Marijuana Law, Policy & Reform

"Have recreational marijuana laws undermined public health progress on adult tobacco use?"

The title of this post is the title of this notable new article in the Journal of Health Economics from multiple authors. Apparently the answer to the question in the title of the article is "no," and here is the article's abstract:

Public health experts caution that legalization of recreational marijuana may normalize smoking and undermine the decades-long achievements of tobacco control policy.  However, very little is known about the impact of recreational marijuana laws (RMLs) on adult tobacco use.  Using newly available data from the Population Assessment of Tobacco and Health (PATH) and dynamic difference-in-differences and discrete-time hazard approaches, we find that RML adoption increases prior-month marijuana use among adults ages 18-and-older by 2-percentage-points, driven by an increase in marijuana initiation among prior non-users.  However, this increase in adult marijuana use does not extend to tobacco use.  Rather, we find that RML adoption is associated with a lagged reduction in electronic nicotine delivery systems (ENDS) use, consistent with the hypothesis that ENDS and marijuana are substitutes. Moreover, auxiliary analyses from the National Survey on Drug Use and Health (NSDUH) show that RML adoption is associated with a reduction in adult cigarette smoking.  We conclude that RMLs may generate tobacco-related health benefits.

NACDL event this week on "Marijuana Justice as Social Justice"

I was pleased to see that NACDL’s Cannabis Justice Initiative has planned this free online event titled "Marijuana Justice as Social Justice."  Here are the basics of the event from the program page:

"Marijuana Justice as Social Justice" will be a conversation between The Honorable Randall Woodfin, Mayor of Birmingham, Alabama, and Jason D. Williamson, Attorney, Racial Justice Advocate, and Executive Director of the Center on Race, Inequality, and the Law. The event will be moderated by Eric J. Davis, the Felony Trial Division Chief of the Harris County Public Defender's Office in Texas.

While people across the country enjoy regulated and taxed cannabis products, thousands of people, mostly from black and brown communities, continue to suffer in prison for conduct that has been legalized in 21 states and counting. Please join us for a conversation concerning the fight for marijuana justice for those most affected by unjust marijuana criminalization, and two advocates' fight to change these laws and right the wrongs of racially discriminatory marijuana arrests, convictions, and sentences. 

New MPP report calculates states have collected over $15 billion in tax revenue from recreational marijuana sales by end of 2022

Via this Marijuana Moment article, I see that the Marijuana Policy Project (MPP) has a new report detailing that, from 2014 to 2022, states that have legalized adult-use recreational marijuana sales have together generated more than $15 billion in tax revenue from marijuana sales.  This MPP report, titled "Cannabis Tax Revenue in States that Regulate Cannabis for Adult Use," gets started this way:

Legalizing cannabis for adults has been a wise investment. Since 2014 when sales began in Colorado and Washington, legalization policies have provided states a new revenue stream to bolster budgets and fund important services and programs.  Through the end of 2022, states have reported a combined total of more than $15 billion in tax revenue from legal, adult-use cannabis sales.  In 2022, legalization states generated more than $3.77 billion in cannabis tax revenue from adult-use sales.  In addition to revenue generated for statewide budgets, cities and towns have also generated hundreds of thousands of dollars in new revenue from local adult-use cannabis taxes.

Twenty-two states have legalized cannabis possession for adults 21 and older.  All but two of them — Maryland and Virginia — have also legalized, regulated, and taxed cannabis sales, and Maryland’s governor plans to sign twin bills that are on his desk to do so.

Although cannabis sales have continued to generate billions in annual tax revenue, 2022 marked the first year with a decrease in tax revenues compared to the prior year.   Even as new states came online, we saw a slight decrease in total state cannabis tax revenue — from over $3.86 billion in 2021 compared to $3.77 billion in 2022. Prior to 2022, every legalization state had seen annual increases in cannabis tax revenue.  In 2022, however, six states with the most mature legalization laws experienced decreases in cannabis tax revenue, while newer legalization states generated more cannabis tax revenue in 2022 than in 2021.

