Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Wednesday, May 25, 2022

Rhode Island becomes latest state to legalize adult use marijuana

As reported in this local article, "Rhode Island on Wednesday joined its two neighboring states and 16 others in legalizing the recreational use of marijuana." Here is more:

Less than 24 hours after lawmakers overwhelmingly passed the bill, Gov. Dan McKee signed the measure, which promises automatic expungement of past marijuana possession convictions and reserves a quarter of new retail store licenses for minority communities disproportionally hurt by the War on Drugs.

Speaking on the steps of the State House, awash in sunshine, McKee said the law was “equitable, controlled and safe” while establishing a regulatory framework that emphasizes public health and safety. “The end result is a win for our state both socially and economically.”

The law calls for retail sales beginning Dec. 1, but it will be a while before most of the stores are open. The state’s three currently operating medical marijuana dispensaries will be the first retailers of recreational marijuana as well, followed by six others in various planning stages.

Who wins 24 other retail licenses, and when, will be up to a new three-member cannabis control commission that will be appointed by the governor. Recreational marijuana will be taxed at 20% – a new 10% cannabis tax, a new 3% tax by the community where the marijuana is sold, and the current 7% sales tax....

Cannabis use would be banned anywhere where cigarette smoking is now banned. But if it’s legal to smoke a cigarette on Main Street in West Warwick right now, you'll be able to smoke cannabis, too. That could change. The law includes language that gives communities the power to adopt ordinances to restrict or ban the “smoking or vaporizing of cannabis in public places.”... The law allows people to have three growing plants and three dried plants. [and] it will be legal to have up to an ounce of marijuana in your possession. And possession of between one ounce and two ounces will be a civil violation. Previously up to an ounce was a civil violation, much like a parking ticket, and it was illegal to possess more than one ounce. [People with cannabis convictions] can request an expedited expungement through the courts and have any costs waived. But the law has given the courts until July 1, 2024, to provide automatic expungement to all who are eligible. Under the legislation, any prior civil violation, misdemeanor or felony conviction for possession of marijuana that would be decriminalized will be automatically erased from court record systems.

The new legislation allows for up to 33 retail licenses distributed in six zones statewide, including at the three current medical marijuana dispensaries and the six others in various planning stages.

May 25, 2022 in Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Friday, May 20, 2022

Ninth Circuit panel holds (in trademark dispute) that "delta-8 THC products are lawful under the plain text of the Farm Act"

Images (6)In this post a few month ago, I noted the growth of so-called delta-8 THC products and all the legal uncertainty around them. Yesterday, in an important ruling, a Ninth Circuit panel directly address question about the legality of delta-8 products under federal law. In AK Futures LLC v. Boyd Street Distro, LLC, No. 21-56133 (9th Cir. May 19, 2022) (available here), a trademark dispute prompted the panel to fully engage the arguments surrounding whether the 2018 Farm Bill served to legalize cannabis products without the standard delta-9 THC, and the opinion ultimately embraces the claim that delta-8 THC products derived from hemp CBD are legal products under federal law.  Here are some key passages from the opinion:

[T]he parties dispute whether the possession and sale of delta-8 THC is permitted under federal law and, consequently, whether a brand used in connection with delta-8 THC products may receive trademark protection.  AK Futures argues that delta-8 THC falls under the definition of hemp, which was legalized by the 2018 Farm Act.  Boyd Street argues a contrary interpretation of the Act based on agency documents and congressional intent....

AK Futures argues the Farm Act’s definition of hemp encompasses its delta-8 THC products so long as they contain no more than 0.3 percent delta-9 THC.  Plain meaning supports this interpretation....  Importantly, the only statutory metric for distinguishing controlled marijuana from legal hemp is the delta-9 THC concentration level....

The Farm Act’s definition of hemp does not limit its application according to the manner by which “derivatives, extracts, [and] cannabinoids” are produced.  Rather, it expressly applies to “all” such downstream products so long as they do not cross the 0.3 percent delta-9 THC threshold....

Regardless of the wisdom of legalizing delta-8 THC products, this Court will not substitute its own policy judgment for that of Congress.  If Boyd Street is correct, and Congress inadvertently created a loophole legalizing vaping products containing delta-8 THC, then it is for Congress to fix its mistake.  Boyd Street’s intent-based argument is thus unsuccessful.  With that, neither of Boyd Street’s counterarguments dissuade us from the conclusion that AK Futures is likely to succeed on the merits of its trademark claim.

May 20, 2022 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Thursday, May 12, 2022

"Let It Grow: Why More Law Schools Should Teach Cannabis Law"

Cannabis-chart-300x203The title of this post is the title of this new Jurist commentary that I had the honor of co-authoring with Jana Hrdinová.  Here are excerpts:

California’s 1996 ballot initiative protecting medical marijuana users from state criminal prosecution kicked off the modern marijuana reform era in the United States.  In part due to federal prohibition, state medical marijuana laws prompted an array of interesting and intricate legal questions.  Some issues concerned the reach of federal law after state reforms.  Could doctors be punished by federal authorities for recommending marijuana to patients consistent with state law?  Could groups providing marijuana to patients raise a medical necessity defense if subject to federal prosecution?  Other issues arose at the intersection of novel drug laws and other state laws.  Could an employer lawfully fire an employee with a valid medical recommendation simply for testing positive for marijuana?  Could police officers lawfully search a car based simply on the smell of marijuana?

Lawyers and courts have been grappling with these and countless other legal questions across the nation as an ever-growing number of states have legalized marijuana for various uses. Many constitutional questions about potential conflicts between federal and state authority and individual rights have occupied federal courts all the way up the US Supreme Court. A wide array of state law issues have not just occupied state courts, but state administrative bodies and legal ethics panels as well, all seeking to sort out just when and how lawyers can advise or even play a role in the developing marijuana industry.

A full quarter century after California’s first state-level reform, three dozen states have now joined California in legalizing marijuana for a range of medical uses, representing over 70 percent of the US population.  And 18 states plus the District of Columbia, representing over 40 percent of the US population, have also legalized cannabis for recreational use. A large, new cannabis industry has come with a number of complex regulatory and policy issues.  State policymakers and public lawyers now confront the challenge of developing licensing schemes and regulatory rules to protect public health and safety, designing effective tax rates and business structures, and advancing equitable goals ranging from expunging old convictions to helping disadvantaged communities participate in the industry.  Private lawyers helping marijuana businesses must figure out how to raise capital, navigate licensing requirements, and structure acquisitions in the face of diverse state laws and persistent federal prohibition.  Lawyers are also called to review and revise workplace rules about marijuana use, to advise landlords, hospitals, and other venues concerning marijuana use on their properties, and to address myriad other novel issues in this dynamic field.

And yet, with so many new legal questions to grapple with and such rich policy areas to debate, remarkably few law schools are cultivating a modern curriculum by offering courses on cannabis law and policy for the next generation of lawyers.  Beginning in 2018, our center (the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law) has conducted an annual survey of law school curriculum to trace the evolution of teaching in the area of cannabis law and policy.  We have surveyed law schools’ online course schedules and contacted registrar offices by email.  We were surprised initially that barely one in ten law schools offered even a single class in this arena; during the academic year 2018-2019, only 21 out of 201 accredited law schools offered 24 cannabis-specific courses to their students.  This number grew to 29 schools offering 33 courses in 2019-2020, and growth continued with 35 schools offering 35 courses in 2020-2021 and finally 37 schools offering 38 courses in our most recent accounting in 2021-2022.  But even though the number of offered courses has grown over the last four years, law schools still lag significantly behind the fast-moving pace of cannabis legalization.  While now close to 75 percent of US states have some form of legalized marijuana, less than 20 percent of law schools in the US offer instruction on cannabis law.

