Tuesday, January 17, 2023

Notable accounting of "legal" Delta-8 THC products

LightRoom-154This interesting new Forbes article, "Delta-8 THC Generated $2 Billion In Revenue In Two Years, Report Finds," provides a summary of interesting economic data regarding the interesting "legal" THC products. Here are excerpts:

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

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

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

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

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

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

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

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

January 17, 2023 in Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Tuesday, January 10, 2023

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

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

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

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

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

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

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

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

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

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

January 10, 2023 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Saturday, December 31, 2022

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

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

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

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

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

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

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

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

#4: More Lawmakers Enact Workplace Protections For Cannabis Consumers

#3: Senate Fails To Move Safe Banking Act

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

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

December 31, 2022 in Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Monday, December 5, 2022

Cannabis lawyering makes the cover of the ABA Journal

12012223-COVER-750pxI was intrigued and pleased to see that the cover story of the latest issue (December/January 2022-2023) of the ABA Journal is all about cannabis lawyering.  This new piece is headlined "Lawyers are lighting up the budding cannabis industry: Justice Cannabis Co. is one of the biggest of the little guys in the rough-and-tumble, fast-paced and legally treacherous world of marijuana growing and selling."   

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

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

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

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

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

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

December 5, 2022 in Business laws and regulatory issues, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Saturday, October 1, 2022

Notable new report explores "The Pros and Cons of Cannabis Taxes"

Cannabis-taxes-1030x386The Urban-Brookings Tax Policy Center this past week released this notable extended report titled "The Pros and Cons of Cannabis Taxes" authored by Richard Auxier and Nikhita Airi.  Here is the report's abstract:

While 19 states have enacted a tax on recreational marijuana, there is no standard cannabis tax in the US the way there is an alcohol tax, cigarette tax, and gas tax.  Instead, governments use three different types of cannabis taxes: a percentage-of-price tax, a weight-based tax, and a potency-based tax.  Different states use different taxes and some states levy multiple taxes.  Additionally, some state and local governments levy their general sales tax on the purchase of marijuana.  This report is a guide for policymakers, journalists, and engaged community members hoping to better understand cannabis tax debates.  It details each state’s cannabis tax system, provides data on cannabis tax revenue, explains the pros and cons of different cannabis taxes, and discusses the various goals of those taxes.

And here is part of the report's conclusion:

After nearly a decade of legal and taxable sales, it is clear that cannabis taxes can generate hundreds of millions of dollars in annual revenue for state and local governments.  However, recent revenue declines in five states, each with a distinct cannabis tax system, underscore that revenue growth is not limitless and that various factors can affect what governments collect from year to year.

We know that overly complex and burdensome tax systems, like the pre-reform taxes in California, can depress the evolution of legal marijuana markets.  However, we also know that some states, like Washington, can create highly effective markets even with relatively high tax rates.

We know that taxes based on weight and potency could possibly help policymakers achieve important goals like producing more consistent tax revenue and discouraging the use of possibly dangerously potent products. However, we also know that these taxes can drive up costs and create significant burdens for legal sellers....

Ultimately, as new states enact taxes on marijuana and states with existing tax systems consider reforms, policymakers should use existing evidence to make informed choices that align their goals with their taxes.  But state and local cannabis tax policy remains anything but simple and predictable.  Policymakers across the country should also prepare to monitor, study, and reform these taxes as events develop and we learn more.

October 1, 2022 in Recreational Marijuana Commentary and Debate, Recreational Marijuana Data and Research, Recreational Marijuana State Laws and Reforms, Taxation information and issues | Permalink | Comments (0)

Thursday, September 22, 2022

Legalization ballot initiative sidelined by state Supreme Court in Oklahoma, while initiative cleared to go forward in neighboring Missouri

