice to focus on advocating for medical cannabis. “Legislators will keep people of color ... from the benefits of cannabis.”

Nationally, research suggests that medical marijuana use is more common among whites with high incomes, perhaps in part because of the long history of racial disparity in drug enforcement....

Every Southern state by 2016 had legalized the treatment of a limited number of conditions using CBD oil. As public support increased, so did lawmakers’ willingness to expand the list of eligible conditions. But some conditions that affect minority populations at higher rates than white ones — such as sickle cell disease, which affects 73 in 1,000 African-Americans at birth compared with 3 whites, according to federal estimates — are not included in proposals currently making their way through several Southern statehouses.

In a 2017 hearing co-hosted by the Arkansas Medical Marijuana Commission, following a ballot initiative that had legalized medical cannabis, advocates wore “Diversity for All” T-shirts to emphasize the drug’s importance to minority residents. “We know that such diseases as hypertension, sickle cell, neuropathy and so on are more predominant in blacks,” Casey Caldwell, a black cannabis advocate, said at the hearing.

“It is safe to say that African-American communities would benefit the most,” she added. “In the past, pharmaceutical drugs have been priced so high that [we] have to make a decision whether or not they should eat or whether they should purchase medication.”

Those concerns echoed what Dee Dawkins-Haigler, a former Democratic Georgia representative who headed the state’s Black Caucus, said in 2015 about the initial absence of black people among the state’s 17 appointees to the Commission on Medical Cannabis. The Black Caucus eventually fought to get sickle cell disease added to the list of conditions eligible for CBD oil....

In Florida, black farmers initially cried foul at being shut out of the state’s multibillion-dollar cannabis trade over policies that required license holders to have operated for 30 straight years. According to Roz McCarthy, founder of the Florida-based advocacy group Minorities for Medical Marijuana, the state’s law lacked the teeth needed to ensure that medical cannabis license holders adhered to requirements to ensure diversity in hiring. A spokesperson for the Florida Department of Health said that state law “does not require medical marijuana treatment centers to report the race or ethnicity of its owners.”

McCarthy said, “We’re trying to push lawmakers to understand that they have the ability and the power to ensure exclusionary practices don’t happen. Barriers are there. But the opportunity to reduce barriers is also there.”

April 12, 2019 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms, Race, Gender and Class Issues, Who decides | Permalink | Comments (0)

Wednesday, April 10, 2019

Exploring the "complicated relationship between marijuana use and parenting"

The fourth and final planned presentation (both this week and for the semester) by a student in my Marijuana Law, Policy & Reform seminar will look closely at the intersection of marijuana use and parenting. Here's a brief summary of the student's approach to this topic, along with some relevant articles she assembled:

As states increasingly legalize marijuana for medicinal and recreational use, one largely unexplored area is the complicated relationship between marijuana use and parenting.  As with other substances (both legal and illicit), marijuana can have a significant impact on the lives of both parents and children.  Parents who use marijuana likely have conflicting interests and may prioritize their own use over the care of their children.  This could take the form of neglect, through inadequate supervision, or through misallocation of family resources to buy marijuana and other non-essentials.  Parents who use marijuana also risk exposing their children to marijuana in any number of ways.  Second-hand smoke is an obvious risk, as is the potential for children to gain access to marijuana (particularly edibles).

Expectant and breast-feeding mothers are also of particular concern, as there is some data linking marijuana use at these critical stages in development to a whole host of lifelong issues in children.  As with most issues surrounding marijuana use, there simply is not yet enough data in this area.  For example, although some studies have linked marijuana use during pregnancy to particular developmental problems, existing studies have not been able to isolate marijuana as the cause (as opposed to other drugs, nicotine, etc.).  I plan on providing background on existing public health research, giving examples of how various states are dealing with this issue, and presenting issues that have not been adequately addressed by research or policy.

Readings:

"The Effect of Medical Marijuana Laws on Child Maltreatment: Evidence from State Panel Data, 1995-2014"

"Marijuana and Child Abuse and Neglect: A HEALTH IMPACT ASSESSMENT"

"The Contentious Issue of Parents Who Smoke Pot"

"Is Smoking Marijuana Child Endangerment?"

"No Cause for Marijuana Case, but Enough for Child Neglect"

April 10, 2019 in Assembled readings on specific topics, Criminal justice developments and reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Critically and skeptically examining the claims in support of medical marijuana

The third planned presentations from a student in my Marijuana Law, Policy & Reform seminar this coming week will, in his words, "marshal the tools of critical thinking and scientific skepticism against the mounting claims about medical marijuana."  Here is how this student explains his plans and suggested background reading:

I have noticed worrying signs in the medical cannabis industry that bear all the hallmarks of pseudoscience and “alternative medicine.” For example, how many ailments fall under the ever-broadening curative umbrella of CBD? The ability to think critically and skeptically is the most useful skill we have as humans for discerning the truth, and it is most important to engage such skills when our biases most threaten our steady course. Remember the frequent allusions this semester to those who embrace medical legalization as a stepping stone to recreational use? Such people may be more inclined to jettison their critical thinking capabilities when it comes to scrutinizing claims in whose outcome one holds an interest.