May 12, 2022 in History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Saturday, May 7, 2022

"Reimagining U.S. Drug Policy Post-Pandemic"

As mentioned in a prior post, the tail end of a busy semester means I can now catch up on posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center. To that end, the title of this post is the title of this paper authored by Samuel DeWitt, a third-year student at The Ohio State University Moritz College of Law. Here is its abstract:

The COVID-19 pandemic caused increased drug use and a widespread decline in mental health throughout American society.  Yet, despite the unprecedented pandemic, society as a whole has shown an impressive ability to adapt to new ways of living, suggesting that a dramatically different version of America is not only possible, but achievable.  Domestic drug policy, which has needlessly prohibited and criminalized a vast array of drugs since the early 1900s, is an area ripe for a similar dramatic change.  This paper explores how the pandemic, combined with concurrent events including a change in Federal Administration and nationwide protests against systemic racism, presents an opportunity for our country to rethink its long-standing drug prohibition on a national scale.

May 7, 2022 in Political perspective on reforms, Who decides | Permalink | Comments (0)

Wednesday, April 20, 2022

Florida official sues feds, stressing Second Amendment and Rohrabacher-Farr Amendment, on gun purchasing limits for medical marijuana patients

Florida-guns-and-mmjThis interesting NBC News piece reports on an interesting new federal lawsuit under the headline "Top Florida Democrat sues Biden administration over marijuana and guns: Agriculture Commissioner Nikki Fried's lawsuit targets a federal requirement that prohibits medical marijuana users from purchasing firearms." Here are excerpts:

Florida’s lone statewide elected Democrat, Agriculture Commissioner Nikki Fried, plans to sue the Biden administration Wednesday to try to block a federal rule that prohibits medical marijuana users from buying guns or maintaining concealed-carry permits. NBC News obtained a draft copy of the lawsuit.

The lawsuit targets a federal form that asks whether the gun buyer is an unlawful user of drugs and specifies that marijuana is illegal under federal law. A person allowed by the state to use marijuana must then check “yes,” which results in denial of the purchase. Lying by checking “no” runs the risk of a five-year prison sentence for making a false statement.

Fried, whose office oversees concealed weapons permits and regulates some aspects of medical marijuana, argues in her lawsuit that the form violates the Second Amendment rights of lawful medical marijuana patients and runs afoul of a congressional budget prohibition on federal agents’ interfering with state-sanctioned cannabis laws.

The suit has ramifications beyond Florida: At least 37 states have legalized medical marijuana, and recreational use is legal in 18 states, as well as Guam and Washington, D.C. The lawsuit is timed to land on April 20 — a nod to the slang reference of "420" for marijuana.

The suit is laden with political opportunity for Fried, who became the only Democrat elected statewide in 2018 when she ran on an unabashedly pro-cannabis platform. Two years before, 71 percent of Florida voters legalized medical marijuana, and polls show a majority favor legalization of recreational use. Florida also has 2.5 million concealed weapons permit holders, according to Fried’s office.

“Medical marijuana is legal. Guns are legal. This is all about people’s rights,” Fried said in a statement to NBC News. “And I don’t care who I have to sue to fight for their freedom.”

In her official capacity as agriculture commissioner, Fried is bringing the suit with three citizens who have been affected by the federal rules. It names the acting head of the Bureau of Alcohol, Tobacco, Firearms and Explosives and Attorney General Merrick Garland as defendants. While it’s rare for a Democrat to sue a Democratic administration during an election year, Fried said the issue can no longer wait because of the volume of complaints her office has received.

A spokesperson for ATF said the agency “can’t speculate on possible litigation or discuss any pending litigation” but implicitly blamed federal lawmakers for not changing the Controlled Substances Act and the Gun Control Act, which respectively regulate marijuana and firearms....

Fried’s former pollster, Keith Frederick, said any risks for her by bucking the Biden administration are offset because she’s raising her profile by embracing a popular issue. “You can have the best affordable housing plan possible, but once you get to point No. 2, people’s eyes glaze over, and they stop paying attention,” Frederick said. “People care about this.”

Support for medical marijuana and cannabis legalization cuts across party lines, as does opposition to the conflicting regulations in state and federal law. Gun rights are also generally popular in Florida.

Fried’s lawsuit notes that even conservative Supreme Court Justice Clarence Thomas groused in an unrelated case about the “half-in, half-out regime that simultaneously tolerates and forbids use of marijuana.” “This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary,” Thomas said.

Other plaintiffs have tried and failed to sue the federal government over gun purchases. Fried’s lawsuit singles out the most recent lawsuit for presenting “a thin and stale factual record” that improperly ignored a federal study concluding that “marijuana use does not induce violent crime.” In addition, unlike the other unsuccessful federal case, Fried’s lawsuit argues that the form violates the so-called Rohrabacher-Farr Amendment, which prohibits ATF from enforcing anti-cannabis policies in states that have opted for legalization.

The full lawsuit is available at this link.  The complaint runs 33 pages, followed by more than 200 pages of notable attachment.  

April 20, 2022 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Friday, April 15, 2022

Notable federal marijuana reform news with an interesting new bill while we further wait for an old one

6a00d8341bfae553ef0223c85155dc200c-320wiThis past week brought interesting news of federal marijuana reform bill on two fronts.  Marijuana Moment provides the details in these two stories, linked and excerpted here:

"Schumer’s Marijuana Legalization Bill Not Coming This Month, As Senators Work To Finalize Provisions."  Excerpt:

The long-anticipated Senate bill to federally legalize marijuana will not be introduced this month, with Democratic leadership saying on Thursday that the timeline is being extended as they continue to work out various provisions “with the assistance of nearly a dozen Senate committees and input from numerous federal agencies.”

Senate Majority Leader Chuck Schumer (D-NY) has said on several occasions that the bill he’s been working on with Senate Finance Committee Chairman Ron Wyden (D-OR) and Sen. Cory Booker (D-NJ) for many months would be formally filed by the end of April.  That’s no longer the case, with the leader now saying the “official introduction” will take place sometime “before the August recess.”

A discussion draft of the Cannabis Administration & Opportunity Act (CAOA) was first unveiled last year, and advocates and stakeholders have been hanging on the leader’s words as they continue to push for an end to federal prohibition. Most recently, Schumer said last week that he and colleagues were in the process of reaching out to Republican senators to “see what they want” included in the legislation.

The timeline that Schumer previewed has apparently proved too ambitious — but the hope is that by taking extra time to finalize the measure, it will help the senators overcome what are currently significant odds stacked against them to reach a high vote threshold in the chamber, where Democrats hold just a slim majority and several members of the party have indicated that they’re not supportive of legalization.

"U.S. Attorney General Would Be Required To Create Marijuana Commission To Advise On Legalization Under New Bipartisan Bill." Excerpt:

A bipartisan group of congressional lawmakers filed a bill on Thursday that would direct the attorney general to create a commission charged with making recommendations on a regulatory system for marijuana that models what’s currently in place for alcohol.

