Marijuana Law, Policy & Reform

Rounding up some perspectives on the politics and practicalities of marijuana reform

A handful of recent articles about the politics and practicalities of marijuana reform in the US caught my eye over the holiday weekend, and a quick round-up of these pieces seemed in order:

From the Financial Times, "Cannabis redraws US’s 2024 electoral map: Republicans and Democrats face an electorate that increasingly favours looser marijuana laws"

From Real Clear Politics, "Republicans Need To Take the Win That Marijuana Legalization Presents"

From the Washington Post, "Loosening restrictions on marijuana may not be boon for reform"

And a two-fer from different opinion writers with Bloomberg:

Jonathan Bernstein, "The Biden Campaign Needs to Pivot to Marijuana"

Jessica Karl, "Biden Should Go After the Stoner Vote"

 

Ohio votes for legalizing marijuana by a (surprisingly?) large margin for a red state

Ohio was long considered a swing or bellwether state, though the state has started trending quite "red" with Donald Trump and state GOP candidates carrying the state by significant margins in recent years.  This recent "red" trend would seem to make the Buckeye State's vote today on marijuana legalization especially significant.  Specifically, as of this writing just before midnight, a marijuana legalization initiative, Issue 2, has secured a nearly 13% point victory with 93% of the votes reported.  As detailed in this NY Times accounting, Yes on Issue 2 has garnered 56.5% of the Ohio vote, even a higher percentage that the abortion rights initiative also on the Ohio 2023 ballot (which still is passing handily at 55.8%)

Marijuana legalization initiatives had recently been a losing proposition in deep red states like Arkansas and Oklahoma and North Dakota and South Dakota.  But light red Missouri legalized marijuana by initiative in 2022, and Ohio tonight follow the same path despite the fact that nearly all the state's GOP leaders advocated against the marijuana legalization initiative.

For many reasons, I will be quite interested to see how Ohio moves forward with implementation of its legalization initiative.

"A Prescription for Progress? Would a Schedule III Reclassification of Psychoactive Cannabis Help or Hurt State Operators?"

The title of this post is the title of this timely new paper now on SSRN and authored by Benton Bodamer, who is a member of Dickinson Wright PLLC and an Adjunct Professor of Law at OSU and affiliated with the Drug Enforcement Policy Center. Here is its abstract:

On August 30, 2023, the U.S. Department of Health and Human Services (HHS) concluded a scheduling review of psychoactive cannabis and recommended that the Drug Enforcement Administration “reschedule” psychoactive cannabis from Schedule I to Schedule III under the Controlled Substances Act.  The next 6 to 12 months could be among the most transformative for the U.S. cannabis industry, but progress is unlikely to come without regulatory confusion, conflicts of federal laws, and unintended consequences.  This paper aims to answer major questions that remain following the release of HHS’s statement, including why psychoactive cannabis was on Schedule I given its medical uses, whether a move to Schedule III effectively legalizes existing state-compliant cannabis companies, if relief from 280E tax or advertising restrictions are likely, and whether a move to Schedule III opens up banking for existing cannabis companies.  The paper ends with a look at the road ahead.

Some press accounts of impact of marijuana possible movement to Schedule III of the CSA

As noted in this prior post, the U.S. Department of Health and Human Services is officially recommending that marijuana be moved from Schedule I to Schedule III under federal law.  A number of media outlets and other sources have done useful  reviews of what this means for marijuana law and policy, and here is a round up of some pieces:

From the AP, "US regulators might change how they classify marijuana. Here’s what that would mean"

From Foley Hoag, "The Cannabis Rescheduling Recommendation: What it Means and What’s Next"

From Forbes, "What Would The Reclassification Of Marijuana Mean For The Industry?"

From Harris Bricken, "Three Myths and Three Facts on the HUGE Marijuana Rescheduling Recommendation"

From Marijuana Moment, "Moving Marijuana To Schedule III Could Have Sweeping Impacts For Businesses, Federal Employees, Research And More"

From MSNBC, "What the federal 'rescheduling' of cannabis would (and wouldn't) mean"

From Vox, "Marijuana could be classified as a lower-risk drug. Here’s what that means."