I will provide a brief primer on thinking critically and skeptically, and then describe the signs of pseudo-scientific reasoning. Then, armed with this toolkit of sorts, I will explore the various claims about the benefits of cannabis as a medicine, including the current research, its blind spots, and its shortcomings. I will then critically explore the ethics and policy behind prohibition, comparing and contrasting cannabis with prescription drugs and alcohol; we shall see how the claimed justifications for cannabis prohibition stand up to critical scrutiny.

Links to Reading Matter

It is not vital that people read anything prior to the presentation, but here are some useful links for those wishing to get ahead of the game:

  • Steven Novella et al., The Skeptics’ Guide to the Universe 57–140 (2018).

Of course, I understand that people might not have access to the above-mentioned book, in which case the following website will suffice (although I commend the book highly in its entirety to anyone interested in how we get at the truth of things).

April 10, 2019 in Assembled readings on specific topics, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research | Permalink | Comments (0)

Tuesday, April 9, 2019

"The Good, the Bad, and the Ugly: Why IRC § 280E is not the Industry Killer it is Portrayed to be"

The title of this post is the title of a presentation to be made by one of my students in my Marijuana Law, Policy & Reform seminar this coming week.  Here is part of his explanation of his topic and links to some background reading:

State legalization of marijuana, and the rising prevalence of marijuana businesses, has continually thrust Internal Revenue Code (IRC) § 280E into the spotlight.  Many scholars have argued for the provision’s abolishment, but the IRS’s staunch stance remains unyielding.  The literature seems to suggest a tacit assumption that IRC § 280E will remain a hurdle if/until marijuana is removed from Schedule I.  Although IRC § 280E is a hurdle, other mechanisms are shifting to allow marijuana businesses to be successful despite this tax provision. 

For example, in many cases, the Tax Cuts and Jobs Act of 2017 did more for marijuana businesses than a repeal of IRC § 280E would have.  Yes, marijuana businesses are still worse off than other businesses from a tax perspective, but marijuana’s competition is not necessarily other sectors, it is the black market.  There is something to be said for the fact that the marijuana industry continues to grow, despite claims of IRC § 280E making growth “impossible.”  However, the primary focus of this paper is not to explain why IRC § 280E predictions were incorrect, it is to look forward at why and how the industry can continue to succeed regardless of IRC § 280E.

Background Reading

April 2015 white paper by the National Cannabis Industry Association, "Internal Revenue Code 280E: Creating An Impossible Situation For Legitimate Businesses": Download 2015-280E-White-Paper

Fortune article, "The Marijuana Industry’s Battle Against the IRS"

2015 IRS Memo on IRC § 280E

Cannabis Business Times article, "Tax Court Reinforces IRS Code 280E in Harborside Ruling"

Memo from Rosenberg Martin Greenberg law firm, "Are Owners of Cannabusinesses Eligible for the Qualified Business Income Deduction Under Section 199A?"

April 9, 2019 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Taxation information and issues | Permalink | Comments (1)

Monday, April 8, 2019

A deep dive into expungement efforts in conjunction with marijuana reforms

Regular readers will not be surprised to hear I am excited for the first of the last four student presentations planned for this coming week in my Marijuana Law, Policy & Reform seminar.  Of course, I am excited about the work of all my students, but this wee we have a student focused on a topic on which I have done some writing, namely expungement practices.    Here is how my student has summarized this topic, along with the background readings she has provided:

States that have chosen to decriminalize or legalize marijuana have, in most places, chosen to enact a specific marijuana expungement scheme within the bill that legalizes marijuana or separately.  The expungement schemes offer a way for some to shed the hurtful effects of collateral consequences from a marijuana misdemeanor or felony. 

As we come closer to legalizing marijuana on the federal level, the question of how to repair for the harms done by the War on Drugs and how best to expunge records will continue to be visited.  The collateral consequences have consequences of their own and the War on Drugs helped fuel mass incarceration and racist policing practices. Robust and broad reforms will be needed to repair for the extensive damage to the criminal justice system, something marijuana legalization isn’t equipped to do wholly on its own. But the current expungement schemes, with filing fees, waiting periods and other hurdles, don’t set a good example as we head toward nationwide legalization.

Links to readings and background materials:

"Federal Collateral Consequences for Marijuana Convictions", Marijuana Policy Project paper explaining some of the federal collateral consequences resulting from marijuana convictions

"Drug offenders in American prisons: The critical distinction between stock and flow", Brookings piece by Jonathan Rothwell highlighting difference between stock and flow of drug prisoners which highlights that there are many more drug convictions than violent offense convictions. 

"Why you can’t blame mass incarceration on the war on drugs", Vox article by German Lopez disputing Michelle Alexander’s "drug war" explanation for mass incarceration while explaining why the path to ending mass incarceration is complicated.

“Leveraging Marijuana Reform to Enhance Expungement Practices” by Douglas Berman

“High Time for Criminal Justice Reform: Marijuana Expungement Statutes in States with Legalized or Decriminalized Marijuana Laws” by Alana Rosen

Links to Expungement Schemes:

Colorado Expungement 

California Expungement

Connecticut Bill - Bill for legalization in state's house judiciary committee 

April 8, 2019 in Criminal justice developments and reforms, Race, Gender and Class Issues, Who decides | Permalink | Comments (0)

Friday, April 5, 2019

Will the new, reintroduced version of the STATES Act be able to get even a hearing in Congress?