Reps. Dave Joyce (R-OH), Hakeem Jeffries (D-NY) and Brian Mast (R-FL) are teaming up on what’s titled the Preparing Regulators Effectively for a Post-Prohibition Adult-Use Regulated Environment Act (PREPARE) Act — an incremental reform meant to inform comprehensive cannabis policy changes in the future.

The measure will “provide lawmakers across the ideological spectrum the opportunity to engage on cannabis reform by creating a fair, honest and publicly transparent process for the federal government to establish effective regulation to be enacted upon the termination of its 85-year prohibition of cannabis,” according to a summary from the sponsors....

Here’s what the new bill would accomplish: 

Require the attorney general to establish a “Commission on the Federal Regulation of Cannabis” within 30 days of the bill’s enactment.  The commission would be responsible for studying federal and state regulatory models for alcohol and make recommendations about how they could inform marijuana regulations.  Among other things, the commission’s report must look at the impact of marijuana criminalization, particularly as it concerns minority, low-income and veteran communities.

The panel would also examine the “lack of consistent regulations for cannabis product safety, use and labeling requirements” as well as the “lack of guidance for cannabis crop production, sale, intrastate, interstate, and international trade.“  It would also need to make recommendations on how to remedy cannabis-related banking and research barriers as well as address measures to ensure the “successful coexistence of individual hemp and cannabis industries, including prevention of cross pollination of cannabis and hemp products.”

Members would further be mandated to study and make recommendations on “efficient cannabis revenue reporting and collecting, including efficient and tenable federal revenue frameworks.”  The panel would be required to issue a report to Congress within 12 months.

I have come to believe that Senator Shumer's CAOA is essentially DOA in a Senate that may not now have even 50 votes in support of full marijuana legalization, let alone the 60 needed to get past a filibuster.  But the new PREPARE Act already has bipartisan support, and it seems to only call upon the federal government to take a serious and sustained look at what kind of federal regulatory rules and structures would be preferable as marijuana reform in the states continues apace.  In a well-functioning Congress, I think some version of the PREPARE Act could and should be a no-brainer and likely should have been enacted a number of years ago.  In the current dysfunctional Congress, I fear that we need not seriously prepare for the passage of the PREPARE Act.  But one can still dream. 

April 15, 2022 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Wednesday, April 13, 2022

Student presentation on licensing schemes for marijuana reform in Ohio

6a00d8341bfae553ef0282e11483be200bThe third of this week's presentations put on by my Marijuana Law, Policy & Reform seminar students will be focused on how Ohio might approach how setting up a licensing scheme for the marijuana industry.  Here is how the student describes this topic and some background readings:

Summary

In a regulated industry, licensing is the key that unlocks the door for (legal) opportunity.  The ever-expanding cannabis industry is no exception.  Those who hold licenses in this industry enjoy the benefit of legally-sanctioned conduct, while others assume the risks of operating in the black market. 

Ohio is currently faced with the question of whether an adult-use cannabis market should be established within the state.  As a part of answering this question, policymakers need to consider how to set up a licensing scheme for any potential industry.  There are several different considerations that need to be made in approaching such a scheme.  First, there is the issue of responding to different operators within the market and establishing different licenses for these various operators.  Next, there is the debate over whether to establish a limited license market, and how to respond to concerns over monopolization and social equity.  Lastly, policymakers must decide what qualifications will be necessary in order to obtain a license, and which actors will be excluded from such a privilege.

An Act to Control and Regulate Adult-Use Cannabis is a ballot initiative which seeks to introduce an adult-use market in Ohio, and it proposes a detailed framework for licensing this market.  This project analyzes the licensing scheme that would be established in the state, should this initiative eventually be signed into law, and evaluates how this proposed scheme responds to the policy concerns that are inherent in licensing.

Background

Full Text of Ohio 2020 Marijuana Reform Ballot Initiative

Local press article on law enforcement seizure of assets from black-market cannabis operations 

Primer on “plant-touching” cannabis businesses 

Cato Institute blog post on corruption associated with limited licensing

New Jersey Policy Perspective blog post on social equity issues associate with limited licensing

Reason Foundation report examining issues surrounding criminal conviction restrictions in marijuana licensing

April 13, 2022 in Assembled readings on specific topics, Business laws and regulatory issues, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Tuesday, April 12, 2022

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

Images (4)Continuing the Marijuana Law, Policy & Reform seminar students presenting on research topics of their choice. the second topic for this coming week's presentations will be focused on the role of the FDA.  Here is how the student describes her take on the topic and some background readings:

So far, FDA has been fairly hands-off when it comes to the state-driven marijuana market even though marijuana falls under many of the agency’s statutory domains.  “Marijuana” is a hot commodity as consumers can attest from the plethora of products purporting to contain marijuana derivatives.  Many, if not all, of these products fall under FDA’s regulatory regime.

Although FDA has issued some warning letters regarding company actions within the marijuana space, the agency has not developed a consistent theme for regulation.  Once it does, some state regulations may be preempted.  This would throw the current regulatory landscape into question.  Such entry may also change the dynamic of the marijuana industry.  For example, as companies face federal regulation, entry into the marijuana space may become more expensive and push small sellers out of the market.  Conversely, a dual marijuana marketplace may be established — one that establishes itself nationwide and another that attempts to maintain the current system by only selling intra-state.

FDA does not need to completely reinvent the wheel when it comes to marijuana regulation, although it statutorily may have to consider factors unique to current state regulations.  However, given the history of introducing more robust regulations onto new industries, as FDA did with tobacco industry, systems states are already finding successful, and other nations’ marijuana schemes, there are many avenues for FDA to ensure the American public is protected from unsafe products without overly disrupting the current market.

Every year that the federal government declines to implement a regulatory scheme for marijuana products, states are creating their own processes — some more and some less permissive.  This paper describes the statutory basis for FDA to regulate marijuana.  It also describes how future FDA regulation might interplay with current state regulation or be preempted.  Next, it analyzes possible industry challenges as federal regulation becomes more prominent.  Finally, it recommends how FDA may enter the regulatory space in tandem with state regulation and avoid stifling an already robust market.

Background Reading

Law review article: "The Surprising Reach of FDA Regulation of Cannabis, Even after Descheduling"

Law review article (by own own Prof Zettler): "Pharmaceutical Federalism"

US Food & Drug Administration webpage: "FDA Regulation of Cannabis and Cannabis-Derived Products, Including Cannabidiol (CBD)"

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

April 12, 2022 in Assembled readings on specific topics, Federal Marijuana Laws, Policies and Practices, Food and Drink, History of Marijuana Laws in the United States, International Marijuana Laws and Policies, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Student presentation examining application of immigration laws in wake of marijuana reforms

Immigration-and-Marijuana-2-1024x683A big group of Marijuana Law, Policy & Reform seminar students are scheduled to present this week on the research topics of their choice.   As I often mention, before their presentations, students are expected to provide in this space some background on their topic and links to some readings or other relevant materials.  The first new topic for this coming week's presentations is to be focused on immigration laws .   Here is how the student describes the topic and some background readings:

Abstract:

This project attempts to raise the profile of and build solidarity among disparate groups on the issue of considering how immigration law should be amended or enforced in the wake of the move towards legalization, whether on a state-by-state or federal level.  The final product will consist of a paper that goes into detail on perspectives and policy rationales for amending the INA to remove marijuana from disparate political perspectives -- those who are already committed to immigrants' rights, those who are already committed to marijuana legalization, and those who are hostile to both. 