From the Washington Post, "Possible easing of marijuana restrictions could have major implications"

"Prosecutor-Initiated Record Relief in Ohio: A Survey of Prosecutorial Plans to Seal and Expunge Low-Level Controlled Substance Offenses"

The title of this post is the title of this new paper available via SSRN from multiple authors including Jana Hrdinova, Dexter Ridgway and Peter Leasure. Here it is abstract:

Ohio Senate Bill 288 (134th G.A.) created Ohio Revised Code Section (2953.39) to allow prosecutors to initiate sealing or expungement actions on behalf of defendants previously convicted of low-level controlled substance offenses.  After passage of this new law, the Drug Enforcement and Policy Center at The Ohio State University surveyed all elected or appointed prosecutors in Ohio to gauge their office's interest and willingness to initiate record sealing or expungement applications on behalf of people who have been previously convicted of a low-level controlled substance offense.  Overall, about 12% of respondents stated that they were willing to pursue prosecutor-initiated sealing for low-level controlled substance offenses.  For those who reported that they were unlikely to pursue prosecutor-initiated sealing, common explanations for not doing so included the lack of staffing resources, the lack of financial resources, the lack of data, the belief it is not the responsibility of prosecutors, and the sufficiency of the defendant-initiated system.

Press reporting key US Agency (HHS) is recommending moving marijuana from Schedule I to III

This new Marijuana Moment piece report that "the U.S. Department of Health and Human Services (HHS) is officially recommending that marijuana be moved from Schedule I to Schedule III under federal law — a historic development that means the top health agency no longer considers cannabis to be a drug with high abuse potential and no medical value."  Here is more on this significant federal marijuana reform news:

After completing a scientific review into cannabis under a directive from President Joe Biden last year, HHS is now telling the Drug Enforcement Administration (DEA) that it believes marijuana should be placed in Schedule III of the Controlled Substances Act (CSA). The recommendation is not binding, and DEA has the final say, but the scientific analysis combined with growing political support for cannabis reform may well influence DEA to make the change.

As a Schedule III drug, cannabis would still remain federally prohibited. However, the rescheduling would have major implications for researchers who’ve long criticized the Schedule I classification that creates significant barriers to access for studies. Moving cannabis to Schedule III would also unlock marijuana industry tax opportunities that are currently unavailable.

“We can confirm DEA received a letter from the Department of Health and Human Services providing its findings and recommendation on marijuana scheduling, pursuant to President Biden’s request for a review,” a DEA spokesperson told Marijuana Moment on Wednesday. “As part of this process, HHS conducted a scientific and medical evaluation for consideration by DEA. DEA has the final authority to schedule or reschedule a drug under the Controlled Substances Act. DEA will now initiate its review.”

The Food and Drug Administration (FDA) under HHS led the scientific review that led to the Schedule III recommendation. According to Bloomberg, which first reported the development, HHS Assistant Secretary for Health Rachel Levine, who advocated for medical cannabis as Pennsylvania’s health secretary before joining the Biden administration, sent a letter to DEA on Tuesday about the Schedule III recommendation that referenced FDA’s review. The development comes two months after HHS Secretary Xavier Becerra told Marijuana Moment that his agency was aiming to wrap up the review by the end of the year.

A White House spokesperson told Marijuana Moment on Wednesday that the “administrative process is an independent process led by HHS and DOJ and guided by the evidence,” so president’s team will not be commenting on the agency’s recommendation at this time....

There would be both practical and political implications of a Schedule III reclassification if DEA goes along with HHS’s recommendation. For researchers, this would mean that they would no longer need to go through the onerous registration process with DEA in order to access cannabis for studies as a Schedule I drug.... For the industry, the reclassification would allow them to make federal tax deductions that are currently prohibited for businesses involved in the sale of Schedule I or II drugs. Because of this prohibition, the cannabis industry has faced a significantly higher effective tax rate, and state governments have taken it upon themselves to provide state-level tax relief for their regulated markets.