Supportstates-copy-300x300The question in the title of this post was my reaction of this news out of Congress as reported here by Marijuana Moment:

Reps. Earl Blumenauer (D-OR) and David Joyce (R-OH) filed the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act, appearing alongside cosponsors Reps. Barbara Lee (D-CA) and Joe Neguse (D-CO) at a press conference. Sen. Cory Gardner (R-CO) and Elizabeth Warren (D-MA) filed the Senate version of the bill.... The legislation would amend the Controlled Substances Act to protect people complying with state legal cannabis laws from federal intervention, and the sponsors are hoping that the bipartisan and bicameral nature of the bill will advance it through the 116th Congress.

“I’ve been working on this for four decades. I could not be more excited,” Blumenauer told Marijuana Moment in a phone interview. While other legislation under consideration such as bills to secure banking access for cannabis businesses or study the benefits of marijuana for veterans are “incremental steps that are going to make a huge difference,” the STATES Act is “a landmark,” he said....

The congressman said it will take some time before the bill gets a full House vote, however. Rep. Jim McGovern (D-MA) recently suggested that the legislation would advance within “weeks,” but Blumenauer said it will “be a battle to get floor time” and he stressed the importance of ensuring that legislators get the chance to voice their concerns and get the answers they need before putting it before the full chamber. “We want to raise the comfort level that people have. We want to do it right,” he said. “There’s no reason that we have to make people feel like they’re crowded or rushed.”...

Asked whether he’d had conversations with House Speaker Nancy Pelosi (D-CA) about moving cannabis bills forward this Congress, Blumenauer said there’s been consistent communication between their offices and that the speaker is “very sympathetic” to the issue and “understands the necessity of reform.”

There are 26 initial cosponsors — half Democrats and half Republicans—on the House version. Reps. Ro Khanna (D-CA), Lou Correa (D-CA), Ed Perlmutter (D-CO), Matt Gaetz (R-FL) and Don Young (R-AK) are among those supporters. The previous version ended the 115th Congress with 45 cosponsors.

On the Senate side, there are 10 lawmakers initially signed on: Warren and Gardner, along with Sens. Catherine Cortez Masto (D-NV), Michael Bennet (D-CO), Amy Klobuchar (D-MN), Ron Wyden (D-OR), Dan Sullivan (R-AK), Kevin Cramer (R-ND), Lisa Murkowski (R-AK) and Rand Paul (R-KY)....

For the most part, the latest versions of the legislation are identical to the previous Congress’s bills, though there are two exceptions. Previously, there was a provision exempting hemp from the definition of marijuana, but that was removed—presumably because it is no longer needed in light of the passage of the 2018 Farm Bill, which federally legalized the crop.

The bigger change is that the new version contains a section that requires the Government Accountability Office to conduct a study on the “effects of marihuana legalization on traffic safety.” Among other data points, the office would be directed to collect info on “traffic crashes, fatalities, and injuries in States that have legalized marihuana use, including whether States are able to accurately evaluate marihuana impairment in those incidents.” A report on those effects would be due one year after the law is enacted.

This article in Roll Call, headlined "Marijuana bill could help Cory Gardner’s re-election chances. Will Senate GOP leaders get behind it?," provides some more insights into the politics in play. Here are excerpts:

The bill’s sponsors are confident the bill can pass — if it comes up for a vote. “If we get it on the floor of the Senate, it passes,” said Gardner. “If we get it on the floor of the House, it passes.”...

Gardner acknowledged the bill will have a harder time in the GOP-controlled Senate than in the Democrat-led House, saying he was working to convince Judiciary Chairman Lindsey Graham to advance the bill and Majority Leader Mitch McConnell to eventually allow it to come to a floor vote. Graham, asked about the bill, said he hadn’t thought about marking it up. “I’m not very excited about it,” the South Carolina Republican said....

Gardner is up for re-election in 2020 in a state that legalized recreational marijuana, and allowing him a legislative win could help the GOP retain control of the Senate. On the other hand, Republican leadership may be loath to give some Democratic co-sponsors running in 2020 — whether for re-election or the presidency — political victories.

If Congress passes the proposal, Gardner said President Donald Trump will sign it. “The president has been very clear to me that he supports our legislation,” Gardner said. “He opposed the actions that were taken by the Attorney General [Jeff Sessions] to reverse the Cole memorandum and believes we have to fix this.” The Cole memorandum is Justice Department guidance against prosecuting federal marijuana laws in states that have legalized it.

April 5, 2019 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Thursday, April 4, 2019

More encouraging expungement news out of California cities thanks to proactive district attorneys

In my article, "Leveraging Marijuana Reform to Enhance Expungement Practices," I gave justified credit to work being done at the state and local level in California to ensure marijuana reform is operationalized  as a form of criminal justice reform.  I am pleased to see this work continuing, especially as described in this news release from the LA DA titled "Los Angeles, San Joaquin County District Attorneys Announce Code for America Partnership to Reduce, Clear Cannabis Convictions."  Here is how the release starts:

District Attorneys Jackie Lacey of Los Angeles County and Tori Verber Salazar of San Joaquin County joined with Code for America today to announce a cutting-edge, criminal justice reform partnership to automatically clear more than 50,000 eligible cannabis convictions under Proposition 64.

The two counties are among the first in California to take part in Code for America’s pilot program that proactively identifies convictions that qualify for resentencing or dismissal under the voter-approved initiative in November 2016.

