Marijuana Law, Policy & Reform

Prez-Elect Donald Trump's cabinet picks have marijuana reform advocates mostly excited

There are always uncertainies about various policies and priorities with the transition to a new presidential administration, and federal marijuana policies and plans have been even more uncertain in recent decades against the backdrop of significant state reforms.  On the campaign trail, Donald Trump stated clearly that he supported state marijuana legalization, federal rescheduling and banking reforms.  But many reasonably wondered then, and still wonder now, if majiuana reform would be a firm policy or priority in the next Trump Administration.

With Prez-Elect Donald Trump now naming many of his major cabinet picks, and with a number of these folks having expressed considerable support for marijuana reform --- particularly Matt Gaetz and Robert Kennedy Jr., as well as Vivek Ramaswamy and Elon Musk --- advocates for marijuana reform and industry players seem mostly excited about what to expect from the new Administration.  Of course, none of Trump's cabinet picks, many of whom are controversial for various reasons, have a sure path through Senate confirmation, and all sort of factors may bear on cannabis policy and plans in the next four year.  But, as this sample of press pieces highlight, the picks are producing another round of reform optimism:

From Bezinga, "Trump's Cabinet Choices: Will His Administration Support Or Restrict Cannabis?"

From the Business of Cannabis, "What do Trump’s Cabinet Picks Mean for Cannabis Reform?"

From Cannabis Business Times, "Trump’s Pick for Attorney General Promising for Cannabis Policy, Rescheduling"

From Marijuana Moment, "RFK Jr. Could Advance Marijuana And Psychedelics Reform Agenda As Trump’s Top Health Official"

From Marijuana Moment, "Trump’s Pick For Attorney General Has Vowed To ‘Go Easy On Marijuana’ If He Gets The Job"

Rounding up various accounts of Election 2024 on drug policy and reform

I flagged in this post at my Sentencing blog the morning after Election Day 2024 that the results of various state initiatives on sentencing issues and drug policy reform showed that voters have grown much less interested in progressive reforms than in past elections.   And here is a round up of some press pieces covering these stories:

From the New York Times, "Voters in Red and Blue States Repudiate Lenient Drug Policies"

From Reason, "This Week's Election Results Are a Discouraging Sign for Drug Policy Reformers"

From the Washington Examiner, "Drug legalization takes massive hit in state referenda"

From the Washington Post, "State votes on marijuana and psychedelics signal drug policy concerns"

"State Drug Laws"

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

States have long enacted drug laws that depart from federal laws and regulations. In the early twentieth century, several states prohibited marijuana while it remained federally unregulated.  In the 1960s, states started criminalizing psychedelic substances.  Shortly thereafter, in the early 1970s, they started reversing the trend to criminalize drugs by reducing or eliminating criminal penalties associated with personal marijuana use.  State-level decriminalization accelerated in the 1990s and 2000s.

More recently, states have extended drug policy reforms to other substances, including psychedelics, stimulants, and opioids.  Some states have eliminated criminal penalties while others have replaced criminal penalties with fines or diversion to drug treatment programs and other support services.  Some have funded clinical trials or policy research. Others have legalized facilities where people can consume federally controlled substances socially or with support from medical professionals. Meanwhile, many states have shifted away from decriminalizing federally illegal drugs to regulating their manufacture, testing, distribution, and sale.

This Essay provides a typology of state drug laws comprising thirteen categories, including decriminalization, recriminalization, adult use, supported adult use, medical use, supported medical use, religious use, social consumption, safe consumption, clinical research, policy analysis, trigger laws, and food and agricultural laws.  Several states have enacted hybrid legislation that blends features from different categories.  A higher-level categorization can also be imposed onto the typology, dividing the categories into three broader groups, including laws regarding independent drug use, supervised drug use, and drug policy or procedure.

"Marijuana use is rising. The government needs to correct its mistake."

The title of this post is the headline of this notable new Washington Post opinion piece, which serves to riff quite effectively off this big new report released recently by the National Academies of Sciences, Engineering, and Medicine (NASEM).  (I had the great honor of serving on the committee that helped produce this report, which I flagged in this prior post.)  Here is part of the WaPo piece:

What little guidance the federal government has issued has focused on sales and revenue, not mitigating the health impacts on users and communities. The new report details how to reorient cannabis policy through a public health lens.  Three key points stood out to me:

First, there are many things the federal government can do without passing new laws. For example, it could develop a research agenda to draw upon lessons learned from other harmful products, such as tobacco and alcohol....