For the first group, it's fairly self-explanatory: marijuana use is a deportable offense for immigrants whether or not it is legal, which makes little sense in the era of marijuana reform.  For legalization supporters, I focus on economic developments and social justice.  Allowing immigrants into the group of people who could purchase and use marijuana would both bring more revenue into the market and create a new group of folks who could work in both agricultural and retail ends of the business. Further, given the divisive history of the connections between marijuana criminalization and immigration, noncitizens should be a key consideration in legalization legislation and regulation just as social equity programs are now for women and other minoritized people.  Finally, for those who aren't familiar or amiable to either perspective, the paper dives into arguments about job creation, notions of justice and fairness, and the assertion that supporting minoritized individuals such as immigrants and people of color is beneficial for all members of the U.S. 

After writing the paper, I will be developing a series of issue factsheets based on the arguments and categories above to garner support for solutions to the above issues, such as encouraging readers to support certain bills, state and district level reforms to the criminal justice process, organizations doing work on this issue. 

Background reading:

Law Review Student Comment (2015): "Nonserious Marijuana Offenses and Noncitizens: Uncounseled Pleas and Disproportionate Consequences"

Law Review Student Note (2021): "The Impact of Marijuana Decriminalization on Legal Permanent Residents: Why Descheduling Marijuana at the Federal Level Should Be a High Priority"

Press article providing historical context (2019): "The Surprising Link Between U.S. Marijuana Law and the History of Immigration"

Advocacy group report detailing the personal harm of the current deportation laws and scale of the issue (2015): "A Price Too High - US Families Torn Apart by Deportations for Drug Offenses"

April 12, 2022 in Assembled readings on specific topics, Federal Marijuana Laws, Policies and Practices, Political perspective on reforms, Who decides | Permalink | Comments (0)

Sunday, April 3, 2022

Student presentation on native tribes exploring marijuana marketplaces

Download (24)My Marijuana Law, Policy & Reform seminar is in its homestretch, and there are scheduled for the coming weeks a host of student presentations on the research topics of their choice.   As I often mention, before their presentations, students are expected to provide in this space some background on their topic and links to some readings or other relevant materials.  The first of this coming week's presentations is focused on native tribes involved in marijuana activities.   Here is how the student describes the topic and the provided readings:

Summary:

Native Americans have the highest poverty rate in the United States and the percentage of American Indians and Alaska Natives living in poverty is nearly twice the rate of the nation.  In addition, the U.S. Commission on Civil Rights “reported that -- due to things like historical discriminatory policies, insufficient resources, and inefficient federal program delivery -- Native Americans continue to rank near the bottom of all Americans in terms of health, education, and employment.”  Some tribes have begun to look towards the marijuana marketplace as a different way to generate revenue for their tribe and to encourage economic development.

Tribes that have been able to build successful marijuana enterprises have seen great benefits.  The Las Vegas Paiute in 2017 opened a 15,800 square foot dispensary called NuWu Cannabis Marketplace which has since been deemed a blueprint for the industry and brings in over $5 million in sales per month.  A designated amount of the profits from the company goes to the Paiutes’ general fund to support things like medical and educational expenses of tribe members.  However, some tribes have faced extensive legal barriers to their attempts to tap into this potential financial gain.  Federal raids and threatened state intervention has left some Native American communities weary of even thinking about entering into this realm.

Marijuana is still illegal under federal law and the federal government is in charge of regulating tribes.  However, Congress can transfer its jurisdiction over tribes to the states if it chooses and in some states it has given them exclusive jurisdiction, through Public Law 280, over all crimes committed on reservations.  The interaction between state and federal law and the overall lack of clarity often leaves tribes to make tough decisions in this space with little guidance.  This presentation explores the legal issues implicated with tribal marijuana and discusses what has happened when tribes have entered or tried to enter the market.

Background Reading:

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

Friday, April 1, 2022

MORE Act to legalize marijuana federally again passes US House, but this time with LESS support

Ccc_SQUAREA little under 18 months ago, as noted here, the US House had a historic vote on the MORE Act, which would remove marijuana from the Controlled Substances Act and do a lot of other notable reforms.  The bill passed in early December by a margin of 228 in favor, 164 against (largely along party lines with 222 Democrats, 5 Republicans and libertarian Rep. Justin Amash in support and 158 Republicans and 6 Democrats against).  With much fanfare, the MORE  Act was brought to the floor again, and Politico has this report on how this new vote went:

The House passed a far-reaching marijuana legalization bill on Friday by a 220-204 vote, largely along party lines and still with no real path to President Joe Biden’s desk.

It marks the second time in less than two years that the House passed legislation to decriminalize cannabis, scrap some old marijuana-related convictions and allow states to make their own decisions about whether to establish marijuana markets. But Democrats seem no closer to fulfilling a major campaign promise, passing a party-line bill that has little chance of getting the necessary Republican support to pass the Senate.

“I was a supporter of the War on Drugs — I’ve been here a long time,” House Majority Leader Steny Hoyer said on the House floor on Friday, pointing out that Black Americans are four times more likely than white people to be arrested for low level cannabis crimes. “This bill is a matter of justice and equal opportunity… so that Americans and America can become a better, stronger, more fair, and more just America.”

Majority Leader Chuck Schumer plans to introduce his own cannabis bill soon, but does not currently have the Democrat votes to pass it, let alone the Republicans needed to overcome a filibuster. Today’s vote highlighted the growing rift between the parties — and even among Democrats — on how to address cannabis policy. Despite growing support among GOP lawmakers for legalization and polling that shows two-thirds of Americans back that stance, just three Republicans voted for the Marijuana Opportunity Reinvestment and Expungement Act. That was fewer than the five GOP lawmakers who backed the bill in 2020 — two are no longer in Congress.

The MORE Act debate underlined a fundamental question that divides the parties: When changing the nation’s drug laws, should the federal government also take steps to provide financial incentives to individuals and communities who were most harshly impacted by the war on drugs?

Republicans say no. “You’re not going to be able to get Republicans on board… the way that the MORE Act is done,” said Rep. Nancy Mace (R-S.C.), who introduced a bill last year that decriminalizes cannabis and expunges some records but does not create federal grant programs. The federal social equity efforts were a major reason for her “nay” vote on Friday. “You’ve got to have Republicans on board if we’re going to have any chance of getting it done in the Senate.”

For many Democrats, however, the equity grant programs are nonnegotiable. “This is a major criminal justice reform bill,” said Rep. Barbara Lee (D-Calif.), one of the co-chairs of the Congressional Cannabis Caucus. “So negotiating that away — to leave [affected communities] behind — that to me is just immoral.”

In fact, House Speaker Nancy Pelosi on Thursday went so far as to frame the MORE Act as a criminal justice reform bill. In her weekly news conference, she touted the criminal justice and economic provisions of the bill, and explained that the lack of similar provisions in the George Floyd Justice in Policing Act was one reason that it failed in the upper chamber.

The Senate — where Schumer, Sen. Cory Booker (D-N.J.) and Sen. Ron Wyden (D-Ore.), are working on their own comprehensive cannabis bill — is even tougher ground for weed. Booker and Schumer have drawn a line in the sand on marijuana policy, refusing to even hold a hearing on a cannabis banking bill the House has approved six times because it does not address criminal justice reform.

But Democrats’ pursuit of their perfect bill worries some pro-cannabis lawmakers and advocates, who do not see a clear path forward for sweeping drug policy changes under Republican leadership in either chamber — especially the Senate. Given that Democrats may not control both houses of Congress come January, the window for federal cannabis policy change may not be open much longer.

