Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Tuesday, September 14, 2021

"Cannabis, Consumers, and the Trademark Laundering Trap"

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

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

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

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

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

Thursday, September 2, 2021

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

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

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

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

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

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

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

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

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

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

A few prior related posts: 

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

Monday, August 23, 2021

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

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

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

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

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

Sunday, August 15, 2021

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

20200803-160721-ballot with pot leafKyle Jaeger at Marijuana Moment has this helpful article about developing drug reform ballot initiatives under the headline "These States Could Have Marijuana And Psychedelics Legalization On The Ballot In 2022."  I recommend the full piece, and here are the highlights (with links from the original):

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

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

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

Arkansas

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

California

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

Idaho

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

Maryland

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

Mississippi

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

Missouri

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

Nebraska

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

North Dakota

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

Ohio

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

Oklahoma

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

South Dakota

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

Wyoming

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

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

Monday, August 9, 2021

"How Many States Have Legalized Adult Recreational Cannabis?"

Werner-simon-legalization-logo-map-with-newest-adult-rec-conn-july--2021-(1)-(002)The title of this post is the title of this effective new piece by Julie Werner-Simon at Cannabis Business Times.  The subheadline highlights one theme of the piece: "The answer depends on how we define 'legalized'."  Here are excerpts:

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

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

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

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

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

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

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

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

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

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

Thursday, July 29, 2021

Lots of notable midsummer marijuana reform headlines

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

Tuesday, July 20, 2021

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

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

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

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

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

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

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

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

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

The title of this post is the title of this new paper recently posted to SSRN and authored by Jamie Feyko, a rising 3L at The Ohio State University Moritz College of Law.  (This paper is yet another in the on-going series of student papers supported by the Drug Enforcement and Policy Center.)   Here is this latest paper's abstract:  

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

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

Wednesday, July 14, 2021

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

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

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

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

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

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

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

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

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

A few of many prior recent related posts:

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

Monday, July 5, 2021

Cannabis Freedom Alliance releases "Recommendations for Federal Regulation of Legal Cannabis"

Cannabis-freedom-allianceI mentioned in this post a few months ago the launch of the Cannabis Freedom Alliance, which is a prominent coalition with a stated mission to "end the prohibition and criminalization of cannabis in the United States in a manner consistent with helping all Americans achieve their full potential and limiting the number of barriers that inhibit innovation and entrepreneurship in a free and open market."  I was now pleased to see that, right around the traditional July time we celebrate our nation's deep commitments to freedom, this Alliance has released this new white paper titled "Recommendations for Federal Regulation of Legal Cannabis."  Here is part of the start of this notable 14-page document:

If major marijuana reform legislation is to be taken seriously in Congress this year, there are many aspects it must address. These include everything from federal regulation and tax issues to financial services, clinical research, the contours of interstate commerce and technical barriers to trade, social equity, criminal justice, and respect of states’ reserved powers. There is a danger that federal legalization, done incorrectly, could produce outcomes even more adverse than the status quo.

This analysis provides an overview of each of these subtopics and provides general recommendations to help guide the effort toward federal legalization of marijuana that will achieve the following goals:

• Establishing a regulatory framework that promotes public safety while allowing innovation, industry, and research to thrive.

• Ensuring individuals previously involved in the illicit market can effectively secure a second chance and contribute to the legal market.

• Creating low barriers to entry and non-restrictive occupational and business licensing so that large companies and new entrepreneurs can compete on a level playing field.

• Imposing a total tax burden – federal, state, and local combined – that does not incentivize the continuation of gray or black markets and ensures competitive global footing for a vibrant, novel U.S. industry.

