Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Monday, November 29, 2021

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

Safe_imageVia 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.

November 29, 2021 in History of Marijuana Laws in the United States, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Sunday, November 21, 2021

"New GOP weed approach: Feds must ‘get out of the way’" ... which is an important historic drug policy theme

9780197582183The first part of the title of this post is the headline of this notable new Politico piece, and the second part draws on this recent short book review that I recently authored for The Federalist Society blog.  I was reviewing Judge Jeffrey Sutton’s majestic Who Decides, in which the judge richly develops and documents why “some matters should not be nationalized” while urging a “renewed appreciation for the virtues of localism.”  In my (too brief) review, I stressed the importance of these localism themes for drug policy throughout US history, and I highlighted this fascinating 1921 Atlantic piece by journalist Louis Graves discussing how alcohol prohibition most effectively gained adherents from a “gradual building up of dry sentiment" at the local level until “Federal interference ... dealt a blow to the cause of real prohibition.”

With Judge Sutton's book and my own affinity for ever-evolving political realities, the long Politico piece by Natalie Fertig and Mona Zhang provides an effective accounting of some structural issues in play in the modern marijuana reform discourse.  I recommend the article in full, and here are excerpts:

Republicans are warming to weed. Nearly half of Republican voters support federally decriminalizing cannabis, and GOP lawmakers are now beginning to reflect their constituents’ view by increasingly supporting broad legalization at the state and federal level.

“We need the federal government just to get out of the way,” said Rep. Nancy Mace (R-S.C.), who introduced the first Republican bill in Congress to decriminalize marijuana this past week and pointed to more than 70 percent of Americans supporting the idea.

Stronger Republican involvement could hasten a snowball effect on Capitol Hill, where Democrats lead the charge on decriminalization but lack results. It could also chip away at Democrats’ ability to use cannabis legalization to excite progressives and younger voters as the midterms approach.

“When the culture becomes more accepting of something, even the most resistant groups get tugged along,” said Dan Judy, vice president of North Star Opinion Research, which focuses on Republican politics. “I don't want to directly conflate marijuana legalization with something like gay marriage, but I think there's a similar dynamic at play.”

Earlier this year, North Dakota’s GOP-dominated House passed a marijuana legalization bill introduced by two Republican lawmakers — the first adult-use legalization bill to pass in a Republican-dominated chamber. And Mace's bill marks the first time a Republican has proposed federal legislation to decriminalize cannabis, expunge certain cannabis convictions and tax and regulate the industry.

As Republicans wade into the weed group chat, they are bringing their principles, constituents and special interest groups. When Mace introduced her bill on a freezing day on the House triangle, she was surrounded at the podium not by Drug Policy Alliance and the National Organization for the Reform of Marijuana Laws, but by veterans groups, medical marijuana parents, cannabis industry lobbyists and Koch-backed Americans For Prosperity.

Many GOP proposals include lower taxes and a less regulatory approach than Democratic-led bills, while often maintaining elements popular among most voters, like the expungement of nonviolent cannabis convictions. “I tried to be very thoughtful about what I put in the bill that would appeal to Democrats and Republicans,” Mace said in an interview on Monday. “Which is why criminal justice reform is part of it. It's why the excise tax is low.”

The motivations bringing Republicans to the table are also changing. Former Capitol Hill cannabis advocates like Sen. Cory Gardner (R-Colo.) and Rep. Dana Rohrabacher (R-Calif.) advocated primarily for their state legalization programs, but Mace comes from South Carolina — a state with no medical or recreational cannabis program. She joins other GOP lawmakers who are pushing for federal policy to move beyond their own states — they include Reps. Matt Gaetz and Brian Mast of Florida, where only medical marijuana is legal, and libertarian-leaning Sen. Rand Paul of Kentucky, which does not yet have a medical program....

Six in 10 younger GOP voters — what Pew described as the “Ambivalent Right” in a recent report — believe marijuana should be legal for medical and recreational use, but older, educated Republicans and Christian conservatives do not feel the same way....

Republicans who support legalization are viewing the issue through the prism of states' rights, personal freedom, job creation and tax revenue. Many libertarian-leaning Republicans are early supporters of cannabis policy reform, arguing that arresting people for using cannabis is a violation of personal liberties.

