Thursday, May 16, 2024

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

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

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

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

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

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

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

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

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

May 16, 2024 in Federal Marijuana Laws, Policies and Practices, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Wednesday, May 1, 2024

"The False Promise of Rescheduling"

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

The federal government appears poised to reschedule marijuana under the Controlled Substances Act (CSA). Advocates have suggested the move will generate substantial benefits for the state-licensed marijuana industry, which has struggled to secure basic legal and business services under federal prohibition.  But this Essay serves as a reality check.  It suggests the expectations surrounding rescheduling are highly inflated, for two reasons.

First, rescheduling still might not happen.  To reschedule marijuana, the Drug Enforcement Administration (DEA) would have to change its long-standing interpretation of key statutory scheduling criteria.  Even if the Biden Administration were willing to do that (the jury is still out), a future Administration might reconsider.  If President Biden loses the fall 2024 election, nothing would stop his successor from quickly returning marijuana to the tightly regulated Schedule I.

Second, even if it happens, rescheduling to a lower schedule under the CSA will not greatly improve the fortunes of the marijuana industry.  The CSA will continue to impose a litany of restrictions on the manufacture and sale of marijuana.  What is more, the Food Drug and Cosmetic Act (FDCA) will still ban all interstate commerce in the drug.  (Marijuana would still not be approved by the Food and Drug Administration, post-rescheduling.)  If firms in the industry fail to comply with the rules imposed by these two statutes — as seems almost inevitable — they could still be denied banking, bankruptcy protection, intellectual property protection, contract enforcement, and other key services, just as they are today.  The Essay suggests that only Congress can remove all these challenges. To obtain more impactful and comprehensive reforms to federal marijuana policy, advocates should eschew the false promise of administrative rescheduling and focus instead on convincing Congress to enact reform legislation.

May 1, 2024 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Tuesday, April 30, 2024

Widespread new reporting that DEA is rescheduling marijuana to Schedule III under the Controlled Substances Act

ImagesAs reported in this new AP article, the "U.S. Drug Enforcement Administration will move to reclassify marijuana as a less dangerous drug, The Associated Press has learned, a historic shift to generations of American drug policy that could have wide ripple effects across the country."  Here is more on a legal developments that has been expected, but is still a very big deal:

The DEA’s proposal, which still must be reviewed by the White House Office of Management and Budget, would recognize the medical uses of cannabis and acknowledge it has less potential for abuse than some of the nation’s most dangerous drugs. However, it would not legalize marijuana outright for recreational use. The agency’s move, confirmed to the AP on Tuesday by five people familiar with the matter who spoke on the condition of anonymity to discuss the sensitive regulatory review, clears the last significant regulatory hurdle before the agency’s biggest policy change in more than 50 years can take effect.

Once OMB signs off, the DEA will take public comment on the plan to move marijuana from its current classification as a Schedule I drug, alongside heroin and LSD. It moves pot to Schedule III, alongside ketamine and some anabolic steroids, following a recommendation from the federal Health and Human Services Department. After the public comment period and a review by an administrative judge, the agency would eventually publish the final rule....

Biden and a growing number of lawmakers from both major political parties have been pushing for the DEA decision as marijuana has become increasingly decriminalized and accepted, particularly by younger people. A Gallup poll last fall found 70% of adults support legalization, the highest level yet recorded by the polling firm and more than double the roughly 30% who backed it in 2000. The DEA didn’t respond to repeated requests for comment.

Schedule III drugs are still controlled substances and subject to rules and regulations, and people who traffic in them without permission could still face federal criminal prosecution. Some critics argue the DEA shouldn’t change course on marijuana, saying rescheduling isn’t necessary and could lead to harmful side effects....

Federal drug policy has lagged behind many states in recent years, with 38 having already legalized medical marijuana and 24 legalizing its recreational use. That’s helped fuel fast growth in the marijuana industry, with an estimated worth of nearly $30 billion. Easing federal regulations could reduce the tax burden that can be 70% or more for businesses, according to industry groups. It could also make it easier to research marijuana, since it’s very difficult to conduct authorized clinical studies on Schedule I substances.