July 5, 2021 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Monday, June 28, 2021

Justice Thomas talks up reconsidering Raich, but has no compatriots (yet)

Download (18)One of many interesting stories of modern marijuana reform has been the relative lack of Supreme Court engagement with the issue in modern times (which, of course, is partially a function of the relative lack significant federal reforms passed by Congress to date).  Against that backdrop, it was especially surprising and exciting that Justice Thomas today decided to pen this five-page statement respecting the denial of cert in a tax case, Standing Akimbo v. US,  in order to question whether the Raich decision upholding federal power to prohibit all marijuana activity is still good law.  The whole statement is a must read, and here are just a few passages that I especially enjoyed (cites and footnotes removed):

Whatever the merits of Raich when it was decided, federal policies of the past 16 years have greatly undermined its reasoning.  Once comprehensive, the Federal Government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana.  This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary....

though federal law still flatly forbids the intrastate possession, cultivation, or distribution of marijuana, Controlled Substances Act, the Government, post-Raich, has sent mixed signals on its views.  In 2009 and 2013, the Department of Justice issued memorandums outlining a policy against intruding on state legalization schemes or prosecuting certain individuals who comply with state law.  In 2009, Congress enabled Washington D. C.’s government to decriminalize medical marijuana under local ordinance. Moreover, in every fiscal year since 2015, Congress has prohibited the Department of Justice from “spending funds to prevent states’ implementation of their own medical marijuana laws.”  That policy has broad ramifications given that 36 States allow medicinal marijuana use and 18 of those States also allow recreational use.

Given all these developments, one can certainly understand why an ordinary person might think that the Federal Government has retreated from its once-absolute ban on marijuana.  One can also perhaps understand why business owners in Colorado, like petitioners, may think that their intrastate marijuana operations will be treated like any other enterprise that is legal under state law.

Yet, as petitioners recently discovered, legality under state law and the absence of federal criminal enforcement do not ensure equal treatment....

Suffice it to say, the Federal Government’s current approach to marijuana bears little resemblance to the watertight nationwide prohibition that a closely divided Court found necessary to justify the Government’s blanket prohibition in Raich. If the Government is now content to allow States to act “as laboratories” “‘and try novel social and economic experiments,’” Raich, 545 U. S., at 42 (O’Connor, J., dissenting), then it might no longer have authority to intrude on “[t]he States’ core police powers . . . to define criminal law and to protect the health, safety, and welfare of their citizens.” Ibid.  A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the Federal Government’s piecemeal approach.

Of course, Justice Thomas dissented in Raich, so perhaps it should not seem lke a big surprise that he would be inclined to talk up the possibility that it is no longer good precedent.  Still, I do not think the tax issue in Standing Akimbo directly called for considering Raich's standing and status.   And, of course, Justice Thomas "had me at hello," given that a mere eight months ago I was talking up in this post the prospects of "Raich 2.0" challenges to federal prohibition because so much has changed in the 16 years since the original Raich ruling.  (In my prior post, I suggested a number of new Justices might not only be inclined to join Justice Thomas to reconsider the Commerce Clause ruling in Raich, but also might be inclined to breathe some life into the Ninth and Tenth Amendments in this unique context.  And one could further speculate that Justices Breyer, Kagan and Sotomayor might be open to considering Fifth and Eighth Amendment challenges to the modern functioning of federal marijuana prohibition.)

Disappointingly, none of Justice Thomas's fellow Justices joined his statement, and so it is unclear whether there could be others inclined to now reconsider Raich.  But I am hopeful that perhaps this statement by Justice Thomas alone could fuel some more lower court litigation and discussion, perhaps on a number of different grounds, concerning whether blanket federal marijuana prohibition now functions in constitutionally problematic ways.  I think it is only a matter of time before we start to see more Supreme Court engagement with marijuana reform issues, and broadside constitutional issues always make for an interesting place to start.

June 28, 2021 in Court Rulings, Federal court rulings, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Sunday, June 27, 2021

Red state marijuana reforms not yet leading to GOP Senator support for federal reform

Natalie Fertig of Politico has this effective new piece highlighting that Senate Republicans do not seem to be moving off their opposition to broad federal  marijuana reform even as more and more red states enact reform.  The piece is headlined "Republicans are watching their states back weed — and they’re not sold," and here are excerpts:

Marijuana’s popularity boom in red states isn’t breaking through with conservatives on Capitol Hill, pinching an already narrow path to federal legalization.