Second, the CDC could lead public education campaigns that raise much-needed awareness among Americans about the proven harms of cannabis use. These can promote strategies for identifying risky behavior, treatments for people already suffering ill effects and targeted messaging for those especially vulnerable to harm....

Finally, the government must reverse a law that unintentionally opened the door for dangerous, intoxicating products. The 2018 Agriculture Improvement Act, a.k.a. the Farm Bill, removed hemp — products with up to 0.3 percent THC — from the Controlled Substances Act. One of hemp’s derivatives is cannabidiol (CBD), which is not a psychoactive drug....

The bottom line from this report is that the federal government must stop ceding its authority to control these drugs. It never should have allowed the patchwork of state-by-state legalization, which fostered America’s largely unregulated cannabis industry.  Protecting the public’s health must come first.  Now is a better time than never.

"Cannabis Policy Impacts Public Health and Health Equity"

The title of this post is the title of this big new report released last week by the National Academies of Sciences, Engineering, and Medicine (NASEM).  I had the great honor of serving on the committee that helped produce this report, which is partially summarized in this press release.  Here are excerpts from the press release:   

The federal government should provide policy guidance to states that have legalized cannabis, close regulatory loopholes on intoxicating products derived from hemp, and create a public health campaign aimed at parents and vulnerable populations, among other measures that would protect public health and reduce the harms of rising cannabis use, says a new report from the National Academies of Sciences, Engineering, and Medicine....   

Among states that have legalized cannabis, policies aimed at protecting public health vary widely, the report finds.  For example, while all of the states have minimum age requirements for cannabis use, not all have mechanisms in place for enforcement through randomized checks, as they would for alcohol or tobacco sales.

 

The potential harms of cannabis use include increased risk of car collisions, development of schizophrenia or psychosis, respiratory symptoms including chronic bronchitis, and lower birthweight from prenatal exposure.  Secondhand smoke from cannabis can also carry risks, as can accidental ingestion or poisoning.  Research points to specific groups that may be especially vulnerable to harm — including those over 65, pregnant women, and children.  While this report does not explore the health impacts of cannabis on individuals, a 2017 National Academies report includes detailed findings on health impacts.

 

“There is an urgent need for a coordinated public health approach to cannabis policy in the U.S.,” said Steven Teutsch, chair of the committee that wrote the report and senior fellow at the Leonard D. Schaeffer Center for Health Policy and Economics at the University of Southern California.  “Our report shows that cannabis policy often focuses on regulating sales and revenue first, and protecting public health second.  Now is the time for the federal government to create guidance for states that have legalized cannabis in the interest of protecting the public’s health.”

 

“A federal public education campaign targeting those most at risk of the negative impacts of cannabis — kids, teens, pregnant people, and those over 65 — would go a long way toward supporting public health,” said Yasmin Hurd, the committee’s vice chair, Ward-Coleman Chair of Translational Neuroscience, and director of the Addiction Institute at the Icahn School of Medicine, Mount Sinai.  “Accurate information about reducing the risks of cannabis use can help people make the best decisions for their own health.”

Making the case to Prez Biden with candidates for cannabis clemency

I am pleased to see that my former student, Stephen Post, who is now part of the Last Prisoner Project, a nonprofit organization fcused on cannabis criminal justice reform, has this new USA Today opinion piece headlined "Biden promised no jail time for weed. He's running out of time to pardon cannabis convicts."   I recommend the piece in full, and here are excerpts (with links from the original):  

For most of U.S. history, presidents since George Washington have been unwavering in the use of their clemency power. They understood their actions not only as a way to remedy overly harsh sentences but also to help restore public faith in the justice system.

President Joe Biden now has a chance to use his clemency powers to secure – and, in some ways, correct ‒ his legacy on criminal justice reform.  The Biden administration has made it clear that cannabis reform, especially as a racial justice issue, is a priority and one that will energize the electorate. Nevertheless, the president has only granted 1.4% of submitted clemency petitions.

