Marijuana Law, Policy & Reform

DEPC event: "Not a SAFE Bet: Equitable Access to Cannabis Banking"

I am pleased to spotlight another great Drug Enforcement and Policy Center (DEPC) event that is part of our summer 2022 Cannabis Regulatory Deep Dive.  (The first event in this series on "Interstate Commerce" can be watched at this YouTube link.).  This event is scheduled for August 17 at 12noon and is titled "Not a SAFE Bet: Equitable Access to Cannabis Banking."  This is how this event is described on this webpage (where you can register):

According to members of the Cannabis Regulators of Color Coalition, the SAFE Banking Act, as written, is not a safe bet to achieve fair and equitable access to financial services for those in the cannabis industry.

Please join us for another Cannabis Regulatory Deep Dive as our panel of experts shares their analysis of the SAFE Banking Act, why it would fall short of its goals, and recommendations to improve fair access to cannabis banking as detailed in their soon-to-be released paper, Not a SAFE Bet: Equitable Access to Cannabis Banking.

Panelists:
Cat Packer, Distinguished Cannabis Policy Practitioner in Residence, Drug Enforcement and Policy Center, The Ohio State University
Rafi Aliya Crockett, Commissioner, Washington, D.C. Alcoholic Beverage Control Board
Dasheeda Dawson, Cannabis Program Manager, City of Portland, Oregon 
Shaleen Title, Distinguished Cannabis Policy Practitioner in Residence, Drug Enforcement and Policy Center, The Ohio State University

Senator Schumer finally to introduce his Cannabis Administration and Opportunity Act

As reported in this new Politico article, "Senate leaders are introducing sweeping legislation Thursday meant to lift federal prohibitions on marijuana more than 50 years after Congress made the drug illegal."  Here is more about a long-in-development, unlikely-to-become-law marijuana reform bill:  

Senate Majority Leader Chuck Schumer’s Cannabis Administration and Opportunity Act would decriminalize weed on the federal level and allow states to set their own marijuana laws without fear of punishment from Washington.

The bill has been a long time coming — Schumer, along with Sens. Ron Wyden (D-Ore.) and Cory Booker (D-N.J.) proposed a discussion draft more than a year ago — and its odds of passing in this Senate are slim. But the legislation will shape the conversation around cannabis legalization going forward and portions of it are likely to find their way into other bills that could pass before the end of the year.

The legislation includes both Democratic and Republican priorities: It expunges federal cannabis-related records and creates funding for law enforcement departments to fight illegal cannabis cultivation. It also establishes grant programs for small business owners entering the industry who are from communities disproportionately hurt by past drug laws, requires the Department of Transportation to research and develop a nationwide standard for marijuana-impaired driving, and restricts the marketing of cannabis to minors....

While marijuana legalization has spread rapidly across the U.S. over the past decade, Capitol Hill has not transitioned as quickly. Nineteen states now allow anyone at least 21 years old to possess and use the drug, and 37 states have established medical marijuana programs. National polls have consistently shown that roughly two-thirds of Americans back marijuana legalization, and support is even higher among younger voters.

But the votes aren’t yet there to pass Schumer’s bill on Capitol Hill. That’s in part because many lawmakers from states with legal markets don’t yet support substantial changes to federal law. Democratic Sen. Jon Tester, for example, represents a state where weed is legal — Montana — and says he does not support federal decriminalization. A handful of other Democrats told POLITICO that they are against legalization or are undecided, including Sens. Jeanne Shaheen (D-N.H.), Joe Manchin (D-W.Va.) and Bob Casey (D-Pa.). Schumer would need all Democrats, plus ten Republicans, to get the bill over the finish line.

Cannabis legalization advocates have had success in the past framing it with Republicans as a states’ rights issue, but some pro-decriminalization Republicans will likely be unhappy with the bill’s expungement of cannabis-related criminal convictions and its equity grant provisions.

Further complicating matters is that the House has twice passed its own sweeping marijuana legalization package, known as the Mariuana Opportunity, Reinvestment and Expungement Act. That legislation does not include much of the regulatory structure that’s part of the Senate bill, and also has a different tax rate....

Instead, some Democrats and Republicans are considering a smaller cannabis bill later this year that could see one or more provisions from the CAOA added to the SAFE Banking Act, a more widely-supported bill that would make it easier for banks to offer financial services to cannabis companies. That plan is still in the discussion stage and nothing formal has been decided.

Many of the changes added to the final Senate bill echo requests regularly made by Republicans. Law enforcement grants, a nationwide youth prevention campaign and traffic safety research all correspond to concerns that legalization skeptics have frequently raised. Schumer has met with Republicans — including Rep. Dave Joyce (R-Ohio), a co-chair of the Congressional Cannabis Caucus — in recent months to discuss where the two parties could potentially come together on weed legislation. Whether the changes will be enough to get enough Republicans on board, however, seems doubtful at this point.

Marijauna Moment's extensive coverage of this long-awaited news can be found here, and includes these additional details (and much more):

[T]he main thrust of the now-filed 296-page legalization bill closely resembles that of the earlier version, which weighed in at a mere 163 pages—though the senators highlighted a number of changes, which generally expand on the draft.

For example, there are revisions concerning cannabis industry workers’ rights, a federal responsibility to set an impaired driving standard, banking access, expungements and penalties for possessing or distributing large quantities of marijuana without a federal permit.

The bill would also create a new federal definition for hemp that would increase the permissible THC by dry weight to 0.7 percent from the current 0.3 percent, but also make it so all THC isomers would be included in that total, not just delta-9 THC.