Reasons for declining tax revenue include the widespread availability of intoxicating synthetic cannabinoids made from hemp, which are largely unregulated and not subjected to cannabis excise taxes; lower prices in several states due to oversupply; sales beginning in additional states — reducing demand from visitors in more mature states; consumers having less disposable income due to inflation; and — in California — the state reducing the tax rate to make legal cannabis more competitive.  Cannabis businesses also face significant challenges due to ongoing federal prohibition, which drives up costs of rent, banking, and almost everything else, and results in an enormous federal tax burden.   Those burdens do not apply to intoxicating cannabinoids derived from hemp.

As Vicente LLP Director of Economics and Research Andrew Livingston explained, 2022’s revenue decreases were “due to a multitude of factors,” and that one of them is likely COVID-related.  “While 2022 cannabis taxes are lower in some established markets than they were in 2021, it's important to know how COVID-19 and pandemic initiated lockdown orders increased cannabis demand.  People could not spend their money going to concerts, going out to dinner, or vacation travel.   So many people increased their consumption of consumer packaged goods.  Cannabis was a product that could still be purchased and made the difficulty of staying at home for months on end watching TV shows and movies a bit more enjoyable.”

In every state where cannabis tax revenue decreased in 2022, tax proceeds still outperformed every year prior to the COVID-19 pandemic and related shutdowns.

This document reviews each legalization state’s adult-use cannabis tax structure, population, and year-by-year adult-use cannabis tax revenue.  States are listed in chronological order, based on when state-legal cannabis sales began, with the most mature markets first.  These figures include cannabis excise taxes and states’ standard sales taxes that applied to cannabis.  They do not include medical cannabis tax revenue, application and licensing fees paid by cannabis businesses, additional income taxes generated by workers in the cannabis industry, or taxes paid to the federal government.

SAM provides its latest accounting of "Lessons Learned from State Marijuana Legalization"

The leading national group opposed to modern marijuana reforms, Smart Approaches to Marijuana (SAM), celebrated the 4/20 holiday by releasing this 71-page report titled "Impact Report 2023-2024: Lessons Learned from State Marijuana Legalization."  The report starts with this background:

Contrary to federal law, under which the possession and sale of marijuana are illegal (Controlled Substances Act, 1971), several states have legalized the cultivation, commercial sale, and use of marijuana, beginning in 2012.  Despite this, dozens of states continue to reject the legalization of marijuana.  The vast majority of localities in “legal” states also ban the production and retail sale of marijuana.  Marijuana remains illegal at the federal level, although pro-marijuana lobbyists are actively working to undue this.

Smart Approaches to Marijuana (SAM) compiled publicly available federal and state-level data, reports, investigatory findings, peer-reviewed studies, and government health surveys to assemble this report.  We have attempted to be as transparent as possible in our evaluation so as to allow readers to trace our steps and further their own research.

The SAM report thereafter mines an extraordinary amount of data seeking to detail myriad harms from modern marijuana reforms.  However, as I have noticed in this past, some of SAM's numbers look a bit hinky.  For example, a graphic on page 10 claims that annual marijuana taxes comprised only 0.09% of Colorado's state budget.  But this Urban Institute report indicates that Colorado is raising 1.7% of its revenue through marijuana taxes for the same year in the SAM report. (And this report from my own Drug Enforcement and Policy Center had a previous year's tax data from Colorado sources reporting marijuana taxes amounting to 2.08% of total tax revenue.)  Similarly, but less serious, on page 6, a graphic claims certain data shows a 1,375% increase, when the data actually show only an increase 1/3 that large.

Though one-sided in the mining of data, this SAM report serves as an impressive collection and presentation of information painting marijuana reform in a poor light.  And the report concludes with this recommendation:

Policy makers and the public need real-time data on both the consequences of legalization and related monetary costs.  Meanwhile, we should pause future legalization efforts and implement public health measures such as potency caps in places that have legalized.  In addition, the industry’s influence on policy should be significantly curtailed. SAM recommends research efforts and data collection focus on the following categories:

1. Emergency room and hospital admissions related to marijuana.

2. Marijuana potency and price trends in the “legal” and illegal markets.

3. School incidents related to marijuana, including studies involving representative datasets.

4. Extent of marijuana advertising toward youth and its impact.

5. Marijuana-related car crashes, including THC levels even when testing positive for alcohol.

6. Mental health effects of marijuana.

7. Admissions to treatment and counseling intervention programs.

8. Cost of implementing legalization from law enforcement to regulators.

9. Cost of mental health and addiction treatment related to increased marijuana use.

10. Cost of needing, but not receiving, treatment.

11. Effect on the market for alcohol and other drugs.

12. Cost to workplace and employers, including impact on employee productivity.

13. Effect on minority communities, including arrests, placement of marijuana establishments, and quality of life indicators.