Politically, moving marijuana from Schedule I to Schedule III would allow the president to say that he’s helped accomplish a major reform, facilitating an administrative review that may result in rescheduling more than 50 years after cannabis was placed in the most restrictive category as the federal government launched a war on drugs. This could also bolster momentum for congressional efforts to further reform federal cannabis laws. As lawmakers come back from the August recess and continue to try to pass cannabis banking legislation, they will be able to point to the HHS recommendation as evidence of the urgency to normalize the industry....

Of course, advocates’ highest hopes for the HHS review was that it would lead to a descheduling recommendation, where marijuana would be completely removed from the CSA and treated the same as alcohol in the eyes of the government. Some have also voiced concerns that a Schedule III reclassification could negatively impact state markets, with FDA potentially assuming a more hands-on role with respect to cannabis.

"A Second Amendment Angle of Cannabis Prohibition: Are State-Compliant Marijuana Users Being Denied the Right to Keep and Bear Arms?"

I continue to be excited to post some the latest papers from the on-going series of student papers supported by the Drug Enforcement and Policy Center in order to highlight great work by OSU law students and recent graduates on many important and cutting-edge topics.   The title of this post is the title of this paper authored by Katie Schaefer, who is in her final year as a student at The Ohio State University Moritz College of Law.  Here is its abstract:

Although individual states have not necessarily legislated that possessing a gun is unlawful for state compliant marijuana users, cannabis’s federal illegality produces this result.  The process for obtaining a gun – regardless of what state the individual resides in – requires the individual to fill out the Federal Bureau of Alcohol, Tobacco, and Firearms’ Form 4473.  Form 4473 question 21g, as mandated by 18 U.S.C. § 922(g)(3), disqualifies cannabis users from purchasing a firearm.

Consequently, individuals who are fully in compliance with the marijuana laws in their home state are being stripped of their Second Amendment right, regardless of if the plant is being used for medicinal or adult use purposes.  Therefore, marijuana users who wish to possess a gun have three options: stop using marijuana entirely, stop using state compliant marijuana and instead obtain it from an illicit source, or lie.  Although ATF agents and prosecutors report that due to limited resources, they are not inclined to prioritize the nonviolent crime of lying on a form over more serious charges, lying on the form and obtaining a gun while being a cannabis user remains a federal felony offense.

In the wake of Bruen, litigation on this matter has so far been leaning in favor of gun rights activists.  But there remain many unanswered questions in this area.  The implications of either a legitimization of state-legal marijuana use on the federal level (while the plant remains on schedule I), or of an acknowledgement that the gun control/background check process can be changed, could be massive.

"Ending Federal Marijuana Prohibition Through Administrative Action"

The title of this post is the title of this notable new paper authored by Scott Bloomberg, Alexandra Harriman and Shane Pennington.  Here is its abstract:

In October 2022, President Biden requested that the Secretary of Health and Human Services and the Attorney General initiate a procedure to review how marijuana is scheduled under the federal Controlled Substances Act (“CSA”).  The announcement was historic.  After more than fifty years of federal prohibition, decades of advocacy and litigation from reform groups, and dozens of stalled efforts in Congress, a President finally decided to wield the Executive Power with an eye towards rescheduling or descheduling marijuana.  But just how far does that power go?

That question has been severely underexplored in legal scholarship.  Indeed, our Article is the first to fully navigate the thicket of statutory and administrative law that dictates the scope of the President’s power to unilaterally reschedule or deschedule marijuana.  In doing so, we conclude that the CSA’s administrative drug-scheduling procedure is much broader than prior scholarship has led on.  We identify several avenues for the President to move marijuana to a less restrictive schedule and highlight a narrower pathway to deschedule marijuana entirely.

These findings are of immediate relevance.   They can help guide the Executive Branch as it reconsiders how marijuana is scheduled and will prove useful to courts when the Biden Administration’s eventual decision is, inevitably, subjected to judicial review.

Officially, Ohio voters will get to consider legislative ballot initiative to fully legal marijuana in November 2023

As reported in this local news piece, "It's official: Ohioans will decide this fall whether the state should legalize recreational marijuana." Here is more:

The Coalition to Regulate Marijuana Like Alcohol secured enough signatures to put its proposal before voters on the Nov. 7 ballot, Secretary of State Frank LaRose's office announced Wednesday. Advocates worked for over a year to hit this milestone as the GOP-controlled Legislature refused to go further than the current medical marijuana program.

