Thursday, January 26, 2023
After extended study, the federal Food and Drug Administration has decided it cannot figure how to regulate cannabidiol (CBD). This FDA press release explains its decision, and here are excerpts:
Given the growing cannabidiol (CBD) products market, the U.S. Food and Drug Administration convened a high-level internal working group to explore potential regulatory pathways for CBD products. Today we are announcing that after careful review, the FDA has concluded that a new regulatory pathway for CBD is needed that balances individuals’ desire for access to CBD products with the regulatory oversight needed to manage risks. The agency is prepared to work with Congress on this matter. Today, we are also denying three citizen petitions that had asked the agency to conduct rulemaking to allow the marketing of CBD products as dietary supplements.
The use of CBD raises various safety concerns, especially with long-term use. Studies have shown the potential for harm to the liver, interactions with certain medications and possible harm to the male reproductive system. CBD exposure is also concerning when it comes to certain vulnerable populations such as children and those who are pregnant.
A new regulatory pathway would benefit consumers by providing safeguards and oversight to manage and minimize risks related to CBD products. Some risk management tools could include clear labels, prevention of contaminants, CBD content limits, and measures, such as minimum purchase age, to mitigate the risk of ingestion by children. In addition, a new pathway could provide access and oversight for certain CBD-containing products for animals.
The FDA’s existing foods and dietary supplement authorities provide only limited tools for managing many of the risks associated with CBD products. Under the law, any substance, including CBD, must meet specific safety standards to be lawfully marketed as a dietary supplement or food additive.
The working group ... has closely examined studies related to the CBD-based drug Epidiolex, published scientific literature, information submitted to a public docket, as well as studies both conducted and commissioned by the agency. Given the available evidence, it is not apparent how CBD products could meet safety standards for dietary supplements or food additives. For example, we have not found adequate evidence to determine how much CBD can be consumed, and for how long, before causing harm. Therefore, we do not intend to pursue rulemaking allowing the use of CBD in dietary supplements or conventional foods.
This Washington Post article about the decision highlights some industry grumpiness and the broader context:
“When it comes to the safety of CBD, the FDA gets it wrong,” Jonathan Miller, general counsel of the U.S. Hemp Roundtable, said in a statement. He called the agency’s intent to tighten regulations “unprecedented and unnecessary” but said he endorsed a legislative solution to allow marketing of CBD in dietary supplements and foods.
Alex Buscher, a Colorado-based lawyer who advises hemp companies, said that CBD doesn’t seem to be riskier than other dietary supplements on the market that have the potential for side effects if taken at higher-than-recommended doses. “The FDA is kicking the decision back to a divided Congress, which will take time to create a new regulatory framework,” he said. “We need actual regulation from the FDA.”Advocacy groups and food industry experts criticized the FDA decision.
Food safety experts have said that the FDA has been in an impossible situation as states have decriminalized marijuana — which remains illegal under federal law — and related products have gained popularity. According to the National Conference of State Legislatures, as of this past February, 37 states (plus D.C., Puerto Rico, Guam and the U.S. Virgin Islands) have legalized medical use. As of Nov. 9, 21 states (plus D.C., Guam and the Northern Mariana Islands) have decriminalized recreational use — a strong indication that public sentiment has shifted.
“I’m sure the FDA probably concluded that no matter which way they went, it would involve trying to fit a very big genie back into a very small bottle, and create a political firestorm,” said Brian Ronholm, director of food policy for Consumer Reports. “It’s not surprising that they would want to seek some cover from Congress.”
Monday, January 23, 2023
Highlighting the hazy "who" of marijuana reform with state reforms and persistent federal prohibition
In the classroom and also in some of my scholarship, I often lean into the questions relating to "who" takes the lead with various legal doctrines and reforms. In the marijuana space, of course, these "who" questions have the added complications from conflicting federal and state (and sometimes local) laws and regulations. Usefully, this lengthy new Grid piece provides something of an overview of the messy realities of discordant "whos" in the marijuana policy space. The full title for the piece highlights its themes: "Marijuana can be legal and illegal at the same time: How the hazy mix of state and federal laws is creating a mess: It’s hard to figure out when and where using or selling marijuana is a crime — and when it’s not." Here are excerpts:
America is a little dazed and even more confused when it comes to how legal (or not legal) marijuana is. State laws have been changing dramatically over the past decade — but they’re also inconsistent across state borders. Something legal in one state could get you arrested the next state over. It has created a dizzying patchwork of rules, regulations and exceptions made even worse by the federal government’s complete ban of the substance....
[J]ust because federal agents aren’t exactly arresting every single person with a cannabis plant on their windowsill (there aren’t enough agents for that) that doesn’t mean there won’t be consequences. In child custody cases, for instance, one party can cite marijuana use as a violation of federal law when arguing that someone shouldn’t get custody.
There are also no workplace protections at the federal level, even for workers who use cannabis legally or medicinally in a state. That means that workers can be fired if they fail a drug test, even if they’re in a state where it’s legal and they aren’t currently using or high. Some states have passed worker protections for off-duty use of marijuana to address the issue.
And then there is housing: Federally subsidized public housing bans cannabis use. An applicant or tenant who is found to be in violation of this law might be denied housing or evicted — even if it’s legal in the state they are living in....
Besides the matter of taxes and prices, the matrix of federal and state policies has allowed a thriving “gray market” to proliferate.... This market might take the form of storefronts offering marijuana as a “gift” accompanying a purchase in D.C., where buying and selling weed is illegal — but possessing it isn’t — because of congressional members opposed to legalization putting a rider in a budget bill nearly a decade ago....
The removal of a federal prohibition might result in consolidation. Any huge company, which would be able to ship the product across state lines, could buy out any smaller competitors and bring down prices for legal cannabis products. (For reference, Rand previously estimated that all the cannabis used in the U.S. could be grown on a few dozen industrial-size farms.)
