Marijuana Law, Policy & Reform

Detailing how state marijuana reforms may increase (at least the visibility of) illegal operators

Natalie Fertig has this great new (and lengthy) article in Politico Magazine about the persistent challenges posed by illegal marijuana market in a country that for now has only half-legalized the cannabis plant.  The full title of this piece highlights its themes: "‘Talk About Clusterf---’: Why Legal Weed Didn’t Kill Oregon’s Black Market. Legalization was supposed to take care of the black market. It hasn’t worked out that way."  I recommend the piece in full, and here are excerpts:

People have grown marijuana illegally in southern Oregon for at least half a century.  It was easy to conceal illicit activity in private woods and national forests when the nearest human could easily be a few miles away.  But there’s nothing hidden about what’s going on now.

The Red Mountain Golf Course, a 24-acre plot of land just outside Grants Pass, the county seat, sold for just over half a million dollars in June 2021.  Three months later, Josephine County Sheriffs and Oregon State Troopers raided the former golf course and seized more than 4,000 marijuana plants and arrested two people on charges of felony marijuana manufacture.  It wasn’t an isolated incident.  Around the same time, law enforcement seized 380 pounds of processed marijuana stuffed in a car abandoned at the scene of a crash.  Cops also seized 7,600 marijuana and hemp plants, 5,000 pounds of processed marijuana and $210,000 in cash from two grow operations just outside Cave Junction.  Two men were arrested and held for unlawful manufacture of a marijuana item and other charges.

While these eye-popping figures draw headlines, the raids are just a cost of doing business for the cartels, according to law enforcement officials.  Many buy or lease six or seven properties, knowing that some might get shut down by the police.  Like any smart entrepreneurs, the cartels budget for those losses....

The proliferation of unlicensed cannabis farms is scaring local residents and scarring the landscape.  Personal wells have run dry and rivers have been illegally diverted.  Piles of trash litter abandoned grow sites.  Locals report having knives pulled on them, and growers showing up on their porches with guns to make demands about local water use. Multiple women say they’ve been followed long distances by strange vehicles. Locals regularly end conversations with an ominous warning: “Be careful.”...

Earlier in the year, the legislature passed a bill, sponsored by Republican state Rep. Lily Morgan, that increased penalties for growing cannabis illegally and gave state regulators the authority to investigate hemp growers.

Jackson County Sheriff Nate Sickler says the tougher rules for hemp cultivation and the money lawmakers funneled to local enforcement efforts are an excellent start.  “If we’re able to get our positions funded, I really think we can make a significant impact [on] illegal marijuana,” said Sickler. “Are they going to go away? It’s probably never going to happen.”...

There are as many suggested solutions to southern Oregon’s weed problem as there are factors creating it. Some say tweaks to federal and state hemp regulations — and more money for law enforcement — will get the illicit grows under control. Others argue that only federal decriminalization will solve the problem, because it would reduce the market for illicit weed. Anti-legalization advocates, meanwhile, point to Oregon’s woes as proof that legalization doesn’t live up to its promise of eliminating the illicit market.

Take a break, Delta 8, Delta 8, take a break ... we can check the laws, but we're still a ways away from legal clarity

I am gearing up to teach my marijuana seminar for the first time in two years, and that necessarily means having to prepare for new discussions about new issues in an arena where legal and marketplace reforms are always fast-moving.  One brand new issue, for example, is the emergence of a wide array of Delta-8 THC products and all the legal uncertainty that they engender.  (As my post title reveals, at least for hard-core REM fans, I cannot help but hum the great REM song Driver 8 whenever I think about Delta 8 issues.)

Usefully for me (and perhaps for others), I just saw this recent piece providing an overview of state laws and other matters related to Delta 8 THC products.   Though industry-delta-friendly, this article still provides a helpful review of various basics under this full headline: "Delta-8 is Available in 28 States While Others Try to Ban It: Several U.S. states preemptively restrict or outright ban delta-8 THC as federal regulators swoop in to clarify its legality."  Here are some excerpts from the lengthy piece:

Delta-8 THC has been a sensation in the country.  Its popularity soared throughout 2020 and many believed its reign of euphoric bliss would continue into 2021 and beyond.  However, the federal government and the DEA are swooping in to ruin all the fun.

In April, alone, several U.S. states either restricted or banned delta-8 THC, sparking outcry from users, companies, manufacturers, and vendors within the cannabis industry. So, why are U.S. states banning delta-8 THC? Which ones have already banned it? What have the federal government and the DEA got to do with this?....

Delta-8 is one of 113 cannabinoids found in varieties of cannabis (hemp or marijuana) and a variant of delta-9-tetrahydrocannabinol (THC). It’s psychoactive and intoxicating, causing a “high” when consumed. However, when compared to delta-9 THC, the effects are far milder and better suited to beginners looking to enjoy the euphoric effects without the side effects commonly associated with delta-9. Delta-8 THC can now be found in several product types such as distillates, vape cartridges, oils, and flower....

In 2018, the federal government under the Trump administration, signed the Agriculture Improvement Act (2018 Farm Bill), legalizing hemp and all hemp-derived cannabinoids.... However, in 2020, the DEA issued a controversial interim final rule that sought to bring the Farm Bill further in line with the Controlled Substances Act (CSA), spelling trouble for not only delta-8 but also for delta-10 THC.

Within this final rule, the DEA stated all “synthetically-derived tetrahydrocannabinols remain schedule I controlled substances”. Why is this significant and how is it related to delta-8? Well, in order for companies to have enough delta-8 THC in their products, it must be converted from cannabidiol (CBD) via a structural isomerization process conducted under laboratory conditions. This isomerization process takes CBD, alters its molecular structure, and turns it into delta-8. Since it’s produced by chemical or biochemical synthesis and not sourced straight from the hemp plant itself, the DEA believes delta-8 is a synthetic substance.....

Is delta-8’s safety in question? Yes. Delta-8’s safety is in question. Why? Because it’s a psychoactive and intoxicating delta-9 THC variant that’s recently exploded into an unregulated market with very little research verifying its effects.