Notable (and consequential?) news from Capitol Hill on federal marijuana reforms

The back end of this week brought some news from Congress regarding federal marijuana reform efforts.  Marijuana Moment has the essential news and helpful context in two lengthy pieces, which are linked below and briefly excerpted:

"House Approves More Marijuana Amendments To Defense Bill, Including Banking And Veterans Medical Access"

The U.S. House of Representatives on Thursday approved several marijuana reform amendments as part of a large-scale defense bill, including proposals to protect banks that work with state-legal cannabis businesses and allow U.S. Department of Veterans Affairs (VA) doctors to issue medical marijuana recommendations....

What remains to be seen is which, if any, of these amendments makes it through conference after the Senate advances its version of NDAA.  The chamber has generally been viewed as a barrier to enacting drug policy reform, especially with Republican minority leadership frequently challenging amendment germaneness.

"Senate Marijuana Legalization Bill ‘Could Come’ Next Week, But Congressional Sources Push Back On Report About Timeline"

The introduction of a long-awaited Senate bill to federally legalize marijuana is imminent, with two Senate sources telling Marijuana Moment on Thursday that the legislation could be filed “as early as next week.”

It’s been a year since Senate Majority Leader Chuck Schumer (D-NY), Senate Finance Committee Chairman Ron Wyden (D-OR) and Sen. Cory Booker (D-NJ) first released a draft version of comprehensive legislation to end federal cannabis prohibition and promote social equity in the industry. And on Thursday, Bloomberg reported that the bill’s introduction would be coming next week....

The timeline for the introduction of CAOA has been repeatedly pushed back as leadership has worked to gather input on various provisions and build bipartisan buy-in.... Details about any changes to the bill since it was released last year are still being heavily guarded.  But it’s expected to contain the key components: removing cannabis from the Controlled Substances Act, imposing a federal tax on marijuana sales, promoting equity in the industry and providing an avenue for relief for those who have faced federal cannabis convictions.

Once the measure is introduced, its path to passage is still murky.  There’s a fair level of skepticism about the prospects of reaching the 60-vote threshold needed to pass CAOA through the Senate.

DEPC event: "Cannabis Regulatory Deep Dive: Interstate Commerce"

I am pleased to spotlight a great Drug Enforcement and Policy Center (DEPC) event taking place tomorrow afternoon titled "Interstate Commerce."  This is how this event is described on this webpage (where you can register):

While the likelihood of cannabis legalization or descheduling on the federal level in 2022 remains relatively low, policy analysts and advocates are beginning to debate the impact federal legalization might have on existing state industries.  In particular, they are starting to discuss the transition to interstate commerce, should cannabis become legalized at the federal level.  Discussions are also forming around how and when such large-scale change should be implemented to minimize negative impacts on public health and safety and adequately address the interests of patients, users, and small businesses. 

Join the Drug Enforcement and Policy Center for a discussion of these and other topics with a panel of experts.

Panelists:
Scott Bloomberg, Associate Professor of Law, University of Maine School of Law
Geoffrey Lawrence, Director of Drug Policy, Reason Foundation
Adam J. Smith, Founder and Executive Director, Alliance for Sensible Markets
Shaleen Title, Distinguished Cannabis Policy Fellow, Drug Enforcement and Policy Center, The Ohio State University

Moderator:
Jeremy Berke, Senior Reporter, Business Insider

UPDATE:  This event was recorded and can now be watched via YouTube at this link.

"Maximizing social equity as a pillar of public administration: An examination of cannabis dispensary licensing in Pennsylvania"

The title of this post is the title of this notable new paper authored by Alfred Lee Hannah, Daniel J. Mallinson and Lauren Azevedo published in the Public Administration Review. (For the record, this research was supported by funding from the Drug Enforcement and Policy Center.)   Here is the paper's abstract:

Public administration upholds four pillars of an administrative practice: economy, efficiency, effectiveness, and social equity.  The question arises, however, how do administrators balance effectiveness and social equity when implementing policy?  Can the values contributing to administrative decisions be measured?

This study leverages the expansion of medical cannabis programs in the states to interrogate these questions.  The awarding of dispensary licenses in Pennsylvania affords the ability to determine the effect of social equity scoring on license award decisions, relative to criteria that represent the other pillars.  The results show that safety and business acumen were the most important determining factors in the awarding of licenses, both effectiveness concerns.  Social equity does not emerge as a significant determinant until the second round of licensing.  This study then discusses the future of social equity provisions for cannabis policy, as well as what the findings mean for social equity in public administration.

Two notable new missives to the Biden Administration about marijuana policy and practice

Marijuana Moment has effective coverage to two notable new letters sent recently to the Biden Administration.  Here are headlines, links and the ledes:

"Marijuana Regulators Coalition Pushes Biden Administration For Updated Federal Enforcement Guidance"

A coalition of current and former marijuana regulators is urging the Justice Department to instate updated guidance to federal prosecutors on cannabis enforcement priorities as an interim step while Congress considers broader legislation to end prohibition.

Ten members of the Cannabis Regulators of Color Coalition (CRCC) sent a letter to top DOJ officials, as well as the president and vice president, on Tuesday that addresses the urgent need to reinstate something like Obama-era guidance that generally recommended that prosecutors use discretion in marijuana-related enforcement for state-legal activities.

As the the coalition points out in the the letter, which was shared exclusively with Marijuana Moment, the 2013 guidance that was later rescinded by then-Attorney General Jeff Sessions during the Trump administration came before any states had launched retail cannabis sales. Now, with 19 states that have legalized for adult-use and the vast majority permitting some level of medical marijuana access for qualified patients, there’s a need to bring back something akin to the so-called Cole memo, CRCC said.

The updated memo should advise federal prosecutors against going after people for “crimes related to cannabis when those activities accord with relevant state law and a reasonable set of regulatory principles intended to promote safety and fairness,” the letter says.