January 23, 2023 in Business laws and regulatory issues, Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)
Friday, January 13, 2023
In shadow of full legalization initiative, Ohio legislature again discussing broad expansion of medical marijuana program
Last year brought lots of chatter in the Buckeye State remarding marijuana reform, but not much legal reform actually was completed. A proposed ballot initiate for full legalization got bumped a year because of the timing of signature collection, and other bills proposing full legalization did not advance in the Ohio General Assembly. But there was some momentum behind a bill to significantly expand the state's medical marijuana program in the Ohio legislature in 2022, though that bill only passed one house of the legislature and so did not make it to Gov DeWine's desk.
But, as this local article details, these Ohio marijuana reform issues and possibilities are all already garnering attention early in 2023. Here are excerpts from the article with the key details:
A newly introduced Ohio Senate bill would create a 13-member medicinal cannabis oversight commission, as well as a new state agency, in hopes of being more responsive to the state’s medical marijuana industry and expand the diagnoses for which it could be prescribed.
Senate Bill 9 is similar to Senate Bill 261 from last legislative session in that they both are trying to update the state’s 6-year-old law that legalized medical marijuana in Ohio. However, the oversight board is new in SB 9.
Currently, the Ohio Department of Commerce, the State Medical Board of Ohio and the Ohio Board of Pharmacy oversee regulations and licensing in the marijuana program. “What we’ve found is that many of the growers want to expand and grow more,” said Sen. Stephen Huffman, who is sponsoring the bill with fellow Republican Sen. Kirk Schuring. “There’s more growers, there’s more demand. They put an application into the Department of Commerce, and it sits there for 18 months, two years. Hopefully this takes the bureaucracy out of this and streamlines things and make it a better-functioning industry.”
SB 9 comes as the legislature also must decide what to do about a recreational marijuana initiated statue proposal. The legislature has until May 3 to pass a law based on the proposal, backed by a group of medical marijuana licensees. If the General Assembly does nothing, which is likely as GOP leaders have said they’re not interested in the proposal, then the Coalition to Regulate Marijuana Like Alcohol can collect signatures to get on the ballot for voters to decide the matter. The coalition believes it has wide support from Democrats and Republicans in Ohio.
Under SB 9, the Medical Marijuana Oversight Commission would oversee the Division of Marijuana Control. The Division of Marijuana Control would fall under the Ohio Department of Commerce....
SB 9 would allow medical marijuana for patients with autism spectrum disorder and opioid use disorder, in addition to conditions for which medical marijuana has already been approved. The new bill additionally allows medical marijuana for other conditions that physicians, in their discretion and medical opinion, determine are debilitating to a patient.
A similar provision was in SB 261, stating that drug was allowed for conditions if a doctor determines “the patient’s symptoms may reasonably be expected to be relieved from medical marijuana.” SB 261 passed the Senate in December 2021. It died in the House, though, in the session that ended late last year.
SB 261 allowed marijuana cultivators to expand grow space. The larger square footage isn’t in SB 9 but Huffman, who is a physician from Miami County, said he’s willing to discuss amending his bill with more grow space. “In my discussions with Sen. Schuring, we felt this would be a positive move and positive change for the industry,” Huffman said. “At the same time hopefully members of the House will be comfortable with it.”
Tuesday, January 10, 2023
Stateline has this notable new article, headlined "Motley Marijuana Laws Drive Consumers — and Revenue — Across State Lines," that gives particular (but still incomplete) attention to the fact that marijuana reform storys have become somewhat consistent on the coasts while being quite varied in the middle of the USA. I recommend the article in full, and here is a flavor of its coverage:
Less than half a mile south of the Wisconsin border in Illinois, the Sunnyside Cannabis Dispensary bustles with activity. Cars with license plates from Wisconsin, Minnesota and other pot-banning states slide in and out of the shop’s expansive parking lot.
The bright and airy retail store is an easy hop off Interstate 90, which spans the nation’s entire northern tier. For many westbound customers, Sunnyside is the last chance to legally buy recreational, or “adult-use,” marijuana products until Montana, more than 900 miles away. And heading south from this truck-stop town to the small Illinois city of Metropolis, dispensaries likewise hug the Prairie State’s boundaries with Indiana, Iowa and Kentucky, where pot sales are outlawed.
State lines delineate the vastly varying marijuana regulations across the Midwest. Illinois, Michigan and, since December, Missouri allow recreational marijuana, while neighboring states have some of the strictest laws in the nation. The contrasting statutes create some law enforcement concerns in states where marijuana is outlawed — when residents legally use marijuana just across the border or bring it back home.
But many elected officials in those states say the larger problem is the loss of potential revenue from an industry that could bring visitors, jobs and tax dollars. Public support for the liberalization of marijuana laws in this region is growing, following national trends. Much of the debate is economic, as restrictive states see their residents paying marijuana sales and excise taxes to neighboring states.
In Illinois, which legalized adult-use marijuana in 2019, out-of-state residents account for 30% of recreational marijuana sales, according to state filings. Sales in the state have risen from just more than $400 million in fiscal 2020 to more than $1.5 billion in fiscal 2022. Tax disbursements to local Illinois governments in fiscal 2022 reached $146.2 million, a 77% increase over 2021.
Illinois law mandates that a fourth of marijuana tax revenue be used to support communities that are “economically distressed, experience high rates of violence, and have been disproportionately impacted by drug criminalization.” The significant revenue is a big pull for states that outlaw marijuana to consider changing their policies. But some opponents to legalized cannabis worry about what other effects marijuana sales could have on their communities....
Indiana, which has some of the nation’s toughest marijuana laws, borders two states (Illinois and Michigan) with recreational sales. “I try to enforce the laws as best I can based on what Indiana wants us to do,” said Ken Cotter, prosecutor for St. Joseph County, Indiana, along the Michigan border. The region is known as Michiana.