Rounding up interesting marijuana/drug policy "year in review" postings

I saw this afternoon two notable "year in review posts," and there are links:

From Marijuana Moment, "Here Are The Biggest Marijuana, Psychedelics And Drug Policy News Stories Of 2021"

From NORML, "2021 Year in Review: NORML’s Top Ten Events in Marijuana Policy"

I recommend both of these pieces in full, but I will here highlight a few of the top-10 from the NORML review that gives particular attention to my concerns about the intersection of marijuana reform and criminal justice.

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

Legislatures in five states — Connecticut, New Jersey, New Mexico, New York, and Virginia — enacted laws in 2021 legalizing adult-use marijuana possession and regulating retail cannabis markets. These legislative victories marked a significant change from past years, when similar laws were enacted almost exclusively via citizens’ initiatives, not by legislative action. In total, 18 states — comprising nearly one-half of the US population — have now adopted laws regulating adult use marijuana production and retail sales.

“State lawmakers have learned that advocating for adult-use legalization laws is a winning political issue that is popular with their constituents, regardless of their age, race, or political affiliation,” NORML’s Deputy Director Paul Armentano said.

#2: State Officials Vacate Over Two Million Cannabis Convictions

Officials in multiple states have moved to either expunge or seal the records of over two million people with cannabis convictions. Specifically, officials in New York announced vacating an estimated 400,000 convictions. In Virginia, officials have similarly taken steps to seal some 400,000 convictions. In New Jersey, officials have expunged over 360,000 marijuana-related convictions. Officials in Illinois have vacated an estimated 500,000 cannabis convictions, while California officials have expunged over 200,000 convictions. In all, more than a dozen states have enacted legislation in recent years facilitating the process of having past marijuana convictions either expunged or sealed from public view.

In December, US Representatives Dave Joyce (R-OH) and Alexandria Ocasio-Cortez (D-NY) introduced federal legislation to provide funding to state and local governments for the purposes of expunging the records of those with marijuana-related convictions. Following the bill’s introduction, NORML’s Political Director Justin Strekal said, “This bipartisan effort represents the growing consensus to reform marijuana policies in a manner that addresses the harms inflicted by prohibition. There is no justification for continuing to prevent tens of millions of Americans from fully participating in their community and workforce simply because they bear the burden of a past marijuana conviction.”....

#4: Marijuana Arrests Decline Precipitously

The number of persons arrested in the United States for violating marijuana laws declined 36 percent between 2019 and 2020, according to data released in September by the US Federal Bureau of Investigation. According to the agency, police made an estimated 350,150 arrests for marijuana-related violations in 2020. That total is down more than 50 percent from peak levels in 2008, when police made over 800,000 marijuana-related arrests. Marijuana-related arrests were least likely to occur in 2020 in western states — most of which have legalized the possession of the substance.

“As more states move toward the sensible policy of legalizing and regulating cannabis, we are seeing a decline in the arrest of non-violent marijuana consumers nationwide,” NORML’s Executive Director Erik Altieri said. He added, however, “While these numbers represent a historic decline in arrests, even one person being put into handcuffs for the simple possession of marijuana is too many.”

"Growing Up: Vertical Integration in the Cannabis Industry"

The title of this post is the title of this paper recently posted to SSRN and authored by Philip Ewing, a student at The Ohio State University Moritz College of Law.  (This paper is yet another in the on-going series of student papers supported by the Drug Enforcement and Policy Center.)   Here is this latest paper's abstract: 

As marijuana is quickly gaining legal status in an increasing number of states throughout the United States, states are faced with choices to make about how they will regulate the industry.  One aspect of the regulatory scheme that states must implement is how they will allow businesses to be structured, specifically with regards to vertical integration.  Vertical integration is a business structure where a company controls more than one aspect of a business, such as maintaining control over their suppliers, distributors, and retail locations.  This allows companies to reduce overhead and reduce costs.  Some states mandate that marijuana businesses must be completely integrated, controlling the business from “seed to sale,” others allow vertical integration but do not require it, and some states prohibit vertical integration.  This paper will explore vertical integration and how it currently exists in the cannabis industry, detail current trends in state regulations regarding vertical integration, and evaluate policy considerations for the various regulatory approaches.

Initiated statute effort to legalize marijuana in Ohio advances with submission of signatures to prompt legislative consideration

As reported in this local article, headlined "The Just Like Alcohol campaign submits signatures to state, one step closer to getting recreational marijuana on Ohio ballot next year," a notable effort to advance marijuana reform in the Buckeye State advanced a bit today.  Here are the basic details:

A group of Ohio medical marijuana businesses with a proposal placing recreational cannabis on the ballot said they submitted 206,943 signatures to Ohio Secretary of State Frank LaRose’s office Monday.  The submission of signatures is just the latest step in the winding process to get the issue on the November 2022 ballot....

The Coalition to Regulate Marijuana Like Alcohol campaign needed 132,887 signatures from at least 44 of Ohio’s 88 counties by Dec. 27.  The campaign’s spokesman, Cleveland attorney Tom Haren, said campaign workers also verified signatures as they came in.  “The success of our petition drive shows just how eager Ohioans are to end prohibition and legalize the adult use of marijuana,” Haren said. “We look forward to receiving the results of the Secretary of State’s review, and are eager to begin working with legislators on this important issue.”

If county election officials verify the signatures, the proposal will go before the Ohio General Assembly, which gets to first stab at creating a law based on it.  If the legislature fails, the proposal will go on the ballot as an initiated statute.  Haren said the campaign would prefer if the legislature passed a law.

Under the proposed law, Ohioans ages 21 and older could buy and use marijuana.  They could grow up to six plants per person and 12 plants per residence.  It would create a Division of Cannabis Control under the Ohio Department of Commerce to license, regulate, investigate and penalize adult-use cannabis operators, testing laboratories and individuals who would be required to be licensed.

Existing Ohio medical marijuana growers could expand their cultivation areas once they receive an adult-use cultivator license, the proposal says.  Nine months after the proposed law goes into effect, the state would have to issue recreational licenses for existing medical marijuana dispensaries, cultivators, processors and testing laboratories if they complied with other provisions of the proposed law....