14. Effect on the environment, including water and power usage.

Student presentation exploring the history and regulation of edibles

The third student presentation scheduled for my class this week covers yet another important marijuana topic with lots of history, public health issues, and policy concerns all wrapped into package with seemingly significant market appeal.  And this description and list of readings from my student is sure to whet appetites for coverage of this signifcant topic:

Edibles, food or drink containing cannabis, have exploded in popularity over the past few decades.  Despite their recent boom, they are not a new developement.  Edibles have a long and interesting history, with evidence that cannabis has been used in food products for thousands of years.  In the modern context, their use is quite common, making edibles the third-largest sector of the cannabis market (after the flower itself and concentrates/cartridges). 

Edibles offer several benefits over other methods of cannabis use, but there are also downsides.  The amount of THC in a package of edibles is almost always higher than the recommended dose.  Additionally, many edibles look and taste like candy or other sweets, leading to increases in child and pet ingestion.  There are also many trademark concerns, since many edibles are named and packaged in ways resembling trademarked designs. Despite these issues, there is relatively little regulation of edibles in states that have legalized recreational cannabis.  This area is ripe for future legislative action, extending from packaging and labeling requirements to manufacturing and THC content restrictions.  There will likely be significant changes to how cannabis law regulates edibles in the future as legislatures move to mitigate certain issues specific to edibles.

Background Reading:

Christine Chung, "Consumption of Marijuana Edibles Surges Among Children, Study Finds"

Press release, "Sour Patch Kids Files Trademark Lawsuit Against THC-Infused 'Stoney Patch' Brand" 

Tom Schuba, "‘Medicated Skittles’? Candy giant sues weed sellers for trademark infringement" 

American Addiction Centers, "Marijuana Edibles: Risks, Side Effects & Dangers"

Bobby Hristova, "DAY 40: The ancient history of cannabis edibles"

Kelly Johnson-Arbor, "My Child Ate a Cannabis Edible"

Student presentation exploring marijuana usage, parenting and custody disputes

Rounding out an exciting week of diverse student presentations in my Marijuana Law, Policy & Reform seminar, the fourth presentation scheduled for this week will look at marijuana use and parenting. Here is how my student has previewed her topic along with some background readings:

Law and practice regarding marijuana usage and regulation often proves helpful as a way to understand greater issues in our legal system.  This is true in many areas of law, but perhaps even more so in the the practice of family law.  When considering the effect of a parent's marijuana usage during a custody dispute, it becomes apparent just how much the unfettered discretion of judges in family law jurisprudence affects both parents' cases, but also the practice of family law as a whole.

So what causes such irregularity in child custody cases between two fit parents?  The ever malleable "best interest of the child" standard which not only allows, but seemingly encourages, unabashed discretion and therefore unabashed bias from family court judges.  In many states, morality is still a key factor in best interest determinations.  In a society where the definition of morality varies from person to person, state to state, and county to county, it is impossible to guess whether a judge will consider marijuana usage to be moral or amoral.  Or perhaps a judge will opt to compare marijuana usage to cigarette smoking which acts a "tie-breaker" between both parents.  Or a judge may completely ignore the usage as commonplace and not allow it to affect their decision-making.  The impossibility of knowing creates a dangerous gamble for parents who choose to use marijuana.

This is all made worse when we are confronted with the data drought surrounding marijuana and parenting, with outdated studies examining parental marijuana usage prior to more than 15 states legalized recreational usage.  Without updated statistics and evidence, parents will find it difficult to demonstrate that their marijuana usage is mainstream and does not affect their parenting. This lack of data further stigmatizes marijuana using parents to judges who may already have biased ideas regarding weed usage.  The stigma is perhaps furthered by the media narratives of the "cannamom," a polarizing depiction of white mothers who loudly proclaim that weed makes them better parents.  Sensationalized coverage of parents who do use marijuana will only push hesitant judges further away from parents who use marijuana and allow that bias to encroach upon their best interest analysis, and thusly, parents' rights to the care of their child.