“I was worried that if Michigan legalizes marijuana, folks from Indiana might want to go to Michigan, get the marijuana and drive back — that's one thing. But if they then went to Michigan, legally smoked it there and then drove [under the influence], that's a whole different ball game,” Cotter said. Cotter, a Democrat, said there has not been an increase in marijuana possession cases in his jurisdiction since Michigan legalized recreational sales in 2018, but that marijuana-based DUI charges have “increased dramatically.”
But Cotter was cautious not to draw broader conclusions from his jurisdiction of 270,000 residents, stressing that more data and reporting is a pressing public safety need. That’s in line with an expansive 2021 report from the Cato Institute, a libertarian-leaning think tank based in Washington, D.C., suggesting it’s too soon to know all the effects of the changing laws. The report noted that early studies, including those on public safety, have varied conclusions, and that data comparisons at this point can be problematic.
A recent survey by a national law firm finds some Midwestern states among those least favorable to the cannabis industry. Indiana’s laws rank 49th among states and the District of Columbia in receptiveness to cannabis, according to Thompson Coburn, a national law firm that has a cannabis practice. Wisconsin stands 47th, Kentucky 41st and Iowa 38th. In Wisconsin, for example, the first conviction for a small amount of marijuana possession is a misdemeanor, but any subsequent possession charge is a felony....
In Minnesota, where Democrats now control the governorship and both chambers of the legislature, lawmakers introduced an adult-use bill on Jan. 5. Democratic Gov. Tim Walz quickly tweeted his support: “It's time to legalize adult-use cannabis and expunge cannabis convictions in Minnesota. I’m ready to sign it into law.”
And in Wisconsin, Democratic Gov. Tony Evers told Wisconsin Public Radio in December that recreational marijuana will “be in the budget,” but that a hostile GOP-led legislature stands in the way. "Even though the people of Wisconsin by huge numbers in polling support recreational marijuana in the state of Wisconsin, I just don't know if the Republicans are there yet," Evers told WPR. "All I know is that there is talk on the Republican side, from what I've heard, around medicinal."...
Iowa appears unlikely to move toward liberalization of its marijuana laws, despite a Des Moines Register poll from 2021 showing 54% of Iowans supporting the legalization of adult-use products.
January 10, 2023 in Campaigns, elections and public officials concerning reforms, History of Marijuana Laws in the United States, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)
As I am gearing up for another exciting new semester of teaching my always exciting Marijuana Law and Policy seminar at The Ohio State University Moritz College of Law, I was especially drawn to this lengthy new op-ed by Justin Strekal at Marijuana Moment which has the same title as this post. I recommend the full piece, and here are excerpts highlighting some of its main themes:
2022 was the best of times for marijuana policy reform in America—but if you read the headlines or (god forbid) log onto Twitter, you could be forgiven for thinking that it was the worst.
This Orwellian doublethink is understandable if you look at it through the lens of a minute-by-minute analysis, or by only looking at the stock prices of the young, dominant players in the emerging cannabis industry. But we must keep the long game in mind when we think about ending the 85-year policy of marijuana prohibition and criminalization....
I have been a supporter of the SAFE Banking Act since I started at NORML in 2016, and I even took pro-SAFE meetings with groups that have since evolved their positions on the bill and are now demanding reforms to its underlying structure.
Back then, the purpose of the effort was to advance an aspect of legalization and the regulated marketplaces in Congress at a time when neither chamber had a leader who explicitly said they supported reform, be it SAFE or comprehensive. In other words, being for SAFE Banking was a form of harm reduction, not a cure.
Since the 115th Congress, a lot has changed. This includes the funding power of the reform movement, which has shifted dramatically in recent years, with the number of earnest advocates from the Drug Policy Alliance, Marijuana Policy Project and Americans for Safe Access shrinking, for example. On the flip-side, K Street lobby shops are hiring new suits seemingly every month, many of whom never thought about marijuana prohibition before being paid by a private company or trade association to do so....
As for what the Republican flip in the House means for this reported agreement between Schumer and Daines? What about comprehensive reform? Well, I’m not going to give you a percentage likelihood because only snake oil salespeople treat Congress like a betting market.
Whatever comes next in the House majority, it’s important to remember that 51 percent of House Republicans already voted for SAFE in the last Congress, including leaders like Reps. Kevin McCarthy (R-CA), Elise Stefanik (R-NY), Dave Joyce (R-OH), Bryon Donalds (R-FL), Kevin Hern (R-OK) and many others....
Because democracy is a verb and, as recent and ongoing events clearly show, things are not working well in America. But for the first time ever, there is actually a pathway to accomplish something pertaining to marijuana law reform — but only if the monied interests are willing to live up to the rhetoric they espouse.
January 10, 2023 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, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Wednesday, December 21, 2022
It has been an interesting couple of months for discussions of marijuana reforms at the federal level. Prez Biden got the federal reform conversation amped up in early Fall when he pardoned low-level marijuana possession offenders and ordered administrative review of marijuana Schedule I status under the CSA (basics here). Then, with the November midterm election giving control of the House to Republicans in the next Congress, formal and informal discussions of broad and narrow federal statutory marijuana reforms grew along with suggestions of including reforms in lame-duck bills (basics here and here).
This buzz did result in one tangible reform, as Congress in November passed and Prez Biden in December signed the Medical Marijuana and Cannabidiol Research Expansion Act. But, though historic and important, this research reform bill is unlikley to be all that impactful and consequential anytime soon. And hopes for the passage of the SAFE Banking Act and other possible reforms were finally fully dashed this week, raising the possibility that we may not see big federal marijuana reforms coming from Congress for many, many more years.