“We have partnered with Code for America to take on this monumental effort in the state’s most populous county,” District Attorney Lacey said. “As technology advances and the criminal justice system evolves, we as prosecutors must do our part to pursue innovative justice procedures on behalf of our constituents. This collaboration will improve people’s lives by erasing the mistakes of their past and hopefully lead them on a path to a better future. Helping to clear that path by reducing or dismissing cannabis convictions can result in someone securing a job or benefitting from other programs that may have been unavailable to them in the past. We are grateful to Code for America for bringing its technology to our office.”

“The war on drugs led to decades-long racial disparities in cannabis-related arrests and convictions,” said Los Angeles County Board Supervisor Mark Ridley-Thomas. “We have a responsibility to right these wrongs by utilizing the latest innovations in technology, such as Code for America’s Clear My Record initiative, to ensure that people who have been disproportionately harmed by the war on drugs get the second chance they deserve.”

“Since the passage of Propositions 47 and 64, the San Joaquin County District Attorney’s Office, in partnership with the Public Defender’s Office and the Superior Court, have worked collaboratively to successfully implement the law in a timely and efficient manner,” said San Joaquin County Public Defender Miriam Lyell in joint statement with District Attorney Tori Verber Salazar. “We have seen firsthand the capabilities of the Clear My Record tool to facilitate the record clearing process and provide a much-needed service to our community, restoring families along with tremendous cost savings to the People of the State of California. This powerful tool represents the best of public-private partnerships: harnessing the power of technology to create new pathways of opportunity for members of our community with convictions.”

“In the digital age, automatic record clearance is just common sense,” said Jennifer Pahlka, Founder and Executive Director, Code for America. “Thanks to the leadership of District Attorneys Lacey and Salazar, we’ve shown how records clearance can and should be done everywhere. When we do this right, we show that government can make good on its promises, especially for the hundreds of thousands who have been denied jobs, housing and other opportunities despite the passage of laws intended to provide relief. Clear My Record changes the scale and speed of justice and has the potential to ignite change across the state and the nation.”

Both offices have been working with Code for America since July 2018 to develop a system that examines cannabis convictions. There is estimated to be approximately 50,000 eligible convictions in Los Angeles County. There are an additional 4,000 eligible convictions in San Joaquin County.

Recognizing that California’s record clearance process was not designed for the digital age, this historic partnership demonstrates a growing momentum for technology-assisted record clearance in California. It builds on last month’s announcement that Code for America’s Clear My Record technology helped San Francisco dismiss and seal more than 8,000 cannabis convictions.

The references to Code for America’s work in San Francisco is both timely and a bit dated. I say that because of this recent tweet by the SF DA:

April 4, 2019 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Wednesday, April 3, 2019

Examining the development of cannabis churches and religious freedom

The last of four exciting presentations planned this week for my Marijuana Law, Policy & Reform seminar concerns the intersection of marijuana use and religion claims.  Here is how my student describes her project along with her selected background reading:

Since its founding, religious freedom has remained a core value of the United States.  Recently, small groups of individuals have tried to apply this core value to the use of cannabis, specifically with establishing “cannabis churches.”  These churches offer congregants a space to come together as a community and consume cannabis as a way to experience a new level of spirituality.  Cannabis churches have popped up in both states where recreational consumption is legal (in Colorado, for example) and in states where recreational consumption is illegal (Indiana). 

In Colorado, the founders of the International Church of Cannabis have been charged with public consumption.  In Indiana, the founder of the First Church of Cannabis asserts that his church is protected under the state’s Religious Freedom Restoration Act.  As more cannabis churches are established in other states, the main question that church founders will need to answer is whether the use of cannabis is a sincerely held religious belief deserving of protection.

Links:

• "Cannabis Churches and the Religious Freedom Restoration Act"

• "Future of public pot smoking in Denver may be impacted as International Church of Cannabis co-founder heads to court Tuesday"

•  "About Us" page for the International Church of Cannabis

• "How The First Church of Cannabis Got Serious"

• "Smoking Cannabis Is Not Covered Under Religious Freedoms Law, Says Indiana Judge"

April 3, 2019 in Assembled readings on specific topics, Recreational Marijuana Commentary and Debate, Religion, Who decides | Permalink | Comments (0)

Monday, April 1, 2019

"Challenges in Securing Intellectual Property (IP) Rights in the Cannabis Industry"

The title of this post is the title of a presentation to be made by one of my students in my Marijuana Law, Policy & Reform seminar this coming week. Here is part of his explanation of his topic and links to some background reading:

The cannabis industry has been growing rapidly and has become more mainstream.  In 2018, New Frontier Data forecasted that the legal U.S. cannabis market ― worth an estimated $8.3 billion in 2017 ― would grow to almost $25 billion by 2025.  While many innovators of the cannabis industry are heavily focused on the business activities to get the company off the ground by dealing with cannabis-specific challenges such as marketing, financing, and differentiations.  However, it is also critical to evaluate the significance of intellectual property (IP) and the benefits it can provide.

As with any other new ventures, enforcing an IP protection strategy early on can maximize the profits of a new invention and minimize the risk of potential infringement.  However, there are some challenges because cannabis (or at least THC) is still illegal under federal law.  My paper will focus on elucidating the IP issues and challenges in a budding cannabis industry.  Further, I will discuss some factors and complexities to secure IP rights on cannabis-related inventions.