Some Republicans also cite the racial disparities in marijuana arrests as a reason to fix federal law — though Democrats focus more strongly on criminal justice reform on the whole. And, as is the case for Democrats, the shift is often generational: Texas Young Republicans announced they support marijuana decriminalization back in 2015.

The shift within the GOP at times is less about lawmakers’ own beliefs about marijuana and more about how much the public has shifted on the subject. Bill sponsors in North Dakota, for example, said they were personally opposed to marijuana, but introduced the bill anyways to head off the possibility of a ballot initiative that would legalize marijuana through the constitution — especially after South Dakota voters approved legalization in 2020.

November 21, 2021 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Monday, November 15, 2021

Some early coverage of big new federal GOP bill, the States Reform Act, to legalize marijuana

Congress-legalization-billsToday, Representative Nancy Mace (R-SC) unveiled a new GOP-led bill to legalize marijuana at the federal level.  The States Reform Act (available here), which runs 131 pages, is cosponsored by Representatives Tom McClintock (R-CA), Don Young (R-AK), Brian Mast (R-FL) and Peter Meijer (R-MI).

My initial sense is that this bill does not have a great chance of passage anytime soon, but it still ought to be considered a big moment in the broad modern story of marijuana reform.  And it is understandably getting a lot of press.  Here is a sample:

From the AP, "GOP Rep. Mace’s bill would federally decriminalize marijuana"

From Forbes, "Representative Nancy Mace Introduces Bill To End Federal Cannabis Prohibition"

From Insider, "Rep. Nancy Mace says her GOP-led cannabis legalization bill would be 'a real win-win' for bipartisan marijuana reform in the US"

From Marijuana Moment, "Republican Lawmakers File Bill To Tax And Regulate Marijuana As Alternative To Democratic Proposals"

From MJBizDaily, "South Carolina Republican reveals marijuana legalization bill she’ll introduce in Congress"

From Reason, "Frequently asked questions about the States Reform Act, a proposed marijuana bill"

November 15, 2021 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Friday, November 12, 2021

"Maximizing Social Equity as a Pillar of Public Administration: An Examination of Dispensary Licensing in Pennsylvania"

The title of this post is the title of this notable new preprint authored by Lee Hannah, Daniel Mallinson and Lauren Azevedo. (Note: This research received supported from the Drug Enforcement and Policy Center, which I help direct.)   Here is the paper's abstract:

Public administration upholds four key pillars for administrative practice: economy, efficiency, effectiveness, and social equity.  The question arises, however, how do administrators balance these often-competing priorities when implementing policy?  Can the values which contributed to administrative decisions be measured? 

This study leverages the expansion of medical cannabis programs in the states to interrogate these questions.  Focusing on the awarding of dispensary licenses in Pennsylvania affords the ability to determine the effect of social equity scoring on license award decision, relative to criteria that represent the other pillars of public administration.  The results show that safety and business acumen were the most important determining factors in the awarding of licenses, both effectiveness and efficiency concerns. Social equity does not emerge as a significant determinant.

November 12, 2021 in Business laws and regulatory issues, Medical Marijuana Data and Research, Race, Gender and Class Issues, Who decides | Permalink | Comments (0)

Thursday, November 11, 2021

Another Veterans Day with veterans still not getting support when it comes to medical marijuana access

Weed-canvasBecause the US Department of Veterans Affairs prohibits its doctors to recommend medical marijuana to patients, current federal law essentially puts veterans last, not first, when it comes to access to medical marijuana.  I have regularly blogged about a range of issues relating to veterans and their access to marijuana (many posts on this topic are linked below), and this week brings more discussion of these depressingly evergreen issues:

From Politico, "VA rejects cannabis research as veterans plead for medical pot."  An excerpt:

The recent withdrawal from Afghanistan has exacerbated the demand for more understanding of using cannabis for treatment. Calls to the Veterans Crisis Line, which is operated by the VA, increased by six percent in the weeks immediately following the U.S. withdrawal from Afghanistan, and veterans of America’s longest war use cannabis at the highest rates among veterans to self-medicate their ailments.

Advocates, Hill aides and former VA staff told POLITICO the VA defers on this issue to the Justice Department, which classifies cannabis as a Schedule I drug under the Controlled Substances Act. A Schedule I drug by definition has no medicinal value, which in turn prevents the VA from treating patients with cannabis.