Of course, Marijuana Moment has great coverage of all the action, and here are some of the pieces that discuss a significant failure in the modern marijuana reform movement:
Thursday, December 8, 2022
As mentioned in this post from the past weekend, lots and lots of folks had seeemingly come to believe that significant federal marijuana reform was quite likely to get enacted in Congress this month. But this new Politco piece, headlined "How the plan to pass a weed package went awry, " not only explains why the prospects for reform are dim this month, but perhaps for many years to come. Here are excerpts:
Democrats almost had a weed deal — for real this time. For weeks, a bipartisan group of senators worked to negotiate a historic package in the office of Senate Majority Leader Chuck Schumer. The ideologically diverse crew included Sens. Steve Daines (R-Mont.), Jeff Merkley (D-Ore.), Dan Sullivan (R-Alaska) and Rand Paul (R-Ky.).
The bargain they ultimately reached represents the broad spectrum of cannabis issues: banking, guns and criminal record expungements. The package gave progressives, libertarians and conservatives all something to be happy about. But in the final days of negotiations over the National Defense Authorization Act, which they hoped would serve as a must-pass vehicle for the cannabis package, enthusiasm evaporated. The unraveling of the plan was sparked by top Republicans attacking cannabis banking legislation that was the centerpiece of the deal....
The SAFE Banking Act, which the cannabis package revolves around, would allow banks to offer financial services to the weed industry.... SAFE was then paired with the HOPE Act — a bill introduced by Reps. Dave Joyce (R-Ohio) and progressive stalwart Alexandria Ocasio-Cortez (D-N.Y.) that creates grants for expungements at the state level, lending it a “states rights” component. Finally, the GRAM Act — introduced by late Alaska GOP Rep. and former co-chair of the Congressional Cannabis Caucus Don Young — was thrown in. It would protect marijuana users’ right to own a firearm.
Support was there: At least 10 Republicans have co-sponsored or signaled they support the SAFE Act to date. Co-sponsor Sen. Kevin Cramer (R-N.D.) said in November he was open to SAFE and HOPE, especially if Daines was on board. On Thursday, Daines said conversations were productive and Paul claimed that there were more than 60 votes for the package.
But the potential deal began to fall apart when key Republican senators took aim at the cannabis banking provision. On Monday, staffers for Sen. Chuck Grassley (Iowa), the ranking member on the Senate Judiciary Committee, and other senators involved in the deliberations met with representatives from the Justice Department to discuss concerns about how agency officials would enforce the bill. Following that meeting, Grassley’s office released a statement attacking the bill.
Then on Tuesday, Senate Minority Leader Mitch McConnell took to the floor to rip Democrats for trying to add extraneous proposals to the defense spending bill. “We’re talking about a grab bag of miscellaneous pet priorities, like making our financial system more sympathetic to illegal drugs,” he said.
Even stalwart supporters got cold feet about attaching the cannabis package to the NDAA. Cramer and Tommy Tuberville (R-Ala.), who both support the banking bill, said a defense spending package wasn’t the place for it. “It dilutes the proper role of this place,” Cramer said, suggesting that the deal be given a full committee markup and floor time instead.
The NDAA isn’t the last piece of legislation that will likely be passed in the lame duck, but the same obstacles will apply to an omnibus funding package that’s being negotiated. Simply put, if McConnell remains opposed to SAFE, it won’t make it into a major package.
But the bill isn’t dead yet: Paul is still bullish on its prospects, saying he is confident there are more than 60 senators in favor of SAFE if it were to receive a standalone floor vote. Democrats left this until the last minute, though, and the chances that the Senate can find any floor time for a standalone SAFE “plus” package before the end of the year are slim....
Daines said he’s focused on getting something passed before the end of the year, but other GOP supporters, including Tuberville, said they may just need to deal with it in the next year. Republicans are set to take over the House in January, dimming the chances for SAFE. House Minority Leader Kevin McCarthy has voted in favor of the bill, but he hasn’t signaled that cannabis is something he wants to spend time on.
It may be that after more than three years of trying to see SAFE passed, Democrats took a gamble with the lame duck and ran out of time to get it passed.
Because I am not an expert in congressional procedure, I do not know if there would be a way in 2023 for a SAFE+ package of reforms to make its way through the new Congress as a stand alone bill. But I do know that if Senate Minority Leader McConnell and and the future House Speaker McCarthy are not excited about moving forward any federal marijuana reform legislation, then no such legislation will move forward in the next Congress. And, as political prognosticators know, there is a pretty good chance that Senate Minority Leader Mitch McConnell could become Senate Majority Leader Mitch McConnell come January 2025. Thus, an oppositional Senator McConnell could very well scuttle any federal cannabis reform efforts for the next four years and maybe longer.
That said, Prez Biden and his agencies can possibly move forward with reforms under the CSA without Congress involved. And, like the research bill that became law recently, there may be smaller reforms (included needed criminal justice measures) that Senator McConnell and other marijuana skeptics may not aggressively oppose. And, with the red states of Oklahoma and Ohio possibly embracing full legalization in 2023, the broad politics here are always in flux. So, I do not think that all is lost with federal reform even as the plans and paths get much less certain.
Of course, 23 months ago, when Prez Biden was picking his cabinet and the Democrats won the Georgia run-offs to take control of the Senate, many believed federal marijuana reforms coming from a Democratic-controlled Congress would be right around the corner. Fast forward to the end of 2022, and Congress in a few weeks will no longer be controlled entirely by Democrats, and they have remarkably little to show on cannabis reform for their time in full control.
Monday, December 5, 2022
I was intrigued and pleased to see that the cover story of the latest issue (December/January 2022-2023) of the ABA Journal is all about cannabis lawyering. This new piece is headlined "Lawyers are lighting up the budding cannabis industry: Justice Cannabis Co. is one of the biggest of the little guys in the rough-and-tumble, fast-paced and legally treacherous world of marijuana growing and selling."
Becuase I do not see too many really good pieces broadly reviewing the state of cannabis lawyering, I was a little disappointed that the ABAJ article is almost entirely about the practice and experience of lawyers involved with Justice Cannabis. Still, the ABAJ piece is an interesting read that covers a good bit of marijuana law along the way. Here is an excerpt:
As of early February, 37 states, three territories and the District of Columbia permitted the medical use of cannabis products. And as of November, 21 states, two territories and D.C. had approved cannabis for adult nonmedical use.