Despite positive use of his clemency powers like providing record relief to almost 13,000 people with his expanded categorical pardons for cannabis possession, President Biden has failed to release a single person in prison for cannabis via commutation....  Marylanders like Jonathan Wall, who has been incarcerated since 2020 on federal cannabis charges, can only get that type of clemency relief from the president.  

While there may be political concerns perceived to limit President Biden’s ability to grant commutations before Election Day, even then-President Donald Trump granted a few just weeks before the 2020 presidential election. In his four White House years, he granted commutations to 16 people for 27 cannabis offenses, some of whom were released from prison....

If President Biden is looking for the next batch of candidates for clemency, he has already been sent a list of deserving individuals, almost half of whom identify as Black, and whose petitions are sitting with the Office of the Pardon Attorney.

Many of these candidates have sat in prison cells for decades, or even for life, convicted of an activity that is no longer a crime, while thousands of others build business and create wealth doing the same thing.

Former Prez Trump articulates forceful support for state marijuana legalization, federal rescheduling and banking reforms

In this post nine days ago,  I noted new comments from former Prez Donald Trump that were seemingly supportive of Florida's marijuana legalization ballot initiative; in this post last week, I noted further comment from Trump suggesting his position of federal rescheduling would likewise be supportive.   Now, via this social media posting from late last night, Trump make quite clear that he is all-in on both state and federal marijuana reforms.  Here are key excerpts:

As a Floridian, I will be voting YES on Amendment 3 this November.  As President, we will continue to focus on research to unlock the medical uses of marijuana to a Schedule 3 drug, and work with Congress to pass common sense laws, including safe banking for state authorized companies, and supporting states rights to pass marijuana laws, like in Florida, that work so well for their citizens.

With these comments, Trump is no longer hedging in any way his seeming robust support for a wide array of state and federal marijuana reforms. Given Trump's various prior comments recently on these topics that did hedge a bit, I am inclined to guess that Trump was looking to see what kind of reactions his pro-marijuana reform statements engendered. The reactions, at least from Trump's view, must have been positive. I also suspect that some of Trump's latest high-profile political endorsers, specifically from Robert F. Kennedy Jr and from Tulsi Gabbart, may have been urging Trump to become more vocal in his support for reform.

Interesting times.

Recent related posts:

• Former Prez Trump suggests he is supportive of marijuana legalization in Florida and elsewhere
• Does former Prez Trump's praise for medical marijuana suggest he would robustly support federal marijuana rescheduling?

Does former Prez Trump's praise for medical marijuana suggest he would robustly support federal marijuana rescheduling?

I flagged here the notable social media comments from former Prez Donald Trump over the weekend which suggested he is supportive of marijuana legalization in Florida and elsewhere. But I just recently saw some notable follow-up comments about medical marijuana that Trump made during an interview on Lex Fridman’s podcast released earlier this week. This Marijuana Moment piece reports on the comments this way:

Former President Donald Trump says medical marijuana has been “absolutely amazing” for patients, and that a Florida initiative to more broadly legalize cannabis for recreational use will be on the November ballot is “going to be very good” for the state after it passes, which he expects to happen.

The 2024 Republican nominee said during an interview on Lex Fridman’s podcast that was released on Tuesday that “medical marijuana has been amazing,” adding that he’s “had friends and I’ve had others and doctors telling me that it’s been absolutely amazing, the medical marijuana.”

Trump referenced a recent social media post he made about Florida’s Amendment 3 ballot initiative, where he gave tacit support for the proposal. “We can live with the marijuana,” he said.

“It’s got to be a certain age [to purchase],” he said. “It’s got to be done in a very concerted, lawful way. And the way they’re doing it in Florida, I think is going to be actually good. It’s going to be very good, but it’s got to be done in a good way. It’s got to be done in a clean way.” He added that his campaign will be putting out an additional, “more specific” statement detailing his cannabis position within the next week.

I will be eager to see what kind of more specific statement concerning cannabis policy comes from the Trump campaign, and I sincerely hope it will address federal law and on-going efforts to reschedule marijuana under the Controlled Substances Act.  But if Trump is of the view that  medical marijuana is "absolutely amazing," I would think Trump's position of federal rescheduling would be absolutely positive.  After all, marijuana's current status as a Schedule I drug means that is has no accepted medical use, and it seems Trump has heard from friends and others and doctors that marijuana has been amazing as a medicine.   And only be moving marijuana to Schedule III are we likely to have medical marijuana access by patients and robust medical marijuana research "done in a very concerted, lawful way."