For veterans receiving VA health care, cannabis still occupies a gray area.  Official guidance states that veterans can talk to their VA doctor about their cannabis use without repercussions, but many vets say they fear mentioning it because it is still federally illegal.  VA doctors, meanwhile, still cannot prescribe cannabis or issue medical marijuana cards in any of the 36 states that have legalized medical marijuana.  

An average of 18 veterans a day committed suicide in 2018, according to data from the VA....  According to the VA, a number of studies have indicated that both PTSD and battlefield trauma contribute to a higher rate of suicidal ideation — and exposure to suicide, such as a friend or family member, can in turn contribute to PTSD. Many veterans and their advocates point to anecdotal evidence that cannabis successfully reduces the effects of PTSD — as well as insomnia, which can worsen PTSD symptoms — but there is yet no clinical evidence.

From Marijuana Moment, "This Veterans Day, Think About Cannabis And Veterans Healthcare (Op-Ed)." An excerpt:

Medical cannabis use would likely be even more prevalent among veterans if not for the oppositional stance that the Department of Veterans Affairs (VA) has taken. According to national survey data compiled by the Iraq and Afghanistan Veterans of America, 75 percent of respondents “would be interested in using cannabis or cannabinoid products as a treatment option if it were available.” Further, many veterans feel that they have been deterred from seeking medical cannabis due to the VA’s policy of “clinical relevance to patient care,” but “providers are prohibited from completing forms or registering veterans for participation in state-approved [medical cannabis] program[s].”

For those veterans that do acknowledge using medical cannabis, they most often report using it to mitigate their post traumatic stress, anxiety and chronic pain. Some veterans also report using it as a substitute for alcohol or other illicit drugs. Many chronic pain patients who begin using medical cannabis greatly decrease or even eliminate their use of opioids and other prescription drugs.

I feel a genuine and deep debt to anyone and everyone who serves this nation through the armed forces, and I feel strongly that veterans should be able to have safe and legal access to any and every form of medicine that they and their doctors reasonably believe could help them with any ailments or conditions.  Even though there are many issues that divide this nation, I would hope we could all come together to support treating veterans at least as well as other Americans when it comes to access to the medicine of their choice.

Some of many prior related posts:

November 11, 2021 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Friday, November 5, 2021

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

156cdb0c-41e6-4e54-8007-d123898cef30The 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

November 5, 2021 in Campaigns, elections and public officials concerning reforms, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Wednesday, November 3, 2021

Notable new CRS report on ways a President could legalize or decriminalize marijuana at the federal level

I was intrigued to see this notable new five-page Congressional Research Service report titled "Does the President Have the Power to Legalize Marijuana?". Here is how it gets started:

The legal status of marijuana has been a topic of recurring interest in recent years, as states, federal legislators, and federal executive agencies consider how to regulate cannabis and its derivatives.  What role can the President play in determining the legal status of a controlled substance such as marijuana?  That question came to the forefront during the 2020 Democratic presidential primary, with multiple candidates supporting legalization of marijuana and several pledging to legalize the substance nationwide if elected, either indirectly through administrative proceedings or directly by executive order.  More recently, some commentators have called on President Biden to end criminal penalties for marijuana possession and use or grant clemency to federal marijuana offenders.  Although the President cannot directly remove marijuana from control under federal controlled substances law, he might order executive agencies to consider either altering the scheduling of marijuana or changing their enforcement approach.

This Sidebar outlines the laws that apply to controlled substances like marijuana, then analyzes several approaches a president might take to change controlled substances law as written or as enforced.  The Sidebar closes with a discussion of key considerations for Congress related to presidential power over controlled substances regulation.

November 3, 2021 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Sunday, October 17, 2021

Is marijuana legalization likely to be a staple of all major Democratic campaigns in 2022?

The question in the title of this post is prompted by this new Hill piece headlined "Crist says as Florida governor he would legalize marijuana, expunge criminal records."  Here are excerpts:

Rep. Charlie Crist (D-Fla.) on Thursday said that he would expunge criminal records of those facing certain marijuana-related charges and legalize the drug if he is elected the governor of Florida.  “Let me be clear: If I’m elected governor, I will legalize marijuana in the Sunshine State,” Crist said in a video posted on his Twitter on Thursday. “This is the first part of the Crist contract with Florida.”