Background readings:

By Jane C. Murphy, "Eroding the Myth of Discretionary Justice in Family Law: The Child Support Experiment" (1991)

Blevins v. Bardwell, 784 So. 2d 166 (Miss. 2001).

From USA Today, "More parents are smoking pot around kids; children inhaling second-hand smoke" (May 2018)

From the BBC, "The Cannamoms Parenting with Cannabis" (Nov 2021)

Student presentation on "Entheogenesis: The Hidden History of Ancient Psychedelic Drug Rituals"

Continuing to showcase the diversity of issues covered when students in my Marijuana Law, Policy & Reform seminar "take over" the with their presentations, the third presentation scheduled for this week will look at psychedelic rituals. Specifically, my student will explore "Entheogenesis" and here is how she has described her topic along with background readings:

Purpose: This is an investigation regarding the origins of the Christian church and the rituals that the founders drew inspiration from at the dawn of the new age.  As the church seized power, the ancient drug rituals were eradicated and along with the 75,000 female spiritual leaders who performed them.  There are some theories as to why these women were executed, however, the main purpose of this paper is to enlighten those who plan to vote in the upcoming election.

This Fall, it is anticipated that Ohioans will vote on abortion and marijuana legalization simultaneously.  Voters may consider legalization as a "liberal" voting issue and vote against it due to a false association with pro-choice support.  Voters who anticipate voting based on their moral or religious beliefs should feel assured that legalization is not against their biblical belief origins.  The purpose of this paper is to emphasize that ancient religions promoted safe drug use and why people in power wanted to prevent this from continuing.  My conclusion is that those voting based on their religious beliefs can feel more comfortable knowing that their religious institutions were founded on spiritual drug practices.  With the legalization of marijuana and other psychedelic substances, religious followers could be introduced to long-forgotten, mystical ceremonies that make them feel closer to their God(s), such as their ancestors and predecessors did before the demonization of these practices.

Background Citations:

Muraresku, B. C. (2020). The Immortality Key: The Secret History of the Religion with No Name. St. Martin's Press.

Harris, T. (2021, October 7). The eleusinian mysteries. Hellenic Museum. Retrieved March 7, 2023,

Gillis-Smith, P., & Chapel, M. (2022, May 12). Psychedelics, spirituality, and a culture of seekership. Harvard Divinity School

Student presentation exploring legality of gun possession and marijuana use

Students in my Marijuana Law, Policy & Reform seminar often focus on cutting-edge issues in their class presentations on the research topics of their choice.  The second presentation slated for this week could not possibly be more cutting edge, as my student will be discussing gun possession and marijuana use.  Here is how she has described her topic along with background readings she has provided for classmates (and the rest of us):

                Although individual states have not necessarily legislated that possessing a gun is unlawful for state compliant marijuana users, cannabis’s federal illegality seems to produce this result.  The process for obtaining a gun – regardless of what state the individual resides in – requires the individual to fill out the Federal Bureau of Alcohol, Tobacco, and Firearms’ Form 4473. Form 4473 question 21g states:

"Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?  Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreation purposes in the state where you reside."

                Consequently, individuals that are fully in compliance with the marijuana laws in their home state are being stripped of their Second Amendment right, regardless of if the plant is being used for medicinal or adult use purposes.  Therefore, marijuana users who wish to possess a gun have three options: stop using marijuana entirely, stop using state compliant marijuana and instead obtain it from an illicit source, or lie.  Although ATF agents and prosecutors report that due to limited resources, they are not inclined to prioritize the nonviolent crime of lying on a form over more serious charges, lying on the form and obtaining a gun while being a marijuana user remains a federal felony offense. 

                In the wake of the 2022 Bruen holding, litigation on this matter seems to (so far) sway in favor of gun rights activists.  But there remain many unanswered questions in this area.  The implications of either a legitimization of state-legal marijuana use on the federal level (while the plant remains on Schedule I), or of an acknowledgement that the gun control/background check process can be changed, could be massive.