Now, the coalition faces a new challenge: Getting Ohio voters on board and staving off opposition from the state's top leaders....

“We are grateful to the thousands of Ohioans who helped us get to this point and are excited to bring our proposal to regulate marijuana like alcohol before Ohio voters this coming election day,” Coalition to Regulate Marijuana Like Alcohol Tom Haren said in a statement Wednesday.

The proposed statute would allow Ohioans age 21 and older to buy and possess 2.5 ounces of cannabis and 15 grams of concentrates. They could also grow up to six plants individually and no more than 12 in a household with multiple adults.

Products would be taxed 10%, with revenue going toward administrative costs, addiction treatment programs, municipalities with dispensaries and a social equity and jobs program. A certain number of cultivator and dispensary licenses would be reserved for participants in that program, which aims to help those who are disproportionately affected by the enforcement of current marijuana laws.

The measure is an initiated statute, which means the Legislature could modify or repeal the law if it passes in November. Gov. Mike DeWine and Senate President Matt Huffman, R-Lima, are staunchly opposed to adult-use marijuana, but Haren said previously that he expects lawmakers to respect the will of the voters.

It remains to be seen how much time and energy opponents will invest to defeat the proposal. Some critics of recreational marijuana, such as the Center for Christian Virtue, will be focused on keeping an abortion-rights amendment out of the state constitution.

Having both issues on the ballot in November could also generate significant turnout among progressive Ohioans in an odd-year election. A recent USA TODAY Network/Suffolk University poll found 58% of likely voters support legalizing marijuana for adults 21 and older, and the number was even higher among young voters and Democrats.

"Federalism, Limited Government, and Conservative Outcomes: The Republican Case for Marijuana Legalization"

I continue to be excited to post some the latest papers from the on-going series of student papers supported by the Drug Enforcement and Policy Center in order to highlight great work by OSU law students and recent graduates on many important and cutting-edge topics.   The title of this post is the title of this paper authored by Jesse Green, who is about to start his final year as a student at The Ohio State University Moritz College of Law.  Here is its abstract:

Marijuana legalization is sweeping the United States by storm.  Almost half of the states have legalized recreational marijuana and an overwhelming majority have legalized medical marijuana.  However, a partisan divide in both recreational and medical marijuana legalization is present.  Democrats tend to be quicker to support legalization, while Republicans tend to be slower to embrace it.  And importantly, marijuana remains illegal at the federal level as a Schedule I controlled substance.

This paper lays out the key Republican arguments in favor of marijuana legalization.  After detailing the political realities of marijuana legalization in the United States, it addresses the benefits of keeping legalization efforts within the legislative process instead of letting the issue be subject to direct democracy.  This paper then concludes by providing specific Republican-supported policies that marijuana legalization can help advance.

Ohio voters seemingly likely to have opportunity to vote on marijuana legalization in November 2023

As reported in this AP piece, headlined "A campaign to ask Ohio voters to legalize recreational marijuana falls short -- for now," the effort to put marijuana legalization before Ohio voters has hit a small (and surmountable) bump.  Here are the details:

A proposal to legalize adult use of marijuana in Ohio narrowly fell short Tuesday of the signatures it needed to make the fall statewide ballot. Backers will have 10 days, or until Aug. 4, to gather more.

Republican Secretary of State Frank LaRose determined the Coalition to Regulate Marijuana Like Alcohol was short by just 679 signatures of the 124,046 signatures required to put the question before voters on Nov. 7.

Tom Haren, a coalition spokesperson, said he was confident the group could find the signatures by the Aug. 4 deadline.  “It looks like we came up a little short in this first phase, but now we have 10 days to find just 679 voters to sign a supplemental petition — this is going to be easy, because a majority of Ohioans support our proposal to regulate and tax adult use marijuana,” Haren said in a statement.

If the initiative makes the November ballot, a simple majority vote is required for it to pass....  The ballot measure proposes allowing adults 21 and over to buy and possess up to 2.5 ounces of cannabis and to grow plants at home. A 10% tax would support administrative costs, addiction treatment, municipalities with dispensaries and social equity and jobs programs.