Kansas-missouri-oklahoma-arkansas-map-vector-23600096As students in my marijuana seminar know (too) well, I find the modern history of marijuana reform throughout the United States to be a fascinating legal and political story.  And sometimes I view some of the regional variations in these stories to be especially remarkable, and one such recent example comes from the center of our great nation.  Specifically, I am referencing here the notably different outcomes of legal challenges to state ballot legalization initiatives in neighboring Oklahoma and Missouri.  Though these states share a (small) border, they are not sharing the same outcomes in lawsuits challenging efforts to put marijuana legalization before votes, as reported in this Marijuana Moment articles:

"Missouri Marijuana Legalization Initiative Will Appear On November Ballot After State Supreme Court Rejects Prohibitionists’ Challenge"

An initiative to legalize marijuana in Missouri is officially cleared for ballot placement following a month-long legal back-and-forth between the campaign and prohibitionists.  A lawsuit filed last month sought to keep the Legal Missouri 2022 reform proposal off the ballot after it was certified by the secretary of state.  But after two lower courts dismissed the challenge, the state Supreme Court on Tuesday delivered the final word that the legal battle is over.

"Oklahoma Supreme Court Says Marijuana Legalization Won’t Be On November Ballot, But Will Be Voted On In Future Election"

Oklahoma voters will not get the chance to vote on a marijuana legalization initiative in November, with the state Supreme Court on Wednesday rejecting the campaign’s lawsuit that sought to secure ballot placement this year.  However, justices also dismissed two separate legal challenges to the ballot title, clearing the initiative’s path for a vote during the state’s next general or special election.

Legal battles over initiatives are never unusual, and a range of legal tripwires can often attend efforts to bring ballot measures directly to voters on any topic.  But I surmise that these kinds of challenges to marijuana reform measure have found growing success, perhaps unsurprisingly, as initiative move from bluer to redder states. Judges and other legal actors in bluer states can often seem more welcoming of ballot initiatives in this arena (and we have seen politicians in Maryland and New Jersey place marijuana reform initiatives on the ballot), whereas these actors in redder states sometime seem far more keen to keep voters from having a chance to directly weigh in on these issues.

September 22, 2022 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Initiative reforms in states, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Thursday, September 8, 2022

Some federal and state marijuana headlines and stories worth noticing

Some days it seems there is now way too much marijuana news and commentary.  Despite the lack of any federal legislative reforms at all, and relatively little major change at the state level, each day seems to bring dozens of headlines and stories in the cannabis space vying for my attention.  And yet, even during busy times and lots of noise, a few headlines and stories break out to garner my attention.  Today seems to be such a day via these stories and commentaries breaking through (to me, at least):

From The Hill, "Liberals push Biden on marijuana reform ahead of midterm momentum"

From The Hill, "America needs to get real about high-potency marijuana"

From the Los Angeles Times, "The reality of legal weed in California: Huge illegal grows, violence, worker exploitation and deaths"

From Marijuana Moment, "Senate Marijuana Banking Sponsor Gives Details About Forthcoming ‘SAFE Plus’ Reform Package"

From Marijuana Moment, "Illinois Adult-Use Marijuana Sales Top $3 Billion Since Market Launched, With $1 Billion Sold So Far This Year Alone"

From the Minnesota Reformer, "Minnesota’s Black marijuana users far more likely to face arrest than white ones"

From MJBiz, "Marijuana companies lay off hundreds, retrench amid economic woes"

From Politico, "Arrests in New Jersey for small-time cannabis dealing plummet post-legalization"

September 8, 2022 in Criminal justice developments and reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (0)

Sunday, August 21, 2022

Highlighting all we do not know about marijuana-infused drinks

Cannabis-drinksThis lengthy New York Times article, headlined "Weed Drinks Are a Buzzy Alcohol Substitute. But Are They Safe?", provides a useful overview of "weed drinks" with an emphasis what we do not know about a growing consumer product sector.  I recommend the piece in full, and here are a few excerpts:

According to BDSA, a market research firm in Colorado that specializes in legal cannabis, dollar sales of marijuana beverages are up by around 65 percent from 2020 to 2021 in the 12 states they track. In California, the state with the largest market for weed drinks, the number of cannabis beverages available nearly doubled from 2020 to 2021, growing to 747 distinct products, according to Headset, a company that collects and analyzes data on cannabis....