“We need those social equity programs,” one moderate Democrat lawmaker said, granted anonymity to speak candidly about his leadership’s strategy. “Nonetheless, if I have to choose between nothing and something that, going forward, will not put our children, our neighbors or friends in jail — I’ll choose the latter.”

Conspicuously absent from the “ayes” on Friday were some of the most pro-cannabis Republican voices on Capitol Hill, including Mace and Rep. Dave Joyce of Ohio, a co-chair of the Congressional Cannabis Caucus. Joyce’s office circulated a memo among Republicans earlier this week outlining his critiques of the MORE Act and why he intended to vote against it — and inviting discussion on Republican approaches to marijuana policy.

Joyce’s office said he reached out to Democrats to try and forge consensus on the best approach to overhauling federal cannabis laws. He sent a letter to Judiciary Chair Jerry Nadler (D-N.Y.), the chief sponsor of the MORE Act, in February — offering to work with him to create a bill that was more palatable to Republicans. Joyce’s office said they also had one meeting with Nadler’s staff to discuss their primary concerns with the bill, but were not invited back for any further discussion. Nadler’s office declined an interview request for this story. His office told POLITICO that the chair asked many Republican lawmakers to cosponsor the MORE Act, but did not answer questions about the letter from Joyce or requests from Republicans to change the bill.

It’s unclear how many additional Republican votes Mace and Joyce could bring to the legislation — between their two decriminalization bills they have four additional Republican cosponsors. But Joyce’s office said the bill, as it stands, is “too impractical and too flawed” to even start a conversation with GOP members who are interested in changing America’s drug laws.

Mace says her cannabis reform bill — the States Reform Act — polls better among Republican primary voters in her district than broad federal legalization, but she is also facing a tough primary in May and was recently targeted by Super PAC ads on her support for cannabis legalization.

Despite declining GOP support for the MORE Act, Democrats’ nerves on cannabis legislation have calmed. When a vote on the bill was scheduled in September 2020, moderate Democrats balked, worried that voting to legalize weed could hurt their reelection chances. But the politics around cannabis have changed so rapidly nationwide that those concerns appear to have evaporated.

In fact, six Democrats voted against the bill in 2020, but only two voted against the MORE Act on Friday. One of the lawmakers who previously voted against the bill — Rep. Conor Lamb of Pennsylvania — is in a tough primary race with Lt. Gov. John Fetterman for the Democratic nomination for Pennsylvania’s open Senate seat. Fetterman has campaigned vocally on cannabis legalization, both for his state and federally. This time around, Lamb voted in favor of the bill.

Because I am very much on board with the let's do something "if I have to choose between nothing and something," I am deeply disappointed that the House leadership decided this symbolic vote was more important than trying to forge a federal reform bill that could have at least a small chance of moving forward.  (As the headline of this post indicates, I think what really proved symbolic about this vote is that the MORE Act got less support in April 2022 than it did in December 2020.)  If, as many expect, the GOP takes over Congress next year, it will be interesting to watch if any real compromise marijuana reform bills become more broadly discussed or if instead blanket marijuana prohibition continues to remain the law of the land at the federal level.

April 1, 2022 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Wednesday, March 16, 2022

Register now for "Ohio Cannabis Reform in Focus"

Download (13)The quoted portion of the title of this post is the title of this exciting event taking place next month, on April 7, 2022 from noon-2:30 pm as a  hybrid even in person in Saxbe Auditorium in Drinko Hall at The Ohio State University Moritz College of Law and also on Zoom.  Folks can and should Learn More and Register at this link.  Here are the basics about the event:

The year 2022 might see significant cannabis reforms in the state of Ohio, both to the existing medical marijuana regime as well as the proposed legalization of adult-use marijuana. Please join the Drug Enforcement and Policy Center for two expert panels that will put focus on these two possible routes to reform and the implications they may have for patients and Ohioans alike.

Medical Marijuana Reform panelnoon-1:10 p.m. EDT

After three years of operation, the Ohio Medical Marijuana Control Program continues to grow and yet continues to be plagued by high levels of patient dissatisfaction due to access limits and high costs. The recent approval of dozens of new dispensary licenses comes as major reform bills have been introduced in the Ohio General Assembly with the aim of improving the Ohio MMCP's functionality for both patients and the cannabis industry. Please join our panel of experts as we discuss on-going and proposed reforms, why they are needed and how they could impact the various stakeholders.

Panelists:Ohio Senator Steven HuffmanAndrew Makoski, Administrative Attorney, Ohio Department of CommerceAdditional panelist TBA

Adult-Use Marijuana Reform panel1:20-2:30 p.m. EDT

The fall of 2021 was eventful when it comes to Ohio marijuana reform proposals. Two major bills were introduced in the Ohio General Assembly, and a voter-initiated statute campaign collected enough signatures to be sent to the General Assembly for considerations. Yet, despite polling suggesting public support for these kinds of reforms, the Ohio political leadership appears unlikely to advance adult-use legalization in 2022. Please join us for a panel of experts and policy advocates as they discuss the future of marijuana legalization in Ohio as a matter of politics and policy, including the arguments for and against reform and the possible consequences of action or inaction on the part of Ohio General Assembly.

Panelists:Ohio Representative Ron FergusonThomas Haren, Partner, Frantz WardJodi Salvo, Director of Substance Use Prevention Services, OhioGuidestone

March 16, 2022 in Campaigns, elections and public officials concerning reforms, Medical Marijuana Commentary and Debate, Medical Marijuana State Laws and Reforms, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Friday, March 11, 2022

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

Thumbnail_CJR Post Pot LegalizationI have the great honor and pleasure of being in Austin for about 24 hours to serve as a presenter on this panel at SXSW, titled "Post Pot Legalization: The Good, The Bad & The Ugly." The panel is part of a series of great panels presented by Stand Together Trust tomorrow, and here is the description of my panel:

Marijuana reform has been a long-time coming policy priority in the eyes of the nation.  It is an issue that has united a number of unlikely allies and deepened divides.  There’s no question that marijuana is on track to become fully legalized – the question becomes what happens next?

This group of experts, influencers, policymakers and academics will offer insights into upcoming trends including the good, the bad and inevitable of how a post-legalized America will move forward.

I am so looking forward to the discussion during this panel, and I have been told that records will be available sometime after the event.

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

Friday, February 25, 2022

Welcoming Ohio Representative Juanita O. Brent to marijuana law seminar class at Moritz College of Law

2883I am extraordinarily excited that my (always exciting) Marijuana Law and Policy seminar at The Ohio State University Moritz College of Law is now entering its student presentation phase. This means in the coming weeks I will be blogging about the topics that students have researched and presenting here materials they have assembled providing background readings and information.

Adding to my excitement for the start of student presentations is the fact that the first student has arranged for a special visitor to come speak to our class next week.  Here are the details about the speaker at the focal point for the planned class discussion:

Cleveland Heights native Representative Juanita O. Brent from District 12 is set to speak with The Ohio State University, Moritz College of Law’s marijuana law seminar class regarding her sponsored bill – House Bill 60 – and, more generally, marijuana law in the State of Ohio on March 3, 2022.   The class looks forward to asking Representative Brent questions about her legislative work relating to treating autism spectrum disorder with medical marijuana and hearing her  views on the future of medical marijuana and recreational marijuana in the State of Ohio.