The cannabis industry generated $25 billion in revenues from legal sales in 2021 and employs more than 400,000 people nationwide. It was expected to reach $32 billion in annual sales in 2022 and could exceed $50 billion by 2030.
It can be a lucrative and fascinating area of practice, according to attorneys such as William Bogot of Fox Rothschild, who left the Illinois Gaming Board to take on cannabis work. It also can be frightening, says Lisa Dickinson of the Dickinson Law Firm in Spokane, Washington, who is chair of the ABA Tort Trial and Insurance Practice Section's Cannabis Law and Policy Committee. “It's still the wild, wild west,” she says.
The federal Controlled Substances Act prohibits the production, distribution, sale, use or possession of cannabis--which is classified alongside heroin and LSD as a Schedule I drug with a high likelihood of addiction and no safe dose. The federal statute provides no exception for medical or other uses authorized or regulated by state law. The penalties for some offenses are severe. The rapid bifurcation of state and federal law has woven deep contradictions into the legal system and American society, and it has created a thorny dilemma for cannabis businesses and the attorneys they need to help them.
For attorneys, there are two issues that have a chilling effect on their participation: The first is whether by representing a business that is breaking federal law they are violating the ethics of the profession, which could cost them their license to practice; the second is they could be charged with engaging in criminal activity, resulting in fines and prison.
Sunday, December 4, 2022
New reporting by Axios and Politico suggest that US Senators on both sides of the aisle are working to get notable marijjuana reform measures included in this year's (must-pass) National Defense Authorization Act. The Politico piece, headlined "Senators push for SAFE Banking in defense bill," starts this way:
A landmark bill that would make it easier for banks and other financial institutions to service the cannabis industry could finally be poised for passage. The SAFE Banking Act could be included in the National Defense Authorization Act that Congress is expected to take up next week.
Republican senators had a “productive” meeting about the legislation on Thursday with Majority Leader Chuck Schumer, Sen. Steve Daines (R-Mont.) told POLITICO. Sen. Sherrod Brown (D-Ohio), chair of the Senate Banking Committee, said he "hopes" it is in the NDAA.
The final decision is likely to be made on Monday, when the House Rules Committee meets to tee up the compromise version of the NDAA for a vote on the House floor as early as Tuesday. A final version of the defense bill was expected to be filed Friday, but has been delayed as House and Senate leaders iron out last-minute issues around what outside bills should be attached.
The Axios piece adds these details:
The targeted legislation is the result of the pairing of two bills —Secure and Fair Enforcement (SAFE) Banking Act and the Harnessing Opportunities by Pursuing Expungement (HOPE) Act—that would attract both conservatives and progressives across Congress.
The latest changes to the bill ensure that the legislation does not unintentionally make it harder for law enforcement to prosecute other crimes involving other drugs or money laundering.
Schumer and the bipartisan group plan to attach this legislation to a must-pass year-end bill like the annual National Defense Authorization Act.
Schumer and Sen. Jeff Merkley have been working with Republicans for months, including Sens. Steve Daines, Rand Paul, and Dan Sullivan.
Monday, November 28, 2022
"Medical Cannabis and Autism Spectrum Disorder – Ohio's Marijuana Policy and its Intersection with the Historical Controversial Cannabis Treatment"
In a very busy semester, I have fallen a bit behind posting some recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center. I am hopeful about catching up in the days ahead, as I continue to relish the he chance to highlight great work by OSU law students and recent graduates. And the title of this post is the title of this paper authored by Lindsey Mead who is in the midst of her 3L year at The Ohio State University Moritz College of Law. Here is its abstract:
In the state of Ohio, medical marijuana is offered as a treatment option for many different illnesses and disorders including Alzheimer’s disease, Tourette’s syndrome, and Crohn’s disease. However, one condition missing from this list of syndromes that may legally use medical marijuana as a form of treatment is autism spectrum disorder. This paper aims to understand why autism spectrum disorder is not included in this list while also analyzing relevant present legislation such as House Bill 60 and Senate Bill 261. To answer these questions, this paper examines the benefits of treating autism with medical marijuana as well as the reasoning for why this treatment has been perceived so negatively.
Sunday, November 20, 2022
This notable new five-page Congressional Research Service report titled "Does the President Have the Power to Legalize Marijuana?". Here is how it gets started:
Marijuana and other products derived from the cannabis plant are regulated under both federal and state law. In recent years, a significant divide has developed between federal and state regulation. Under the federal Controlled Substances Act (CSA), marijuana is strictly regulated and may not legally be used for medical or recreational purposes. In contrast, a substantial majority of states have relaxed state law prohibitions on medical or recreational marijuana.
The fall of 2022 saw two key developments in federal and state marijuana regulation. In October 2022, President Joe Biden granted clemency to certain low-level federal marijuana offenders and directed the Attorney General to review the status of marijuana under federal law. While some observers consider President Biden’s grant of clemency to represent a significant change in federal marijuana policy, as a legal matter it did little to alter the growing disparity between federal and state marijuana regulation. Then, in November 2022, voters in five states considered ballot initiatives to legalize recreational marijuana at the state level, two of which were adopted. Legislators and commentators have proposed a number of legal reforms that would alter federal marijuana regulation and potentially reduce the divergence between federal and state law.
This Legal Sidebar provides an overview of the legal status of marijuana under federal and state law, then discusses recent developments including the grant of clemency for federal marijuana possession offenses and November 2022 state ballot initiatives related to marijuana. The Sidebar concludes with an overview of selected legislative proposals related to marijuana.
This CRS document is dated November 16, 2022, so it only makes a brief reference/link to the federal research bill that was passed by Congress on that very day, the "Medical Marijuana and Cannabidiol Research Expansion Act." As of this writing (Nov 20, 2022), that bill is still awaiting the President's signature.