People who buy recreational marijuana would be taxed 10% at the dispensaries, and have to pay any other state and local sales taxes at the time of the purchase.  Of that, 36% of tax revenues would go to communities with recreational dispensaries; 36% to a social equity and jobs fund that would seek to “redress past and present effects of discrimination and economic disadvantage” for communities that have been disproportionately affected by marijuana prohibition, such as the more severe criminal penalties for Black men in comparison to white men possessing the same levels of marijuana; 25% to substance abuse and addiction efforts; 3% to the Division of Cannabis Control to support the costs of regulation....

To head off the initiated statute, the legislature is considering a few bills to broaden marijuana access.  Last week, the Ohio Senate passed and sent to the House a bill that would expand medical marijuana to anyone with a condition that would “reasonably be expected to be relieved” by the drug. It would increase cultivation areas and changes the medical marijuana regulation scheme, which currently is divided among three state agencies, to one under the Ohio Department of Commerce.

Those of us working at the Drug Enforcement and Policy Center, which is based at The Ohio State University Moritz College of Law, have been closely following this initiative and all the other marijuana reform proposals being actively discussed in the Buckeye State.  DEPC has created a set of materials to aid in understanding the Ohio initiative process as well as the substantive particulars of different legislative reform proposals.  These Ohio materials are collected here under the heading "A Comparison of Marijuana Reform Proposals in Ohio."  That page includes this link to the original graphic appearing above that we have created to follow the Ohio initiative process, and here is just a sampling of some of the original Ohio materials to be found at the page:

• Comparison of Recreational Marijuana Reform Proposals and Existing Ohio Medical Marijuana Control Program as of December 2021
• Comparison of SB 261 Medical Marijuana Reform Proposal to Existing Ohio Medical Marijuana Control Program as of December 2021
• The Ohio Initiated Statute Process for An Act to Control and Regulate Adult Use Cannabis

"Fair and Square: How to Effectively Incorporate Social Equity Into Cannabis Laws and Regulations"

The title of this post is the title of this notable new paper available via SSRN and authored by Shaleen Title.  (Shaleen Title served as one of five inaugural commissioners of the Massachusetts Cannabis Control Commission from 2017 to 2020, and this year has been serving as the Distinguished Cannabis Policy Practitioner in Residence at the Drug Enforcement and Policy Center.)  Here is the abstract for this paper:

As states and local jurisdictions implement new laws legalizing marijuana, many have charged regulators with the worthy goal of remedying the injustices of the drug war, a concept known as social equity.  Broadly, social equity falls into a few core policy categories: criminal justice reforms, including automatic expungement of past cannabis offenses; reinvesting a percentage of marijuana tax revenue into the most impacted communities; and — the focus of this paper — creating a cohesive cannabis industry licensing framework with special considerations for people affected by the war on drugs.

So far, no program has successfully achieved its social equity goals as originally envisioned.  But as each new state studies and incorporates the experiences of those that previously tried, we are seeing remarkable progress with respect to the involvement, inclusion, and support of people who have experienced disproportionate harm from prohibition.  This paper is designed to equip readers with practical advice about how to implement social equity.  There are three large policy areas regulators have to address as they begin to design a comprehensive social equity policy for their state’s cannabis industry: policies around what makes an individual or an entity a social equity applicant, policies around what benefits a social equity applicant should have access to, and licensing policies that will support your community’s social equity goals.

NORML releases online "2021 Legislative Report" detailing "50 laws liberalizing marijuana policies in more than 25 states"

Via this Facebook posting, NORML noted its new legislative report detailed that "lawmakers in 2021 enacted over 50 laws liberalizing marijuana policies in more than 25 states."  This online report provides all the details and includes these introductory passages:

2021 was a significant year for marijuana policy reform. Among the most significant developments, legislatures in five states enacted laws legalizing adult-use marijuana possession and regulating retail cannabis markets.  This marks a change from past years, when similar laws were primarily enacted via citizens’ initiatives, not by legislative action. In total, 18 states — comprising nearly one-half of the US population — now have laws on the books regulating adult-use marijuana production and retail sales.

Many states also took actions facilitating the expungement or sealing of past marijuana convictions. Such provisions are now generally part and parcel of any adult-use legalization law. In all, state officials have vacated over 2.2 million marijuana convictions in recent months.

With respect to medical cannabis policies, numerous legislatures took steps in 2021 to expand patients’ access to marijuana products.  These actions included expanding the pool of patients eligible for medical cannabis, expanding the number of licensed providers, and easing pathways for patients to obtain a medical marijuana recommendation.  Currently, 36 states regulate medical cannabis distribution to qualifying patients.

These legislative actions reflect the reality that the majority of the public supports meaningful marijuana reforms.  According to recent polling data, nearly seven in ten Americans, including majorities of all major subgroups by gender, age, income and education, and including majorities of Democrats, Independents, and Republicans, believe that the use of marijuana should be made legal.  Only eight percent of adults still favor its continued criminalization.

Public and political support for these legislative changes in marijuana laws will continue growing in 2022 and beyond.  As we look ahead to next year’s legislative session, we expect to see lawmakers advance with many of the same issues in other states, and we also expect voters in several jurisdictions to decide on citizen-initiated ballot measures next November.

"Cannabis Crossroads: What’s in Store for Marijuana Reform in Ohio?"

The title of this post is the title of this exciting event taking place online two weeks from today that I have the honor of moderating.  As detailed at this registration page, the event will take place on Friday, Nov. 19, 2021 from Noon - 1:30pm.  Here are the basics with the list of confirmed speakers:

Join the Drug Enforcement and Policy Center and Natural Therapies Education Foundation for a virtual discussion featuring panelists representing current Ohio cannabis reform endeavors.  The event will provide attendees with knowledge about pending initiatives and legislation, as well as a vision of what the future may hold for cannabis in Ohio.