Crist, who is running for the Democratic nomination to take on Gov. Ron DeSantis (R) in 2022, discussed different elements of his gubernatorial platform focused on racial equity in the state, including expunging criminal records for those who have received marijuana-related charges, specifically third-degree felonies and misdemeanors, the Tampa Bay Times reported.

The former Florida governor and Senate hopeful also said that he was in favor of decentralizing the marijuana industry, allowing people to personally grow marijuana plants.  He noted that money made through marijuana sales would fund things such as drug treatment programs and police agencies, according to the news outlet.

Crist, who was a Republican while he was in the governor's mansion from 2007 to 2011, acknowledged that his stance, among others, had changed on marijuana use.  As governor, he had signed harsh anti-marijuana legislation, which included targeting growing the plant.

His comments were criticized over Twitter by Democratic opponent Nikki Fried, who is also running to take on DeSantis. The state Agriculture commissioner, who has been previously supportive of legalizing marijuana and was a former marijuana lobbyist, according to Tallahassee Reports, accused him of imitating her political stance.

“Imitation is flattery, but records are records. People went to jail because Republicans like @CharlieCrist supported and enforced racist marijuana crime bills. Glad he's changed his mind, but none of those people get those years back. Legalize marijuana. #SomethingNew,” Fried tweeted.

Crist last year voted to end marijuana from being prohibited and criminalized federally. “We know that people across racial and income levels use marijuana at the same rate.  And yet, for decades, it's been poor, Black, and/or Hispanic folks targeted for prison on marijuana charges,” Crist said in a statement in December.  “That tells me that marijuana has been legal now for a while if you had the right skin tone or the right paycheck.”

I surmise that all major Democratic candidates have finally figured out that marijuana reform is a popular position. It will be interesting to watch if this issue could become significant debate topic is red-leaning swing states like Florida and Ohio that have big 2022 elections. I am inclined to believe this topic still is more fringe than fundamental in broader political discourse, but even topics that only move the electorate a little bit could prove consequential sometimes.

October 17, 2021 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Friday, October 8, 2021

Senators Booker and Warren call upon DOJ to "decriminalize cannabis using its existing authority"

As reported here, two notable US senators "are urging Attorney General Merrick Garland to decriminalize marijuana on his own" by "asking Garland and Department of Health and Human Services Secretary Xavier Becerra to use powers granted them under the Controlled Substances Act to deschedule — or decriminalize — marijuana at the federal level." The letter to this effect from the desk of Senator Elizabeth Warren and joined by Senator Cory Booker is available at this link, and it starts this way:

We write to urge the Department of Justice (DOJ) to decriminalize cannabis using its existing authority to remove the drug from the Federal controlled substances list. Under the Controlled Substances Act of 1970 (CSA), the Attorney General can remove a substance from the CSA’s list, in consultation with the Secretary of Health and Human Services (HHS).  Decriminalizing cannabis at the federal level via this descheduling process would allow states to regulate cannabis as they see fit, begin to remedy the harm caused by decades of racial disparities in enforcement of cannabis laws, and facilitate valuable medical research.  While Congress works to pass comprehensive cannabis reform, you can act now to decriminalize cannabis.

The letter goes on to explains the DOJ descheduling process this way:

The executive branch has the authority to initiate the process of cannabis descheduling.  The CSA empowers the Attorney General to initiate proceedings to reschedule or deschedule a drug, either individually or at the request of the HHS Secretary or another interested party.  The Attorney General then seeks a scientific and medical evaluation from the HHS Secretary, including the Secretary’s recommendations as to the appropriate scheduling for the drug or whether the drug should be descheduled.  If the Secretary recommends descheduling a drug, that recommendation is binding on the Attorney General.  However, if the Secretary recommends retaining a drug in the same schedule or moving it to a different schedule, that recommendation is not binding and the Attorney General may still choose to initiate a rulemaking procedure to deschedule or reschedule the drug.