Cannabis-infused beverages are often branded as a healthier alternative to alcohol — “No painful days after drinking or regrets,” a tagline on Cann’s site reads. These kinds of drinks carry a connotation of health, said Emily Moquin, a food and beverage analyst at Morning Consult. They tout themselves as “hangover-free” and without the high calories of alcohol; they claim to help you feel “focused,” balanced, relaxed. One cannabis beverage company even suggests pairing their drinks with a spa day.

But experts worry that products like weed drinks are becoming more popular than health research can keep up with, leaving big questions about how best to consume them and what impacts they may have on the brain and body....

“It’s really a Wild West of products out there,” Dr. MacKillop said. Some drinks contain just THC, or CBD or both, and drinks on the market vary vastly in how many milligrams of these compounds they contain.

While there is no standard unit for THC product potency, Dr. MacKillop said, most experts in the field consider five milligrams of THC to be a typical single dose, and the National Institute on Drug Abuse sets it as standard unit of research.

According to Headset, over half of cannabis beverage units sold in the U.S. in 2021 contained 100 milligrams of THC, an amount that could significantly intoxicate or impair the average person....

Because weed drinks are so new, they are “an incredibly understudied class of cannabis products,” Dr. MacKillop said. There aren’t yet robust studies on how drinkable cannabis products affect the body long term, Dr. Vandrey added, and it’s unclear how the health effects — positive or negative — of marijuana translate into a drinkable beverage.

“The cannabis industry has evolved much faster than the data,” he said. “This is just another great example of that.”

August 21, 2022 in Business laws and regulatory issues, Food and Drink, Medical community perspectives, Recreational Marijuana Commentary and Debate | Permalink | Comments (5)

Tuesday, August 2, 2022

Notable new report urges notable new messaging about marijuana use and driving

GHSALOGOAs reported in this press release, "the Governors Highway Safety Association (GHSA), Responsibility.org and the National Alliance to Stop Impaired Driving [last week] released a new report that provides guidance on how State Highway Safety Offices can better communicate with cannabis consumers about safe driving and offers recommendations about the types of messages that do and don’t work."  Here is more from the release about the report:

The report, Cannabis Consumers and Safe Driving: Responsible Use Messaging, comes as SHSOs face a rapidly changing cannabis landscape that includes the legality, prevalence and social norms about its use. In 2011, no state had legalized recreational cannabis. Just 10 years later, 18 states have done so, and more states will have legalization on the ballot this November. Cannabis use has increased alongside the spread of state legalization....

“As legal cannabis use becomes more widespread in the U.S., motorists need to know the dangers of driving under the influence,” said GHSA Executive Director Jonathan Adkins. “But that message won’t be heard if it’s outdated, irrelevant or insulting to cannabis consumers. This new report offers a playbook to help states develop messaging that resonates with cannabis users and prompts them to refrain from driving for their own safety and the safety of everyone else on the road.”

The report highlights lessons learned from outreach efforts in Colorado and Washington, the first states to legalize cannabis, as well as more recent efforts in Connecticut and Wyoming. It also discusses promising practices that all SHSOs should consider utilizing to create the most effective messages and offers the following recommendations:

  • Encourage dedicated funding for traffic safety programs derived from a portion of cannabis sales tax revenue so that states and their partners can deliver timely and relevant information to the public.
  • Form partnerships with the cannabis industry, which can help states gain insights on consumer motivations and behaviors, develop and deliver impactful messaging, and legitimize safety efforts.
  • Enlist trusted advisors to serve as messengers. Have people and institutions that cannabis users trust – rather than government representatives – convey factual safe driving messages. Diverse and non-traditional messengers can improve message reception with cannabis consumers.
  • Use language that resonates with cannabis consumers, so they hear the safe driving message instead of tuning it out because it has outdated terminology. Avoid using unflattering or alienating stereotypes of cannabis consumers.