"Convergence and Divergence of Alcohol and Marijuana Regulation in a Federalist System Post-COVID-19"

The title of thi spost is the title of this new paper now available via SSRN authored by H. Justin Pace and Eden Punch. Here is its abstract:

After the passage of the Twenty-first Amendment, the regulation of alcohol in the U.S. largely takes place at the state level.  While marijuana has been illegal at the federal level since 1937, states have been liberalizing marijuana laws at the state level since 1996 (when California legalized medical marijuana) by legalizing marijuana for medical or adult use.  Alcohol regulation, which was effectively reset in all states when alcohol was legalized at the federal level, is marked by divergence — significant variation in alcohol laws across states.  Conversely, marijuana regulation, which has slowly spread across the U.S. state-by-state over the last 28 years, is marked by convergence — new marijuana reforms increasingly resemble other reforms.

One of us has previously published scholarship arguing that the difference can be explained by a combination of interest group politics, path dependence, and, most importantly, a temporal effect.  Alcohol and marijuana regulation in the U.S. experienced an exogenous shock with the COVID-19 pandemic, which resulted in significant changes to alcohol and marijuana regulation across the nation.  This paper examines convergence and divergence in alcohol and marijuana regulation from 2020 to the present day, revisiting and reaffirming that previous theory and also applying a federalism lens to explain alcohol and marijuana regulation and predict future developments.

Former Prez Trump suggests he is supportive of marijuana legalization in Florida and elsewhere

As reported in this New York Times article, "Donald J. Trump on Saturday signaled his support for a ballot measure that would legalize recreational marijuana in Florida, stopping short of a full endorsement but saying that he did not believe marijuana should be criminalized in his adopted home state when it is legal in others."  Here is more (with links from the original):

In a post on his social media platform, Truth Social, Mr. Trump portrayed the passage of the ballot measure, known as Amendment 3, as inevitable and raised concerns about its implementation. Public opinion polls show that a majority of Florida voters favor the measure.

“Whether people like it or not, this will happen through the approval of the Voters, so it should be done correctly,” Mr. Trump said. “We need the State Legislature to responsibly create laws that prohibit the use of it in public spaces, so we do not smell marijuana everywhere we go, like we do in many of the Democrat run Cities.”

Mr. Trump, who votes near his Mar-a-Lago estate in Palm Beach, had previously avoided taking a position on the question. His position pits him against Gov. Ron DeSantis and most of the state’s Republican leaders, who are working to defeat the proposal.

Mr. Trump’s statement appeared to walk a line meant to keep him from fully upsetting those opposed to the measure. He did not say how he personally would vote on Amendment 3, and he did not explicitly back the legalization of marijuana even as he again suggested he supported decriminalizing it.

Florida has been trending Republican, but polls show that Amendment 3 is more popular in the state than even Mr. Trump is — indicating that many voters intend to split their ticket and vote both for the former president and for marijuana legalization.  Polling suggests that most Americans now say marijuana should be legal for medical or recreational use.

DEA schedules hearing on federal marijuana rescheduling for December 2, 2024

As reported here via Marijuana Moment, the "Drug Enforcement Administration (DEA) has scheduled a hearing to consider differing expert opinions on the Justice Department’s proposal to federally reschedule marijuana — an extra procedural step that will take place after the November election."  Here is more:

After moving to reclassify cannabis as a Schedule III drug under the Controlled Substances Act (CSA) back in March, DOJ opened a 60-day public comment period that saw more than 4o,000 submissions.  Now that DEA has reviewed the comments, it agreed to an administrative hearing, as requested by several supporters and opponents of the reform.  The hearing will be held on December 2, according to a notice set to be published in the Federal Register on Thursday.

While some advocates and stakeholders had hoped that DEA would avoid this additional step and simply move to final rulemaking, the agency has often scheduled hearings for regulatory proposals of major public interest. And rescheduling cannabis for the first time since it was designated as Schedule I over 50 years ago evidently met that standard.

That said, the hearing adds some uncertainty about the potential rescheduling timeline.  There are some concerns this means the rulemaking process will not be completed before January, which could mean an administrative changeup after the November election that theoretically could affect the rescheduling process.

