Cannabis attorneys

This past week — in the grand tradition of Trump Administration flip-flopping — DHS Secretary John Kelly changed his mind on pot. Kelly initially stood out as moderate on cannabis when he earlier in the week declared that “marijuana is not a factor in the drug war.” This statement led us to believe he had a somewhat more realistic view on cannabis than the rest of his cannabis hating colleagues. Give his quote above, that is no longer the case and it appears Kelly’s views mimic the Reefer Madness and D.A.R.E. ideologies we have come to expect from so many in the Trump Administration.

What do you see the Trump Administration actually doing about cannabis, beyond just voicing stupid opinions on it?

 

Donald Trump is expected to announce Representative Tom Marino (R-Pa.) as our country’s next director of the Office of National Drug Control Policy, colloquially known as the US drug czar. As drug czar, Marino would evaluate and coordinate domestic and international our country’s anti-drug efforts and advise the President on U.S. anti-drug efforts. The whole drug czar “thing” is bad news and Marino himself is even worse. He is “just another anti-marijuana, pro-pharma” extremist.

Tom_Marino_Official_Portrait,_112th_Congress

Marino began his professional career as a prosecutor who sought to do his part on in the “war on drugs” by prosecuting drug offenders. Since 2010, Marino has served in the U.S. House of Representatives and consistently opposed measures to reform federal cannabis law.

Marino voted against the Rohrabacher-Farr amendment which prohibits the Department of Justice from using federal funds to prevent states from implementing medical marijuana laws. He also voted against a measure allowing Veterans Affairs doctors to recommend medical cannabis to their patients and he opposed measures to ease federal restrictions on hemp and CBD. When asked about marijuana legalization, Marino stated he would consider legalizing cannabis only “if we had a really in depth-medical scientific study,” and if medical cannabis were available only in “pill form.” In other words, if it has anything to do with liberalizing our cannabis laws, Marino is against it.

 

According to the “Office of National Drug Control Policy Reauthorization Act of 1998” the drug czar “shall ensure that no Federal funds … shall be expended for any study or contract relating to the legalization (for a medical use or any other use) of a substance listed in schedule I” of the Controlled Substances Act and “take such actions as necessary to oppose any attempt to legalize the use of a substance” listed in Schedule I. Cannabis is still a Schedule I substance and therefore subject to this blanket prohibition on legalization and research.

Marino is no friend of cannabis legalization and Trump’s having has tapped someone with such outdated views is concerning. But even more concerning is the mandate that any drug czar must oppose all marijuana legalization efforts. More than half the states  have legalized medical marijuana and eight states have legalized recreational cannabis, with more to come. With legalization, the evidence that it works better than prohibition is piling up. This country’s director of drug policy should have the discretion to consider this evidence and draw his her own conclusions on cannabis prohibition. As things now stand, the role of our drug czar is not so much to craft policies based on changing realities, but to ensure that our drug policies remain stuck in another era. This is bad policy and it makes no sense and it needs to change.

Earlier this year, the Trump administration considered cutting the Office of National Drug Control Policy entirely. Unfortunately, the President’s tapping Marino as the next drug czar indicates he is now heading in a very different direction. Who needs a drug czar anyway? Trump had it right initially. This office should be eliminated and fast.

Cannabis lawyers and marijuana lawyers

Sherrilyn Ifill made the above comment earlier this week in response to Jeff Sessions’ recently praising drug enforcement policies of the 80s and 90s. According to Sessions, the drug prevention campaigns from those eras deserve applause for “telling the terrible truth about drugs.” But as has become absolutely typical for Mr. Sessions, he ignores the facts. Sessions fails to acknowledge that these abstinence-focused campaigns were both dreadfully expensive and a complete failure. Not surprisingly, Sessions also fails to mention how they increased imprisonment for drug-related crimes and disproportionately targeted people of color and the poor. Sessions’ also sloppily but deliberately lumps cannabis in with drugs like heroin, willfully ignoring that cannabis can be used medicinally and is not chemically addictive and is therefore — at least for anyone who looks at things at all objectively — very different.

Sessions wants to turn back time and employ ineffective and outdated drug enforcement policies and his reasons for wanting to start a new war on drugs are probably no different from Richard Nixon, who started that war to increase racial divides and thus scare white people into voting for him and his cronies (remember, Sessions was at one time deemed too racist to be a federal judge). No matter what the reason for Jeff Sessions’ by now perpetual hatred for marijuana and his aversion to telling the truth about it, our job as citizens is to resist. We probably already are at the point where Sessions’ statements will have little more impact than coyotes howling at the moon, but the more states that legalize, the more we can be sure that will be the case. We must continue pushing forward until cannabis is legalized all across the country and then we can merely laugh or ignore comments from people like Sessions.

Cannabis lawyers

John Oliver, comedian and host of Last Week Tonight, has the right idea here. Marijuana laws do have a big impact, including on environmental regulations and international treaties. Marijuana laws also can empower or disempower drug cartels, increase or lessen the opioid addiction crisis, improve or worsen racial politics, create or reduce jobs, and increase or reduce access to cannabis by minors.