On January 25, 2022, Representative Brent announced the committee passage of House Bill 60 – a bipartisan bill that would authorize medical marijuana for autism spectrum disorder.  House Bill 60 was introduced by the 134th General Assembly during the Regular 2021-2022 Session by Representative Brent and Bill Seitz, a Republican Representative from District 30.  The goal of the bill is “[t]o amend section 3796.01 of the Revised Code to authorize the use of medical marijuana for autism spectrum disorder.”  “Autism spectrum disorder” is to be included under Subsection (6)’s “Qualifying medical condition[s],” permissible under Section 3796.01 of the Ohio Revised Code. Today, Section 3796.01 of the Ohio Revised Code continues to read without including autism as a qualified medical condition for medical marijuana use until its official vote on the House floor.

Representative Brent is in her second term as a legislator.  In the 133rd General Assembly, Representative Bill helped author House Bill 285, which established a driver’s license reinstatement fee.  This bill became law in 2020 and has helped thousands of Ohioans remove suspended driver’s licenses because of Representative Brent’s efforts. Representative Brent is the Frist Vice-President of the Ohio Legislative Black Caucus.  In her position as a legislator, she also serves as a Ranking Member of the Agriculture and Conservation Committee, as well as sits on the Transportation and Public Safety and Commerce and Labor Committees.  Representative Brent prides herself on representing District 12 and prioritizing justice and equity in her work, including adult-use cannabis.

Background resources:

"Rep. Brent applauds committee passage of her bill to legalize medical marijuana for autism spectrum disorder"

Text of Ohio H.B. No. 60, 134th General Assembly, Reg. Sess. 2021-22 

Webpage for House Bill 60 to "Authorize medical marijuana for autism spectrum disorder"

Juanita O. Brent Biography  and Juanita Brent background 

February 25, 2022 in Assembled readings on specific topics, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Monday, February 14, 2022

Notable Code for America paper on "Automatic Record Clearance Policies in Legalization and Decriminalization Legislation"

Legal Marijuana Oregon Measure 91I just saw this recent 18-page report from the folks at Code for America.  The full title of the report highlights the goals and essential contents of this notable new document: "Recommendations for Automatic Record Clearance Policies in Legalization and Decriminalization Legislation: 11 best practices for creating high-impact, implementable policies that clear conviction records — automatically."   Long-time readers know I have long been particularly interested in criminal justice impacts of marijuana reform and especially record clearance efforts.  (I wrote one of the first big explorations of this topic in my 2018 article, "Leveraging Marijuana Reform to Enhance Expungement Practices," and more recently co-authored another piece titled "Ensuring Marijuana Reform Is Effective Criminal Justice Reform.")

This new document is a great primer on this enduring topic, and this two-pager provides the particulars of the 11 recommendations in the full report.  But I would urge everyone to take the time to check out the full report, and here is part of its text:

Our recommendations are presented in three categories.  First are recommendations about the process of automatically clearing records.  They include an advisory against relying on petition-based record clearance, a statement on the importance of the process being initiated and coordinated by a state-level agency, and an explanation about why there need to be deadlines attached to every major milestone of the automatic record clearance process.  These recommendations are very important for implementation, but are also important to maximizing impact.  In order to build public trust in automatic record clearance, we close this section with a recommendation that government study and publicize findings on the impact of automatic record clearance, especially as it relates to equity-related metrics such as racial disparities.

Next are recommendations about who should be eligible for automatic record clearance.  In order to maximize impact, legislation needs to provide eligibility that is as expansive as possible.  The recommendations explain that, at a bare minimum, all records should be cleared for conduct that is no longer criminalized or can no longer be charged.  We advise against including conditions that disqualify people from eligibility because they reduce impact and also make implementation more challenging. Expansive eligibility must be anchored in the law, so we offer an advisory to be as specific as possible when drafting legislation — leave nothing open to interpretation because that causes challenges for implementation.  We also recommend that after a bill is passed, no system actors (e.g. judges, prosecutors) should have discretion over who gets relief in the process of automatically clearing records because it leads to inequity and is nearly impossible to implement.

Finally, we offer recommendations about who should have access to and jurisdiction over cleared records.  People living with convictions should be able to access confidential documentation about their criminal case histories, whether their records are cleared or not, and there is a big opportunity for government to offer this as a human-centered, trauma-informed digital service.  We recommend that courts maintain confidential documentation of records that have been affected by record clearance rather than having all traces of records completely destroyed.  We also recommend that courts maintain jurisdiction over these records so that people can continue to exercise their legal rights to pursue any other post-conviction relief remedies besides automatic record clearance, and so that people can access the information about their cleared records should they need it in the future.

February 14, 2022 in Criminal justice developments and reforms, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (1)

Monday, February 7, 2022

Looks like Brock Ollie will have to generate buzz without a Super Bowl appearance

The intersection of sports and marijuana reform always intrigues me, and Super Bowl week often takes this story to new heights. And this Adweek piece, headlined "Why This Broccoli Is Fed Up With Cannabis Censorship: Weedmaps, whose Super Bowl ad was rejected, uses 'Brock Ollie' to call out lingering stigmas," spotlights the first amusing headline-making development this week. Here are the basics: 

On a typical day for a character named Brock Ollie, he eats breakfast, hails a ride, goes to work and chats with his colleagues. So why does everyone keep bombarding him with clumsy references to getting high?

Because Brock Ollie, with his lanky body and flowery head, is the broccoli emoji come to life, but he’s not just the physical embodiment of a cruciferous superfood.  He’s a visual stand-in for cannabis, often used as shorthand between friends or code between sellers and buyers.

But in 2022, when 37 states have now legalized marijuana for medical use or recreational sales, this kind of subterfuge shouldn’t be necessary anymore, according to Weedmaps. The brand created the walking, talking veggie as the star of his own short film to make a point about censorship in cannabis marketing. And executives chose the timing strategically, dropping the 90-second spot today just ahead of Super Bowl 56, a commercial extravaganza it tried — and failed — to buy time in.

“It’s a message we feel is relevant for a national stage,” Chris Beals, CEO of Weedmaps, told Adweek. “It’s just regrettable and sad to not get the ad on network TV.” The rejection strikes Beals as hypocritical, he said, as high-profile spots for regulated categories like alcohol and sports betting are readily accepted during The Big Game, airing Feb. 13 on NBC, and other televised sports events.

An NBC spokesman said the network does not accept ads “for cannabis or cannabis-related businesses” on any of its platforms....

“The answer was a hard no — they wouldn’t even entertain the conversation,” Juanjo Feijoo, Weedmaps COO and CMO, told Adweek. “We see ourselves as trying to be trailblazers in the industry and making new inroads where others haven’t gone before in cannabis advertising. So it was disappointing.”

I have embedded the video here, as I clearly do not have the same standards as NBC:

February 7, 2022 in Sports, Television, Who decides | Permalink | Comments (0)

Thursday, February 3, 2022

Guest post: "First Circuit Splits with Ninth Circuit Over Meaning of Rohrabacher-Farr Amendment"

6a00d83451574769e20282e1172fad200b-320wiI was very pleased to have received this morning following terrific guest post content from Professor Scott Bloomberg of the University of Maine School of Law about a notable recent federal circuit court ruling:

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Since December 2014, Congress has included a rider in its annual appropriations acts that prohibits the Department of Justice (“DOJ”) from expending funds to prevent states from “implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, § 537, 133 Stat. 13, 138 (2019).  The rider — most commonly known as the Rohrabacher-Farr Amendment — is an important source of protection from federal prosecution for medical marijuana businesses and users.