October 8, 2021 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Monday, October 4, 2021

"The Blunt Reality of Cannabis Advertising: State-by-State Restrictions & the TCPA"

The title of this post is the title of this new paper recently posted to SSRN and authored by Elle Gerwig, a recent graduate of 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:  

In today’s world, individuals are surrounded by marketing and advertisements.  The alcohol and tobacco industries have long faced advertising restrictions, and now cannabis businesses are beginning to see similar restrictions.  Unlike other industries, cannabis is still illegal under federal law which creates confusing restrictions for companies who are located in states where medical or adult-use cannabis is legal.  This split in ideology between the federal and state governments, along with the confusing state regulations written more for policymakers than industry workers, has set a crash course for cannabis.  This paper will examine several marketing areas where the cannabis industry is currently facing strict regulations, such as billboards, social media, and text messaging, as well as the public policy aspects that have influenced the rules on cannabis advertisements.  The paper also focuses on the Telephone Consumer Protection Act (TCPA) and the current rise of class actions associated with text-message marketing in the cannabis industry.  The primary goal of this article is to discuss the current regulations for cannabis advertising and why these regulations are hurting the growing cannabis industry.

October 4, 2021 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Thursday, September 30, 2021

House Judiciary Committee, by vote of 26-15, approves MORE Act to deschedule marijuana and thereby end federal prohibition

After what reportedly was quite an intriguing discussion, this afternoon the House Judiciary Committee approved  the Marijuana Opportunity, Reinvestment, and Expungement (MORE) Act, H.R. 3617, with 26 votes in favor (24 Democrats, 2 Republicans) and 15 votes (all Republicans) against. The MORE Act, as noted in this post from DEC 2020, received a full favorable vote from the House. But at that time, everyone knew there would be no time and likely little interest in Senate action before the Congress term ended. Now there is ample time for the Senate to pass MORE or another like bill, though I think there is considerable uncertainty about there being enough votes for reform.

In case you forgot, in addition to removing marijuana from the prohibitions created by the Controlled Substances Act, the MORE Act would expunge non-violent federal marijuana convictions and support state efforts to do the same, while also providing provide resources and support for minority owned marijuana businesses and creating other reinvestment programs for communities that have been adversely impacted by marijuana prohibitions.  Here is a bit more from this Marijuana Moment piece:

Although most Republicans who spoke argued against the bill, Rep. Matt Gaetz (R-FL), who is a cosponsor of it, made the case for reform.

“I am a proud co-sponsor of the MORE Act because the federal government has screwed up marijuana policy in this country for a generation,” he said. “We lied to people about the effects of marijuana. And then we used marijuana as a cudgel to incarcerate just wide swaths of communities, and particularly in African-American communities.”

“We cannot honestly say that the war on drugs impacted suburban white communities in the same way it affected urban black communities. We can’t say that marijuana enforcement was happening the same way on the corner than it was happening in the fraternity house,” he said. “We have an opportunity to fix that problem. The war on drugs, much like many of our forever wars, has been a failure. If there’s been a war on drugs, drugs have won that war.”

However, he expressed certain concerns about provisions of the legislation such as the proposed federal excise tax on cannabis sales. While Gaetz also said that while he supports the MORE Act, he doesn’t feel it stands a chance in the Senate and recommended advancing more modest reform.

While the legislation has largely stayed intact compared to the prior version that passed the chamber last year in a historic vote, there were some modest revisions that were incorporated upon its reintroduction in May.

The panel on Thursday considered additional changes before moving the measure forward, although much of the time was spent debating unrelated issues such as COVID-19 vaccines, abortion policy and protests against police violence.

Rep. Thomas Massie (R-KY) sought to remove the bill’s tax provisions as well as grant funds it would create to help repair the harms of the war on drugs.

September 30, 2021 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (1)

Tuesday, September 14, 2021

"Cannabis, Consumers, and the Trademark Laundering Trap"

The title of this post is the title of this notable new paper now available via SSRN and authored by Viva Moffat, Sam Kamin and Timothy Maffett.  Here is its abstract:

At the moment, cannabis companies cannot get trademark protection for their marijuana and marijuana-related products because the “lawful use” doctrine limits federal trademark protection to goods lawfully sold in commerce.  Given that the drug remains illegal under federal law, this may not sound like much of a problem, but it has serious consequences for consumers of marijuana.  Without trademark rights, a cannabis company in one state can simply use the brand name of a prominent company in another state and consumers will assume that they are getting the products they have come to rely on, with potentially dangerous results.  As the cannabis industry has grown, this issue has only become more acute; the current approach of the United States Patent & Trademark Office (PTO) and the federal courts undermines trademark law’s consumer protection and fair competition goals.