"Senators Blast Biden Administration’s ‘Extraordinarily Disappointing’ Marijuana Stance"

A coalition of six U.S. senators are renewing their call for the Biden administration to deschedule marijuana and grant mass pardons for people with federal cannabis convictions, calling the Justice Department’s response to an earlier request for action “extraordinarily disappointing.”

In a letter that was sent to President Joe Biden, Attorney General Merrick Garland and Health and Human Services (HHS) Secretary Xavier Becerra on Wednesday, the senators made a dual request: first, that the attorney general work independently to remove cannabis from the Controlled Substances Act (CSA) and second, that the president issue mass clemency for people with non-violent federal marijuana convictions.

Sens. Elizabeth Warren (D-MA), Bernie Sanders (I-VT), Cory Booker (D-NJ), Ron Wyden (D-OR), Ed Markey (D-MA) and Kirsten Gillibrand (D-NY) signed the new letter. The senators said that DOJ took six months to respond to a previous October 2021 letter urging the attorney general to use his authority to unilaterally start the process of federally descheduling marijuana. The “half-page response” was “extraordinarily disappointing,” they wrote.

A reminder that cannabis clemency is ultimately up to the Prez

Marijuana Moment has this lengthy new article under the headline "It’s Up To Biden To Direct Mass Clemency For Marijuana Cases, U.S. Pardon Attorney Says." Of course, in every administration and for every type of federal defendant, grants of clemency are "up to" the President. Nevertheless, this piece serves as a useful review of the state of debate over clemency for federal marijuana offenders, and here are excerpts (with lots of links from the original):

It’s up to President Joe Biden to initiate a process of granting mass clemency for people with non-violent federal cannabis convictions, the recently appointed U.S. pardon attorney told Marijuana Moment on Thursday.

As a general practice, the Justice Department’s pardon office looks as petitions for relief on an individualized basis and then makes recommendations to the president, Pardon Attorney Elizabeth Oyer said during an event hosted by the Justice Roundtable, a coalition of criminal justice reform organizations.

That said, a categorical pardon for people with federal cannabis records is still possible if the president takes action, the former public defender, who was appointed by Attorney General Merrick Garland in April, said. “Right now, the Office of the Pardon Attorney reviews every individual clemency application on an individualized basis — and that could change at the direction of the president,” Oyer said in response to a question from Marijuana Moment about the feasibility of Biden issuing mass pardons and commutations for marijuana convictions in the way Presidents Gerald Ford and Jimmy Carter did for people who avoided the draft during the Vietnam War. “Currently, what we do is we look at cases individually for the most part and not categorically,” Oyer said. But she left the door open that the president could issue a directive otherwise if he wanted to....

The pardon attorney said that when her office makes clemency recommendations, it does take into account “broad categories of policy objectives or criminal justice reform goals or racial justice objectives,” and marijuana cases represent an example of such a category because they have “some sort of cohesive common characteristics.”

“So we’re absolutely taking into consideration those categories and those policy objectives and those racial equity objectives, but we don’t look at cases in a batch without individualized review,” Oyer said. “We do look at every single case individually.”

At the event, the pardon attorney also offered advice to advocates on filing clemency petition applications and addressed the “backlog” of cases under review.

Late last year, there were signals that the administration might be moving toward clemency for certain people with federal convictions. The federal Bureau of Prisons (BOP) started asking eligible individuals to get the process started by filing out clemency applications.

Biden has received about a dozen letters from lawmakers, advocates, celebrities and people impacted by criminalization to do something about the people who remain behind federal bars over cannabis. After months of inaction, some members of Congress like Sen. Elizabeth Warren (D-MA) have even sent follow-up letters demanding a response.

Among those pushing for reform is Weldon Angelos, who received a president pardon from Trump in 2020 and has since become a key advocate for criminal justice reform who has worked with both the Trump and Biden administration of furthering relief.  “It’s up to President Biden to honor his campaign promise and instruct those involved in the clemency process to prioritize cannabis cases,” Angelos told Marijuana Moment on Thursday. “There is no other group more deserving of relief than those who are incarcerated for something that society no longer considers criminal.”...

At a House Judiciary Committee oversight hearing last month, Chairman Jerrold Nadler (D-NY) and other Democratic lawmakers stressed the need for reforming the federal clemency process, calling for applications to be streamlined to make it easier for people with non-violent federal drug convictions to get relief.

Late last year, a coalition of congressional lawmakers introduced the Fair and Independent Experts in Clemency (FIX Clemency) Act, a bill that would take clemency review away from the Justice Department and instead establish an independent board appointed by the president.

A report published by the Congressional Research Service (CRS) last year affirmed that the president has it within his power to grant mass pardons for cannabis offenses. It also said that the administration can move to federally legalize cannabis without waiting for lawmakers to act.

"United States v. Approximately 64,695 Pounds of Shark Fins: Civil Asset Forfeiture and Implications for the Cannabis Industry"

I am pleased to report that, with this posting, I am now fully caught up on posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center.  As I have said in lots of prior posts, it has been a joy 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 Alyssa Roberts who recently graduated from The Ohio State University Moritz College of Law.  Here is its abstract: 

Civil asset forfeiture, a longtime practice in U.S. law enforcement, allows the government to seize any individual property allegedly connected with a crime.  In its modern form, the stated aim has been to take down drug kingpins by forfeiting assets connected to large-scale drug rings.  However, especially in the context of cannabis, the result has been the forfeiture of billions of dollars -- much of which is never ultimately linked to criminal charges—in small increments from individual people.  Of particular concern is the starkly disproportionate effect of civil forfeiture on people of color -- most notably in Black and Latino communities.  Further, the legal landscape allows the majority of seized assets, often cash, to flow directly to police departments across the country, creating a perverse incentive for law enforcement to utilize the practice as often as possible.