A growing number of Republican senators represent states that have legalized recreational or medical cannabis — six approved or expanded marijuana in some form just since November.  But without their support in Congress to make up for likely Democratic defectors, weed falls critically short of the 60 votes needed to advance legislation.

Montana’s Steve Daines and South Dakota’s Mike Rounds, both Republicans, said they don’t support comprehensive federal cannabis reform, no matter what voters back home voted for....

Lawmakers whose constituents have already approved some form of legal marijuana are seen as the most likely to support loosening federal restrictions, but so far Republican senators appear largely unmoved by the will of voters when it comes to weed.  In some states, such as Montana and South Dakota, marijuana did better on the ballot than their senators.

POLITICO spoke with a dozen GOP senators who represent medical or recreational cannabis markets in recent days. None committed to vote to remove cannabis from the Controlled Substances Act, but Sens. Lisa Murkowski of Alaska and Kevin Cramer of North Dakota said they were open to discussing ways to remove federal cannabis penalties.  Others, however, said they were not on board with any type of federal cannabis legislation.

June 27, 2021 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Thursday, June 17, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

June 17, 2021 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Thursday, June 10, 2021

"Data, Damn Lies, and Cannabis Policy: Reefer Madness and the Methodological Crimes of the New Prohibitionists"

The title of this post is the title of this article published earlier this year in the journal Critical Criminology and authored by Jon Heidt and Johannes Wheeldon.  Here is its abstract:

The rapid pace of cannabis legalization in North America has provoked a backlash that is predictable and discouraging.  The New Prohibitionists, distinct but related to their predecessors, the Old Prohibitionsists, have offered scholarship rife with conceptual errors, methodological flaws, and practical oversights.  While their advice would likely hasten that which they seek to decrease, they overlook the costs of returning to practices associated with prohibition.  To counter simplistic research interpretations and ill-considered policy, we present a critically informed research program on cannabis and crime based on previous scholarship.  Our work is designed to apply replacement discourse and refocus research to withstand the tendency for justice systems to subvert, rather than embrace, reform.  Cannabis legalization has been decades in the making and serious questions remain for proponents, opponents, and policymakers.  Society, however, will be far worse off if the mistakes of reefer madness are repeated.

June 10, 2021 in Campaigns, elections and public officials concerning reforms, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Tuesday, June 8, 2021

Array of marijuana reforms move forward in array of states

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

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

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

"Louisiana lawmakers pass bill to decriminalize marijuana"

"Mississippi Senate weighs in on medical cannabis legalization"

"Nevada Governor Signs Bill Legalizing Marijuana Consumption Lounges"

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

"Medical marijuana law changes get through Pennsylvania House"

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

June 8, 2021 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Medical Marijuana State Laws and Reforms, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Wednesday, June 2, 2021

DEPC event: "Social Equity 2.0: Expanding Horizons"

Social-Equity-2.0-Expanding-Horizons_for-socialI am pleased to spotlight another great Drug Enforcement and Policy Center (DEPC) event taking place next week titled "Social Equity 2.0: Expanding Horizons."  This is how this event, which is on June 9 at 1pm EDT, is described on this page (where you can register):

Despite enthusiasm from policymakers and hard work by government regulators, many feel that the promise of social equity in the cannabis industry remains elusive.  The obstacles are numerous, ranging from legal challenges, to difficulties with implementation, to weak policy provisions.  Is it time to rethink cannabis social equity?

Join the Drug Enforcement and Policy Center for a virtual event that brings together a panel of experts who are imagining a different framework to achieve the goal of healing the harms of past prohibition and lift communities affected by the War on Drugs.  Panelists will discuss ways to expand the horizons of how we achieve social equity.