Links to Background Reading:

From the Washington Post, "Lying to ATF on gun-purchase form yields few prosecutions, data shows"

From the US Attorney's Office in the Western District of Oklahoma, "Federal Prosecutors Aggressively Pursuing Those Who Lie in Connection With Firearm Transactions"

From the Reason Foundation, "Medical Marijuana Patients Are Being Denied Gun Rights"

From US Congressman Alex Mooney, "There Are Two Sides Of The Fence, Use Marijuana And Give Up Gun Ownership Or Give Up Marijuana And Be A Gun Owner."

From CNN, "Gun form liars may go on to commit gun crimes, internal ATF research suggests"

Student presentation exploring "Cannabinoid Hyperemesis Syndrome"

As regular readers know, students in my Marijuana Law, Policy & Reform seminar are now in the midst of "taking over" my class through presentations on the research topics of their choice.  Before their presentations, students are expected to provide in this space some background on their topic and links to some readings or relevant materials.  The first of our presentations for next week will be looking at "Cannabinoid Hyperemesis Syndrome".  Here is how my student has described his topic along with background readings he has provided for his classmates (and the rest of us):

As more American states end cannabis prohibition, regulators and lawmakers are faced with the difficult task of implementing rules to govern the growth, sale, and use of a plant that we still seem to know very little about.  Empirically and anecdotally, moderate cannabis use looks to be less harmful than use of other legal regulated substances like alcohol and tobacco.  As with nearly all substances, however, excessive chronic use of cannabis can have negative health effects.  One such side effect is Cannabinoid Hyperemesis Syndrome (CHS), a relatively rare syndrome which was first reported in Australia in 2004 and is characterized by cyclical vomiting and nausea paired with compulsive hot bathing in heavy cannabis users.  Despite being first described nearly two decades ago, many questions remain as to the actual prevalence and exact causes of the syndrome. 

This paper will discuss current data surrounding CHS and the implications this condition has for the ever-growing post-prohibition world of cannabis.  More studies are certainly necessary to determine how to prevent and treat CHS so that we can form a responsible and common-sense cannabis policy.  There is a significant possibility that current data and studies about CHS will be used to argue for continued prohibition in states that have not yet legalized the plant.  However, based on what we currently know about the syndrome, the existence of CHS is not a reason to continue prohibition.  While extremely heavy high-THC cannabis users should be concerned with developing the adverse symptoms of CHS, moderate and infrequent users do not generally develop the condition.  Furthermore, CHS is relatively rare and, if diagnosed early, has a simple cure — upon ceasing cannabis use, symptoms recede quickly and do not return until the afflicted user re-ingests cannabinoids. 

After a review of the data, the discussion will turn to possible responses to CHS rates such as THC limits, education of cannabis users, and proactive moves the cannabis industry can make to lessen the likelihood that CHS is used as a scare tactic to continue prohibition. Rather than perpetuate a misguided prohibition scheme that unfairly punishes users of cannabis, a substance empirically less harmful than legal substances such as alcohol or tobacco, we should continue to study CHS, determine with relative certainty what causes it, and educate the public on harm-reduction methods that will prevent CHS.  

Background reading

From Leafy, "Is "scromiting" from smoking weed a thing?"

From Forbes, "Science Reveals The Cannabis Industry’s Greatest Lie: You’re Buying Weed Wrong (And So Is Everyone Else)"

From JAMA Open Network, "Changes in Emergency Department Visits for Cannabis Hyperemesis Syndrome Following Recreational Cannabis Legalization and Subsequent Commercialization in Ontario, Canada"

Marijuana legalization loses resoundingly in Oklahoma special election

Marijuana reform ballot initiatives were on quite the hot streak between 2012 and 2020.  Though a handful of initiatives lost in this period, a far larger number prevailed.  Medical marijuana reforms almost always won in both red and blue states, and full legalization initiatives were also almost always successful (in part because they were mostly brought in blue states).  But, in 2022, as full legalization efforts were brought to red states, the reform initiative winning streak came to an end.  As detailed here, though Maryland and Missouri voters approved legalization measures, ballot initiatives failed in Arkansas and North Dakota and South Dakota.