August 2, 2022 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Thursday, July 21, 2022

Senator Schumer finally to introduce his Cannabis Administration and Opportunity Act

Caoa-display.pngAs reported in this new Politico article, "Senate leaders are introducing sweeping legislation Thursday meant to lift federal prohibitions on marijuana more than 50 years after Congress made the drug illegal."  Here is more about a long-in-development, unlikely-to-become-law marijuana reform bill:  

Senate Majority Leader Chuck Schumer’s Cannabis Administration and Opportunity Act would decriminalize weed on the federal level and allow states to set their own marijuana laws without fear of punishment from Washington.

The bill has been a long time coming — Schumer, along with Sens. Ron Wyden (D-Ore.) and Cory Booker (D-N.J.) proposed a discussion draft more than a year ago — and its odds of passing in this Senate are slim. But the legislation will shape the conversation around cannabis legalization going forward and portions of it are likely to find their way into other bills that could pass before the end of the year.

The legislation includes both Democratic and Republican priorities: It expunges federal cannabis-related records and creates funding for law enforcement departments to fight illegal cannabis cultivation. It also establishes grant programs for small business owners entering the industry who are from communities disproportionately hurt by past drug laws, requires the Department of Transportation to research and develop a nationwide standard for marijuana-impaired driving, and restricts the marketing of cannabis to minors....

While marijuana legalization has spread rapidly across the U.S. over the past decade, Capitol Hill has not transitioned as quickly. Nineteen states now allow anyone at least 21 years old to possess and use the drug, and 37 states have established medical marijuana programs. National polls have consistently shown that roughly two-thirds of Americans back marijuana legalization, and support is even higher among younger voters.

But the votes aren’t yet there to pass Schumer’s bill on Capitol Hill. That’s in part because many lawmakers from states with legal markets don’t yet support substantial changes to federal law. Democratic Sen. Jon Tester, for example, represents a state where weed is legal — Montana — and says he does not support federal decriminalization. A handful of other Democrats told POLITICO that they are against legalization or are undecided, including Sens. Jeanne Shaheen (D-N.H.), Joe Manchin (D-W.Va.) and Bob Casey (D-Pa.). Schumer would need all Democrats, plus ten Republicans, to get the bill over the finish line.

Cannabis legalization advocates have had success in the past framing it with Republicans as a states’ rights issue, but some pro-decriminalization Republicans will likely be unhappy with the bill’s expungement of cannabis-related criminal convictions and its equity grant provisions.

Further complicating matters is that the House has twice passed its own sweeping marijuana legalization package, known as the Mariuana Opportunity, Reinvestment and Expungement Act. That legislation does not include much of the regulatory structure that’s part of the Senate bill, and also has a different tax rate....

Instead, some Democrats and Republicans are considering a smaller cannabis bill later this year that could see one or more provisions from the CAOA added to the SAFE Banking Act, a more widely-supported bill that would make it easier for banks to offer financial services to cannabis companies. That plan is still in the discussion stage and nothing formal has been decided.

Many of the changes added to the final Senate bill echo requests regularly made by Republicans. Law enforcement grants, a nationwide youth prevention campaign and traffic safety research all correspond to concerns that legalization skeptics have frequently raised. Schumer has met with Republicans — including Rep. Dave Joyce (R-Ohio), a co-chair of the Congressional Cannabis Caucus — in recent months to discuss where the two parties could potentially come together on weed legislation. Whether the changes will be enough to get enough Republicans on board, however, seems doubtful at this point.

Marijauna Moment's extensive coverage of this long-awaited news can be found here, and includes these additional details (and much more):

[T]he main thrust of the now-filed 296-page legalization bill closely resembles that of the earlier version, which weighed in at a mere 163 pages—though the senators highlighted a number of changes, which generally expand on the draft.

For example, there are revisions concerning cannabis industry workers’ rights, a federal responsibility to set an impaired driving standard, banking access, expungements and penalties for possessing or distributing large quantities of marijuana without a federal permit.