If the issue passes, Ohio would become the 24th state to legalize cannabis for adult use.  The outcome of a special election Aug. 8 on whether to raise the bar for passing future constitutional amendments wouldn’t impact the marijuana question, since it was advanced through the citizen initiated statute process.

"Teaching Drugs: Incorporating Drug Policy into Law School Curriculum, 2022–2023 Cannabis Curriculum Survey Update"

The title of this post is the title of this latest effort by researchers at Ohio State's Drug Enforcement and Policy Center to keep track of the number of law schools teaching marijuana-related classes.  Specifically, Jonathan Abele and Jana Hrdinova have put together this latest interesting accounting, and here its the work's abstract:

The landscape of cannabis prohibition has changed dramatically in the last decade.  These shifting attitudes towards cannabis are reflected in the continued wave of states legalizing cannabis for medical or adult-use and in President Biden’s call for a review of cannabis’s classification as a Schedule I drug under the Controlled Substances Act.  These new regimes present a complex legal environment for businesses and legal professionals given the individualized character of each state’s program and long-standing federal prohibition.

Yet, only a relatively small number of law schools appear to have addressed this challenging and ever-shifting legal area by offering courses on cannabis law and policy.  This report is the result of the fifth annual survey of law school curriculum focusing on courses on cannabis law offered by accredited law schools in the United States.  The survey shows a slow but steady increase in the number of law schools offering courses on cannabis law, including law schools located in states that have legalized adult-use cannabis.

How might marijuana reform in Ohio fare in an off-year with abortion rights also on ballot?

Because I live and work in central Ohio, I certainly pay attention to Ohio political developments more than others.  But, assuming two new initiatives qualify for state ballot in 2023 (which we should know soon), I suspect lots of folks around the country will be paying more attention Buckeye State politics.  Specifically, two high-profile topics --- full legalization of marijuana and abortion rights --- could come before Ohio voters this November.  That possibility prompts the question in the title of this post and also the question in this new local article headlined: "How will two hot-button ballot initiatives impact Ohio’s November turnout?"

The local piece mostly discusses turn-out issues generally; I am also especially wondering how having an abortion initiative at the same time as a marijuana initiative may impact not only voter turn-out, but also the advertising budgets and advocacy efforts by backers and opponents of both initiatives.   Here is a segment of the press piece covering just some of the issues a unique off-year Ohio election might raise:

Heading into this year’s election season, Ohio voters could wind up voting on two hot button issues at the same time. Election officials are currently combing through petitions for an abortion rights amendment and a recreational marijuana statute that could both go before voters in November.

Received wisdom holds that those hot button ballot issues are good way to juice turnout. Political science literature confirms that to a certain extent, that’s true. But what happens when two show up at once?...

Ohio State University political scientist Vladimir Kogan  [has research showing] turnout in an average Ohio school district during a presidential election was about 62% of the 2010 voting age population.  In a midterm, turnout dropped by 15 points and in odd year election it fell another 8 points.  Even with abortion and marijuana initiatives boosting awareness, he explained, that’s a lot of ground to make up.

And Kogan argued the nature of the electorate in odd-year elections could present a challenge for an initiative’s backers, too.  “The important thing is not the overall turnout but who’s voting,” Kogan said, “and again we know that not only this turnout overall quite different off-cycle but particularly the age profile.  Really, it’s a much, much older electorate that votes in these lower turnout elections.”

“Probably not the target demographic for people that are trying to legalize marijuana,” he added....  In terms of how the two issues might interact with one another, [University of North Florida political scientist Mike] Binder and Kogan dismiss the idea that they might amplify or cancel one another out.  Binder allowed that there are likely voters who would favor one issue and oppose the other, but probably not many.  Instead, he described the two issues’ appeal like a Venn diagram — not a complete overlap, but a pretty significant one.

Notably, Ohio votes are already going to the polls — I voted last week — to weigh in on a special election concerning whether to raise the support threshold for constitutional amendments to require future amendments to surpass 60% for adoption. That initiative, which was put on the ballot by Ohio's General Assembly, would impact the Ohio abortion initiative (which is a proposed constitutional amendment), but note the marijuana initiative (which proposes only statutory changes).