And, as detailed in these special election results from Oklahoma, the full legalization ballot initiative losing streak continued tonight in the Sooner State.  And, with still a few votes yet to be counted, it appears that the initiative is losing big, by 25% points.  This New York Times article, headlined "With a Marijuana Shop on ‘Every Corner,’ Oklahoma Rejects Full Legalization," provides some context:

In the past few years, Oklahoma, long a solid bastion of conservatism, has quietly undergone a street-level transformation when it comes to marijuana. Dispensaries dot the landscape, with more than 400 in Oklahoma City alone. And that’s just for medical marijuana.

On Tuesday, voters across Oklahoma opted against going further, according to The Associated Press, rejecting a ballot initiative that would have legalized recreational marijuana use by adults 21 and over.

With the vote, Oklahoma joined a number of conservative states whose voters have recently decided against recreational marijuana legalization. Though Missouri approved a state constitutional amendment to allow for recreational marijuana in November, voters in other conservative states, including Arkansas, North Dakota and South Dakota, rejected similar proposals.

The vote on Tuesday was a setback for marijuana legalization proponents in Oklahoma who had anticipated that laissez-faire economic attitudes and growing support among younger Republicans would provide a pathway for the state to join a diverse assortment of 21 states and the District of Columbia in adopting legal recreational marijuana, from Alaska and the Mountain West to the coasts and parts of the Midwest.

But voters in Oklahoma, where nearly 10 percent of the population already has a medical marijuana card, appeared to have decided that the current level of access to the drug was enough. In the end, the measure failed. Sixty-three percent voted no, while 38 percent voted yes, with about 90 percent of ballots counted as of Tuesday night....

The state legislature passed a two-year moratorium on new medical marijuana business licenses last year. The Oklahoma Farm Bureau, which opposes recreational marijuana legalization, has said the existing marijuana industry in the state is already straining rural infrastructure.

Student presentation on "The Role of Medical Cannabis Programs in a Society Moving Towards Adult-Use Regulation"

Rounding out an exciting first week of student presentations in my Marijuana Law, Policy & Reform seminar, the fourth presentation scheduled for the coming week will look at "The Role of Medical Cannabis Programs in a Society Moving Towards Adult-Use Regulation." Here is how my student has previewed his topic along with a bunch of background readings:

Over the last three decades, cannabis has slowly become an increasingly salient topic of debate in the United States – for a litany of different reasons.  As the plant began to shed the stigma placed on it by politicians and citizens alike, pioneering researchers in the 1980s and 1990s started to take a closer look at cannabis’ properties and effects on humans (based on hundreds of years of cannabis use as medicine in eastern cultures).  Beginning with California in 1996, states began to fulfill their purposes as laboratories of democracy with respect to cannabis through legalization of medical cannabis programs based on data collected by researchers.

However, as the debate over cannabis has progressed into more modern contexts, society has become increasingly perceptive to federal de-scheduling of the drug and implementation of adult-use policies in states across the country.  As state adult-use programs have continued to grow in numbers, there is a split in opinion as to a) how medical programs should be treated moving forward; b) whether they were ever really more than a trojan horse for the eventual full legalization of cannabis across the country; c) and whether resources should continue to be applied to their improvement and growth at all, if full legalization occurs. 

This research project will focus on addressing this debate through i) an examination of history behind medical cannabis and the data supporting cannabis’ viability as a medicine; ii) determining issues present in medical cannabis programs as adult-use programs continue to burgeon; iii) potential effects of federal de-scheduling of cannabis on medical markets; and iv) examining Ohio’s medical cannabis program as a case study on the law, policy, and politics underlying the debate -- and whether Ohio’s program is worth “fixing” with the growing imminence of an adult-use regime.