This paper provides an overview of the machinations of civil forfeiture laws in the United States, as well as historical context for civil forfeiture over the past several decades.  It then discusses the interaction between cannabis and civil forfeiture, paying particular attention to industry concerns, and provides several recommendations and policy reforms.

Lots and lots and lots of interesting federal marijuana reform news

As it became more and more clear in recent months that there weren't the votes in the Senate needed to pass any of the major federal marijuana legalization bills, federal reform discussions started to grow a bit boring.  Whether and how the SAFE Banking bill might get enacted seemed to be the only story afoot, though that still remains a lively and important matter.  But just in the last few days, a lot of notable news from both inside and outside the Beltway has started to make the federal reform landscape a lot more interesting for a lot of different reasons.  As always, Marijuana Moment has these stories well covered, and here are links to its coverage:

Developments Inside the Beltway

"Attorney General Says Justice Department Will Address Marijuana Issues ‘In The Days Ahead’"

"Bipartisan Congressmen Urge Support For Medical Marijuana Bill For Military Veterans They’ll Be Introducing Soon"

"Congress Pushes Marijuana Protections For Immigrants, Advertisers And Banks In Spending Bills"

"Congressional Lawmakers Seek Broad Marijuana Protections For Legal States In Key Spending Bill Coming Next Week"

"Top Federal Drug Agency Wants To Create A National Medical Marijuana Registry To Track How Patients Use Cannabis"

"White House Drug Czar Says Biden Admin Is Reviewing Marijuana Policies And Safe Consumption Sites"

 

Developments Outside the Beltway

"Pro-Legalization GOP Congresswoman Prevails In Primary Victory After Being Attacked Over Marijuana Reform Stance"

"GOP Senate Candidate Pushes ‘Pot For Potholes’ Marijuana-Funded Infrastructure Plan In Hilarious Campaign Ad"

"Capital Expenditure and Acquisition in Conventional Agriculture and Cannabis: A Comparative Analysis"

I am pleased to report that I am almost fully caught up on posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center.  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 Steve Nosco who recently graduated from The Ohio State University Moritz College of Law.  Here is its abstract: 

Federal laws prohibiting the possession, production, and use of Cannabis create significant operational challenges for state-compliant Cannabis companies.  One of the largest challenges is acquiring the initial capital required for any new business to become self-sustaining and profitable.  Without traditional sources of capital, namely credit from commercial institutions or government lenders, only individuals with access to significant private funds can become entrepreneurs in this burgeoning industry. In the face of Federal inaction to solve this well-documented problem, States can, and should, take on a leading role.  This Paper explores existing federal programs for traditional agricultural lending and suggests how states can emulate these programs for Cannabis businesses within their jurisdictions.

Might some kind of "omnibus" federal marijuana reform bill get through Congress this year?

The question in the title of this post is prompted by this interesting Marijuana Moment article headlined "New Details On Congressional Marijuana Omnibus Bill Emerge As Lawmakers Work For 60 Senate Votes."  Here are some of the intriguing particulars from an extended piece worth reading in full:

Two key congressmen made waves in the marijuana community on Thursday by disclosing that there are high-level talks underway about putting together a wide-ranging package of incremental marijuana proposals that House and Senate lawmakers believe could be enacted into law this year.  But multiple sources tell Marijuana Moment that issues under consideration go further than the banking and expungements reforms that were at the center of the public discussion that has emerged.

The dueling pushes for comprehensive legalization and incremental reform — a source of tension among advocates, lawmakers and industry insiders over many months — may actually result in something actionable and bipartisan by the end of the current Congress, those familiar with the bicameral negotiations say.  That said, no deal is set in stone and talks are ongoing.

In addition to the banking and expungements proposals that made waves when discussed publicly at a conference on Thursday by two key House lawmakers, there are also talks about attaching language from other standalone bills dealing with issues such as veterans’ medical cannabis access, research expansion, marijuana industry access to Small Business Administration (SBA) programs and broader drug sentencing reform....

Reps. Ed Perlmutter (D-CO) and Dave Joyce (R-OH) first publicly disclosed that there were discussions about crafting a bipartisan cannabis package at an International Cannabis Bar Association conference on Thursday, with Joyce revealing a recent meeting he had about the idea with Schumer.

Perlmutter, sponsor of the Secure and Fair Enforcement (SAFE) Banking Act, said that his legislation to safeguard financial institutions that work with state-legal marijuana businesses would be part of the package under consideration, but he also said at the time that members are interested in including Joyce’s Harnessing Opportunities by Pursuing Expungement (HOPE) Act to incentive state and local governments to expunge prior marijuana records, as well as proposals to provide veterans with access to medical cannabis and expand marijuana research.

But those four issues — banking, expungements, research and veterans — noted earlier by Law360, are only part of what’s on the table, sources who have been involved in the negotiations but requested anonymity, told Marijuana Moment on Friday.  They stressed, however, that a deal has not yet been reached and talks are tentative at this point.

Another possible component that lawmakers have discussed including in the omnibus legislation would be a proposal to give cannabis businesses access to SBA loans and services that are available to every other industry. It’s a reform that Sen. Jacky Rosen (D-NV) in particular has consistently advocated for, including in a recent letter to the head of SBA.

While it’s not clear what stage the negotiations over the prospective marijuana package is at, a congressional source said that Rosen has spoken with Schumer about her interest in advancing the issue as he’s worked to navigate the congressional cannabis waters.