My sense is that the marijuana reform initiative may ultimately benefit in various ways from the abortion initiative garnering much attention.  For starters, I suspect overall turnout will be higher, especially among younger and more left-leaning voters.  Also, I suspect many elected Ohio leaders will likely be more focused on speaking out against the abortion initiative rather than the marijuana initiative (same for likely campaign contributors).  There may also be the broader benefit of more public polling on this topics before the vote and also a richer understanding of political trends and coalitions around these issues after the vote.  Interesting times.

"Why National Cannabis Legalization Is Still A Decade Away"

The title of this post is the title of this new Forbes commentary by Will Yakowicz that provides an astute review of justice some of the reasons not to be very bullish about federal cannabis reform.  I recommend the piece in full, and here are a few excerpts:

Marijuana is still illegal federally for a very simple reason.  “Politicians just don't really care,” says Paul Armentano, the deputy director of nonprofit legalization advocacy group NORML.  “It's just not on their priority list.  If it were, they would address it. They don't because it isn't. It’s simple stuff.”

Over the last 30 years, 23 states have legalized recreational use and 38 now allow some form of medical marijuana, but the Senate has never held a single vote on legislation to decriminalize — or legalize — cannabis, despite the fact that some 88% of the American public believe it should be legal.

As for President Biden’s request for HHS to review marijuana’s classification as a Schedule I narcotic, Armentano says he’s been through multiple re-scheduling petitions, which have all been denied by the Drug Enforcement Administration.  The DEA has final approval over any rescheduling petition.

It gets more bureaucratically tangled from there.  One of the key benchmarks marijuana must pass is whether it has recognized medical use in the United States.  The only acceptable definition of medical utility in the U.S., according to the federal government, is approval by the U.S. Food and Drug Administration. “That's the federal government's position: no medical utility absent FDA approval,” Armentano says. “There's not going to be FDA approval of cannabis, at least not botanical raw plant cannabis.”

Upcoming DEPC event on "Changes in Federal Approaches to Cannabis: Process and Impact"

I am pleased to spotlight another great Drug Enforcement and Policy Center (DEPC) event that is part of our summer 2023 Cannabis Regulatory Deep Dive.   This event is scheduled for June 22 at 12noon and is titled "Changes in Federal Approaches to Cannabis: Process and Impact"  This is how this event is described at this website (where you can register):

In 1971, marijuana was designated as a Schedule I drug, meaning that it “has a high potential for abuse, no currently accepted medical use in treatment, and a lack of accepted safety for use under medical supervision.”  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 January 2023, the FDA issued a statement saying that a new regulatory pathway for CBD is needed that balances individuals’ desire for access to CBD products with the regulatory oversight required to manage risks.  Although these actions illustrate that the federal government is shifting its approach on cannabis, the mechanics of the scheduling review and the implications of such shift are not well understood.

Please join the Drug Enforcement and Policy Center and a panel of experts as they discuss the role of other federal agencies in the scheduling review process and the legal implications of marijuana’s status as a controlled substance and the potential impact of rescheduling marijuana or descheduling it entirely.  This panel will consider impacts on criminalization, research, medical access, and the medical and adult use cannabis industries currently regulated by states.

Panelists:
Cat Packer, Director of Drug Markets and Legal Regulation, Drug Policy Alliance

John Hudak, Director of the Maine Office of Cannabis Policy

Robert Mikos, LaRoche Family Chair in Law, Vanderbilt University Law School

Khurshid Khoja, Principal, Greenbridge Corporate Counsel

Fatima Afia, Attorney, Rudick Law Group, PLLC,

Shane Pennington, Partner, Porter Wright Morris & Arthur LLP 

Moderator:
Patricia Zettler, Associate Professor of Law at The Ohio State University Moritz College of Law

As federal marijuana reform remains stalled, new coalition formed to advocate for rescheduling under CSA

As many of my students should recall, I have long stressed in many of my marijuana classes that a complicating question in the debates over possible federal reforms concerns whether advocates should prioritize rescheduling or descheduling of marijuana under the federal Controlled Substances Act (CSA).  Most reform advocates certainly have a clear preference for removing marijuana entirely from the CSA (descheduling), which would mean marijuana is treated the same legally as alcohol and tobacco.  But rescheduling marijuana from Schedule I to Schedule III or lower would seem to be more politically viable in the short term and would at least soften some of the legal problems created by the current conflict between state marijuana reforms and the drug's federal status.