The bill would also create a new federal definition for hemp that would increase the permissible THC by dry weight to 0.7 percent from the current 0.3 percent, but also make it so all THC isomers would be included in that total, not just delta-9 THC.

July 21, 2022 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Political perspective on reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Monday, July 11, 2022

DEPC event: "Cannabis Regulatory Deep Dive: Interstate Commerce"

FVYUCIvUsAERDOkI am pleased to spotlight a great Drug Enforcement and Policy Center (DEPC) event taking place tomorrow afternoon titled "Interstate Commerce."  This is how this event is described on this webpage (where you can register):

July 11, 2022 in Business laws and regulatory issues, Federal court rulings, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Friday, June 10, 2022

"Getting Rid of the “Scarlet-M”: The Harms of the War on Marijuana and Why Social Equity Should Be Incorporated into Marijuana Reform"

As I continue to catch up on posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center, I continue to have the chance to highlight great work by OSU law students and recent graduates.  The title of this post is the title of this paper authored by Jesse Plaksa who recently graduated from The Ohio State University Moritz College of Law.  Here is its abstract: 

When Congress criminalized marijuana as part of the Controlled Substances Act of 1970, it appointed a commission to recommend marijuana's permanent legal status; the Commission recommended it be decriminalized, recognizing that total prohibition would likely be counterproductive in light of the minimal risks to marijuana users. Because of this, marijuana never should have been criminalized in the United States.  Thus, states and the federal government should enact social equity programs along with legalization to begin fixing the problems created by criminalization.
Countless lives were ruined by marijuana arrests and convictions from direct consequences, such as imprisonment or fines, and the numerous collateral consequences that follow.  Putting aside the formal collateral consequences, the stigma from marijuana arrests or convictions also caused immense economic and other harm.  To remedy the economic harms, jurisdictions should include social equity provisions in their legislation, such as supporting those harmed by the war on marijuana in participating in the newly regulated market and using tax revenue or other funds to invest in harmed communities.  Marijuana convictions should be automatically expunged, and people incarcerated for marijuana crimes should be immediately released to remedy the carceral harm upon legalization; these remedies should apply to all marijuana convictions, whether a felony a misdemeanor.

June 10, 2022 in Criminal justice developments and reforms, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Monday, June 6, 2022

Might litigation be the means to ending blanket federal marijuana prohibition?

Lawyer-ethics-marijuana-cannabis-1024x704The question in the title of this post is prompted by this recent news, as well covered by Marijuana Moment:

Several leading marijuana businesses and stakeholders are banding together to sue the federal government over what they believe to be unconstitutional policies impeding their operations, according to the CEO of one of the companies.  And, he says, they’ve retained a prominent law firm led by an attorney who has been involved in numerous high-profile federal cases.

There have been various attempts to upend federal prohibition through the court system, but what makes this emerging effort especially notable is that the coalition of multi-state operators (MSOs) in the cannabis industry will apparently be represented by the firm Boies Schiller Flexner LLP.

David Boies, the chairman of the firm, has a long list of prior clients that includes the Justice Department, former Vice President Al Gore and the plaintiffs in a case that led to the invalidation of California’s ban on same-sex marriage, among others.  The prominent firm’s willingness to take on the case from the marijuana industry would be a firm indicator that they see merit to the issue at hand.

Abner Kurtin, founder and CEO of Ascend Wellness Holdings, told Marijuana Moment in a phone interview on Friday that this is an “industry-wide effort,” with at least six major cannabis operators “favorably disposed” to joining the suits — one of which would focus on stopping the federal government from impeding intrastate cannabis commerce and another challenging a tax provision known as 280E that blocks the industry from taking tax deductions that are available to any other company.

Because these suits have not yet been filed, it is too early to predict whether or when they might impact federal policy or politics.  But this posting from Andrew Smith at Harris/Bricken concludes with an effective accounting of why these suits are worth watching:

The lawsuits come at an opportune time, as many federal bills to legalize cannabis use at the federal level are stuck in either the House of Representatives or the Senate (see our recent summaries here and here).  In addition, Kurtin mentioned that the lawsuits will be argued from a perspective of states’ rights, which will likely garner support from both political parties and appeal to the Supreme Court’s conservative majority.