Several years ago, we proposed a solution to the unavailability of trademark protection during federal prohibition, one we suggested would help cannabis companies and cannabis consumers bridge the gap from the current period of legal ambiguity through full marijuana legalization.   We coined the phrase “trademark laundering” to describe the practice of applying for federal trademark protection for a mark placed on legal products and then using that mark on both legal and illegal goods – on both t-shirts and marijuana, for example.  As we anticipated, the practice has indeed taken off, but it has been a success only on the surface.

This article examines how the PTO and the courts have mishandled marijuana marks and identifies how they have interpreted and deployed the lawful use doctrine in ways that undermine and conflict with trademark’s stated goals.  Given that the PTO is unlikely to abandon the lawful use doctrine any time soon, we propose changes to the way the PTO applies that doctrine in the trademark registration process, as well as changes to the courts’ consideration of trademark disputes involving cannabis companies.  These changes will ensure that both consumers and marijuana businesses are protected as the United States transitions from marijuana prohibition to a post-prohibition federal regulatory regime.

September 14, 2021 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Thursday, September 2, 2021

Rounding up some of the round-ups of the many comments submitted on early draft of federal Cannabis Administration and Opportunity Act

6a00d8341bfae553ef0223c85155dc200c-320wiAs detailed in this prior post, in mid July 2021, US Senate Majority Leader Chuck Schumer, along with Senators Ron Wyden and Cory Booker, unveil what was described as a "discussion draft" of a lengthy federal marijuana reform bill titled the Cannabis Administration and Opportunity Act (CAOA).  The full text of this CAOA "discussion draft" is available here, and  marijuana reform advocates (and opponents) unsurprisingly has a whole lot that they wanted to discuss about this discussion draft.  September 1 was the deadline for the submission of comments, and I received multiple emails from multiple groups promoting their comments.  Helpfully, I have seen a few press pieces that serve to round up some of the comments:

From Cannabis Wire, "As Comments Close on the Most Comprehensive Cannabis Reform Plan in Congress, Themes Emerge"

From Law360, "Pot Advocates Advise Careful Rollout Of Federal Legalization"

From Marijuana Moment, "Senators Flooded With Input On Federal Marijuana Legalization Bill"

From MJ Biz Daily, "Marijuana trade groups offer comments on Schumer’s federal legalization bill"

The Marijuana Moment piece provides a particularly fulsome review of (and helpful links to) lots of the submitted comments.  Here is how it sets up the review:

While legalization proponents have widely celebrated the introduction of the Cannabis Administration and Opportunity Act (CAOA), they have some suggestions for improvement — principally as it concerns issues of social equity, licensing, tax policy and interstate commerce.

Senate Majority Leader Chuck Schumer (D-NY), Senate Finance Committee Chairman Ron Wyden (D-OR) and Sen. Cory Booker (D-NJ) are the lead sponsors of the legislation, and after releasing a draft version of the measure in July, they opened a public comment to receive input on what will be a revised measure the senators plan to formally introduce.

Pro-reform organizations like NORML, Marijuana Policy Project (MPP), National Cannabis Industry Association (NCIA) and Hemp Roundtable made their voices heard — and while they generally applauded the senators’ work to end federal cannabis prohibition, they had some recommendations for revisions.  Prohibitionist groups also weighed in with thoughts about the proposal can be changed to better reflect their concerns with the overall policy of legalization.

A few prior related posts: 

September 2, 2021 in Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Monday, August 23, 2021

"Legalization Without Disruption: Why Congress Should Let States Restrict Interstate Commerce in Marijuana"

The title of this post is the title of this notable new paper now available on SSRN authored by Robert Mikos and Scott Bloomberg.  Here is its abstract:

Over the past twenty-five years, states have developed elaborate regulatory systems to govern lawful marijuana markets.  In designing these systems, states have assumed that the Dormant Commerce Clause (“DCC”) does not apply; Congress, after all, has banned all commerce in marijuana.  However, the states’ reprieve from the doctrine may soon come to an end.  Congress is on the verge of legalizing marijuana federally, and once it does, it will unleash the DCC, with dire consequences for the states and the markets they now regulate.