The immediate effect of rescheduling on the nation’s criminal justice system would likely be more muted, since federal prosecutions for simple possession have been fairly rare in recent years. But loosening restrictions could carry a host of unintended consequences in the drug war and beyond.

Critics point out that as a Schedule III drug, marijuana would remain regulated by the DEA. That means the roughly 15,000 cannabis dispensaries in the U.S. would have to register with the DEA like regular pharmacies and fulfill strict reporting requirements, something that they are loath to do and that the DEA is ill equipped to handle.

Then there’s the United States’ international treaty obligations, chief among them the 1961 Single Convention on Narcotic Drugs, which requires the criminalization of cannabis. In 2016, during the Obama administration, the DEA cited the U.S.’ international obligations and the findings of a federal court of appeals in Washington in denying a similar request to reschedule marijuana. 

April 30, 2024 in Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Who decides | Permalink | Comments (0)

Monday, April 29, 2024

US Supreme Court grants cert to consider RICO claim brought by fired employee against medical marijuana company

One theme of my marijuana seminar is how the US Supreme Court has largely stayed out of broad legal uncertainties relating to marijuana reform for the past two decades (after very significant early rulings in United States v. Oakland Cannabis Buyers' Co-op., 532 U.S. 483 (2001) and Gonzales v. Raich, 545 U.S. 1 (2005)).  But today, via this order list, the Justice took up a new marijuana case -- sort of.  Here is how Jon Elwood at SCOTUSblog explains the case last week (links from the original):

 Medical Marijuana, Inc. v. Horn. Douglas J. Horn lost his job as a commercial truck driver after a drug test he took reflected the presence of tetrahydrocannabinol (“THC”), the active chemical compound in marijuana. Horn maintained that he ingested THC unwittingly by consuming a cannabis-derived product that Medical Marijuana, Inc. marketed as THC-free.

Horn sued, alleging injury under the Racketeer Influenced and Corrupt Organizations Act. The district court held that Horn lacked RICO standing because he sued for economic injuries from loss of earnings that were derived from his personal injury (exposure to THC). The U.S. Court of Appeals for the 2nd Circuit reversed, holding that although RICO only permits suit by a plaintiff “injured in his business or property” by racketeering activity, an economic injury resulting from personal injury sufficed.

Medical Marijuana, represented by Supreme Court veteran Lisa Blatt, petitions for review, arguing that the courts of appeals “are divided on whether economic damages arising from persual injuries … support civil RICO liability.” Medical Marijuana notes that the Supreme Court indicated – a bit offhandedly, in an opinion addressing another issue – that RICO’s private cause of action “exclud[ed], for example, personal injuries.” If granted, it should make for an interesting argument.

Cert has now been granted for an argument likely to take place in Ovtober or November this year. Not sure how much marijuana law and policy will become central to the briefing and argument, but it is interesting to see a marijuana-related case on the SCOTUS merits docket after a long dry spell.

April 29, 2024 in Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Tuesday, April 16, 2024

"Budding cannabis law courses are growing — but not fast enough"

Though I am done teaching my Marijuana Law, Policy & Reform seminar for this semester, I am still having a grand time working with students on their final papers.  And all the work by and with my students all semester long deeply reinforces my sense that marijuana courses in law school can serve as a terrific way to cover all sorts of legal doctrines and policies and pragmatic issues that lawyers can and will confront in many settings.  With these matters in mind, I am so very pleased to see this new ABA Journal article with the headline that serves as the title fo this post.  Here are some excerpts:

Inspired by President Joe Biden’s call to review cannabis’ classification as a Schedule I controlled substance and many states’ moves to legalize weed for medical and general use, an increasing number of law schools around the country are offering cannabis law courses.