Ultimately, the lawsuits to end cannabis prohibition represent another angle — which avoids the various hurdles of legislative approval — for federal prohibitions on cannabis to be overturned.  Even if the litigation fails, it should exert even more pressure on Congress to Act.  But the potential agreement of a highly regarded constitutional law firm to represent a coalition of major players in the cannabis world signals the potential merits of their claims. 

June 6, 2022 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Thursday, May 26, 2022

"Legal-ish: An Analysis of Cannabis Law in Ohio and Recommendations for the Future of State Drug Reform"

Continuing to catch up on posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center means continuing to highlight great work by OSU law students and recent graduates.  The title of this post is the title of this paper authored by John Berk who just this month graduated from The Ohio State University Moritz College of Law.  Here is its abstract:

While bans on marijuana have been eliminated in a majority of states over the past several years, Ohio continues to be stuck in the past with a limited medical program that imposes strict limitations on cultivators, dispensaries and patients.  Full legalization in Michigan and Illinois have been hugely successful, but Ohio’s timid approach has had mixed results due to overregulation and outdated ideas about cannabis users.  It is time for Ohio to move boldly on drug reform in the cannabis space with full legalization, eliminating excessive regulation, creating aggressive criminal justice reform and possibly legalizing other substances before it is left behind by its neighbors.

May 26, 2022 in Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms | Permalink | Comments (24)

Monday, May 23, 2022

"Capitalizing on Missed Opportunities: An Overview of Cannabis Fundraising Disparities"

I am continuing to catch up on posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center.  The title of this post is the title of this paper authored by Cam Wade, a rising 3L at The Ohio State University Moritz College of Law.  Here is its abstract:

Demanding state regulatory schemes render the operation of cannabis businesses an expensive endeavor and create an urgent need for reliable sources of cash.  Historically, the federal ban on cannabis has hindered the industry’s fundraising efforts, but larger cannabis companies have begun to make inroads toward friendlier deals with manageable interest rates.  This progress has not extended to smaller cannabis businesses, which has prevented many from effectively competing and contributed to a wave of intense industry consolidation around the largest companies in 2021.  This paper explores this fundraising disparity and its policy implications.  Proposed solutions at the state and federal level are also evaluated along with an overview of the limited fundraising options which are currently available to small cannabis businesses.

May 23, 2022 in Business laws and regulatory issues, Federal court rulings, Recreational Marijuana Commentary and Debate | Permalink | Comments (2)

Monday, April 18, 2022

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"

Images (2)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.

Background Reading:

Press article from 2020: "Cannabis Legalization Is Key To Economic Recovery, Much Like Ending Alcohol Prohibition Helped Us Out Of The Great Depression"

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"

April 18, 2022 in Business laws and regulatory issues, Recreational Marijuana Commentary and Debate | Permalink | Comments (0)

Tuesday, April 12, 2022

Student presentation: "Putting Marijuana Back in the Bottle: FDA’s Role in Future Marijuana Regulation"

Images (4)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.

Background Reading

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)"

Government of Canada webpage: "Health products containing cannabis or for use with cannabis: Guidance for the Cannabis Act, the Food and Drugs Act, and related regulations"

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)

Sunday, April 3, 2022

Student presentation on native tribes exploring marijuana marketplaces

Download (24)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:

Summary:

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.

Background Reading:

April 3, 2022 in Assembled readings on specific topics, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Wednesday, March 16, 2022

Register now for "Ohio Cannabis Reform in Focus"

Download (13)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 HuffmanAndrew Makoski, Administrative Attorney, Ohio Department of CommerceAdditional 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 FergusonThomas Haren, Partner, Frantz WardJodi 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

Thrilled to be speaking at SXSW panel on "Post Pot Legalization: The Good, The Bad & The Ugly"

Thumbnail_CJR Post Pot LegalizationI 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.

March 11, 2022 in Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)