While some advocates and stakeholders had hoped that DEA would avoid this additional step and simply move to final rulemaking, the agency has often scheduled hearings for regulatory proposals of major public interest. And rescheduling cannabis for the first time since it was designated as Schedule I over 50 years ago evidently met that standard.

That said, the hearing adds some uncertainty about the potential rescheduling timeline.  There are some concerns this means the rulemaking process will not be completed before January, which could mean an administrative changeup after the November election that theoretically could affect the rescheduling process.

New Gallup polling shows "Americans' Views of Marijuana Effects Worsen"

The polling firm Gallup here released the interesting results of its "Consumption Habits" poll. Here are excerpts from Gallup's discussion of its findings:

Americans’ views of the effects of marijuana have worsened over the past two years, as slim majorities now say it negatively impacts both society as a whole (54%) and most people who use it (51%). This contrasts with Gallup’s findings from 2022, when the public was about evenly divided in its assessments of marijuana’s effect on society and more likely to say the effect on most users was positive (53%) rather than negative (45%).

The latest data, from Gallup’s July 1-21 Consumption Habits poll, show that majorities of Americans in several demographic groups believe marijuana has a positive effect on most who use it. These include those who say they have tried marijuana, young adults 18-34 years old, Democrats, and those who attend religious services less than monthly or never.

By contrast, majorities of their counterparts -- those who say they have never tried marijuana, adults 55 and older, Republicans and those who attend religious services at least monthly -- think marijuana has a negative effect on most who use it. Independents and adults 35 to 54 years old are divided in their views.

All of the groups have become less likely since 2022 to say marijuana has a positive effect on users. Meanwhile, less than half of Americans in each of these groups now think that marijuana positively impacts society.

A separate question in the July survey measures U.S. adults’ opinions of the harmfulness of cigarettes, chewing tobacco, e-cigarettes, cigars, a pipe, nicotine patches, alcohol and marijuana to those who use them.

Although majorities of Americans believe each of the eight substances is “very” or “somewhat” harmful to its users, the two-thirds who say marijuana is very (26%) or somewhat (40%) harmful is the lowest. In contrast, more than nine in 10 U.S. adults consider cigarettes, chewing tobacco, and e-cigarettes or vaping to be harmful, including majorities calling each very harmful.

The public’s perceptions of the harmfulness of marijuana have worsened slightly since last year, when 23% viewed it as very and 35% somewhat harmful.

The 13% of U.S. adults who currently report that they smoke marijuana is down slightly from the 16% to 17% range recorded in 2022 and 2023. Meanwhile, compared with 2022, a steady 12% of U.S. adults say they consume edibles, about matching the 11% of Americans who say they smoke cigarettes, which ties the low in Gallup’s 80-year trend. Seven percent of U.S. adults vape or use e-cigarettes. Alcohol use is more widespread, with 58% of U.S. adults saying they have occasion to drink.

DEPC event on Aug 7: "Federal Marijuana Reform: Effects and Echoes of Rescheduling"

I am pleased to be able to spotlight another great Drug Enforcement and Policy Center (DEPC) event focused on federal marijuana reforms.  This online event,  titled "Federal Marijuana Reform: Effects and Echoes of Rescheduling," will take place on August 7, 2024 from 12 noon to 1:15 pm EDT.  The event is described this way on this event registration page (where one can directly register):

After decades-long efforts by advocates and researchers, President Biden announced in October 2022 that he instructed “the Secretary of Health and Human Services and the Attorney General to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law.”  In May 2024, the Attorney General submitted a notice of proposed rulemaking to the Federal Register, initiating a formal rulemaking process to consider the reclassification of marijuana from a schedule I to a schedule III drug under the Controlled Substances Act (CSA).

While the rulemaking process timeline has some uncertainties, many expect a final rescheduling rule could appear as soon as September or October 2024.  But what would such a move mean for modern marijuana laws, policies and practices?  Could medical marijuana products be prescribed by doctors and sold in pharmacies nationwide?  Would changes in federal laws dramatically impact current medical and recreational industries operating under disparate state systems?  And would placement in schedule III make a meaningful difference in the operation of criminal justices systems, especially for people with marijuana-related criminal convictions at the federal or state level?