Though the rescheduling versus descheduling debate has been long simmering, it has gotten some renewed energy since Prez Biden in October 2022 directed his Administration to review the Schedule I status of marijuana under the CSA.  In addition, with Republicans in control of the US House of Representatives and perhaps poised to take back control of the US Senate in 2024, robust descheduling marijuana reforms from Congress may not be a realistic possibility for many years to come.  Consequently, it perhaps make sense that folks still eager for descheduling would, at least in the short term, now be open to supporting rescheduling.

Against this backdrop, it is not to surprising to see this news from Marijuana Moment under the headline "New Coalition Of Major Marijuana Groups Launches Push For Scheduling Reform, Even If It Falls Short of Legalization."  I recommend this lengthy piece in full, as it effectively highlights various aspect of the rescheduling versus descheduling debate.  And here is how the story starts:

As federal agencies work to complete a marijuana scheduling review at the president’s direction, a new coalition of major cannabis companies and advocacy organizations has launched, aiming to advance the conversation in a way that embraces the potential benefits of an incremental rescheduling move even as they push for broader legalization.

The Coalition for Cannabis Scheduling Reform (CCSR), which detailed its plans exclusively to Marijuana Moment ahead of an official launch on Tuesday, will be working with advocates, stakeholders, lawmakers and administration officials to promote education about the need to remove marijuana from Schedule I of the Controlled Substances Act (CSA).

Unlike other leading advocacy groups focused on full descheduling and legalization, however, its members are also united around the idea that moving cannabis to Schedules III, IV or V of the CSA would represent “historic progress” that shouldn’t be discounted.

But while there’s general agreement that such a move would resolve key federal tax issues for the industry and ease research restrictions, some advocates have cautioned against anything short of complete removal of marijuana from the CSA, insisting that a mere rescheduling would effectively capsize existing state markets and give way to further big business control of the industry.

Minnesota poised to become 23rd state to legalize marijuana for adult use

As reported in this Fox News piece, "The Minnesota Senate passed a measure to legalize recreational marijuana in the state for adults ages 21 and older.  The measure, approved early Saturday morning, will now head to Democrat Gov. Tim Walz's desk for signature.  He is expected to sign the bill into law."   Here are some of the particulars:

Starting August 1, the bill would allow people 21 and older to carry up to 2 ounces of marijuana in public and possess up to 2 pounds at home.   These adults could also grow home plants.  But possessing more than those limits or selling the product without a state license could result in criminal penalties and civil fines....

Minnesota would become the 23rd state, plus Washington, D.C., to legalize recreational marijuana. 

The legislation was approved by the state Senate in a party-line vote, with all Democrats voting in favor.  The state House passed the bill Thursday night with five Republicans joining all but one Democrat in approving the measure....  The House had approved the bill in recent years, but the effort was stalled by a Republican-led Senate. That changed this year when Democrats took control of the chamber.

The bill would also automatically expunge low-level cannabis convictions and set up a board to consider expungement or resentencing of felony crimes.  "Starting right away, we will begin the process of expunging tens of thousands of cannabis convictions," House bill sponsor Rep. Zack Stephenson said on Twitter.  "But it took 50 years to create all those convictions, and it will take months, even years, to complete this process."

Newly regulated dispensaries, once operational, will be permitted for cultivation, manufacturing and lawful sale of cannabis products, depending on the licenses they are approved for.  There will be a 10% gross receipts tax on the products, in addition to existing local and state general sales taxes.  Stephenson said in his tweet that he expects it to take up to 18 months before licensed dispensaries would be available to shop in as a new state agency works to set up the legal market.