Panelists

Mary Jane Borden, co-founder and secretary of the board, Natural Therapies Education Foundation

Thomas Haren, partner, Frantz Ward

Shaleen Title, distinguished cannabis policy practitioner in residence, Drug Enforcement and Policy Center, The Ohio State University

Rep. Casey Weinstein, Ohio House of Representatives

Moderator

Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law, executive director, Drug Enforcement and Policy Center, Moritz College of Law, The Ohio State University

California Supreme Court rules Prop 64 did not undo criminalization of possession of cannabis in prison

This past week, the California Supreme Court ruled in People v. Raybon, No. S256978 (Cal. Aug. 12, 2021) (available here), that state prisoners cannot legally possess marijuana while in prison.  The start of the court's ruling highlights why this was not quite a no-brainer given the law of Proposition 64:

This case requires us to interpret Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act (Prop. 64, as approved by voters, Gen. Elec. (Nov. 8, 2016) (Proposition 64 or the Act)).  The question we must answer is whether Proposition 64 invalidates cannabis-related convictions under Penal Code section 4573.6, which makes it a felony to possess a controlled substance in a state correctional facility.  Although Proposition 64 generally legalizes adult possession of cannabis, it contains several exceptions.  One such exception provides that the Act does not amend or affect “[l]aws pertaining to smoking or ingesting cannabis or cannabis products on the grounds of, or within, any facility or institution under the jurisdiction of the Department of Corrections and Rehabilitation . . . .” (Health & Saf. Code, § 11362.45, subd. (d).)  The Attorney General contends this exception applies to violations of Penal Code section 4573.6, meaning that possession of cannabis in a correctional facility remains a felony. Defendants disagree, arguing that because the exception only refers to “[l]aws pertaining to smoking or ingesting cannabis,” it does not apply to laws that merely criminalize possession of cannabis.

Ultimately, we find the Attorney General’s proposed reading of Health and Safety Code section 11362.45, subdivision (d) to be more persuasive. As discussed below, the phrase “[l]aws pertaining to smoking or ingesting cannabis” (ibid.) is broad enough to encompass statutes that criminalize possession. Moreover, there is no law that makes it a crime to smoke, ingest or use cannabis (or any other form of drug) in prison. Instead, the Legislature has taken a “ ‘ “prophylactic” ’ ” approach to the problem of drug use in prison by criminalizing only the possession of such drugs. (People v. Low (2010) 49 Cal.4th 372, 388.) Thus, under defendants’ interpretation, section 11362.45, subdivision (d)’s carve-out provision would fail to preserve any preexisting law regulating cannabis in prisons from being “amend[ed], repeal[ed], affect[ed], restrict[ed], or preempt[ed]” (§ 11362.45), and would instead render the possession and use of up to 28.5 grams of cannabis in prison entirely lawful.  It seems unlikely that was the voters’ intent.  Stated differently, it seems implausible that the voters would understand the requirement that Proposition 64 does not “amend, repeal, affect, restrict, or preempt” any “[l]aws pertaining to smoking or ingesting cannabis” (§ 11362.45, subd. (d)) to convey that, as of the date of the initiative’s enactment, possessing and using up to 28.5 grams of cannabis would now essentially be decriminalized in prisons.  In our view, the more reasonable interpretation of section 11362.45, subdivision (d) is that the statute is intended “to maintain the status quo with respect to the legal status of cannabis in prison.” (People v. Perry (2019) 32 Cal.App.5th 885, 893.)  Thus, possession of cannabis in prison remains a violation of Penal Code section 4573.6.

Noting a dozen states that may be voting on marijuana and other drug reforms in 2020

Kyle Jaeger at Marijuana Moment has this helpful article about developing drug reform ballot initiatives under the headline "These States Could Have Marijuana And Psychedelics Legalization On The Ballot In 2022."  I recommend the full piece, and here are the highlights (with links from the original):

Marijuana reform has advanced in numerous state legislatures in the first half of 2021, with lawmakers enacting four new legalization laws so far this year. Now, activists in roughly a dozen states are moving to put cannabis legalization proposals directly before voters in 2022.

Across the country, advocates are in the early stages of drafting proposals, collecting signatures and engaging in public outreach to build support for medical and recreational cannabis legalization measures that they hope to see voted on next year. In at least one state, activists are working to qualify a measure to legalize psychedelic mushrooms for next November’s ballot. And in others, lawmakers may take it upon themselves to put cannabis referendums up for the general election without the need for citizen petitions....

Here’s a breakdown of where cannabis legalization and other drug policy reforms could be decided by voters in 2022, as well as a look at a handful of local efforts to enact marijuana policy changes via municipal ballot initiatives this year.

Arkansas

Arkansas activists are collecting signatures to place adult-use marijuana legalization on the state’s 2022 ballot....

California

California psychedelics activists recently filed a petition for the 2022 ballot to make the state the first in the nation to legalize psilocybin mushrooms for any use....

Idaho

Advocates in Idaho are working to advance separate measures to legalize possession of recreational marijuana and to create a system of legal medical cannabis sales....

Maryland

Maryland’s House speaker recently pledged that lawmakers will pass legislation to put the question of marijuana legalization before voters as a referendum on the 2022 ballot....

Mississippi

No initiatives have been filed for the 2022 ballot so far, but advocates say it’s possible a campaign could launch if the legislature fails to enact medical cannabis legalization during a special session this year or ends up passing a bill that has less robust patient protections than they want....

Missouri

A group of Missouri marijuana activists recently a number of separate initiatives to put marijuana reform on the state’s 2022 ballot, a move that comes as other advocacy groups are preparing separate efforts to collect signatures for cannabis ballot petitions of their own....

Nebraska

Nebraska marijuana activists are gearing up for a “mass scale” campaign to put medical cannabis legalization on the state’s 2022 ballot after the legislature failed to pass a bill to enact the reform this session....

North Dakota

After a House-passed bill to legalize marijuana in North Dakota was rejected by the Senate in March, some senators hatched a plan to advance the issue by referring it to voters on the 2022 ballot....

Ohio

Ohio marijuana activists recently unveiled a new plan to legalize cannabis in the state via the ballot as lawmakers pursue separate reform legislation....

Oklahoma

Oklahoma advocates are pushing two separate initiatives to legalize marijuana for adult use and overhaul the state’s existing medical cannabis program....