In the 2022-2023 academic year, 45 law schools—or about 22% of the 197 ABA-accredited schools—offered a combined total of 47 cannabis law courses, according to research by the Ohio State University Moritz College of Law’s Drug Enforcement and Policy Center.  Although that’s an increase of 24 schools compared to four years earlier in the 2018-2019 academic year, some professors think that even more are needed. “We’re still playing catch-up,” says Robert Mikos, a professor at the Vanderbilt University Law School who has taught a class on marijuana law and policy for more than 10 years....

As the weed business grows, so does the need for lawyers. There are jobs in this field, and they extend far beyond representing cannabis dispensaries, says Mikos ...  Opportunities include working for government regulatory agencies tasked with supervising the licensed cannabis industry, working as advocates and representing investors whose holdings touch the industry, such as real estate that a dispensary wants to rent....

In the classroom, professors must balance theory with myriad practical and ethical issues embedded in the ever-changing state laws and federal regulation, they say. Intersections with cannabis law include constitutional law, taxes, intellectual property, real estate, the environment and workers’ rights.

Most cannabis law classes are directed at upper-level students.  “It’s a great capstone course,” Mikos says. “If you’re a 3L, you might have encountered already constitutional law, criminal law, corporations or administrative law. Now, you get to put that into practice and put it all together in a very concrete way.”

April 16, 2024 in Business laws and regulatory issues, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Sunday, April 7, 2024

Student presentation examines the modern realities of modern marijuana politics and policy

Download (3)The politics of marijuana reform is an ever-evolving topic, especially here in Ohio. And this topic is a focal point for one of my students this week in my Marijuana Law, Policy & Reform seminar. As noted many tmes before, prior to their presentations, students are expected to provide here some background on their topic and links to some readings or relevant materials. The second of our presentations taking place in class this week has been described (along with background readings) this way:

When legislators and citizens find themselves at odds when contemplating policy, the citizens often turn to the ballot initiative. This is often the case in a number of states where legislators are hesitant to enact what might be divisive marijuana reform.  As such, the ballot initiative has found itself intertwined with the direct democracy engaged in marijuana advocacy.  But what happens when the marijuana conversation enters particularly conservative states, and the legislators aren't keen to accept the voters' will?  With marijuana being legalized in most liberal-leaning states, the topic has become more controversial in areas with particularly deep-seated ideas about how marijuana will negatively impact communities.

Whether through vocal opposition or more insidious procedural challenges, legislators have made their disdain for marijuana known.  The embers of the war on drugs still glow warmly in red states as the formalities of the ballot initiative are weaponized to inhibit supporters.  Signature, district, and single-subject requirements all lend opportunities to prevent meaningful reform where policy-based opposition fails.  In the shadows of the 2020 presidential election where democracy was shaken, many officials have deemed the will of the people to be inconsequential and something to be ignored where inconvenient. Moving forward, the need for federal legalization is stronger than ever, and advocates must navigate a process and game where the chips are undoubtedly stacked against them.

Background reading:

Law review article:  "Taking the Initiative: Marijuana Law Reform and Direct Democracy"

Ohio law on Initiated Statute procedures

Ohio Issue 2 reform press coverage: "Ohio GOP Senate President Lays Out Process To Revise Marijuana Law, Arguing Voters Didn’t Understand Some Provisions"

April 7, 2024 in Assembled readings on specific topics, Campaigns, elections and public officials concerning reforms, Who decides | Permalink | Comments (0)

Thursday, March 28, 2024

Student presentation examines psychedelics as the next fronteir of drug policy reform

Images (4)It's opening day for the MLB, but we are mid-season for my Marijuana Law, Policy & Reform seminar as students continue their "take over" of my class through presentations on the research topics of their choice.  As noted many tmes before, prior to their presentations, students are expected to provide here some background on their topic and links to some readings or relevant materials. The second of our presentations taking place in class next week will be looking at psychedelics and the next class of drugs subject to modern reforms.  Here is how my student has described her topic along with background readings she has provided:

As marijuana policy continues to reform and the stigma surrounding it begins to fade, the legality of other drugs has come into question, and the policies behind them have slowly begun to reform as well.  After California legalized medical marijuana in 1996, within the next four years several states followed suit.  The trend of cannabis legalization continued with Colorado becoming the first state to legalize marijuana for recreational purposes in 2014.  This trend of cannabis reform in the last 30 years or so has led researchers, policymakers and everyday citizens to dive into the research of various other drugs that have potential medicinal and recreational use.