Suggested background:

Britannica ProCon.org, "Timeline on Medical Cannabis Progression" (Focus 1974 – Present) 

Antonio Waldo Zuardi, "History of cannabis as a medicine: a review" (published in 2006)

New York Times article on California’s Prop 215, "Medical Marijuana Use Winning Backing" (Oct. 1996)

Third Way Report, "America’s Marijuana Evolution" (Aug. 2017)

Hannah Carliner et al., "Cannabis use, attitudes, and legal status in the U.S.: A review" (published in 2017)

Mayo Clinic, "Medical Marijuana" 

National Academies of Sciences, Engineering, and Medicine, Chapter 4 on State of Evidence, "Therapeutic Effects of Cannabis and Cannabinoids" (published in 2017) 

News report on 'fixing' Ohio’s medical cannabis program, "Lawmakers look to solve issues with Ohio's medical marijuana program" (May 2022)

Notable marshalling of data to make the case for marijuana legalization in Ohio

One of various assignments I have given to students in my marijuana reform seminar this semester has been to identify and discuss some particular data issue(s) they consider especially interesting and/or important to modern marijuana reform debates.  With short papers on this topic coming due soon, I was quite intrigued to see this notable new local commentary piece that covered lots of data points to make the case for marijuana reform.  The lengthy piece authored by Dave Lange is headlined "Legalizing marijuana in Ohio is a no-brainer -= and overdue," and here are excerpts:

It does seem strange that Ohio voters are being urged to legalize pot by the Coalition to Regulate Marijuana Like Alcohol.  Barring some new political hurdle imposed by the anti-freedom caucus in Columbus, a constitutional amendment to that effect will appear on the November 2023 ballot.

As we know, or at least should know, alcohol-impaired driving is responsible for thousands of traffic deaths nationally each year.  According to the U.S. Centers for Disease Control and Prevention (CDC), that number was 11,654 in 2020, accounting for 30% of all traffic-related deaths.

There is some evidence from the Journal of Studies on Alcohol and Drugs that fatal traffic accidents increased by about 4% in states where recreational marijuana has been legalized.  However, across states, studies have indicated a variance between a 4% increase and a 10% decrease in fatal accidents following legalization....

More strikingly, though, the CDC reports approximately 140,000 deaths per year resulting from excessive alcohol use in the United States.  The CDC also reports an average of six alcohol-poisoning deaths per day.  The number of such deaths attributed to marijuana use is close to zero.  Even the Drug Enforcement Agency acknowledges that zero deaths from marijuana overdoses have been reported.

By any reasonable viewpoint, it’s marijuana that should be legal and alcohol that should be illegal.  That actually occurred in this country between 1920, when the 18th Amendment to the Constitution outlawed alcohol, and 1933, when the 21st Amendment repealed Prohibition.  Most people are familiar with that history lesson....

The racial implications remain evident today in the number of marijuana busts.  Although use is roughly the same among races, Blacks are 3.73 times more likely than whites to be arrested for marijuana, according to the American Civil Liberties Union.

The Marihuana Tax Act was replaced by the Controlled Substances Act in 1970.  Fifty-three years later, the federal government still classifies marijuana as a Schedule 1 drug -- just like heroin, which, according to the CDC, resulted in over 13,000 overdose deaths in 2020.

Fortunately, marijuana arrests have been declining significantly in Ohio, from 18,335 in 2018 to 6,450 in 2021, but they still accounted for 37% of all 2021 drug busts in the state, according to the pro-marijuana legalization group, NORML.

In 1975, then-Gov. James Rhodes signed a bill that made Ohio the sixth state to decriminalize marijuana, reducing possession of less than 100 grams to a “minor misdemeanor.”  It became the 25th state to legalize medical marijuana for certain afflictions in 2016.

The question now is whether Ohio will become the 22nd state to legalize recreational, or adult-use, marijuana, or will Ohioans continue contributing to the burgeoning market in neighboring Michigan, which legalized it in 2019?  With nearly $2.3 billion in sales last year, Michigan is now the second-largest market in the country, trailing only California.  Michigan’s 10% marijuana excise tax, on top of its sales tax, is a handsome bonus to state and local governments.

Notable accounting of "legal" Delta-8 THC products

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

#4: More Lawmakers Enact Workplace Protections For Cannabis Consumers

#3: Senate Fails To Move Safe Banking Act

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

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

Cannabis lawyering makes the cover of the ABA Journal

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

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

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

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

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

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

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

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

The 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.

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

As 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.

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"

Highlighting all we do not know about marijuana-infused drinks

This 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.”