South Dakota

South Dakota activists recently filed four separate legalization measures with the state Legislative Research Council — the first step toward putting the issue before voters next year if the state Supreme Court upholds a lower court ruling that overturned the legal cannabis measure that voters approved last November....

Wyoming

Activists are seeking to put separate measures to legalize medical cannabis and decriminalize adult-use marijuana before voters next year — and the secretary of state’s office recently approved the latest version of their proposed ballot language, freeing up advocates to gather a requisite 100 signatures per initiative in order to proceed to the next step.

"How Many States Have Legalized Adult Recreational Cannabis?"

The title of this post is the title of this effective new piece by Julie Werner-Simon at Cannabis Business Times.  The subheadline highlights one theme of the piece: "The answer depends on how we define 'legalized'."  Here are excerpts:

There is one cannabis question that is regularly searched across a variety of Internet platforms: How many states have legalized adult recreational use of cannabis as of today?  As a cannabis law professor and a legal analyst for emerging cannabis businesses, I often am asked that very question.  My response is always the same, no matter the date or the year: “It depends on how legalization is defined.”

State-based cannabis legalization can happen in two ways.  One way is evidenced by those states which permit voters to place topics on the ballot for a vote.  The other way is through the legislature, when a state’s assembly writes and passes legalization legislation which is ultimately signed off by that state’s chief executive.

When defined like that, Connecticut became the 19th U.S. state to legalize adult recreational use when, on June 22, 2021, Connecticut governor Ned Lamont signed into law a bill passed by the Connecticut legislature....

But these numbers will fall like dominos and change with those passed this year each reverting back one number depending on what happens in the highest court of South Dakota.  That state was one of five that had cannabis initiatives on the ballot in the November 2020 election (the others were Arizona, Mississippi, Montana, and New Jersey).

Every cannabis ballot measure in those states prevailed with gusto.  Voters overwhelmingly supported legalizing adult recreational usage in Arizona, New Jersey, and Montana; medical cannabis usage in Mississippi; and both medical and adult recreational use in South Dakota.  But, once the voters made their wishes known, in two of the states, South Dakota and Mississippi, there was a backlash by government officials and the courts.

Some of South Dakota’s elected representatives (including that state’s governor) started a campaign to undermine the will of the voters and invalidate both the medical and adult recreational initiatives passed by a significant majority of South Dakota’s voters.  The same thing played out in Mississippi where government officials challenged, in court, the enactment and enforcement of that state’s voters’ legalization plans....

On February 8, 2021, a South Dakota state court judge ruled against the voters and invalidated South Dakota voters’ passage of an adult recreational cannabis ballot initiative.  Recreational legalization proponents appealed the decision to the South Dakota Supreme Court.  The highest state court in South Dakota heard oral arguments (for and against) on April 28, 2021.  The parties’ presentations and the justices’ commentary did not give a clear indication of what the high court decision will be. As of publication time, it is not clear how the South Dakota justices will decide.

So, how many states have legalized adult-use cannabis?...  Under the definition of legalization in this article, since South Dakota’s adult recreational program is on appeal but voters in South Dakota approved the initiative, it is more than appropriate that South Dakota remains (precariously) on our voters-have-legalized-adult-rec list.

The “how many states have legalized adult recreational use” question will be decided by the five justices who comprise the South Dakota Supreme Court.  It is expected to happen soon as their summer break ends with the beginning of the South Dakota Supreme Court’s September term.  If that court tosses the recreational use legalization measure, and South Dakota comes off the adult recreational legalization list, Connecticut will no longer be the 19th adult-use state, it will become the 18th. New Mexico then would follow suit and revert to number 17, Virginia to number 16, and New York to number 15.

Notable and dynamic marijuana legalization efforts in bellwether (or deep red) Ohio

Perhaps because I live and work in Ohio, I still tend to consider the state a national bellwether politically.  But, in recent elections (due in part to gerrymandering as well as to other factors), the state has been quite red politically with  GOP candidates winning the vast majority of statewide and local elections.  Whether now considered a bellwether or a deep red state, recent developments on the marijuana reform front strike me as quite interesting and worth watching in the months ahead.  Here are the basics from two great Marijuana Moment articles:

From July 15, "Ohio Lawmakers To File First-Of-Its-Kind Marijuana Legalization Bill As Activists Pursue Local Reforms":

Ohio lawmakers are preparing to file a bill to legalize and regulate marijuana in the state. This would mark the first time such a proposal to allow recreational cannabis commerce has been introduced in the legislature. Rep. Casey Weinstein (D) is sponsoring the legislation alongside Rep. Terrence Upchurch (D). While the text of the measure has not yet been released, the lawmakers circulated a co-sponsorship memo to colleagues on Thursday to shore up support for the effort in advance of its formal introduction....

The bill would legalize possession of up to five ounces of cannabis for adults 21 and older and allow them to cultivate up to 12 plants for personal use. It will also include provisions to expunge prior convictions for possession and cultivation activities that are being made legal under the measure.

A 10 percent excise tax would be imposed on marijuana sales, with revenue first going toward the cost of implementation and then being divided among municipalities with at least one cannabis shop (15 percent), counties with at least one shop (15 percent), K-12 education (35 percent) and infrastructure (35 percent).

From July 27, "Ohio Marijuana Activists Launch Ballot Campaign To Push Lawmakers To Enact Legalization":

Ohio marijuana activists have a new plan to legalize cannabis in the state as lawmakers pursue separate reform legislation.  Voters rejected a 2015 legalization initiative, and advocates suspended a campaign to place another measure on the 2020 ballot due to the coronavirus pandemic.  But on Tuesday, the Coalition to Regulate Marijuana Like Alcohol (CTRMLA) launched a new effort to implore legislators to enact the policy change.

The group submitted the requisite 1,000 signatures to the Ohio attorney general’s office on Tuesday.  Officials now have 10 days to review the summary and text to ensure that it is “fair and truthful” and approve it for circulation. Several existing medical cannabis businesses are backing the measure....