The largest group of drugs that has drawn a focus is psychedelics. Psychedelic drugs are a broad category that could encompass anything from cannabis itself to LSD to MDMA.  This presentation will focus on the most common drugs people often think of when it comes to psychedelics – psilocybin (magic mushrooms,) and LSD. As well as two other drugs that have found their way into the spotlight of reform – MDMA (ecstasy,) and ketamine.  My presentation will start with an overview of the drugs above, their medicinal or lack of medicinal purposes, the research surrounding them, and different models of legalization, focusing on the challenges and progress ongoing in various states and cities including Oregon, Colorado and California.

Background reading:

Siegel JS, Daily JE, Perry DA, Nicol GE. Psychedelic Drug Legislative Reform and Legalization in the US, JAMA Psychiatry (Jan. 1, 2023)

Smith WR, Appelbaum PS. Two Models of Legalization of Psychedelic Substances: Reasons for Concern. JAMA (Aug. 24, 2021)

Mapping Psychedelic Drug Policy Reform in the United States (March 14, 2024)

Gael Girón S, Lang B, LeMaster S, Matthews K, McAllister S. Denver Psilocybin Mushroom Policy Review Panel.  Comprehensive Report (2021)

March 28, 2024 in Assembled readings on specific topics, Political perspective on reforms, Who decides | Permalink | Comments (0)

Wednesday, March 20, 2024

Student presentation on marijuana reform's impact on Fourth Amendment doctrines

1_EuqhjrrRrrURbXeneqhVRAThe next few weeks are going to bu busy ones in my  Marijuana Law, Policy & Reform seminar, as we have 17(!) student presentation scheduled.  That means, as often noted before, this blog will soon have 17 more student desceriptions of their topic and  some links for background reading.   The first schedule presentations taking place in class next week will be exploring marijuana reform's impact on Fourth Amendment search doctrines.  Here is how my student has described his topic along with some links he provided:

The Fourth Amendment protects against “unreasonable searches and seizures.” U.S. Const. amend IV.  Warrantless police searches are therefore “per se unreasonable.” Katz v. United States, 389 U.S. 347, 357 (1967).  But that per se rule is not without its exceptions. Police can, for example, search a person’s car without a warrant if they have probable cause to do so. They can also stop and (sometimes) frisk a person based on a reasonable suspicion “that criminal activity may be afoot.” Terry v. Ohio, 392 U.S. 1, 30 (1968).  Seeing or smelling marijuana might provide police with just the level of suspicion they need to conduct a search without first obtaining a warrant. But what if marijuana is no longer an automatic indicator of criminal activity?

Courts and legislatures in states like California, Colorado, and Oregon have had to grapple with just that question.  The legalization of marijuana has unsettled Fourth Amendment law in those and other jurisdictions.  It is not immediately clear anymore what exactly police can do when they encounter marijuana.  In many instances, the answer may be nothing at all.  This presentation will outline Fourth Amendment law as it relates to marijuana.  It will then sketch how the law has evolved in states where marijuana is now perfectly legal.  Finally, it will cover possible approaches a state can take to modify search and seizure law following full legalization — including (1) do nothing, (2) leave the issue for courts to resolve, or (3) pursue change through legislation.