 

Panelists:
Douglas A. Berman, executive director, Drug Enforcement and Policy Center
Amber Marks, lawyer and lecturer, Queen Mary University of London
Cat Packer, executive director, Department of Cannabis Regulation, City of Los Angeles
Dan Riffle, policy analyst on substance abuse treatment and prevention, District of Columbia Department of Behavioral Health

 

Moderator:
Shaleen Title, distinguished cannabis policy practitioner in residence, Drug Enforcement and Policy Center, and vice-chair, Cannabis Regulators of Color Coalition

Prior related posts on prior related event:

June 2, 2021 in Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Tuesday, June 1, 2021

Rounding up some recent marijuana news and reform notes as the calendar turns

The Memorial Day weekend serves as the unofficial start to summer and today is the official start of June, and so I figured it was a good time to catch up with a bunch of recent notable stories from major outlets that I have not found time to blog about recently.  So here goes:

From CNBC, "Uber and the delivery war could be headed to cannabis dispensaries"

From Forbes, "Republican Voter Suppression Is Canceling Marijuana Legalization"

From Pew Research Center, "Religious Americans are less likely to endorse legal marijuana for recreational use"

From Politico, "Why Covid rules on liquor, pot and telemedicine might last past the pandemic"

From the New York Times, "Why the Pandemic Was a Breakout Moment for the Cannabis Industry"

From the New York Times, "Yes, Pot Is Legal. But It’s Also in Short Supply."

From NPR, "After 50 Years, U.S. Opens The Door To More Cannabis Crops For Scientists"

From the Wall Street Journal, "Positive Marijuana Tests Are Up Among U.S. Workers"

 

Also, the always great Marijuana Moment has these two notable recent op-eds:

By Shaleen Title, "Congress Only Has One Chance To Legalize Marijuana The Right Way"

By Matthew Schweich, "The War On Ballot Initiatives Has Marijuana In The Crosshairs"

June 1, 2021 in Business laws and regulatory issues, Employment and labor law issues, Recreational Marijuana Commentary and Debate, Religion, Who decides | Permalink | Comments (0)

Friday, May 28, 2021

Could reintroduction of MORE Act in US House actually make federal marijuana reform less likely?

6a00d8341bfae553ef0223c85155dc200c-320wiThe question in the title of this post is my initial reaction and worry in response to this press release from the office of House Judiciary Chair Jerry Nadler.  Here are some basics from the release:

Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY), along with Representatives Earl Blumenauer (D-OR), Barbara Lee (D-CA), Sheila Jackson Lee (D-TX), Hakeem Jeffries (D-NY) and Nydia Velázquez (D-NY) reintroduced the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, one of the most comprehensive marijuana reform bills ever introduced in the U.S. Congress.

"Since I introduced the MORE Act last Congress, numerous states across the nation, including my home state of New York, have moved to legalize marijuana. Our federal laws must keep up with this pace," said Chairman Nadler. "I’m proud to reintroduce the MORE Act to decriminalize marijuana at the federal level, remove the needless burden of marijuana convictions on so many Americans, and invest in communities that have been disproportionately harmed by the War on Drugs. I want to thank my colleagues, Representatives Barbara Lee and Earl Blumenauer, Co-Chairs of the Congressional Cannabis Caucus, as well Representatives Sheila Jackson Lee, Hakeem Jeffries, and Nydia Velázquez for their contributions to this legislation, and I look forward to our continued partnership as we work to get this legislation signed into law."...

Following efforts led by states across the nation, the MORE Act decriminalizes marijuana at the federal level. The bill also aims to correct the historical injustices of failed drug policies that have disproportionately impacted communities of color and low-income communities by requiring resentencing and expungement of prior convictions. This will create new opportunities for individuals as they work to advance their careers, education, and overall quality of life. The MORE Act also ensures that all benefits in the law are available to juvenile offenders....

In the 116th Congress, Chairman Nadler led the House of Representatives in passing the MORE Act by a bipartisan vote of 228 to 164.

Because the MORE Act is a very ambitious bill, it has lots of support from many advocacy groups and long-time supporters of marijuana reform. But because the MORE Act is a very ambitious bill, it got no traction in the Senate in the last Congress and there is little reason to be confident it will get any traction in the Senate in this Congress. 