“These talks are very serious,” a source involved in criminal justice reform said. “I would say this is one of the most serious bipartisan, bicameral conversations that we’ve seen occur in our time in this space.”

To be clear, Senate leadership isn’t giving up the push for the broader CAOA legalization bill at this point.  Nor is Perlmutter fully conceding passing the SAFE Banking Act on a sooner timetable, either as standalone legislation or as part of a large-scale manufacturing bill called the America COMPETES Act that’s currently in a bicameral conference committee....

Other sources told Marijuana Moment that they’ve been involved in conversations about potentially adding to the in-progress cannabis package language that would provide for record sealing of federal misdemeanor convictions, as would be prescribed under the standalone Clean Slate Act from Rep. Lisa Blunt Rochester (D-DE).  It’s the type of reform that presumably would not compromise GOP support given the widespread recognition that offenses like simple possession should not lead to long-term consequences like the loss of access to housing and job opportunities.

"Criminalizing Addiction in Motherhood: A Modern Phenomenon"

I continue to be excited to continue to be able to post a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center.  In so doing, it is such a pleasure to get to review and highlight great work by OSU law students and recent graduates on so many important and cutting-edge topics.  The title of this post is the title of this paper authored by Jamie Feyko who recently graduated from The Ohio State University Moritz College of Law.  Here is its abstract: 

We have built motherhood into an impossible ideal.  Mothers are expected to do it all, be it all, have it all.  And these unachievable expectations begin before a child is even born.  If something goes wrong during pregnancy, we immediately blame the mother.  This culture of blame becomes even more magnified when mothers struggle with addiction.  Mothers are blamed for struggling with substance use disorders (SUDs), despite modern medicine establishing — definitively and indisputably — that addiction is a disease, not a choice or a moral failing.

Starting in the 1980s, the criminal justice system began a determined effort to criminalize mothers struggling with SUDs.  Drawing on law review articles, legal precedent, and newspaper articles, this paper will explain the relatively modern legal development of criminalizing mothers for struggling with SUDs and contextualize this movement within the evolving cultural beliefs surrounding motherhood and addiction.  This paper will detail the ways in which prosecutors first began filing charges against mothers for exposing their fetuses to drug metabolites in utero, the shaky legal foundations of these early attempts, and how state statutes expanded to provide stronger legal footing for criminalizing mothers with addiction.  The paper will conclude by explaining the ultimate futility of trying to use the criminal system to “deter” mothers from the disease of addiction and highlight policy changes that would be better suited for addressing the problem of maternal substance use disorders.

Might litigation be the means to ending blanket federal marijuana prohibition?

The question in the title of this post is prompted by this recent news, as well covered by Marijuana Moment:

Several leading marijuana businesses and stakeholders are banding together to sue the federal government over what they believe to be unconstitutional policies impeding their operations, according to the CEO of one of the companies.  And, he says, they’ve retained a prominent law firm led by an attorney who has been involved in numerous high-profile federal cases.

There have been various attempts to upend federal prohibition through the court system, but what makes this emerging effort especially notable is that the coalition of multi-state operators (MSOs) in the cannabis industry will apparently be represented by the firm Boies Schiller Flexner LLP.

David Boies, the chairman of the firm, has a long list of prior clients that includes the Justice Department, former Vice President Al Gore and the plaintiffs in a case that led to the invalidation of California’s ban on same-sex marriage, among others.  The prominent firm’s willingness to take on the case from the marijuana industry would be a firm indicator that they see merit to the issue at hand.

Abner Kurtin, founder and CEO of Ascend Wellness Holdings, told Marijuana Moment in a phone interview on Friday that this is an “industry-wide effort,” with at least six major cannabis operators “favorably disposed” to joining the suits — one of which would focus on stopping the federal government from impeding intrastate cannabis commerce and another challenging a tax provision known as 280E that blocks the industry from taking tax deductions that are available to any other company.

Because these suits have not yet been filed, it is too early to predict whether or when they might impact federal policy or politics.  But this posting from Andrew Smith at Harris/Bricken concludes with an effective accounting of why these suits are worth watching:

The lawsuits come at an opportune time, as many federal bills to legalize cannabis use at the federal level are stuck in either the House of Representatives or the Senate (see our recent summaries here and here).  In addition, Kurtin mentioned that the lawsuits will be argued from a perspective of states’ rights, which will likely garner support from both political parties and appeal to the Supreme Court’s conservative majority.

Ultimately, the lawsuits to end cannabis prohibition represent another angle — which avoids the various hurdles of legislative approval — for federal prohibitions on cannabis to be overturned.  Even if the litigation fails, it should exert even more pressure on Congress to Act.  But the potential agreement of a highly regarded constitutional law firm to represent a coalition of major players in the cannabis world signals the potential merits of their claims. 

"The Real War on Families – An Examination on American Child Welfare Law in the Shadow of Drug Prohibition"

As mentioned in a number of prior posts, the end of a busy semester becoming the start of summer means I am able to catch up on posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center.   The title of this post is the title of this paper authored by Karen Augenstein, a recent graduate of The Ohio State University Moritz College of Law.  Here is its abstract:

American law emphasizes the value of family whether that be through tax deductions on children or mandating child support.  However, when it comes to the War on Drugs, the importance of family seems to have been forgotten in favor of punishing those with substance abuse issues in the worst way possible: taking away their children.  Whether the intention of lawmakers or not, those who suffered the most tended to be minority and poor parents, the ones who struggled to have their voices heard.  Even today, America continues to punish victims of abuse by removing their children and imposing harsh, impossible requirements for reunification.