Panelists:

John Hudak, Director of the Maine Office of Cannabis Policy
Robert Mikos, LaRoche Family Chair in Law, Vanderbilt University Law School 
Fatima Afia, Attorney, Rudick Law Group, PLLC
Shane Pennington, Partner, Porter Wright Morris & Arthur LLP 

Moderator:
Cat Packer, Distinguished Cannabis Policy Practitioner in Residence at The Ohio State University Drug Enforcement and Policy Center and Director of Drug Markets and Legal Regulation at Drug Policy Alliance

Split Oklahoma Court of Criminal Appeals affirms dismissal of criminal charge of child neglect brought against woman who used medical marijuana when pregnant

As reported in this local press piece, "women with state medical cards who use marijuana during pregnancy can’t be prosecuted for child neglect, the Oklahoma Court of Criminal Appeals ruled Thursday."   The ruling in State v. Agular, No. 2024 OK CR 18 (Okla. Ct. Crim. App. July 18, 2024) (available here), is an interesting read, and here are a few passages from the majority opinion:

The issue in this appeal is whether an expectant mother who holds a medical marijuana card and uses the drug while pregnant has exposed her unborn child to illegal drugs constituting the crime of child neglect, which in Oklahoma includes "the failure or omission to protect a child from exposure to . . . the use, possession, sale, or manufacture of illegal drugs." 10A O.S.Supp.2019, § 1-1-105(48)(b)(1) (emphasis added).  The Information charges Aguilar with a single felony count of child neglect by "exposing J.W.B. to controlled dangerous substances in utero, specifically Marijuana." (Emphasis added). Thus, the charging document accuses Aguilar of a crime which does not exist, i.e., child neglect by exposure to "controlled dangerous substances" as opposed to exposure to "illegal drugs[.]"  This is not a matter of semantics, and although this charging error does not determine the outcome of this appeal, the apparent confusion in terminology and definitions which led to that error is central to understanding how to properly resolve this case.

The terms "controlled dangerous substance" and "illegal drugs" are not synonymous; the former includes hundreds of prescription drugs which, like marijuana, are lawful to possess only with a prescription or other legal authorization.  The term "controlled dangerous substance" is defined in 63 O.S.Supp.2019, § 2-101(8) as any drug listed in any of the Schedules I through V of the Uniform Controlled Substances Act.  However, neither that Act nor any other provision of Oklahoma law defines the term "illegal drug", so we must ascertain the meaning of that term, and specifically, whether the marijuana use in this case is included within it so as to constitute child neglect....

We find that the most logical reading of 10A O.S.Supp.2019, § 1-1-105(48)(b)(1) is that "illegal drugs" means those drugs whose possession or use violated the law at the time of that possession or use. Hence, an expectant mother who exposes her unborn child to illegal methamphetamine could be convicted of child neglect.  See State v. Green, 2020 OK CR 18, 474 P.3d 886.  Conversely, under that definition, an expectant mother's licensed possession and use of medical marijuana would not trigger an automatic finding of neglect for failure to protect her unborn child from exposure to illegal drugs because as to her, marijuana is not an illegal drug.

One of the two dissents includes this passage providing a different view of this matter:

The child neglect statutes were undoubtedly enacted to protect children from harm. Marijuana is still an illegal Schedule I drug except for a person who holds a medical marijuana license. In this case, the baby's exposure to Appellee's use and possession of marijuana, a Schedule I drug, is illegal because the baby has no medical marijuana license. It is not the mother's use or possession of marijuana that is criminalized by the child neglect statute, but her exposure of her unborn child to the use or possession of marijuana, an illegal drug for the child.

"Marijuana and the Tyrannies of Scheduling"

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

The Drug Enforcement Administration (DEA) is about to reschedule marijuana under the Controlled Substances Act (CSA), marking an historic shift in federal policy toward the drug.  This Essay analyzes the reasoning behind the agency’s decision and its implications for other Schedule I drugs, including promising psychedelics like psilocybin and methylenedioxymethamphetamine (MDMA). 

The Essay begins by highlighting a new test the agency introduced to determine whether a drug has a “currently accepted medical use” (CAMU).  In the past, the DEA insisted CAMU could be demonstrated only by successfully completing rigorous scientific research demonstrating a drug is effective.  But because the CSA limits the ability to conduct such research on Schedule I drugs, the agency’s CAMU test proved nearly impossible to satisfy, imposing what I call the Tyranny of Science.  In its latest marijuana rescheduling decision, however, the DEA announced that CAMU could also be demonstrated by showing there is already widespread clinical use of a drug.