Unlike past efforts, the new measure is a statutory, rather that a constitutional, proposal.  If supporters collect 132,887 valid signatures from registered voters, the legislature will then have four months to adopt the measure, reject it or adopt and amended version.  If lawmakers do not pass the proposal, organizers will then need to collect an additional 132,887 signatures to place the measure before voters on the ballot in 2022.

The start of an statutory initiative campaign, which gives the Ohio General Assembly a chance to act on proposed reforms before the proposal goes directly to the voters, strikes me as especially shrewd and interesting.  This approach will likely keep the issue in the news in ways that ought to be helpful to reform proponents (e.g., they can discuss tax revenues and the need for Ohio to keep up with its reform neighbors); and this approach may require many state legislators to have to express a position on reform in a run-up to an off-year election in which a topic like marijuana reform could help turn out some extra voters.  Interesting times.

What do Connecticut, South Dakota and Virginia all have in common today?

Since you are reading this blog, you probably know that the answer to the question in the title of this post has to do with marijuana law. policy and reform.  Specifically, this new article from The Hill, headlined "Activists see momentum as three new states legalize marijuana," explains:

New laws legalizing marijuana for recreational or medical use take effect in three states on Thursday, significantly expanding the number of Americans who will have access to consumable cannabis products. The new laws may give new momentum to the push to legalize marijuana across the country as supporters begin circulating new ballot petitions and legislators drop their historical reluctance to marijuana reform.

Residents in Virginia and Connecticut will be allowed to legally possess and use marijuana for recreational purposes after lawmakers in those states approved new measures earlier this year. In South Dakota, a voter-passed ballot measure legalizing medical marijuana takes effect.

The newly effective laws bring the number of states where recreational marijuana is legal to 18. Sixteen other states allow marijuana use for medical purposes, but not for recreational purposes....

Regulators in both Virginia and Connecticut still have work to do before legal retail sales of marijuana products begin. Lawmakers in Virginia plan to debate the outlines of the retail market when they return to session in Virginia, including provisions that would promote minority ownership of marijuana-related businesses. Gov. Ralph Northam (D) has said he plans to name the first executive and the first board members of the newly created Virginia Cannabis Control Authority in the coming days. Legal sales are likely to begin by 2024, said Karen O’Keefe, director of state policies at the Marijuana Policy Project.

In Connecticut, the first retail dispensaries are expected to open in 2022. Until then, sales remain illegal, though possession of anything under 1.5 ounces in public — or 5 ounces in a protected container — is now legal. Connecticut residents must wait another year before they are legally allowed to grow their own marijuana. Residents will be limited to six plants, including three that are mature and three that are immature.

South Dakota voters approved ballot initiatives to legalize both medical and recreational marijuana, but only the medical regime will take effect Thursday after a state judge struck down the recreational measure on constitutional grounds. Residents of South Dakota will only be able to possess marijuana if they have a valid registration card. State regulators have until Nov. 18 to start issuing those cards. State-licensed dispensaries are expected to open by next year....

Supporters of legal marijuana say they now intend to turn their focus to the two remaining New England states where recreational pot is not yet legal, New Hampshire and Rhode Island. The Rhode Island legislature, controlled by Democrats, has made moves toward a recreational regime, while the New Hampshire legislature, run by Republicans, has been more reluctant. Backers are also eyeing North Carolina, where a state Senate committee voted for the first time to advance a measure legalizing medical marijuana.

In Florida, supporters were blocked from circulating petitions to qualify a measure for the 2022 ballot after the state Supreme Court ruled the ballot language was misleading, though those supporters are likely to try again. Ballot measures are in various stages of circulating petitions for marijuana legalization measures in Arkansas, Idaho, Mississippi, Missouri, Nebraska and North Dakota.

“I would not be surprised that by the end of 2022 we could be seeing half of the states in the country having adopted cannabis for full use,” Hawkins told The Hill.

But opponents of legal marijuana expansion say supporters are reaching the limit of states where they can make progress, either through the ballot initiative process or through the legislature. Legal marijuana bills died this year in states like Delaware and Maryland, in spite of large Democratic majorities that run both legislatures. “I think the marijuana industry is running out of states to pass legalization in,” said Kevin Sabet, author of "Smokescreen: What the Marijuana Industry Doesn’t Want You to Know" and head of Smart Approaches to Marijuana, a group that opposes legalization. “The easy wins for the pot industry are beginning to dry up.”

Connecticut on verge of becoming 18th state to fully legalize marijuana (and fifth state in 2021)

As reported in this local article, headlined "A bill legalizing marijuana cleared the Connecticut House of Representatives on Wednesday; the measure could receive final approval in the Senate on Thursday," it looks like the Nutmeg State is now getting very close to legalizing marijuana fully for adult use.  Here are the basics:

Following more than seven hours of debate, the Connecticut House of Representatives avoided a threatened gubernatorial veto and approved a revised bill that would legalize marijuana in the state.

The measure cleared the House by a largely party-line vote of 76 to 62. Twelve Democrats joined all but one Republican -- Rep. Rick Hayes of Putnam -- in voting no. The bill could come up for a final vote in the Senate as soon as Thursday.

“Connecticut’s time has finally come,” declared Rep. Steven Stafstrom, a Democrat from Bridgeport, who helped shepherd the bill through the House. “We take the next step as this chamber in recognizing the war on drugs has failed us and the criminalization of cannabis was the wrong course of action for our state and for our nation.”

Rep. Juan Candelaria, a New Haven Democrat who has been advocating for the legalization of cannabis for years, said the bill has one of the nation’s strongest social equity provisions. “We’re able to repair the wrongs of the past and ensure that these communities who have been disproportionately impacted are made whole,’' Candelaria said.

The sweeping, 300-page bill, which would legalize cannabis for adults 21 and older, contains a number of provisions, from setting limits on THC content to funding programs to address addiction and mental health. But for many lawmakers, the most vexing part of the legislation is the equity section, which is designed to provide those hurt by the criminalization of cannabis would have an expedited opportunity to enter the potentially lucrative market.

Paul Mounds, Gov. Ned Lamont’s chief of staff, said an earlier version of the bill did “not meet the goals laid out during negotiations when it comes to equity and ensuring the wrongs of the past are righted.”