This paper is divided into three sections.  The first section examines the basis for child welfare in America, focusing primarily on three pieces of child welfare legislation that incorporated parental drug use into its mandates: Child Abuse Protection and Treatment Act of 1974, Adoption Assistance and Child Welfare Act of 1980, and the Adoption and Safe Families act of 1997.  The second section breaks down two areas of child welfare law: infants born testing positive for drugs and the explosion of the foster care system, and examine how drug laws, coupled with punitive, discriminatory action, broke apart families.  Finally, the third section recommends changes the American child welfare system could make in its approach to drug addicted parents, in an effort to reunify, rather than punish, parents who suffer from substance abuse issues.

Rhode Island becomes latest state to legalize adult use marijuana

As reported in this local article, "Rhode Island on Wednesday joined its two neighboring states and 16 others in legalizing the recreational use of marijuana." Here is more:

Less than 24 hours after lawmakers overwhelmingly passed the bill, Gov. Dan McKee signed the measure, which promises automatic expungement of past marijuana possession convictions and reserves a quarter of new retail store licenses for minority communities disproportionally hurt by the War on Drugs.

Speaking on the steps of the State House, awash in sunshine, McKee said the law was “equitable, controlled and safe” while establishing a regulatory framework that emphasizes public health and safety. “The end result is a win for our state both socially and economically.”

The law calls for retail sales beginning Dec. 1, but it will be a while before most of the stores are open. The state’s three currently operating medical marijuana dispensaries will be the first retailers of recreational marijuana as well, followed by six others in various planning stages.

Who wins 24 other retail licenses, and when, will be up to a new three-member cannabis control commission that will be appointed by the governor. Recreational marijuana will be taxed at 20% – a new 10% cannabis tax, a new 3% tax by the community where the marijuana is sold, and the current 7% sales tax....

Cannabis use would be banned anywhere where cigarette smoking is now banned. But if it’s legal to smoke a cigarette on Main Street in West Warwick right now, you'll be able to smoke cannabis, too. That could change. The law includes language that gives communities the power to adopt ordinances to restrict or ban the “smoking or vaporizing of cannabis in public places.”... The law allows people to have three growing plants and three dried plants. [and] it will be legal to have up to an ounce of marijuana in your possession. And possession of between one ounce and two ounces will be a civil violation. Previously up to an ounce was a civil violation, much like a parking ticket, and it was illegal to possess more than one ounce. [People with cannabis convictions] can request an expedited expungement through the courts and have any costs waived. But the law has given the courts until July 1, 2024, to provide automatic expungement to all who are eligible. Under the legislation, any prior civil violation, misdemeanor or felony conviction for possession of marijuana that would be decriminalized will be automatically erased from court record systems.

The new legislation allows for up to 33 retail licenses distributed in six zones statewide, including at the three current medical marijuana dispensaries and the six others in various planning stages.

Ninth Circuit panel holds (in trademark dispute) that "delta-8 THC products are lawful under the plain text of the Farm Act"

In this post a few month ago, I noted the growth of so-called delta-8 THC products and all the legal uncertainty around them. Yesterday, in an important ruling, a Ninth Circuit panel directly address question about the legality of delta-8 products under federal law. In AK Futures LLC v. Boyd Street Distro, LLC, No. 21-56133 (9th Cir. May 19, 2022) (available here), a trademark dispute prompted the panel to fully engage the arguments surrounding whether the 2018 Farm Bill served to legalize cannabis products without the standard delta-9 THC, and the opinion ultimately embraces the claim that delta-8 THC products derived from hemp CBD are legal products under federal law.  Here are some key passages from the opinion:

[T]he parties dispute whether the possession and sale of delta-8 THC is permitted under federal law and, consequently, whether a brand used in connection with delta-8 THC products may receive trademark protection.  AK Futures argues that delta-8 THC falls under the definition of hemp, which was legalized by the 2018 Farm Act.  Boyd Street argues a contrary interpretation of the Act based on agency documents and congressional intent....

AK Futures argues the Farm Act’s definition of hemp encompasses its delta-8 THC products so long as they contain no more than 0.3 percent delta-9 THC.  Plain meaning supports this interpretation....  Importantly, the only statutory metric for distinguishing controlled marijuana from legal hemp is the delta-9 THC concentration level....

The Farm Act’s definition of hemp does not limit its application according to the manner by which “derivatives, extracts, [and] cannabinoids” are produced.  Rather, it expressly applies to “all” such downstream products so long as they do not cross the 0.3 percent delta-9 THC threshold....

Regardless of the wisdom of legalizing delta-8 THC products, this Court will not substitute its own policy judgment for that of Congress.  If Boyd Street is correct, and Congress inadvertently created a loophole legalizing vaping products containing delta-8 THC, then it is for Congress to fix its mistake.  Boyd Street’s intent-based argument is thus unsuccessful.  With that, neither of Boyd Street’s counterarguments dissuade us from the conclusion that AK Futures is likely to succeed on the merits of its trademark claim.

"Let It Grow: Why More Law Schools Should Teach Cannabis Law"

The title of this post is the title of this new Jurist commentary that I had the honor of co-authoring with Jana Hrdinová.  Here are excerpts:

California’s 1996 ballot initiative protecting medical marijuana users from state criminal prosecution kicked off the modern marijuana reform era in the United States.  In part due to federal prohibition, state medical marijuana laws prompted an array of interesting and intricate legal questions.  Some issues concerned the reach of federal law after state reforms.  Could doctors be punished by federal authorities for recommending marijuana to patients consistent with state law?  Could groups providing marijuana to patients raise a medical necessity defense if subject to federal prosecution?  Other issues arose at the intersection of novel drug laws and other state laws.  Could an employer lawfully fire an employee with a valid medical recommendation simply for testing positive for marijuana?  Could police officers lawfully search a car based simply on the smell of marijuana?