Because state medical marijuana programs are wildly popular, the agency was able to find that marijuana has a CAMU under the new test, even though scientific proof of its medical efficacy is still lacking. Nonetheless, I argue the new CAMU test is unlikely to facilitate rescheduling of any other drug. In effect, the new test requires convincing popular majorities to pass state laws legalizing medical use of a drug the federal government has banned outright. Although marijuana advocates eventually convinced enough voters in enough states to satisfy this daunting test, no other Schedule I drug is likely to repeat that feat anytime soon (if ever).

But the Essay proposes a way to soften the Tyrannies of Scheduling: I argue the DEA should de-emphasize CAMU in scheduling decisions. The agency has long insisted that a drug with no CAMU must be placed on Schedule I, regardless of its harms.  But the agency has never offered a persuasive rationale for making CAMU paramount in scheduling decisions, and the Essay shows that the agency’s approach is contrary to the text and purposes of the CSA.  De-emphasizing CAMU would reduce the distortive influence the tyrannical CAMU tests now wield over the administrative scheduling process, resulting in more rational scheduling decisions that better reflect the benefits and dangers of controlled substances, as Congress intended.

Rounding up some recent notable marijuana legal news and commentary from various quarters

I have not blogged in this space much latety as I have been consumed with activity by the US Supreme Court and other legal developments in recent weeks.  In addition, I do not usually cover much day-to-day marijuana news because all sort of outlets cover this news (and Marijuana Moment covers it especially well).  But as these streams come together, I though it useful to do a quick post highlighting some notable marijuana legal news and commentary.  So:

From the AP, "Brazil’s Supreme Court decriminalizes possession of marijuana for personal use"

From Bloomberg Law, "Federal Cannabis Law Dispute Tossed by Massachusetts Judge"

From Harris Sliwoski, "Cannabis Law and Gun Rights: News from SCOTUS"

From Marijuana Moment, "South Dakota Law Banning Intoxicating Hemp Products Takes Effect After Judge Declines To Block It"

From Marijuana Moment, "DeSantis Seems To Concede He Vetoed Hemp Ban Bill, In Part, To Engage Industry In Marijuana Legalization Opposition Campaign"

From MinnPost, "Court decision ending cannabis odor as sole reason for search codified by Minnesota lawmakers"

From the Missouri Independent, "Missouri courts still slogging through marijuana crime expungements, long after deadline"

From MJBiz Daily, "How will Supreme Court ruling affect marijuana rescheduling?"

"Ohio Principals' Perspectives on How Adult-Use Marijuana May Impact Schools and Students"

The title of this post is the title of this terrific new report now available via SSRN and authored by Peter Leasure Jana Hrdinova with the Drug Enforcement and Policy Center.   Here is the report's abstract:

Over the last decade, significant effort has been devoted to examining whether the legalization of recreational cannabis leads to higher rates of use among youth given that some research links adolescent marijuana use with various negative educational, health, and safety outcomes.  Although some national survey results over the last decade suggest that current marijuana use among high school students has decreased, the concern about youth use remains (especially in jurisdictions that have recently legalized marijuana for recreational use).  The goal of the current study was to explore current issues with student marijuana use in Ohio’s K-12 schools and anticipated future issues given the recent legalization of adult-use marijuana in Ohio.

In December 2023, before any recreational marijuana was available for sale in the state of Ohio, an online survey was distributed to Ohio’s K-12 principals that covered three general areas: current student behavior with respect to marijuana, anticipated impact of marijuana legalization on students, and anticipated impact of marijuana legalization on schools and its policies.  The results indicated notable agreement among principals that current marijuana use on school premises and away from school premises was perceived as a problem.  Principals also reported high levels of concern about the anticipated impact of cannabis legalization on their students with respect to increased marijuana use among students, increased physical and mental health issues, negative impact on academic performance, and negative impact on students’ behavior at school.  While the results generally showed higher levels of agreement about expected negative impacts among principals at high schools and middle schools, elementary school principals still noted modest to high levels of concern for many questions.  Given those results, it is not surprising that many principals stated that they would likely increase education about the negative effects of marijuana use. Further, over 80% of principals noted that more funding should be provided to Ohio schools for marijuana-specific education now that recreational marijuana is legalized in Ohio.