At a briefing before the debate began, House Speaker Matt Ritter said most members of the Democratic caucus are comfortable removing the language Lamont finds objectionable. After all, he said, it was not part of the original bill that lawmakers crafted in coordination with Lamont’s office.

The bill’s equity provision was a key sticking point, but it wasn’t the only issue some lawmakers found objectionable. Republicans expressed opposition to the very notion of a legal marijuana market, saying it would lead to a rise in crime, a spike in addiction and a host of other societal ills. Rep. Tom O’Dea, R-New Canaan, said his criticism of the measure is based on science. He cited a study by U.S. Department of Health and Human Services that found marijuana use among 12- to 17-year-olds rose in states that legalized cannabis. “Youth use will increase,’' he said.

Rep. Holly Cheeseman, R-East Lyme, noted that much of the marijuana debate focused on equity and the marijuana marketplace. “I know there are good people in this chamber,’' she said. “I know this is motivated by wanting to right the wrongs of the past ... please, this is not the way.”...

Not all of the opponents were Republicans. Rep. Jonathan Steinberg, a moderate Democrat from Westport, said he has long struggled with marijuana legalization. “This is a tough vote,’' Steinberg said. “Frankly no state to date has done well in their first pass in introducing marijuana. ... I’m still uncomfortable. I fully expect we will be back next year and the year after that making needed changes to ensure safety and reliability and equity.” Steinberg introduced and later pulled an amendment that would have barred “home grown” cannabis in Connecticut. He ultimately voted yes on the bill....

Debate over the question of social equity unfolded over the past few days, creating chaos at the Capitol and at one point, throwing the fate of legalization into question. The earlier version of the bill backed by Lamont contained a geographic definition of equity, giving preference to people from cities that have borne the brunt of the war on drugs. But late Tuesday, right before the Senate was scheduled to vote on the bill, the equity provision was changed to include people with prior marijuana convictions.

At a press conference Wednesday, Jason Rojas, the House majority leader who helped craft the legislation, said it makes sense to him that people who have been hurt by the criminalization of cannabis are among those who are first in line for a license. “I think it’s appropriate to consider someone’s criminal history in terms of defining an equity applicant,” Rojas said. Ritter, however, echoed some of Lamont’s concerns. “Do I think that you should get a leg up because you got pinched [for] marijuana at 19 at Wesleyan? No, I don’t,” he told reporters before the House session began.

The marijuana legalization effort has stalled for at least five years at the Capitol. But this year, it appeared to have fresh momentum and Lamont’s strong support. Despite that, the bill only came up for debate in the Senate for the first time last week. The Senate approved the bill but because time ran out before the House could vote, the legislature convened in a special session this week to take up the bill.

Another notable accounting of marijuana tax revenues

In this prior post, I flagged of this recent report and accounting from folks at the Marijuana Policy Project titled "Marijuana Tax Revenue in States that Regulate Marijuana for Adult Use."  While that report focused on cumulative tax revenue in various states, this recent MJBiz Daily article, headlined "Marijuana legalization efforts get boost from billions in MJ tax dollars," drills into some more tax specifics while also discussing the MPP report.  I recommend the piece in full, and here are excerpts:

Adult-use marijuana programs are generating billions of dollars in tax revenues for state governments each year – bolstering the economic and equity case for legalization in other markets across the country as well as at the federal level. The economic argument might particularly resonate among reluctant Republican lawmakers on Capitol Hill, experts say....

MPP’s tax revenue report comes as the organization is involved in adult-use legalization advocacy efforts in Connecticut, Delaware and Rhode Island – and in the wake of successful recreational marijuana legalization across the country in the past few months from New York to New Mexico.  Maryland is on MPP’s radar for next year ... as are potentially several other states....

Social equity and racial justice issues have become critical pieces in adult-use legalization negotiations, and tax revenues are important because they help fund those programs.  In New York, state tax revenues will be directed toward community reinvestment grants (40%), public schools (20%) and drug-treatment and public-health programs (40%).

Other states also are using portions of the tax revenues for such areas as childcare services (California), conservation (Montana), environment (California), law enforcement (Oregon and Maine), mental-health services (Illinois), public transportation (Michigan) and reentry programs for those imprisoned with drug convictions (Alaska)....

The report doesn’t detail the hundreds of thousands of dollars of revenue generated for cities and towns from local cannabis taxes or the various economic development impacts such as job creation.  But other studies have.  The newly published MJBizFactbook, for example, estimates that the total U.S. economic impact from marijuana sales in 2021 is expected to reach $92 billion – up more than 30% from last year – and upwards of $160 billion in 2025.

"Achieving Social Equity in the Cannabis Industry"

The title of this post is the title of this new paper recently posted to SSRN and authored by Samuel DeWitt, a student at The Ohio State University Moritz College of Law.  (This paper is yet another in the on-going series of student papers supported by the Drug Enforcement and Policy Center.)   Here is this latest paper's abstract:  

As legal cannabis begins to infiltrate most American states and public support grows for federal legalization, the national discussion has shifted from if cannabis should be legalized to how it should be legalized.  A significant part of this debate has centered around the need to use cannabis legalization to address the lasting harm done to communities of color through federal prohibition.  A fair and just framework for the legal cannabis industry cannot be achieved without sufficient efforts to foster social equity within the industry and to right the wrongs done by decades of prohibition.  While most states with legal cannabis have recognized this issue and have taken some steps to address it, state action as a whole has been mostly ineffective and does not adequately reflect the scale of the problem.  This paper argues that broad federal action is needed to achieve true social equity in the cannabis industry, action that goes beyond recognizing the problems and works to change the stigma surrounding drug use and its historical relation to communities of color.

Array of marijuana reforms move forward in array of states

When I started this blog nearly eight years ago, it was often pretty big (and blogworthy) news whenever any single state would move forward with any kind of marijuana reform in the usual legislative process.  Back then, adult-use reform by traditional legislation was almost unthinkable and only a few state legislatures had enacted modest medical programs via standard legislation (as opposed to a ballot initiative).  But fast forward less than a decade, and here is a round-up of news accounts of notable legislative developments in just the first week of June 2021:

"Connecticut state Senate approves recreational marijuana bill in a 19-17 vote. House expected to take up bill before adjournment."