This Politico article last month, headlined "Senate Democrats split over legalizing weed; Several told POLITICO they’re opposed to Majority Leader Chuck Schumer's legalization push," highlighted that not even all Senate Democrats are inclined to support federal marijuana legalization.  That article also rightly noted that there are some particular provisions in the MORE Act that are especially likely to turn off libertarian-leaning GOP Senators who might be inclined to support another kind of federal reform.

Because I have never work on the hill, I am not sure if a bill like the MORE Act with little chance of actual passage can still help advance the reform cause.  But I am sure that the current President and the current Congress seem generally disinclined to do anything all that big in this arena.  The MORE Act is not only big, but it also presents the possibility of indirectly thwarting smaller efforts garnering needed support and momentum going forward.

In this post last month, I suggested that Senator leader Chuck Schumer may have a shrewd view of how best to advance marijuana reform legislation in his chamber.  But I remain worried that there really is neither a will nor a way for big federal marijuana reforms like the MORE Act to become law anytime soon. 

May 28, 2021 in 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 (1)

Monday, May 17, 2021

Alabama Gov signs medical marijuana legislation just days after Mississippi Supreme Court blows up medical marijuana initiative

As detailed by these recent stories and headlines, it has been an interesting time lately with respect to marijuana reform in the deep south:

From the Yellowhammer State, "Gov. Kay Ivey signs Alabama medical marijuana law"

From the Magnolia State, "Mississippi Supreme Court overturns medical marijuana Initiative 65"

There are interesting and important facets to both of these stories, but together they serve as a terrific reminder of just how dynamic and unpredictable marijuana reforms can be on any number of legal and political fronts.  But for the historic stigma (as well as persistent federal prohibition), I suspect lots and lots of prominent folks would be writing lots and lots of books and articles about what we can and should be learning from modern marijuana reform movements for all sort of other social and policy arenas.

May 17, 2021 in Campaigns, elections and public officials concerning reforms, Medical Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Saturday, May 15, 2021

Notable new GOP bill for ending federal marijuana prohibition

6a00d8341bfae553ef0223c85155dc200c-320wiIn a post last month, titled "Senate majority leader shrewdly emphasizing "freedom" in his push for federal marijuana reform," I explained why I viewed Senator Chuck Schumer's focus on "freedom" in his marijuana reform pitch to be appealing and shrewd given that it lines up with a lot of the smaller-government rhetoric often coming from GOP politicians and activists.  Consequently, I was not surprised to see this past week that part of the pitch for a notable new GOP-sponsored bill to end federal marijuana prohibition includes an emphasis on greater liberty for individuals and states concerning marijuana practices.   

This new 14-page marijuana reform bill is available at this link, and it is formally titled the "Common Sense Cannabis Reform for Veterans, Small Businesses, and Medical Professionals Act."  This press release from Congressman Dave Joyce (OH-14), one of the sponsors, provides these details:

Through his work with the Cannabis Caucus and his position on the House Appropriations Committee, Joyce has helped lead the effort to reform the federal government’s outdated approach to cannabis and protect the rights of states across the country, like Ohio, that have voted to implement responsible cannabis policies. Specifically, the Common Sense Cannabis Reform for Veterans, Small Businesses and Medical Professionals Act, which has been applauded by several organizations, would:

  • Remove cannabis from the Federal Controlled Substances Act.
  • Direct the U.S. Food and Drug Administration and the Alcohol and Tobacco Tax and Trade Bureau to issue rules to regulate cannabis modeled after the alcohol industry within one year of enactment.
  • Create a federal preemption to protect financial institutions and other businesses in non-cannabis legal states so that they can service cannabis companies.
  • Allow the Department of Veterans’ Affairs to prescribe medical cannabis to veterans.
  • Direct the National Institutes of Health to conduct two studies on cannabis as it pertains to pain management and cannabis impairment and report to Congress within two years of enactment.

And here is some of the media coverage that provides a review of this bill:

May 15, 2021 in 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)