Additional Reading:

March 20, 2024 in Assembled readings on specific topics, Criminal justice developments and reforms, Who decides | Permalink | Comments (0)

Friday, February 23, 2024

Germany on path to legalization after vote by key house of its parliment

As reported in this new CNN piece, "Germany’s lower house of parliament voted to legalize cannabis for limited recreational use on Friday despite warnings from the opposition and medical authorities." Here is more:

The new rules mean adults can possess small amounts for personal use but the drug remains banned for under 18s.  In total, 407 German lawmakers voted in favor of the new regulation, 226 lawmakers voted against and four lawmakers abstained from Friday’s vote.  The passage of the bill follows a controversial national debate about the pros and cons of allowing easier access to the drug.

The move makes Germany the third country in Europe – after Malta and Luxembourg – to legalize the drug for recreational use, removing cannabis from the official list of banned substances.  The Netherlands bans possession of drugs but some municipalities permit them to be sold in coffee shops under its so-called policy of toleration. In other countries, like Australia and the US, rules vary in different localities.

Under the new legislation, put forward by Germany’s ruling coalition party, adults can cultivate up to three plants for private consumption and be allowed to possess 50g at one time at home, and 25g in public, starting from April 1.  From July 1, cannabis would also be available in licensed not-for-profit clubs with no more than 500 members – all of whom would have to be adults.  Only club members would be allowed to consume their output.

February 23, 2024 in International Marijuana Laws and Policies, Who decides | Permalink | Comments (0)

Friday, January 26, 2024

DEPC event: "Implementing Issue 2: Criminal Justice Reform After Marijuana Legalization"

A7f44381-b00d-4d72-96b5-890ae7490964The title of this post is provides the title of this online event being hosted by the Drug Enforcement and Policy Center (DEPC)  next week.  Here is how this panel discussion, which I am honored to moderate and takes place on January 31, 2024 from 12 noon to 1:15 p.m. ET, is described on this page (where you can register):

Criminal justice reform has been a component of marijuana reform in most states, and Ohio’s newly enacted Issue 2 includes a directive and resources for efforts to “study and fund judicial and criminal justice reform including bail, parole, sentencing reform, expungement and sealing of records, legal aid, and community policing related to marijuana.” In the wake of Issue 2’s passage, criminal justice reform advocates are renewing calls to address harms caused by the past criminalization of a substance that is no longer illegal. The nature and scope of past harms are not always clearly defined nor easily remedied, though efforts to eliminate direct or collateral consequences from past cannabis offenses are often a focal point for action.

Please join the Drug Enforcement and Policy Center and our panel of experts as they discuss how Ohio should approach criminal justice reform after marijuana legalization, what Ohio can learn from other states’ experiences, and the unique political and practical challenges Ohio may face.

Ohio Representative Juanita Brent, District 22
Adrian Rocha, Policy Manager, Last Prisoner Project 
Daniel Dew, Policy Director, The Adams Project
Louis Tobin, Executive Director, Ohio Prosecuting Attorneys Association

January 26, 2024 in Criminal justice developments and reforms, Initiative reforms in states, Recreational Marijuana Commentary and Debate, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Wednesday, January 17, 2024

"Governor DeWine Calls for Quick Action on Intoxicating Hemp"

The title of this post is the title of this new release coming from the Office of the Ohio Governor this evening. Here are some excerpts:

Ohio Governor Mike DeWine today encouraged the Ohio General Assembly to work quickly to regulate intoxicating hemp to prevent its sale to children.

Rogue chemists are modifying hemp, which is a legal, non-intoxicating plant, to extract a compound (Delta 8 THC) that causes a high similar to marijuana. The intoxicating hemp is being marketed in stores across Ohio as candy, cereal, gummy candy, and other products that are attractive to children. Because intoxicating hemp products are not currently regulated, Ohio law does not prevent its sale to children.