Thursday, November 17, 2022
Though I have already flagged this event at my other blog, I wanted to be sure to highlight here this exciting webinar scheduled for next month (December 13 starting at 12noon), which is organized by Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Last Prisoner Project. Here is a bit of the backstory and the panel lineup:
On October 6th, 2022, President Biden issued a proclamation granting pardons to over 6,500 people with federal simple possession of marijuana offenses. In an acknowledgment of the fact that the vast majority of cannabis convictions take place on the state level, President Biden simultaneously encouraged the country’s governors to use their clemency power to issue similar grants. While the President’s executive actions are an unprecedented and important step forward, there is still much more work ahead to fully redress the harms of cannabis criminalization.
Please join the Drug Enforcement and Policy Center and the Last Prisoner Project as we host a panel of experts to discuss how these pardons will affect people with cannabis convictions on their record, how states could act on the President's call, and what implications this may have for the future of cannabis and criminal justice reform in the United States.
Elizabeth G. Oyer, U.S. Pardon Attorney, U.S. Department of Justice
JaneAnne Murray, Associate Clinical Professor of Law, Director of the University of Minnesota Law School Clemency Project
Sarah Gersten, Executive Director and General Counsel, Last Prisoner Project
Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law; Executive Director of the Drug Enforcement and Policy Center
Wednesday, November 16, 2022
Congress passes marijuana research bill, the "Medical Marijuana and Cannabidiol Research Expansion Act"
With a Senate motion, the US Congress made some history today by passing a standalone piece of marijuana reform legislation. Here are the basics from Politico:
The Senate passed a bill designed to expand medical marijuana research on Wednesday by unanimous consent. Passage of the legislation, which is sponsored by Sen. Dianne Feinstein (D-Calif.) and Rep. Earl Blumenauer (D-Ore.) in their respective chambers, signaled a new era in federal cannabis policy: It’s the first standalone marijuana-related bill approved by both chambers of Congress. The House passed the bill in July, also by unanimous consent.
The bill, which will make it easier for scientists to conduct medical marijuana research and protect doctors who discuss the benefits and drawbacks of using the drug with patients, now heads to President Joe Biden’s desk....
Passage of the medical research bill by unanimous consent signals that perceptions about marijuana are changing. While expanded research is arguably the most conservative action Congress could take on marijuana, it is something that would have been unthinkable a decade ago. The bill came close to passing in September, but was held up by Sen. John Cornyn (R-Texas). Cornyn lifted the hold earlier this week.
“After working on the issue of cannabis reform for decades, finally the dam is starting to break,” Blumenauer told POLITICO in a statement. “At a time when more than 155 million Americans reside where adult-use of cannabis is legal at the state or local level and there are four million registered medical marijuana users with many more likely to self-medicate, it is essential that we are able to fully study the impacts of cannabis use.”
This Marijuana Moment article, headlined "Senate Sends Marijuana Research Bill To Biden’s Desk, With Schumer Saying He’s Having ‘Productive Talks’ On Broader Reform," highlights why this little bit of history might be a sign of things to come:
Just before the vote, Senate Majority Leader Chuck Schumer (D-NY) said on the floor that he is continuing to have “productive talks” about a broader package of cannabis reforms he hopes to pass before the end of the lame duck session.
In the meantime, while numerous marijuana measures have been filed and advanced in each chamber in recent sessions, reform has consistently stalled before reaching the president. But now, the “Medical Marijuana and Cannabidiol Research Expansion Act” is just one signature away from historic enactment.
Tuesday, November 15, 2022
The quoted portion of the title of this post is the title of this new Gallup report on its latest polling on opinions regarding marijuana. Here are excerpts:
Americans' support for marijuana legalization remains at the record-high 68% recorded each of the past two years.
When Gallup first asked about legalizing marijuana in 1969, 12% of Americans were in favor. Support grew from there, reaching 31% in 2000 and surpassing the majority level in 2013. Since 2016, at least six in 10 have been in favor. The latest results are based on an Oct. 3-20 Gallup poll.
Combining data for the past five years, from 2018 through 2022, allows for a more robust analysis of demographic differences in views about marijuana legalization than is possible from a single poll. Using this aggregate, Gallup finds support for legalization averaged 67% among the general population but varied significantly by subgroup. Conservative, religious and older Americans are the least supportive, while liberal, nonreligious and younger Americans are the most supportive.
Specifically, subgroups whose support for legalization exceeds the national average by 10 or more percentage points include those with no religious preference (89%), self-identified liberals (84%), Democrats (81%), young adults (79%) and those who seldom or never attend religious services (78%).
Groups whose support is at least 10 points below the national average include those who attend church weekly (46%), conservatives (49%), Republicans (51%), older adults (53%) and Hispanic adults (56%)....
Given the importance of ideology and age in predicting individuals' support for marijuana legalization, ideological subgroups of different ages show some of the largest intergroup differences in attitudes.
At every age level, conservatives are less likely than moderates or liberals to support making marijuana legal. However, majorities of younger conservatives (those under age 50) favor legalization, compared with 32% of older conservatives.
Age differences among political moderates are more modest, with 20 points separating the oldest (62%) and youngest (82%) moderates. That contrasts with a 33-point gap between the oldest and youngest conservatives. Liberals, on the other hand, show similarly high support -- 81% or higher -- regardless of age.
Monday, November 14, 2022
As reported in this Marijuana Moment piece, "House Democrats and Republicans have co-published a joint memo ahead of a congressional subcommittee meeting on marijuana on Tuesday, laying out key background details on the issue that will likely inform the conversation at the meeting." Here is more:
The House Oversight Subcommittee on Civil Rights and Civil Liberties announced the meeting—titled “Developments in State Cannabis Laws and Bipartisan Cannabis Reforms at the Federal Level”—last week. And the witnesses set to testify are broadly pro-legalization.