Until recently, the only federal circuit court to interpret the Rohrabacher-Farr Amendment was the Ninth Circuit.  In 2016 in United States v. McIntosh, the court held that the amendment only prohibited the DOJ from prosecuting marijuana businesses that strictly complied with their states medical marijuana rules.  This strict compliance standard meant that if a business stepped out of line — including, in theory, if it only extended a toe over the line — the DOJ could prosecute the business for federal drug crimes.

I have never been a fan of the McIntosh court’s strict compliance standard.  I don’t think it is workable in practice and I find it to be a rather unsound interpretation of the Rohrabacher-Farr Amendment.  So, when the First Circuit had an opportunity to interpret the Amendment in United States v. Bilodeau, I decided to submit an amicus brief arguing as much.

The brief explains that the strict compliance standard offers little real protection for marijuana businesses given the complex state regulatory codes with which they must comply. What’s more, even if the compliance standard were loosened (say, companies only had to remain in “material compliance” rather than “strict compliance” to avoid the risk of prosecution) tethering the DOJ’s ability to prosecute medical marijuana businesses to a business’s non-compliance with state law creates an inherent problem.  Under a standard that bases the DOJ’s authority to prosecute businesses on whether that business has complied with state medical marijuana rules, the best way for a state to shield its medical marijuana businesses from federal prosecution is to not have any medical marijuana rules.  The more carefully a state regulates medical marijuana, the more likely its businesses are to be subject to federal prosecution.  That incentive structure may not only prevent states from “implementing their own State laws that authorize” medical marijuana, it also flies in the face of the DOJ’s Cole Memo, which instructs states to regulate marijuana closely.

The McIntosh court’s strict compliance standard also relies on an artificial distinction between a state’s “laws that authorize” medical marijuana and a state’s enforcement of such laws.  According to the court, when the DOJ prosecutes medical marijuana businesses that fail to comply with a state’s medical marijuana rules, the DOJ does not prevent the state from implementing the “laws that authorize” medical marijuana because the business’s conduct was not authorized by those laws. But laws authorizing states to enforce violations of their “laws that authorize” medical marijuana cannot be so easily divorced from the underlying laws.  Enforcement rules are intertwined with the underlying laws for many reasons. Most significantly, a looming threat of federal prosecution would deter many businesses from ever entering the state’s marketplace.  The threat would also undermine the state’s enforcement authority over those businesses that do—after all, what rational business would admit to even the most menial of regulatory violations if doing so would open a risk of federal prosecution?

In light of these problems with the strict compliance standard, my amicus brief urged the First Circuit to adopt a more expansive interpretation of the Rohrabacher-Farr Amendment. I argued that the Amendment creates a blanket prohibition on the DOJ’s authority to prosecute state-licensed medical marijuana businesses for marijuana-related offenses (with some limited exceptions).

The First Circuit last week handed down its opinion in Bilodeau, which departed from the McIntosh court’s strict compliance standard but did not go quite as far as I urged.  As Judge Kayatta explained, the Ninth Circuit’s strict compliance standard affords the DOJ more power to undermine states’ medical marijuana laws than Congress could have intended.

With federal prosecution hanging as a sword of Damocles, ready to drop on account of any noncompliance with Maine law, many potential participants in Maine's medical marijuana market would fasten fearful attention on that threat.  The predictable result would be fewer market entrants and higher costs flowing from the expansive efforts required to avoid even tiny, unintentional violations.  Maine, in turn, would feel pressure to water down its regulatory requirements to avoid increasing the risk of noncompliance by legitimate market participants.

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[Moreover, Maine’s medical marijuana] rules were not drafted to mark the line between lawful activity and cause for imprisonment.  Rather, as with most every regulated market, Maine declined to mandate severe punishments (such as, for example, the loss of a license) on participants in the market for each and every infraction, no matter how small or unwitting….  To turn each and every infraction into a basis for federal criminal prosecution would upend that decision in a manner likely to deter the degree of participation in Maine's market that the state seeks to achieve.

After departing from the strict compliance standard, the court declined to clearly demarcate when the DOJ can (and cannot) prosecute medical marijuana businesses.  Instead, the court reasoned that, under the facts of this case, the DOJ could subject the defendants to federal criminal punishment because their alleged conduct also constitute a crime under Maine’s marijuana laws.

The First Circuit’s interpretation of the Rohrabacher-Farr Amendment in Bilodeau should bring some comfort to medical marijuana businesses in the First Circuit.  The interpretation gives the DOJ less discretion to prosecute medical marijuana businesses than does the Ninth Circuit’s strict compliance standard.  This increased protection could become all the more important if a Presidential administration less friendly to marijuana takes power.  (And, for marijuana law professors, Bilodeau and McIntosh present an excellent opportunity for a class exercise on statutory interpretation!)

February 3, 2022 in Business laws and regulatory issues, Criminal justice developments and reforms, Federal court rulings, Federal Marijuana Laws, Policies and Practices, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Saturday, January 29, 2022

Initiative effort to legalize marijuana in Ohio advances to legislative consideration, on track for Nov 2022 vote if Ohio General Assembly does not act

Ohio-marijuana-1280x720As reported in this local article, headlined "Recreational marijuana proposal clears another hurdle, heads to Ohio legislature before November ballot," an interesting reform effort in the Buckeye State is now one step closer to getting recreational marijuana on Ohio ballot this year.  Here are the details:

Ohio Secretary of State Frank LaRose told state legislative leaders in a Friday letter that a proposed initiated statute that would legalize recreational marijuana obtained enough signatures to get on the November ballot, and now the General Assembly has four months to consider passing the measure. State law requires at least 132,887 valid signatures to get on the ballot, which the Coalition to Regulate Marijuana Like Alcohol obtained. County boards of election recently finished verifying the signatures, and LaRose sent the letter to lawmakers.

But before the proposal makes the Nov. 8 ballot, the General Assembly gets to take a stab at passing the measure or passing it in an amended form. According to the Ohio Constitution, if lawmakers fail to pass a proposal, the coalition can circulate more petitions, demanding it appears on the ballot in the next general election.

The coalition, made up of businesses in Ohio’s medical marijuana industry, prefers the legislature to pass a law expanding the program to Ohioans age 21 and older. However, it also said that it has polling showing that marijuana is no longer a partisan issue in Ohio, and it believes the initiated statute would pass at the polls. “We are ready and eager to work with Ohio legislators over the next four months to legalize the adult use of marijuana in Ohio,” coalition spokesman Tom Haren said in a statement. “We are also fully prepared to collect additional signatures and take this issue directly to voters on November 8, 2022, if legislators fail to act.”

Under the proposal, adults would be allowed to purchase, possess and grow marijuana at home. Existing Ohio medical marijuana dispensaries could expand their businesses to sell to adults 21 and older, and new marijuana businesses could be added to accommodate recreational demand. Marijuana purchasers would be taxed 10% at the point of sale for each transaction. The coalition estimates recreational marijuana revenues could generate $400 million a year in new revenue.

Sensing the pressure from the Just Like Alcohol proposal, the legislature has advanced several marijuana bills lately. But none of them have moved across the finish line. On Tuesday, the Ohio House Health Committee advanced a bill to legalize marijuana for people on the autism spectrum. On Dec. 16, the Ohio Senate sent to the House a bill that would legalize marijuana to any patient whose symptoms ‘may reasonably be expected to be relieved by the drug. Democratic and Republican lawmakers also introduced bills that would legalize recreational marijuana.