"The current loophole that allows these dangerous products to be sold to children needs to be closed as soon as possible. Right now, Senator Steve Huffman is working on a bill to address this, and once it is introduced, I encourage members of the Ohio General Assembly to act quickly to pass it," said Governor DeWine. "These products are marketed to kids and are made to look like their favorite candy and treats. With no regulation and wide availability, it is all too easy for kids to get them."

According to data from the Ohio Poison Control Center, there have been at least 257 reports of Delta 8 poisoning in Ohio over the last three years. In 2023 alone, there were 102 reported poisonings, including 40 involving children under the age of six. Ninety percent of these children required emergency care or were hospitalized after ingesting the intoxicating hemp....

By regulating intoxicating hemp, Delta 8 products would be sold with restrictions similar to Ohio's new recreational marijuana laws that require products to only be sold by licensed retailers to those 21 years old or older. Regulation would also prevent flashy advertising and packaging that attracts children.

To demonstrate how easily youth can purchase intoxicating hemp, Ohio Department of Public Safety Director Andy Wilson asked two 15-year-old children to purchase Delta 8 gummy candy at a gas station in Clark County. "Their instructions were not to be tricky and not to try to act older than they were. There was no doubt in looking at them that they were clearly underage," said Director Wilson. "In under 10 minutes and within three miles of their high school, the kids walked into a BP gas station and purchased THC gummies with no questions asked." Under current law, both the purchase and sale of the item were legal.

Until intoxicating hemp products are regulated, Governor DeWine encourages retailers to remove these items from their shelves to prevent harm to children.

January 17, 2024 in Business laws and regulatory issues, Who decides | Permalink | Comments (0)

Friday, January 12, 2024

Federal government makes public documentation behind HHS recommendation to reschedule marijuana

DownloadAs reported here by Marijuana Moment,  the "U.S. government has released hundreds of pages of documents related to its ongoing review of marijuana’s status under federal law, officially confirming for the first time that health officials have recommended the Drug Enforcement Administration (DEA) place the substance in Schedule III of the Controlled Substances Act (CSA)."  Here is more:

The 252 pages of documents explain that cannabis “has a currently accepted medical use in treatment in the United States” and has a  “potential for abuse less than the drugs or other substances in Schedules I and II.” 

Federal health officials said they conducted an analysis that found more than 30,000 healthcare professionals “across 43 U.S. jurisdictions are authorized to recommend the medical use of marijuana for more than six million registered patients for at least 15 medical conditions.”

These documents are now available at this link.

UPDATE:  Over at the substack On Drugs, Shane Pennington has this lengthy new entry titled "The Unredacted HHS Docs: What do they say? What do they mean? What difference do they make?".  Here is an excerpt from the start:

 I was up all night last night reviewing the unredacted copy of HHS’s 252-page analysis. A month ago, I went through a similar exercise with the heavily-redacted copies. Although HHS had revealed only scattered fragments and snippets of its analysis back then, I read the tea leaves and gave my best guesses as to what the agency’s analysis might say. My key predictions were that we would eventually learn that HHS

  1. recommended that DEA move cannabis to schedule III;

  2. established a “newly-minted standard” for currently accepted medical use based on “state-level data regarding widespread medical use of marijuana under state law” and deference to the “State laws and State licensing bodies [that] collectively regulate the practice of medicine” under our federalist system;

  3. applied that new standard to conclude that cannabis does, in fact, have a currently accepted medical use;

  4. “include[d] a broader and more current data set” in its analysis; and

  5. “focus[ed] less on the sheer amount of illegal marijuana use and more on marijuana’s abuse potential and safety profile compared to other substances of abuse” when compared to past rescheduling proceedings.

Having reviewed the unredacted documents carefully now, I’m happy to report that my predictions were pretty much spot on across the board. We’ll probably do multiple posts on the implications of HHS’s analysis. For now, though, I’m just going to describe the key standards and conclusions underlying HHS’s analysis and flag a couple of things that really jumped out at me.