Several documents have been posted in advance of the meeting, including what’s described a “joint memo” from majority and minority staff that was uploaded on Sunday. Rep. Jamie Raskin (D-MD) chairs the panel, with Rep. Nancy Mace (R-SC) serving as the ranking member.
Given that leadership on the subcommittee shares bipartisan interest in advancing cannabis reform, it makes sense that the witnesses are well-known advocates for ending prohibition and that the joint memo generally provides information that makes the case for a comprehensive policy change.
It mentions several pieces of marijuana legalization legislation, including the House-passed Marijuana Opportunity, Reinvestment and Expungement (MORE) Act, Senate leadership’s Cannabis Administration and Opportunity Act (CAOA) and Mace’s States Reform Act (SRA).
“This hearing will be a bipartisan examination of the many benefits of decriminalization at the federal level, including: criminal justice reform, which will largely benefit communities of color, as well as the justice system more broadly; access for veterans through the Department of Veterans Affairs (VA); and the ability for the legal cannabis industry to access financial services,” the memo says.
The full 11-page "Joint Memo" is available at this link. It makes for an interesting read.
Thursday, November 10, 2022
US House subcommittee hearing scheduled on "Developments in State Cannabis Laws and Bipartisan Cannabis Reforms at the Federal Level"
Interestingly, on the morning of Election Day, the US House Committee on Oversight and Reform released this notice announcing that on "Tuesday, November 15, 2022, at 10:00 a.m. ET, the Subcommittee on Civil Rights and Civil Liberties will host a hybrid hearing titled 'Developments in State Cannabis Laws and Bipartisan Cannabis Reforms at the Federal Level'.” The next evening, this follow-up memo was released providing a lot more notable details about this notable congressional hearing (including a list of scheduled witnesses). Here are excerpts:
On October 6, 2022, President Biden announced that he granted a pardon to everyone convicted of simple marijuana possession under federal law and called for a review of how marijuana is scheduled under the Controlled Substances Act (CSA). Advocates for cannabis reform welcomed the President’s actions but continue to call for action in the legislative branch to decriminalize cannabis....
This hearing will be a bipartisan examination of the many benefits of decriminalization at the federal level, including: criminal justice reform, which will largely benefit communities of color, as well as the justice system more broadly; access for veterans through the Department of Veterans Affairs; and the ability for the legal cannabis industry to access financial services.
And this official website provides some more interesting background and also the expected witnesses. Here is a snippet:
On Tuesday, November 15, 2022, at 10:00 a.m. ET, Rep. Jamie Raskin, Chairman of the Subcommittee on Civil Rights and Civil Liberties, and Rep. Nancy Mace, Ranking Member of the Subcommittee on Civil Rights and Civil Liberties, will hold a hybrid hearing to examine the many benefits of cannabis decriminalization at the federal level, including addressing racial disparities in the criminal justice system, improving treatment options for veterans, and allowing marijuana companies to access traditional banking services.
Marijuana arrests account for 43% of all drug arrests, and nine in ten of those marijuana arrests are for simple possession. Although Black and white people use cannabis at roughly the same rates, Black people are nearly four times more likely to be arrested for violating marijuana possession laws, which carries life-altering implications for employment, housing, and education. Decriminalizing cannabis at the federal level and expunging criminal convictions for possession would alleviate these burdens and allow for societal advancement.
November 10, 2022 in 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)
Thursday, October 27, 2022
As reported in this Washington Post piece, "Germany moves to legalize recreational cannabis," it appears that the biggest country in the EU is about to go all in on MJ. Here re the details:
Germany on Wednesday announced plans to legalize cannabis for recreational use. It was a move the country’s health minister said would make Germany Europe’s “most liberal cannabis legalization project” but also its “most tightly regulated market.”
Presenting a detailed cornerstone paper laying out a slate of regulations to Germany’s cabinet Wednesday, Health Minister Karl Lauterbach said the legalization of cannabis is necessary to end Germany’s “unsuccessful fight against drug-related crime,” and its flourishing black market. The goal of the change is to reduce consumption, especially for young people, he said in a tweet.
Under the government’s new plans, cannabis and THC will no longer be classified as narcotics. The substances will be able to be produced, supplied and distributed to people 18 or older, within a licensed and government-regulated environment — including specialist shops and, “if necessary,” pharmacies. Adults can possess 20 to 30 grams of recreational cannabis, both in private and in public. And Germans will be able to cultivate their own cannabis, to some extent....
Germany also plans to impose a “cannabis tax” and a potential upper limit on THC content for adults under 21. Advertising for cannabis will be completely prohibited, and neutral outside packaging will be required.
There is no set timeline for the plan, and the draft rules still need to be assessed by the European Commission and made into law. Medical marijuana, in limited circumstances, has been legal in Germany since 2017.
Thursday, October 20, 2022
"Foreshadowing an Inevitable Clash: Criminal Probation, Drug Treatment Courts, and Medical Marijuana"
The title of this post is the title of this new paper authored by Michael Sousa available via SSRN. Here is its abstract:
The criminal justice system underwent two revolutionary developments over the past twenty years – the legalization of medical marijuana at the state level, which provides criminal immunity protections for qualifying patients, and the exponential rise of drug treatment courts as alternatives to incarceration. Traditionally, offenders serving probationary sentences are generally prohibited from using drugs as one condition of probation. But courts are now increasingly confronted with challenges to probationary conditions prohibiting the use of medical marijuana in states where it has been legalized. The trend among courts permits the medicinal use of marijuana during probationary sentences and invalidates conditions prohibiting such use for therapeutic purposes. Drug treatment courts are a form of probation that offer intensive treatment services for offenders with substance abuse disorders. Most drug treatment courts across the country operate on an abstinence-based model.