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." 

A few prior recent related posts:

January 29, 2022 in Initiative reforms in states, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Wednesday, January 26, 2022

Jeff Bezos can go to space, but can Amazon help get federal marijuana reform enacted?

Amazon_tweetThe question in the title of this post is prompted by all the press buzz about the decision by Amazon to formally endorse Rep Nancy Mace's States Reform Act.  This New York Post piece, headlined "Amazon endorses GOP bill that would legalize marijuana on federal level," provides some context:

Amazon has endorsed a Republican-backed bill in Congress on Tuesday that would legalize marijuana on a federal level, leaving states to decide whether to prohibit or regulate it.  Rep. Nancy Mace’s (R-SC) States Reform Act would remove cannabis as a federal Schedule I substance and introduce a new 3% federal tax on the substance....  “Every state is different and every state should be able to dictate their cannabis laws,” Mace told The Post in an interview. “This bill would get the federal government out of the way.”...

Mace, a freshman Congresswoman who previously worked for Donald Trump’s 2016 presidential campaign, told The Post that she was approached by Amazon representatives after she introduced the bill.  She said the company was motivated to endorse her bill because legal issues around marijuana can make hiring difficult.  “They’re looking at it from a workers perspective,” Mace said in an interview. “The prohibitions at the federal level really do affect their workforce.” 

Amazon told Mace that it is not interested in selling marijuana on its website, according to the Congresswoman.  “That is not their goal, not their intention,” Mace said of the prospect of Amazon pushing pot. “They said that right off the bat.”  In June, Amazon stopped testing many job applicants for marijuana and said that it would support efforts to legalize the drug.... 

Mace expects Democrats, many of whom have supported weed legalization for years, to come out in support of her bill. She argued that Republicans are also likely to support her bill because it gives more power to states — and because weed legalization is extremely popular nationwide.  “Even in my very red state of South Carolina, statewide, medical cannabis is at an approval rating of 70%,” she said. “If we’re going to do cannabis reform at the federal level, Republicans need to have a seat at the table.” 

This lengthy new Forbes article, headlined "Republican Congresswoman Nancy Mace Is On A Mission To Legalize Cannabis — And Amazon Just Got Behind Her," discusses further Rep Mace, the States Reform Act, and some of the current political realities as of early 2022. I recommend the full piece, and here are some excerpts:

The cannabis industry also adores Mace and her bill, which is pro-business. (She proposes a 3% federal excise tax—compared to Schumer’s 10% tax—which would generate an estimated $3 billion in annual tax revenue by 2030.) Still, her bill is unlikely to become law, and Mace is under no pot-addled delusion that its passage is a sure thing. Her broader goal is to get as many Republicans as possible on board with cannabis reform and show the GOP that legalization is a good campaign issue in 2022 and beyond....

Mace’s bill also attempts to heal some of the inequities of America’s war on drugs, which disproportionately affects people of color. She estimates that if her bill were to pass, and some 2,800 federal prisoners incarcerated for non-violent cannabis crimes were released and another 1,100 or so people who get put in prison for similar crimes each year are not incarcerated, the government would save nearly $600 million over five years....

Cannabis legalization has historically been a progressive issue, but Mace wants to make it a Republican talking point. Kim Rivers, the CEO of Florida-based Trulieve, which has 160 dispensaries across eight states, welcomes Mace’s approach. “Cannabis is not a red or blue issue,” says Rivers. “And cannabis reform has done well consistently in conservative states. It sends a significant message that cannabis is not partisan.”...

Despite all of this momentum, Mace knows the States Reform Act is unlikely to go forward before the midterm elections, but her goal is to show a “proof of concept” that there are enough votes on the Republican side to get meaningful reform across the finish line in Congress.

When asked what it means that cannabis is now more popular than President Trump in red states—74% of Mississippians, for example, voted for the state’s medical marijuana ballot initiative while nearly 58% of Mississippians voted for Trump—she says it’s a signal to Republicans that they need to get on board with legalization.

“It means that if you don't do it, you're full of shit,” Mace says. “There's no reason not to do this. And if you are anti-marijuana, this is not forcing you to do it. It's not forcing your state to legalize it. But if it is legal in your state, then we're going to tax it and regulate it.”

January 26, 2022 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, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Tuesday, January 18, 2022

Modern day Fiorello La Guardia?: US Senate candidate Gary Chambers smokes marijuana in new campaign ad protesting criminalization

Download (22)

As detailed in this piece, headlined "Fiorello La Guardia Protested Prohibition By Drinking a Beer…In Congress," some notable politicians have taken notable steps to protest foolhardy prohibitions.  Here are the details from a century ago:

Fiorello La Guardia, best known as the mayor of New York City in the 1930s and ’40s, flaunted his illegal drinking by sipping homemade beer in his congressional office in Washington, D.C.

In 1926, La Guardia summoned 20 newspaper reporters and photographers into Room 150 of the House Office Building. With a straight face, he took “near beer” (the low-alcohol beer allowed under the Volstead Act) and mixed it with two-thirds of a bottle of malt tonic. Then he took a sip. He declared the alcoholic beverage legal, according to La Guardia’s New York Times obituary in 1947, and headlines the next day heralded his publicity stunt.

Notably, La Guardia was also not a fan of marijuana prohibition either:

He went on to become one of the most popular mayors in New York City history. As mayor, his activism against congressional policing of substances continued. La Guardia commissioned the La Guardia Committee Report on Marihuana in response to the start of the war on drugs in the late 1930s. In 1944, after five years of study, his report declared several groundbreaking statements:

“The use of marihuana does not lead to morphine or heroin or cocaine addiction and no effort is made to create a market for these narcotics by stimulating the practice of marihuana (sic) smoking. The publicity concerning the catastrophic effects of marihuana smoking in New York City is unfounded. Marihuana is not the determining factor in the commission of major crimes.”

The study was enough to make Harry Anslinger, the first commissioner of the federal Bureau of Narcotics, denounce La Guardia, his study, and his stance on drugs.

La Guardia’s anti-regulatory stance on cannabis wasn’t embraced by the public as much as his stance against Prohibition was. But one day, perhaps the U.S. will look back fondly on La Guardia’s prescience, just like people today look back on his homemade “beer” he drank while in the House of Representatives.

This notable bit of history came to mind when I saw this new ABC News story headlined "Democratic Senate candidate smokes marijuana in new ad highlighting disparity and reform." The ad is very much worth watching in full (so I have it embedded below), and here are the basics from the press piece:

Progressive activist and Democratic U.S. Senate candidate Gary Chambers Jr. smokes marijuana in a field in New Orleans while talking about marijuana reform in his first campaign ad. On Jan. 1, smokeable medical marijuana became legal in Louisiana under certain conditions....

Chambers, who is Black, opens the new ad titled "37 Seconds" by lighting and smoking a joint as a stopwatch clicks in the background.

He says someone is arrested for possession of marijuana every 37 seconds. “Black people are four times more likely to be arrested for marijuana laws than white people. States waste $3.7 billion enforcing marijuana laws every year,” he goes on....

Chambers, who has never been arrested, ended the ad saying, “Most of the people police are arrested aren't dealers, but rather people with small amounts of pot, just like me.”

January 18, 2022 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Race, Gender and Class Issues, Who decides | Permalink | Comments (0)