January 12, 2024 in Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (0)

Thursday, January 4, 2024

Now for some marijuana year-in-preview pieces

Friday, December 29, 2023

Reviewing some marijuana year-in-review stories

Wednesday, December 27, 2023

"Attitudes on Marijuana and Psychedelics as a Treatment Option for Veterans"

The title of this post is the title of this new paper discussing the results of a survey that my OSU center, the Drug Enforcement and Policy Center, help put into the field.  The paper is authored by Peter Leasure, Jana Hrdinova and Dexter Ridgway with a little help from me, and here is its abstract:

Many mental and physical health issues are prominent within the veteran community.  Given the prevalence of health issues within the veteran community and the need for a wide range of treatment options, some researchers have started to explore whether and how veteran populations should have access to alternative treatment options such as marijuana and psychedelics.  Additionally, some researchers have started to explore perceptions of alternative treatment options such as marijuana and psychedelics among military and veteran populations. Studies of veteran views on these issues, however, have not closely explored how veteran perspectives on certain drug issues compare directly to those in their immediate and broader community. Consequently, the current study sought to examine differences in attitudes towards marijuana and psychedelics as treatment options among veterans, family members of veterans, and non-military individuals.  Our results indicated that a sizeable majority of respondents supported the use of marijuana as a treatment option, and that many respondents supported the use of psychedelics as a treatment option.  That said, the results of this study also indicated that active and veteran military personnel remain somewhat less supportive in their viewpoints about use of historically illicit drugs as a medical treatment when compared to their family members and the general population.

December 27, 2023 in Polling data and results, Who decides | Permalink | Comments (1)

Thursday, December 7, 2023

"The Social Equity Paradigm: The Quest for Justice in Cannabis Legalization"

The title of this post is the title of this new article authored by William Garriott and Jose Garcia-Fuerte now available via SSRN. Here is its abstract:

Today, many states have adopted a commercial-based approach to cannabis legalization which reflects the market for alcohol to govern the production, distribution, and consumption of the cannabis plant and its derivatives.  As a result, legalization has prioritized economic benefits and structures over justice concerns that would dismantle the old infrastructure of prohibition. This continues to shape the way legalization is unfolding across the United States.

One impact of this market-based approach is the push for social equity within the cannabis industry.  Though poor people and people of color have disproportionately suffered under prohibition, it is those least likely to have been targeted — wealthy and/or white people — that have disproportionately benefited from legalization.

To change this dynamic, social equity advocated have argued for a suite of policies that we term “the social equity paradigm.”  These policies are multifaceted and take various forms, but focus on three priorities: (1) increasing access to the industry, (2) addressing criminal records, and (3) re-investing cannabis tax revenues into disproportionately impacted communities.  All three priorities reflect the shortcomings of the market-based legalization model. They also reflect the principle of equity, which in this context simply means that those disproportionately harmed by prohibition should receive disproportionate benefit under legalization.

This article surveys the social equity paradigm across the country, and discusses the many legal, political, and social challenges confronting the paradigm that may require a shift in the approach to social equity.  The article provides recommendations for how the principles of the social equity paradigm can be sustained while avoiding the challenges that seek to undermine it.

December 7, 2023 in Campaigns, elections and public officials concerning reforms, Criminal justice developments and reforms, Employment and labor law issues, History of Marijuana Laws in the United States, Race, Gender and Class Issues, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Sunday, November 26, 2023

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"


November 26, 2023 in Campaigns, elections and public officials concerning reforms, Who decides | Permalink | Comments (0)

Tuesday, November 7, 2023

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

DownloadOhio 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.

November 7, 2023 in History of Marijuana Laws in the United States, Initiative reforms in states, Recreational Marijuana State Laws and Reforms, Who decides | Permalink | Comments (0)

Tuesday, September 12, 2023

"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.

September 12, 2023 in Business laws and regulatory issues, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Recreational Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)

Tuesday, September 5, 2023

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"

September 5, 2023 in Federal Marijuana Laws, Policies and Practices, Who decides | Permalink | Comments (1)