This Article serves as a wake-up call.  It provides the most extensive analysis to date of the disruptions the DCC could cause for lawmakers and the marijuana industry. Among other things, the doctrine could spawn a race to the bottom among states as they compete for a newly mobile marijuana industry, undermine state efforts to boost participation by minorities in the legal marijuana industry, and abruptly make obsolete investments firms have made in existing state-based marijuana markets.  But the Article also devises a novel solution to these problems.  Taking a page from federal statutes designed to preserve state control over other markets, it shows how Congress could pursue legalization without disruption.  Namely, Congress could suspend the DCC and thereby give state lawmakers and marijuana businesses time to prepare for the emergence of a national marijuana market.  The Article also shows how Congress could make the suspension temporary to allay any concerns over authorizing state protectionism in the marijuana market.

August 23, 2021 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Sunday, August 15, 2021

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

20200803-160721-ballot with pot leafKyle 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.

August 15, 2021 in History of Marijuana Laws in the United States, Initiative reforms in states, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (2)

Monday, August 9, 2021

"How Many States Have Legalized Adult Recreational Cannabis?"

Werner-simon-legalization-logo-map-with-newest-adult-rec-conn-july--2021-(1)-(002)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.

August 9, 2021 in Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Thursday, July 29, 2021

Lots of notable midsummer marijuana reform headlines

Poster (1)Decades ago before modern marijuana reforms became mainstream, the stories and headlines linked below might have seemed like a midsummer night's dream.  But now, reform stories are common every time of the year, and these midsummer stories are almost par for the course.  But they still caught my eye and seemed blog-worthy for various reasons:

From the AP, "High profile: Cannabis chemical delta-8 gains fans, scrutiny"

From Courthouse News Service, "You can smoke it but you can’t study it: Cannabis researchers get creative"

From Forbes, "Billionaire Charles Koch On Why Cannabis Should Be Legal"

From FoxNews, "Geraldo calls for legalizing marijuana 'in every corner of this country' to curb fentanyl overdoses"

From GQ, "How American Attitudes About Drugs Changed Overnight"

From High Times, "Study Finds Cannabis Use Not Related to Loss of Motivation"

From Marijuana Moment, "Senators Are Having Marijuana ‘Conversations’ With White House To Get Biden On Board With Legalization, Booker Says"

From Marijuana Moment, "House Approves Marijuana Banking, Employment And D.C. Sales Provisions In Large-Scale Spending Bill"

From MJBiz Daily, "Boom or bust? Marijuana execs see more sales gains as COVID-19 lockdowns ease"

From MJBix Daily, "Proposed tax rates in Schumer’s marijuana reform bill elicit ‘sticker shock’"

From the New York Post, "More than 3,500 marijuana-related warrants tossed by Brooklyn DA"

From the Washington Post, "Medical marijuana saved me and other veterans. Why does the military punish us for it?"

 

July 29, 2021 in History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Tuesday, July 20, 2021

Some federal reform headlines a week after introduction of the Cannabis Administration and Opportunity Act

My Google and Twitter feeds have not been buzzing about the release last week of the discussion draft of the Cannabis Administration and Opportunity Act, and that has lead me to think nobody is too excited about its particulars. That said, it is still an important bill-in-development, and I thought it worthwhile to round up some of the reactions and commentary I have seen in response:

From The American Prospect, "High Hurdles for Commonsense Cannabis Reform: The plan unveiled by the Senate majority leader is doomed to languish despite massive public support for legalization."

From Bloomberg, "U.S. Pot Legalization Bill Gets a Frosty Reception"

From Daily Breeze (editorial), "Latest federal marijuana bill a total dud"

From Fox Business, "Democrats' marijuana legalization bill leaves Canopy Growth CEO optimistic"

From Politico, "Amazon endorsed legal weed. Will it now fight to make it happen?"