"Cannabis Law Practice: Lessons for the Legal Profession in the Twenty-First Century"

The title of this post is the title of this new paper authored by Eli Wald and available via SSRN.  Here is its abstract:

The gradual states-driven legalization of cannabis, first medicinal marijuana followed by recreational marijuana, combined with decreased enforcement of federal law, has led to the emergence and growth of the marijuana industry and with it increased demand for cannabis legal services.  This Article is the first to study cannabis law practice in the United States.  In addition to answering fundamental questions about this growing area of law practice, including who cannabis lawyers are, where they practice, and what ethical challenges they face, the Article also investigates the insights cannabis law practice reveals and the lessons it teaches about the American legal profession.

Robust coverage of rescheduling at Marijuana Moment

Anyone and everyone who seriously follows marijuana news – of which there is plenty these days – knows to follow Marijuana Moment for lots of cannabis coverage and context.  In the past week, of course, news around possible federal rescheduling is coming fast and furious, and I will here use Marijuana Moment headlines (and links) to cover a lot of ground (which is sure to keep shifting):

"Attorney General Formally Moves To Reschedule Marijuana, But DEA Signals Resistance"

"DOJ Seeks Input On ‘Unique Economic Impacts’ Of Marijuana Rescheduling For ‘Multibillion Dollar Industry’"

"Former Obama Drug Czar Says Marijuana Is ‘Not Medicine’ And That ‘Big Cannabis’ Is Behind Federal Rescheduling Decision"

"Feds Begin Accepting Marijuana Rescheduling Comments, With Key Reform Groups Previewing How They Plan To Influence The Process"

"Biden Drug Czar Says Marijuana Rescheduling Is ‘Based On Science And Evidence’ But Misstates Impact On Prescription Access"

Biden Administration moves federal marijuana rescheduling forward to start public comment period

As reported in this Washington Post piece, "President Biden on Thursday publicly endorsed the Justice Department’s recommendation to loosen restrictions on marijuana, a long-expected measure that marks a historic shift in the nation’s drug policy." Here is more on an important next step in the rescheduling process:

The Justice Department, after receiving the go-ahead from the White House, published an official notice, opening a two-month period for the public to comment on the proposed change. The rule reclassifying marijuana as a Schedule III controlled substance would not go into effect until afterward.

Marijuana would not be legalized federally, but would move out of the Schedule I category reserved for tightly controlled substances such as heroin and LSD. If the rule goes into effect, marijuana will join a category including prescription drugs such as ketamine, anabolic steroids and testosterone....

The move comes a little more than two weeks after Attorney General Merrick Garland recommended to the White House that marijuana be reclassified as a Schedule III substance. The recommendation was applauded by cannabis supporters who for decades have complained that the federal government exaggerated the dangers of the drug.

Marijuana’s Schedule I status means it is tightly controlled because the federal government sees no proven medical value and a high potential for abuse. Stripping that designation would provide researchers easier access to cannabis and allow marijuana companies to deduct business expenses from their tax bills — a boon for an industry that has struggled because of high operating costs and competition from the illicit market. “Our ultimate goal is federal legalization, and we see Schedule III as a necessary and critical step along the way,” Edward Conklin, executive director of industry group U.S. Cannabis Council, said in a statement....

Some cannabis advocates say reclassification is an incremental step that doesn’t address the fundamental disconnect between the federal criminalization of the drug and the reality that a majority of Americans live in states where they can legally buy it. The implications of rescheduling for existing legal state markets are especially murky because marijuana has not been treated as a federally regulated medicinal product sold at pharmacies.

Meanwhile, cannabis critics fault the Biden administration for normalizing a drug that can still be harmful to individual and public health. Reclassification of marijuana — which is opposed by some former federal law enforcement officials, some Republicans in Congress and the anti-cannabis group Smart Approaches to Marijuana — could be delayed again by legal and regulatory challenges.

In announcing this move, the Justice Department released its formal federal register rule which will  start a 60-day comment period, as well as this 36-page document from the  Office of Legal Counsel detailing legal arguments surrounding rescheduling issues.