Background readings:

* "Cannabis: IP Issues in a Budding U.S. Industry"

* "Building Cannabis IP Includes Both Your Brand and Your Technology"

* "The Complicated Relationship Between IP Law & Cannabis"

* "Protecting Your IP Is (No Surprise) Even Harder in the Cannabis Business"

* "Securing U.S. Patents in the Cannabis Industry"

April 1, 2019 in Assembled readings on specific topics, Business laws and regulatory issues | Permalink | Comments (0)

"Can Legal Weed Counter Decades Of Discriminatory Drug Enforcement?"

The question in the title of this post is the headline given to this Connecticut public radio show which aired today.  I am very grateful to Professor Jenny Roberts, who was part of the show, for sending me the link to the show and also for providing this summary:

As you may know, Connecticut's proposed bill has some really interesting social justice/equity provisions – not only with expungement, but also with who will actually get the licenses in Connecticut.  The show also explored issues of how those affected negatively by drug laws over the years might now get funding, etc, to start a marijuana business. State Sen. Gary Winfield, who is sponsoring part of the legislation, is on the whole time and well worth a listen, and a Boston Globe journalist joined for one segment on the Massachusetts social equity situation.

Here is how the show's website describes the 50-minute segment:

With recreational marijuana on sale in Massachusetts, Connecticut lawmakers are looking at legalizing recreational cannabis more seriously than ever.  Meanwhile, research continues to show that the enforcement of drug laws in recent decades has disproportionately impacted communities of color.  This hour, we ask: if Connecticut legalizes recreational marijuana, can it do so in a way that corrects some of this history of discriminatory enforcement?

We talk with Judiciary co-Chair Senator Gary Winfield, who is calling for putting equity at the front of legalization efforts.  And we check in about how racial justice has — or hasn’t — come along with legalization in states that already have legal weed, from Massachusetts to California.

April 1, 2019 in Criminal justice developments and reforms, History of Marijuana Laws in the United States, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Sunday, March 31, 2019

Federal scheduling and research challenges for cannabis and psychedelics

The second of four student presentation this coming week in my Marijuana Law, Policy & Reform seminar will focus on  federal scheduling under the Controlled Substances Act and the research and market realities impacted by the placement of marijuana in Schedule I.  Here is how my student has summarized his topic, along with the background readings he has provided:

The placement of cannabis in Schedule I practically prevents comprehensive and meaningful research into its medical applications and potential harms.  The federal government cites cannabis' placement in Schedule I as the reason rigorous research must be conducted before it can be rescheduled, but places restrictions on its research, because of its schedule, that are nearly impossible to overcome.  Is there an alternative pathway to federal cannabis legalization, or at least rescheduling, so that more meaningful research can be conducted? 

My presentation will examine U.S. drug scheduling, looking at the criteria and examples of substances in each schedule.  I will then provide an overview of the FDA research model by which new drugs come to market, contrast it with the type of research conducted on cannabis, and discuss why meaningful, rigorous research into cannabis is so difficult.  With this background, I will discuss the findings of a former UK drug-policy adviser that suggests substantial rescheduling is necessary, and how these findings helped initiate research into other Schedule I drugs.  Finally, I will provide an overview of research into other Schedule I substances, particularly psychedelics, and how this research may accelerate the rescheduling or federal legalization of cannabis so that its impact on health may be studied more effectively.

Background Resources:

March 31, 2019 in Assembled readings on specific topics, Federal Marijuana Laws, Policies and Practices, Medical Marijuana Data and Research, Recreational Marijuana Data and Research, Who decides | Permalink | Comments (1)

Saturday, March 30, 2019

Examining links between popular culture and the legalization of marijuana

Students in my Marijuana Law, Policy & Reform seminar are continuing with in-class presentations and continuing to cover diverse subject matter in consistently impressive ways.  The first of four presentations scheduled for this coming week will take a foray in to pop culture.  Here is how my student has summarized her topic, along with the background readings she has provided for classmates (and the rest of us):

From the jazz musicians in the 40s, the Beat authors in the 50s, rock and roll in the 60s, and rap in the 80s to present, popular culture has slowly changed the public perception of recreational marijuana use and paved the way for legalization.  My paper will focus on the influence of hip hop, gangsta rap, and Snoop Dogg on modern legalization efforts and cannabusiness.  Dr. Dre's 1992 album "The Chronic" launched Snoop Dogg's career and is commonly regarded as not only the best rap album of all time but one of the best albums in any genre.  After featuring heavily on "The Chronic," Snoop Dogg sold over 30 million of his own albums world-wide (46.35% of Snoop’s songs are about marijuana), became a cultural icon inextricably associated with marijuana use, and launched a multitude of business ventures in the legal marijuana space.