While to date there have been no reported challenges to prohibiting the use of medical marijuana by participants in drug treatment court programs, the legal and practical issues are brimming just below the surface, and it is only a matter of time before a clash occurs between criminal immunity provisions under state medical marijuana laws and their consequential applicability in the drug treatment court landscape. This article takes a forward-looking approach by foreshadowing this seemingly straightforward, but complicated question: how will criminal immunity provisions under state medical marijuana laws and the judicial protections afforded to offenders on regular probation be construed by appellate courts when inevitably challenged by drug treatment court participants? This is the first scholarly article to address the knotty legal and practical issues underlying this inquiry. The purpose of this contribution then is to provide future scholars, appellate courts, drug treatment courts, legal actors, and drug treatment court professionals with a robust foundation to draw upon in thinking about the adaptability of medical marijuana use in the drug treatment court domain.
Thursday, October 6, 2022
Prez Biden asking to start "administrative process to review expeditiously how marijuana is scheduled under federal law"
In this post at my other blog, I focused on the interesting (but not really big) news, set forth in a this official statement from the White House, that Prez Biden today announce that his is "pardoning all prior federal offenses of simple marijuana possession" and that he is "calling on governors to pardon simple state marijuana possession offenses." I will likely blog more over there about the criminal justice echoes of this interesting mass pardon announcement and exhortation to governors to follow suit.
But here, where we focus on "Marijuana Law, Policy & Reform," I want to focus on the interesting (and perhaps really) news that Prez Biden has also leaned into rescheduling of marijuana via this part of his statement:
Third, I am asking 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. Federal law currently classifies marijuana in Schedule I of the Controlled Substances Act, the classification meant for the most dangerous substances. This is the same schedule as for heroin and LSD, and even higher than the classification of fentanyl and methamphetamine – the drugs that are driving our overdose epidemic.
Finally, even as federal and state regulation of marijuana changes, important limitations on trafficking, marketing, and under-age sales should stay in place.
I have been asked a few questions already about how long it will take to conduct an "administrative process to review expeditiously how marijuana is scheduled under federal law." My sense is that it will take years, not months, and that there is sure to be lots of debate over the science and politics of rescheduling even if there is a broad consensus that marijuana should no longer be on schedule I. This Marijuana Moment piece, headlined "DOJ To ‘Expeditiously’ Act On Biden’s Marijuana Pardon Directive, While HHS ‘Looking Forward’ To Scheduling Review," covers a bit of the process and the politics:
The Justice Department and U.S. Department of Health and Human Services (HHS) say they will quickly act to follow President Joe Biden’s new directive to review marijuana’s federal scheduling status and process mass cannabis possession pardons.
Within an hour after the president made the surprise announcement, a DOJ spokesperson released a statement saying the department would abide by the cannabis directive in an expedited fashion.... “Also, in accordance with the President’s directive, Justice Department officials will work with our colleagues at the Department of Health and Human Services as they launch a scientific review of how marijuana is scheduled under federal law,” the agency said.
HHS Secretary Xavier Becerra separately said in a tweet — posted as precisely 4:20 PM ET — that he’s “looking forward to working with Attorney General Garland to answer [Biden’s] call to action to review how marijuana is scheduled under federal law.”...
Biden’s scheduling review—which would be conducted by DOJ and HHS—could reshape federal marijuana policy depending on the final recommendation. Biden has faced numerous calls from advocates to use his executive authority to unilaterally initiate that process.
The agencies could ultimately recommend moving marijuana from the strictest classification of Schedule I under the Controlled Substances Act (CSA) to a lower schedule or no schedule at all.
Biden has said he supports rescheduling to Schedule II, but advocates have pushed for complete descheduling, which would effectively end prohibition.
Wednesday, September 28, 2022
John Hudak has this interesting new piece over at Brookings discussing the continued failure of marijuana reform becoming a significant campaign issues in this year's congressional races. The piece is titled "Congressional candidates’ silence on cannabis reform," and is worth a full read. Here is how the piece starts and concludes:
Cannabis reform has grown in popularity with voters, activists, and state legislators; cannabis is now legal for medical use in 38 states and DC and for adult-use in 19 states and DC. Despite those advances in state level reforms and in the broader conversation nationwide, Congress has failed to pass a major piece of legislation addressing the issue, and many voters and activists wonder why.
One argument is that federal level officials — in the executive branch and in Congress — simply don’t care enough about the issue to address it. To consider this question, I included a coding about cannabis reform in Brookings Primaries Project in 2022. The Brookings Primaries Project examines the publicly stated views—via the websites and social media presence — of all candidates running in U.S. congressional primary races. We coded each candidate on a four-point scale: whether they supported legalization or decriminalization of cannabis, whether they supported medical legalization only, whether their position was complex or indecipherable, and whether they failed to mention the issue at all.
The results provide three general takeaways. First, primary candidates for Congress do not consider the issue important enough to elevate to be included on their website or on social media. Second, on average, candidates who do engage on the issue are at least not harmed by staking out a public position. Third, stark differences exist between Democratic primary candidates for Congress and Republican primary candidates for Congress....
It is clear that among all candidates, all Democrats, and all Republicans, taking no public position on cannabis was the most popular strategy during the 2022 congressional primaries. However, among candidates who chose to take a clear position on cannabis, Republicans were more likely to oppose legalization than support it, and the reverse is true for Democratic primary candidates who took a position on cannabis.
In sum, cannabis as a political issue has risen in importance over the past 25 years. As state legislatures and voters via referenda have enacted changes to cannabis laws, the issue has become more popular even in the halls of Congress. However, cannabis reform advocates’ frequent stupefaction at the lack of progress at the federal level bumps up against a stark reality. Most candidates for federal office do not see cannabis as an issue prominent enough to discuss, and deep partisan differences still remain among elected officials, even as support for cannabis in the general public has exploded in recent years. And the true motivator for a member of Congress to take or change a position — whether voters hold their feet to the fire over an issue — has not yet become a reality in the vast majority of Congressional races across the United States.
September 28, 2022 in Campaigns, elections and public officials concerning reforms, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)