"An Equity Action Plan for Marijuana: The Biden Administration’s Opportunity to Advance Equity Through Cannabis Reform"

The title of this post is the title of this notable new paper authored by Cat Packer now available via SSRN. (Note: Cat is my former student and also is now serving as a Distinguished Cannabis Policy Practitioner in Residence with the Drug Enforcement and Policy Center at the The Ohio State University Moritz College of Law.) Here is its abstract:

This paper examines the Biden Administration’s executive orders on equity, its position on marijuana reform before and after President Biden’s related October 2022 statement, and it's repeated statements acknowledging both cannabis criminalization’s disproportionate impact on Black and Latino communities and marijuana reform as an opportunity to advance equity.  Moreover, this paper critiques the omission of marijuana reform within the Biden Administration’s Equity Action Plans and highlights the opportunity for the Biden Administration to use its existing executive orders on equity as a framework to understand and address how marijuana laws and policies create barriers for underserved communities through the development of an equity action plan for marijuana reform.

Gearing up for US Senate hearing on "Examining Cannabis Banking Challenges of Small Businesses and Workers"

As detailed at this official site, the U.S. Senate Committee on Banking, Housing, and Urban Affairs has a hearing scheduled for tomorrow morning titled "Examining Cannabis Banking Challenges of Small Businesses and Workers."  Among the topics to be discussed is surely to be the SAFE Banking Act, and there are scheduled witnesses who will be supportive and who will be oppositional to this bill.   Here are the listed witnesses:

The witnesses on Panel I will be: 

• The Honorable Jeff Merkley, United States Senator (D-OR); and 
• The Honorable Steve Daines, United States Senator, (R-MT).

The witnesses on Panel II will be: 

• Mr. Ademola Oyefeso, International Vice President and Director of Legislative and Political Action Department, United Food and Commercial Workers International Union (UFCW); 
• Ms. Michelle Sullivan, Chief Risk & Compliance Officer, Dama Financial; 
• Dr. Kevin Sabet, PhD., President and CEO, Smart Approaches to Marijuana, and Fellow, Yale University; and 
• Ms. Cat Packer, Vice Chair, Cannabis Regulators of Color Coalition.

Some witness written tesimony is already available at the hearing website.

As is so often the case, the folks at Marijuana Moment hav lots of coverage on this topc, and here are links to some of its relevant pieces:

• "Key Senate Committee Officially Schedules Hearing On Marijuana Banking Bill For Next Week"
• "Schumer Says Marijuana Banking Bill Will Go To Senate Floor — With Expungements And ‘Social Justice’ Attached — At NYC Cannabis Rally"
• "American Bankers Association Calls For ‘Swift Passage’ Of Marijuana Banking Bill Ahead Of Senate Committee Hearing"
• "Senate Committee Adds New Witnesses For Marijuana Banking Hearing This Week"

Upcoming DEPC event on "Prosecuting Cannabis: Approaches from States without Legalization"

As a follow-up to new research (to be discussed in a future post) concerning marijuana enforcement by district attorneys in states that still prohibit recreational marijuana use, the Drug Enforcement and Policy Center at The Ohio State University and the Prosecutors and Politics Project at UNC School of Law is hosting on May 17, 2023, a conversation with a panel of legal experts and academics.  You can register for the online event here, and  this event page provides some backgrouns along with the scheduled panelists:

Over the last decade, a large number of states have adopted various forms of marijuana reform. To date, 21 states have legalized marijuana for recreational purposes and 38 have legalized medical marijuana use. While public opinion polls suggest that the vast majority of people support marijuana legalization, less is known about the opinions and policies of prosecuting attorneys in states that have not yet legalized marijuana for any purpose.

Panelists:

Amy Ullrick, Project Manager, Prosecutors and Politics Project, University of North Carolina 
Sam Kamin, Professor, Chauncey G. Wilson Memorial Research Chair, University of Denver Sturm College of Law
Zachary Price, Eucalyptus Foundation Endowed Chair, University of California College of the Law, San Francisco
Lauren Ouizel, Professor of Law, Temple University Beasley School of Law

Moderator:

Carissa Byrne Hessick, Anne Shea Ransdell and William Garland "Buck" Ransdell, Jr. Distinguished Professor of Law at the University of North Carolina