Background readings:

"How Marijuana Contributed to the Creation and Spread of American Forms of Music"

"Day of the Dre: Hip-hop’s biggest star and his protégé, Snoop Doggy Dogg, take hardcore rap from South Central L.A. to your house"

"25 years later, Dr. Dre's 'The Chronic' remains rap's world-building masterpiece"

"Snoop Dogg’s Business Empire Harvests Green From Marijuana Legalization Trend"

"A Brief History of Snoop Dogg and Willie Nelson's Marijuana Romance"

March 30, 2019 in Assembled readings on specific topics, Music | Permalink | Comments (0)

Wednesday, March 27, 2019

Examining state medical marijuana programs and historic links to alcohol prohibition

A set of students in my Marijuana Law, Policy & Reform seminar are taking a deep dive into state medical marijuana programs this coming week.  Here is how they explain their planned presentation and links to some background reading:

For our presentation, we analyzed each state’s medical marijuana programs to determine ease of accessibility for patients.  We studied each state’s medical marijuana program and compared variables such as cost of registration, reciprocity, approved conditions, and many others.  Through our research, we discovered that there is wide spectrum of accessibility among the states which have legalized medical marijuana.  More specifically, we concluded that the top 5 easiest states to obtain a medical marijuana card are California, Hawaii, Illinois, Michigan, and Nevada.  Additionally, we concluded that the hardest states (among those which have legalized it) to access medical marijuana are Florida, Louisiana, Missouri, and Utah.

Next, we sought to determine if there was any correlation between the states that had easier/hardest accessibility with when those states ratified and abolished prohibition.  Our hypothesis was that the states with the laxer medical marijuana laws would be the ones that repealed prohibition sooner than those with the harsher medical marijuana laws.  Generally, we found that that states that ratified the 21st Amendment sooner seemed to have laxer medical marijuana laws and the states with the harsher laws repealed prohibition later on.  Also, side note, Oklahoma didn’t even repeal prohibition until 1959!

Background Sources

March 27, 2019 in Assembled readings on specific topics, History of Alcohol Prohibition and Temperance Movements, History of Marijuana Laws in the United States, Medical Marijuana State Laws and Reforms | Permalink | Comments (0)

Minority Cannabis Business Association engages OSU College of Law 3L Chris Nani to evaluate social equity efforts in Los Angeles

Download (3)I am always so very excited when students here at The Ohio State University Moritz College of Law get so very excited about marijuana law and policy.  One such student whose work I have spotlighted here is Christopher Nani, who took my marijuana seminar back in Fall 2017 and has been doing amazing work in this space ever since.  In addition to getting articles published at the Cannabis Law Report discussing federal tax treatment of cannabis businesses (see prior posts here and here) and co-hosting a podcast focused on business development in the cannabis industry (called Cannabiz with Canna-Chris), Chris has produced this notable article detailing a "Model Social Equity Equation for the Cannabis Industry."  

I describe Chris' article as notable in part because the Minority Cannabis Business Association took note of the work, and MCBA has now engaged Chris to use his equation to "score"  Los Angeles.  This press release, titled "MCBA Engages in Case Study to Rate Efficacy of Los Angeles’ Social Equity Program," explains:

The Minority Cannabis Business Association (MCBA) announced plans to take a score of social equity policies implemented by the city of Los Angeles intended to increase diversity in the burgeoning cannabis industry.  Partnering with the MCBA on this effort is Chris Nani, an Ohio State Law student who recently released a similar study that focused on these equity policies in three other California cities.

The results of Nani’s preliminary study had outcomes for Sacramento, San Francisco and even the much-lauded Oakland program that didn’t fully meet the intent of those policies, and underlines the necessity of reassessment once these programs have been implemented.  As one of the largest markets in California, Los Angeles is an important influencer in the industry and will serve as an example for future efforts on this topic.

“We are excited to see municipalities across the country starting to implement social equity programs as a way to reinvest in communities that for decades have been disproportionately harmed by the War on Drugs,” says Kayvan Khalatbari, MCBA’s Board Chair. “Now we need to ensure their intended outcomes are being met.  If they’re not, we need to reexamine those policies and work on them until we get it right. We must develop an effective and repeatable model.”

The case study will utilize an “Equity Equation”, which provides a scored assessment to rate the effectiveness of municipal social equity programs based on 10 separate factors, all of which have been determined to play a major role in the ultimate success or failure of these policies.  One factor commonly cited as a barrier to entry for people of color to find a place in the cannabis industry, regardless of policies in place, is a lack of available capital.

“Social equity programs are an important progression for the cannabis industry,” says Chris Nani. “As new markets come online and use Los Angeles as a model in their own programming, it’s critical that we understand what is working and what is not.  The equation I developed is meant to grade the efficacy of these programs and offer suggestions for improvement.  I look forward to working with lawmakers, social equity applicants and MCBA to work towards improving these policies across the country.”

March 27, 2019 in Business laws and regulatory issues, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Rounding up just some (of so many) stories about CBD

There is so much talk and so many stories about CBD, I know I can barely scratch the surface on this topic.  But it seems this past week I have seen an especially notable number of notable stories on this front.  Below I provide a partial round-up, and suggested particular attention to the first linked piece for its science and thoughtfulness:

March 27, 2019 in Assembled readings on specific topics, Business laws and regulatory issues, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Monday, March 25, 2019

New Jersey shows, yet again, the challenges of marijuana legalization done via the traditional legislative process

NJ-legalize-marijuana-1-800x533Full adult-use marijuana legalization has a strong winning record when the issue has been taken directly to voters via ballot initiative.  This reform has proven much more difficult through the traditional legislative process, with only Vermont able to pass a limited (non-commercialized) version of reform this way.  Today, after lots of debate in the state, New Jersey proved yet again how challenging this can be as detailed in this local story headlined "Legal weed won’t happen right now in N.J. Lawmakers call off big vote."  Here are the basics:

Leaders of the state Legislature have canceled a planned vote Monday on a bill that would legalize recreational marijuana for adults 21 and older in New Jersey, state Senate President Stephen Sweeney is set to announce.