July 20, 2021 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

"Cannabis as Treatment for Chronic Pelvic Pain in Women: An Opportunity for the Cannabis Wellness Industry"

The title of this post is the title of this new paper recently posted to SSRN and authored by Jamie Feyko, a rising 3L 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:  

In a healthcare landscape that routinely ignores women’s pain, many women turn to cannabis to manage their otherwise debilitating chronic pelvic pain caused by conditions such as endometriosis and polycystic ovary syndrome.  This paper explores how the Controlled Substances Act wrongly characterized cannabis as having “no medicinal value” and the effects this federal illegality still has on women seeking alternative pain management therapies for chronic pelvic pain.  Additionally, this paper explains why and how cannabis helps relieve such pain through discussing the effects of cannabinoids like THC and CBD on the body’s inflammatory response and the body’s endocannabinoid system.  Women, as the leading consumers in our society, have expressed a need and a desire for products that provide relief from chronic pelvic pain and increase sexual pleasure.  The 2018 Farm Bill opened the doors to CBD businesses looking to break into the women’s sexual and reproductive wellness market.  The market for women-centric CBD pain relief and sexual enjoyment is far from saturated, and this paper encourages those in the CBD industry (or those looking to enter the industry) to take note.

July 20, 2021 in Federal Marijuana Laws, Policies and Practices, Medical community perspectives, Medical Marijuana Commentary and Debate, Race, Gender and Class Issues, Who decides | Permalink | Comments (0)

Wednesday, July 14, 2021

Great early coverage of US Senate Leader Chuck Schumer's "discussion draft" of new Cannabis Administration and Opportunity Act

6a00d8341bfae553ef0223c85155dc200c-320wiSince nearly the start of this year, Senate Majority Leader Chuck Schumer, along with  Senators Ron Wyden and Cory Booker , has been talking up the introduction in the US Senate of a new comprehensive federal marijuana reform bill.   That talk has suggested that reform efforts from these Democratic Senators would be similar to, but still quite distinct from, the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, that has moved forward in the House of Representatives in recent years.

Today, in mid July 2021, these Senators have scheduled a press conference to unveil what is being described as a "discussion draft" of a lengthy federal bill titled the Cannabis Administration and Opportunity Act (CAOA).  The full text of this CAOA "discussion draft" is available here and it runs 163 pages(!).  In other words, CAOA give marijuana reform advocates (and opponents) a whole lot to discuss.  Helpfully, the cannabis press core is already doing great job covering the basic:

From Marijuana Moment, "Here Are The Full Details Of The New Federal Marijuana Legalization Bill From Chuck Schumer And Senate Colleagues."  Excerpt:

Perhaps the most immediately consequential provision would be a requirement that the attorney general to remove marijuana from the Controlled Substances Act within 60 days of the bill’s enactment.  But it’s important to keep in mind that this legislation—like other federal legalization bills moving through Congress—would not make it so marijuana is legal in every state. The proposal specifically preserves the right of states to maintain prohibition if they way. It stipulates, for example, that shipping marijuana into a state where the plant is prohibited would still be federally illegal.

However, the measure would make it clear that states can’t stop businesses from transporting cannabis products across their borders to other states where the plant is permitted.  FDA would be “recognized as the primary federal regulatory authority with respect to the manufacture and marketing of cannabis products, including requirements related to minimum national good manufacturing practice, product standards, registration and listing, and labeling information related to ingredients and directions for use,” according to the summary.

From Politico, "Schumer launches long-shot bid for legal weed." Excerpt:

The discussion draft of the Cannabis Administration and Opportunity Act includes provisions that cater to both “states rights” Republicans and progressive Democrats. While the proposal seeks to remove all federal penalties on weed, it would allow states to prohibit even the possession of cannabis — along with production and distribution — a nod to states’ rights.  It would also establish funding for a wide range of federal research into everything from drugged driving to the impact cannabis has on the human brain. The measure aims to collect data about traffic deaths, violent crime and other public health concerns often voiced by Republican lawmakers.

On the flip side, the proposal also includes provisions that are crucial to progressives.  That includes three grant programs designed to help socially or economically disadvantaged individuals, as well as those hurt by the war on drugs and expungements of federal non-violent cannabis offenses.  States and cities also have to create an automatic expungement program for prior cannabis offenses to be eligible for any grant funding created by the bill.

A few of many prior recent related posts:

July 14, 2021 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Political perspective on reforms, Who decides | Permalink | Comments (0)