Lawyers and courts have been grappling with these and countless other legal questions across the nation as an ever-growing number of states have legalized marijuana for various uses. Many constitutional questions about potential conflicts between federal and state authority and individual rights have occupied federal courts all the way up the US Supreme Court. A wide array of state law issues have not just occupied state courts, but state administrative bodies and legal ethics panels as well, all seeking to sort out just when and how lawyers can advise or even play a role in the developing marijuana industry.

A full quarter century after California’s first state-level reform, three dozen states have now joined California in legalizing marijuana for a range of medical uses, representing over 70 percent of the US population.  And 18 states plus the District of Columbia, representing over 40 percent of the US population, have also legalized cannabis for recreational use. A large, new cannabis industry has come with a number of complex regulatory and policy issues.  State policymakers and public lawyers now confront the challenge of developing licensing schemes and regulatory rules to protect public health and safety, designing effective tax rates and business structures, and advancing equitable goals ranging from expunging old convictions to helping disadvantaged communities participate in the industry.  Private lawyers helping marijuana businesses must figure out how to raise capital, navigate licensing requirements, and structure acquisitions in the face of diverse state laws and persistent federal prohibition.  Lawyers are also called to review and revise workplace rules about marijuana use, to advise landlords, hospitals, and other venues concerning marijuana use on their properties, and to address myriad other novel issues in this dynamic field.

And yet, with so many new legal questions to grapple with and such rich policy areas to debate, remarkably few law schools are cultivating a modern curriculum by offering courses on cannabis law and policy for the next generation of lawyers.  Beginning in 2018, our center (the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law) has conducted an annual survey of law school curriculum to trace the evolution of teaching in the area of cannabis law and policy.  We have surveyed law schools’ online course schedules and contacted registrar offices by email.  We were surprised initially that barely one in ten law schools offered even a single class in this arena; during the academic year 2018-2019, only 21 out of 201 accredited law schools offered 24 cannabis-specific courses to their students.  This number grew to 29 schools offering 33 courses in 2019-2020, and growth continued with 35 schools offering 35 courses in 2020-2021 and finally 37 schools offering 38 courses in our most recent accounting in 2021-2022.  But even though the number of offered courses has grown over the last four years, law schools still lag significantly behind the fast-moving pace of cannabis legalization.  While now close to 75 percent of US states have some form of legalized marijuana, less than 20 percent of law schools in the US offer instruction on cannabis law.

"Reimagining U.S. Drug Policy Post-Pandemic"

As mentioned in a prior post, the tail end of a busy semester means I can now catch up on posting a lot of recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center. To that end, the title of this post is the title of this paper authored by Samuel DeWitt, a third-year student at The Ohio State University Moritz College of Law. Here is its abstract:

The COVID-19 pandemic caused increased drug use and a widespread decline in mental health throughout American society.  Yet, despite the unprecedented pandemic, society as a whole has shown an impressive ability to adapt to new ways of living, suggesting that a dramatically different version of America is not only possible, but achievable.  Domestic drug policy, which has needlessly prohibited and criminalized a vast array of drugs since the early 1900s, is an area ripe for a similar dramatic change.  This paper explores how the pandemic, combined with concurrent events including a change in Federal Administration and nationwide protests against systemic racism, presents an opportunity for our country to rethink its long-standing drug prohibition on a national scale.

Florida official sues feds, stressing Second Amendment and Rohrabacher-Farr Amendment, on gun purchasing limits for medical marijuana patients

This interesting NBC News piece reports on an interesting new federal lawsuit under the headline "Top Florida Democrat sues Biden administration over marijuana and guns: Agriculture Commissioner Nikki Fried's lawsuit targets a federal requirement that prohibits medical marijuana users from purchasing firearms." Here are excerpts:

Florida’s lone statewide elected Democrat, Agriculture Commissioner Nikki Fried, plans to sue the Biden administration Wednesday to try to block a federal rule that prohibits medical marijuana users from buying guns or maintaining concealed-carry permits. NBC News obtained a draft copy of the lawsuit.

The lawsuit targets a federal form that asks whether the gun buyer is an unlawful user of drugs and specifies that marijuana is illegal under federal law. A person allowed by the state to use marijuana must then check “yes,” which results in denial of the purchase. Lying by checking “no” runs the risk of a five-year prison sentence for making a false statement.

Fried, whose office oversees concealed weapons permits and regulates some aspects of medical marijuana, argues in her lawsuit that the form violates the Second Amendment rights of lawful medical marijuana patients and runs afoul of a congressional budget prohibition on federal agents’ interfering with state-sanctioned cannabis laws.

The suit has ramifications beyond Florida: At least 37 states have legalized medical marijuana, and recreational use is legal in 18 states, as well as Guam and Washington, D.C. The lawsuit is timed to land on April 20 — a nod to the slang reference of "420" for marijuana.

The suit is laden with political opportunity for Fried, who became the only Democrat elected statewide in 2018 when she ran on an unabashedly pro-cannabis platform. Two years before, 71 percent of Florida voters legalized medical marijuana, and polls show a majority favor legalization of recreational use. Florida also has 2.5 million concealed weapons permit holders, according to Fried’s office.

“Medical marijuana is legal. Guns are legal. This is all about people’s rights,” Fried said in a statement to NBC News. “And I don’t care who I have to sue to fight for their freedom.”

In her official capacity as agriculture commissioner, Fried is bringing the suit with three citizens who have been affected by the federal rules. It names the acting head of the Bureau of Alcohol, Tobacco, Firearms and Explosives and Attorney General Merrick Garland as defendants. While it’s rare for a Democrat to sue a Democratic administration during an election year, Fried said the issue can no longer wait because of the volume of complaints her office has received.