“While we are all disappointed that we did not secure enough votes to ensure legislative approval of the adult use cannabis bill today, we made substantial progress on a plan that would make significant changes in social policy,” Sweeney, New Jersey’s top state lawmaker, said in a statement provided to NJ Advance Media. Sweeney. D-Gloucester, added that the “fight is not over.”

It’s expected that lawmakers will schedule another vote this year, but it’s unclear when that will happen. “We need to learn from this experience and continue to move forward,” Sweeney said." While this legislation is not advancing today, I remain committed to its passage.”

The vote fell apart after Gov. Phil Murphy and fellow Democratic state leaders spent more than a week feverishly trying to wrangle enough votes in the Democratic-controlled Legislature to pass the Democratic-sponsored measure. But top lawmakers said they wouldn’t hold the vote if they weren’t guaranteed to have both the 21 votes they need in the state Senate and the 41 they need in the state Assembly. As of Monday afternoon, multiple sources said, there were only 17 or 18 members of the Senate who would vote yes. But that still left leaders a few votes short....

Sweeney said earlier this year said he wouldn’t schedule another vote until after the November elections at the earliest. If they can’t get enough votes by then, it’s possible leaders could opt for asking New Jersey voters to decide in a ballot referendum next year whether to legalize weed.

The crumbling of Monday’s vote is a tough pill for Murphy, who made legalizing marijuana a key plank in his platform when he won election in 2017. He and top Democratic lawmakers have been hoping for more than a year to have New Jersey join 10 other states and Washington, D.C., that have legalized pot. But they prefer to become only the second state to do it legislatively, rather than through a ballot referendum.

Monday’s development also postpones two other measures tied to the bill: one that would expand the state’s oft-criticized medial marijuana program and another that would expunge thousands of pot convictions in the state. Murphy has said his administration will now move to dramatically increase the number of licenses for cultivators of medical marijuana as a backup plan.

Murphy and proponents of legal pot say the goal of legalization is to increase tax revenue for the state, create a brand new industry, and improve social justice because black people are three times more likely to be arrested on pot charges than whites. Recent polls have found a majority of New Jerseyans support legal pot. But many lawmakers — Democratic and Republican — have been leery, saying it could erode public safety, lead people to try more dangerous drugs, and damage communities of color.

March 25, 2019 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

"The Effect of Marijuana Use on American Veterans with PTSD, and How the U.S. Department of Veterans Affairs Ought to Respond"

The title of this post is the title of a presentation to be made by one of my students in my Marijuana Law, Policy & Reform seminar this coming week.  Here is part of his explanation of his topic and links to some background reading:

Because the U.S. Department of Veterans Affairs (VA) is required to follow all federal laws, the VA is prohibited from prescribing, recommending, or assisting veterans in obtaining marijuana.  While veterans may discuss marijuana use with VA providers, VA doctors cannot help their patients participate in a state medical marijuana program and veterans cannot obtain reimbursement funding through the VA when they seek medical marijuana from state programs.

The inability of the VA to prescribe or recommend marijuana to American veterans with PTSD denies former service members an opportunity to receive treatment that many veterans not only want, but which also has the potential to be safer than the VA’s history of doling out addictive prescription drugs such as opioids, antidepressants, and anti-anxiety pills.  PTSD is a serious disease that is relatively common among combat veterans — it causes varying symptoms such as flashbacks, nightmares, severe anxiety, and uncontrollable thought about a triggering event.

The medical research in this arena has reached mixed findings.  While some researchers have found that the use of medical marijuana by veterans with PTSD has positive results, other studies suggest that marijuana use by those with PTSD may actually make symptoms worse.  There simply has not been enough controlled studies to conclusively state whether marijuana is beneficial for those with PTSD.  Nonetheless, there is plenty of anecdotal evidence by veterans suggesting that their use of marijuana has improved, or in some cases eliminated, symptoms associated with their PTSD.  Fortunately, the first clinical trial of marijuana for American veterans with PTSD is currently underway in Colorado.  My presentation will suggest that we need more controlled clinical trials such as this to further identify whether marijuana could (or should) truly be used as a remedy for veterans with PTSD.

* Medical journal article, "Post-Traumatic Stress Disorder" (discussing what PTSD is and various treatment options, including cannabis).

* Medical journal article, "Use and effects of cannabinoids in military veterans with posttraumatic stress disorder"(reviewing several studies and noting that while there is a need for more randomized and controlled studies, some PTSD patients report benefits in terms of reduced anxiety and insomnia and improved coping ability).

* Medical journal article, "Posttraumatic Stress Disorder and Cannabis Use Characteristics among Military Veterans with Cannabis Dependence" (exploring the negative effects of treating PTSD with marijuana and finding that individuals with PTSD may have a particularly difficult experience when attempting to quit marijuana).

* Medical journal article, "Marijuana and other cannabinoids as a treatment for posttraumatic stress disorder: A literature review" (explaining that conclusions cannot yet be drawn about the therapeutic effects of marijuana and related cannabinoids for PTSD; suggesting that rapidly changing legal landscape will permit promising clinical research).