"Legalizing marijuana in Delaware: State lawmakers take another shot"

"Louisiana lawmakers pass bill to decriminalize marijuana"

"Mississippi Senate weighs in on medical cannabis legalization"

"Nevada Governor Signs Bill Legalizing Marijuana Consumption Lounges"

"N.C. bill to legalize medical marijuana picking up support"

"Medical marijuana law changes get through Pennsylvania House"

Of course, all this mid-year action comes on the heels of already historic legislative developments in the first part of 2021 with four states (New Mexico, New Jersey, New York and Virginia) legalizing adult-use of marijuana and one deep south state (Alabama) legalizing medical marijuana through the traditional legislative process.  

"Marijuana Tax Revenue in States that Regulate Marijuana for Adult Use"

The title of this post is the title of this notable new report and accounting from folks at the Marijuana Policy Project.  Here is how it gets started (with my highlight):

Legalizing marijuana 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.  As of May 2021, states reported a combined total of $7.9 billion in tax revenue from legal, adult-use marijuana 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.

Eighteen states have enacted laws legalizing, taxing, and regulating cannabis for adults 21 and older.  Eight of the laws passed in 2020 or 2021, and in seven of those states, licensing and tax collections have not yet begun.  This document reviews each state’s adult-use cannabis tax structure, population, and revenue from legalization.  It does 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 corporate taxes paid to the federal government.

The report provides a helpful overview of all the basic tax structures in place for adult-use marijuana as of May 2021, as well as reports on total collections in these states to date. Notably, while Colorado is often thought about as the first legalization state and California is rightly seen as the biggest legalization state, this report details that Washington is as of now the richest state in tax revenues with over $2.5 billion collected.  (But California's tax revenue in 2020 was nearly twice that of Washington's according to this report, so by 2022 we should expect the Golden State to have collected the most tax gold from adult-use marijuana legalization.)

"Five Decades of Marijuana Decriminalization"

The title of the title for this great new resource page from the the Drug Enforcement and Policy Center (which I help direct).  The page provides data and discussion concerning decades of state and local marijuana decriminalization experiences.  The subtitle of the page highlights a key theme of this new resource page: "Exploring the limited and disparate impact of fragmented reforms."  I highly recommend folks check out all the data and original visuals on this page.  Here is some of the page's introductory text:

The topic of drug decriminalization has gained considerable attention in the United States after Oregon voted in November 2020 to decriminalize all drugs in that state.  While we consider the possible impacts of broader drug decriminalization efforts, it is useful to look back at the five decades of marijuana decriminalization for lessons on effects and implementation.

In 1972, the US National Commission on Marihuana and Drug Abuse, known as the Shafer Commission, issued a report advocating a “social control policy seeking to discourage marihuana use” but asserting that criminal law was “too harsh a tool to apply to personal possession even in efforts to discourage use.”  In 1973, Oregon became the first state to implement the recommendations of the Shafer Commission by decriminalizing marijuana statewide. Ten states followed suit in the next five years: Alaska, California, Colorado, Maine and Ohio in 1975; Minnesota in 1976; Mississippi, New York and North Carolina in 1977; and Nebraska in 1978. In 1977, President Jimmy Carter even urged Congress to consider marijuana decriminalization.  The decriminalization movement stalled throughout the 80’s and 90’s with President Reagan’s focus on the war on drugs, but the 2000’s brought a sustained attention to the issue with a wave of decriminalization efforts, medical-use and adult-use cannabis legalizations across 35 states, and a rapidly changing public opinion....

By our count, at the end of 2010, roughly only one-third of Americans lived in a jurisdiction with full or partial decriminalization laws.  By April 2021, over 75% of people in the United States lived in a jurisdiction that has passed some form of decriminalization or legalization....

These numbers can mask the fact that not all decriminalization initiatives are created equal and that some forms of decriminalization do not ensure significant reduction in criminal justice encounters for marijuana users.  Despite the growth in the number of states that have fully legalized cannabis for all forms of adult use (17 states, the District of Colombia and three U.S. territories), residents of 14 states (29% of the U.S. population) continue to be barred from using cannabis lawfully even for medical purposes and many others are subjected to a patchwork of decriminalization statutes, which can differ from a city to city if full decriminalization is not adopted on statewide basis.

"Nowhere to Now, Where? Reconciling Public Cannabis Use in a Public Health Legal Framework"

The title of this post is the title of this notable new paper authored by Daniel Orenstein now available via SSRN. Here is its abstract:

States continue to legalize recreational cannabis, but most have heavily restricted where consumption of newly licit cannabis is permitted.  Every legalizing state has thus far prohibited open, outdoor public use, either limiting lawful use to private property or allowing a small number of licensed indoor venues for consumption outside of public view, an approach borrowed from alcohol control.  In contrast, some non-U.S. jurisdictions have adopted a tobacco control approach, allowing limited outdoor public use while prohibiting indoor public use.  Each approach presents individual and population health risks that reflect the complex intersection of health, social inequities, and community norms.

Cannabis consumers face uncertain but potentially significant health risks from use, and the relative availability of use locations also implicates existing inequities in policing practices and housing.  Those who do not use cannabis but are exposed to others’ use face possible harms from secondhand smoke and from intoxicated behavior, with such risks likely to be inequitably distributed due to existing employment and housing patterns.  Communities as a whole also face risks, including that changing cannabis norms may increase use prevalence or intensity and that concentration of cannabis outlets in under-resourced communities may prove as detrimental as the concentration of other disfavored businesses has been.

Each public use approach carries attendant risks, but a regulatory framework based on the tobacco control model best balances the protection of public health and the promotion of equity and social justice.  This model recognizes the parallels between cannabis and tobacco (in addition to those between cannabis and alcohol).  This approach also provides a pathway to mitigating the public health risks of cannabis legalization by leveraging an approach that has proven effective at reducing secondhand exposures and denormalizing smoking behavior in the tobacco context.