A spokesperson for ATF said the agency “can’t speculate on possible litigation or discuss any pending litigation” but implicitly blamed federal lawmakers for not changing the Controlled Substances Act and the Gun Control Act, which respectively regulate marijuana and firearms....

Fried’s former pollster, Keith Frederick, said any risks for her by bucking the Biden administration are offset because she’s raising her profile by embracing a popular issue. “You can have the best affordable housing plan possible, but once you get to point No. 2, people’s eyes glaze over, and they stop paying attention,” Frederick said. “People care about this.”

Support for medical marijuana and cannabis legalization cuts across party lines, as does opposition to the conflicting regulations in state and federal law. Gun rights are also generally popular in Florida.

Fried’s lawsuit notes that even conservative Supreme Court Justice Clarence Thomas groused in an unrelated case about the “half-in, half-out regime that simultaneously tolerates and forbids use of marijuana.” “This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary,” Thomas said.

Other plaintiffs have tried and failed to sue the federal government over gun purchases. Fried’s lawsuit singles out the most recent lawsuit for presenting “a thin and stale factual record” that improperly ignored a federal study concluding that “marijuana use does not induce violent crime.” In addition, unlike the other unsuccessful federal case, Fried’s lawsuit argues that the form violates the so-called Rohrabacher-Farr Amendment, which prohibits ATF from enforcing anti-cannabis policies in states that have opted for legalization.

The full lawsuit is available at this link.  The complaint runs 33 pages, followed by more than 200 pages of notable attachment.  

Notable federal marijuana reform news with an interesting new bill while we further wait for an old one

This past week brought interesting news of federal marijuana reform bill on two fronts.  Marijuana Moment provides the details in these two stories, linked and excerpted here:

"Schumer’s Marijuana Legalization Bill Not Coming This Month, As Senators Work To Finalize Provisions."  Excerpt:

The long-anticipated Senate bill to federally legalize marijuana will not be introduced this month, with Democratic leadership saying on Thursday that the timeline is being extended as they continue to work out various provisions “with the assistance of nearly a dozen Senate committees and input from numerous federal agencies.”

Senate Majority Leader Chuck Schumer (D-NY) has said on several occasions that the bill he’s been working on with Senate Finance Committee Chairman Ron Wyden (D-OR) and Sen. Cory Booker (D-NJ) for many months would be formally filed by the end of April.  That’s no longer the case, with the leader now saying the “official introduction” will take place sometime “before the August recess.”

A discussion draft of the Cannabis Administration & Opportunity Act (CAOA) was first unveiled last year, and advocates and stakeholders have been hanging on the leader’s words as they continue to push for an end to federal prohibition. Most recently, Schumer said last week that he and colleagues were in the process of reaching out to Republican senators to “see what they want” included in the legislation.

The timeline that Schumer previewed has apparently proved too ambitious — but the hope is that by taking extra time to finalize the measure, it will help the senators overcome what are currently significant odds stacked against them to reach a high vote threshold in the chamber, where Democrats hold just a slim majority and several members of the party have indicated that they’re not supportive of legalization.

"U.S. Attorney General Would Be Required To Create Marijuana Commission To Advise On Legalization Under New Bipartisan Bill." Excerpt:

A bipartisan group of congressional lawmakers filed a bill on Thursday that would direct the attorney general to create a commission charged with making recommendations on a regulatory system for marijuana that models what’s currently in place for alcohol.

Reps. Dave Joyce (R-OH), Hakeem Jeffries (D-NY) and Brian Mast (R-FL) are teaming up on what’s titled the Preparing Regulators Effectively for a Post-Prohibition Adult-Use Regulated Environment Act (PREPARE) Act — an incremental reform meant to inform comprehensive cannabis policy changes in the future.

The measure will “provide lawmakers across the ideological spectrum the opportunity to engage on cannabis reform by creating a fair, honest and publicly transparent process for the federal government to establish effective regulation to be enacted upon the termination of its 85-year prohibition of cannabis,” according to a summary from the sponsors....

Here’s what the new bill would accomplish: 

Require the attorney general to establish a “Commission on the Federal Regulation of Cannabis” within 30 days of the bill’s enactment.  The commission would be responsible for studying federal and state regulatory models for alcohol and make recommendations about how they could inform marijuana regulations.  Among other things, the commission’s report must look at the impact of marijuana criminalization, particularly as it concerns minority, low-income and veteran communities.

The panel would also examine the “lack of consistent regulations for cannabis product safety, use and labeling requirements” as well as the “lack of guidance for cannabis crop production, sale, intrastate, interstate, and international trade.“  It would also need to make recommendations on how to remedy cannabis-related banking and research barriers as well as address measures to ensure the “successful coexistence of individual hemp and cannabis industries, including prevention of cross pollination of cannabis and hemp products.”

Members would further be mandated to study and make recommendations on “efficient cannabis revenue reporting and collecting, including efficient and tenable federal revenue frameworks.”  The panel would be required to issue a report to Congress within 12 months.

I have come to believe that Senator Shumer's CAOA is essentially DOA in a Senate that may not now have even 50 votes in support of full marijuana legalization, let alone the 60 needed to get past a filibuster.  But the new PREPARE Act already has bipartisan support, and it seems to only call upon the federal government to take a serious and sustained look at what kind of federal regulatory rules and structures would be preferable as marijuana reform in the states continues apace.  In a well-functioning Congress, I think some version of the PREPARE Act could and should be a no-brainer and likely should have been enacted a number of years ago.  In the current dysfunctional Congress, I fear that we need not seriously prepare for the passage of the PREPARE Act.  But one can still dream.