* Medical journal article, "A review of medical marijuana for the treatment of posttraumatic stress disorder: Real symptom re-leaf or just high hopes?" (finding some positive data for use of marijuana for PTSD but also noting conflicting findings and limits of studies conducted thus far).

* Report on study, "Marijuana for Symptoms of PTSD in U.S. Veterans" (first clinical trial of marijuana for PTSD in American veterans underway).

* Recent Weedmaps article, "Marijuana Study Findings Could Hold Promise for Veterans With PTSD" (noting that MAPS study mentioned above could pave the way toward an FDA-approved prescription medicine; anecdotal evidence of veteran using black market rather than expensive medical marijuana program in CA)

March 25, 2019 in Federal Marijuana Laws, Policies and Practices, Medical community perspectives, Medical Marijuana Commentary and Debate, Medical Marijuana Data and Research, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Sunday, March 24, 2019

"Marijuana Legalization: Dealing with the Black Market"

The title of this post is the title of a presentation to be made by one of my students in my Marijuana Law, Policy & Reform seminar this coming week.  Here is part of his explanation of his topic and links to some background reading:

Summary:

I will be looking at the prevalence (and in some cases, the dominance) of the black market for marijuana in jurisdictions that have legalized marijuana. I will specifically be looking at states that have legalized recreational use. However, I may still look at states that have only legalized medical marijuana because the black market still dominates in many of those states as well.

A major argument for marijuana legalization is potential revenue, but the black market can steal a significant amount of revenue from states.  Additionally, the existence of a black market is detrimental to public health and safety for a variety of reasons, including the distribution of potentially laced products. 

At first, I was surprised by just how dominant the black market remains in states that have legalized. For example, in California the black market is estimated to be worth 4 times the legal market. But consider major reasons why consumers choose to purchase cannabis products from the black market:

  • The black market offers much cheaper weed with no sin taxes;
  • The black market is able to sell higher potencies of marijuana;
  • The black market is able to sell larger amounts of marijuana;
  • The black market is oftentimes much more convenient.

Another reason people choose the black market is because they are familiar with it. Someone who has had a dealer for years is not all of a sudden going to switch to buying from a legal source.  Additionally, the black market (generally) has no age restrictions, so the black market still exists for minors who wish to use marijuana products.

I also plan on talking about the regulations on legal cannabis providers and how those contribute to the struggle to subdue the black market (ex: marketing, banking, barriers to entry, supply problems, lax enforcement of black market).  Finally, although I recognize that wholly eliminating the black market is infeasible, I will analyze potential solutions to the problem, such as deregulating (decreasing barriers to entry, lowering the age restriction, increasing enforcement, increasing strength of legal products, etc.) and working with the black market dealers.

Background Resources:

"Can a marijuana dispensary’s budget pot put illegal dealers out of business?" (discussing Nevada’s lower cost product dubbed the Black Market Killer) 

"Marijuana Black Market ‘Business Has Never Been Better’ In Canada Despite Legalization, Cannabis CEO Warns" (discussing Canada’s struggle with the black market)

"'I deliver to your house': pot dealers on why legalization won't kill the black market" (interview with two black market dealers in Canada)

"How marijuana entrepreneurs can outsmart black-market competitors" (discussing ways to possibly beat the black market)

"California’s black market for pot is stifling legal sales. Now the governor wants to step up enforcement" (discussing California’s black market)

"Marijuana Advertising Rules Challenge California Businesses" (discussing marketing regulations (including <30% of Minors Rule)

March 24, 2019 in Business laws and regulatory issues, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate | Permalink | Comments (1)

Friday, March 22, 2019

Exploring how employers should reform drug policies in an era of marijuana reform

As mentioned in prior posts, my Marijuana Law, Policy & Reform seminar is now deep into the student presentation unit, and we will have four presentations each week in coming weeks and thus lots of great student-assembled content here on the blog  The first presentation for next week will focus on updating employment  policies, and here is how my student has summarized his topic, along with the background readings he has provided for classmates (and the rest of us):

As more states legalize marijuana for medical and recreational uses, the business community must acknowledge that larger portions of the American public will consume marijuana. Consequently, the labor market now includes more marijuana users than ever before. The zero-tolerance drug policies that employers use to discourage marijuana consumption are driving labor shortages throughout corporate America. To remain competitive and recruit the next generation of talented employees, Fortune 500 companies should revise their drug policies to permit off-duty marijuana use. Efforts to reform workplace drug policies should consider the labyrinth of federal and state laws that require certain employers to test for marijuana. Provided that corporate employers include exceptions for these rules, workplace drug policies will remain legally compliant.

 

Lisa Nagele-Piazza, How Do Recreational Marijuana Laws Affect the Workplace?, Society for Human Resource Management (Jan. 17, 2018).

 

Roy Maurer, Employers in This State Can’t Reject Job Applicants ‘Solely’ for Smoking Pot, Society For Human Resource Management (February 16, 2018) .

 

Judy Stone, The Sham Of Drug Testing For Benefits: Walker, Scott And Political Pandering, Forbes (Feb. 17, 2015).

 

Nelson D. Schwartz, Economy Needs Workers, but Drug Tests Take a Toll, N.Y. Times (July 2017).

 

Federal Laws and Regulations, Substance Abuse and Mental Health Services Administration (Nov. 2, 2015).

March 22, 2019 in Assembled readings on specific topics, Business laws and regulatory issues, Employment and labor law issues | Permalink | Comments (0)