Oliver recognizes that marijuana legislation and regulation is “a lot of work,” but legalizing cannabis IS worth it.

Oliver raises another good point when he states that the records of people convicted of previous marijuana offenses need to be expunged. Justice essentially requires this. Is it just that someone be deemed a criminal for having done what is now fully legal? And don’t even get us started about how cannabis arrests fall disproportionately on persons of color and on the poor and the dispossessed.

Though Olivers says “we should really start right now,” the truth is that we have already started. But we need to keep pushing until cannabis is federally legal.

Is CBD legalThe DEA announced a new Final Rule late last year regarding “marihuana extracts” that left many in the industrial hemp and CBD industries concerned. The new rule created a separate classification for “marihuana extracts,” which it broadly defined as “any extract containing one or more cannabinoids that has been derived from any plant of the genus Cannabis.” This definition facially includes hemp-based goods running the gamut from hemp rope sandals to hemp lotion to therapeutic CBD oils, but critics have countered that such a definition exceeds the prohibition of “marihuana” created by the Controlled Substances Act. Some fear the DEA’s broadening of what constitutes marijuana extracts foreshadows a more aggressive federal enforcement posture that could devastate hemp-related companies the DEA now (and always) regards as criminal enterprises.

The DEA’s rule will soon be put to a court test as The Hemp Industries Association, Centuria Natural Foods, Inc. and RMH Holdings, Inc. last week filed a challenge to the DEA rule in the federal Ninth Circuit Court of Appeals. Whatever the result, this court’s ruling will likely significantly impact the future of the hemp-related industry and implicate key components of the burgeoning cannabis reform movement as well.

The core of the plaintiffs’ argument is that the DEA rule conflates “marihuana”—the substance prohibited by the Controlled Substances Act—with all cannabinoids and all parts of the cannabis plant, which it lumps into “marihuana extracts.” Plaintiffs point to legislative history that in 1937 Congress chose to use the term “marihuana” because at the time there was no meaningful and scientifically valid way to distinguish between the plant itself and the constituent parts Congress sought to outlaw. Plaintiffs also point to the 2014 Farm Bill, which permitted industrial hemp production so long as the plants remain below a threshold THC level, and the Consolidated Appropriations Act, which prohibited using federal funds to enforce the Controlled Substances Act against certain cannabis business. Plaintiffs contend that these legislative moves, along with greater scientific understanding of the cannabis plant and the ability to isolate specific components of the cannabis plant, all indicate Congress’s intent to carve out space for these businesses to operate legally. Plaintiffs also contend that the Ninth Circuit itself, in a 2004 case, recognized that not all naturally-occurring cannabinoids are per se prohibited by the Controlled Substances Act.

Plaintiffs contend the DEA exceeded its scheduling and enforcement authority under the Controlled Substances Act by undertaking a “de facto scheduling” of substances not contemplated by the Controlled Substances Act and that Congress views as distinct from marijuana as a “drug.” Plaintiffs essentially allege that with this rule the DEA is attempting to enforce a law Congress never enacted. This is a common challenge to expansive administrative rulemakings, but its application to any particular situation can be hard to predict and it usually hinges on the court’s reading of the underlying statute and the level of deference the agency’s action deserves.

We will keep an eye out as this case progresses and pass along any important updates as they come in.

Though 29 states have some form of cannabis legalization, the federal government still lists marijuana as a Schedule I controlled substance in the Federal Controlled Substance Act (CSA). According to the CSA, cannabis has no recognized medical benefit, has a high risk for abuse, and is too dangerous to research even under medical supervision.

A series of bills introduced in both the House of Representatives and the Senate could change all this. Senator Ron Wyden (D-Ore) and Representative Earl Blumenauer (D-Ore) introduced the legislative package on March 30 as the “Path to Marijuana Reform.” The package is made up of the three following bills:

  • The Small Business Tax Equity Act. This would create an exception to 280E that would allow a marijuana business that complies with state law to claim deductions and credits associated with state-legal selling of marijuana. This would allow marijuana businesses to deduct common business expenses like rent, most utilities, and payroll. Marijuana businesses could also claim tax credits, like those intended to incentivize energy efficiency, research and development, or hiring veterans. In other words, cannabis businesses would start being treated by the tax code as legal businesses, not criminals.
  • The Responsibly Addressing The Marijuana Policy Gap Act. This would address the gap between federal and state law by amending the CSA to exempt persons acting in compliance with state marijuana law from criminal penalties under the CSA. This Act would also reduce barriers for state-legal marijuana businesses by allowing them easier access to banking, bankruptcy protection, marijuana research, and removing prohibitions against advertising marijuana. It would also establish an expungement process for certain marijuana violations which would allow access to public housing and federal financial aid for higher education and would ensure that a person cannot be deported or denied entry to the U.S. solely for consuming marijuana in compliance with state law. Finally, it would ensure veterans have access to state-legal medical marijuana and protect Native American tribes from punishment under federal marijuana laws.
  • The Marijuana Revenue and Regulation Act would remove marijuana from the CSA which would allow marijuana to be regulated at the federal level. It would impose additional taxes on marijuana products, including an excise tax similar to the one currently imposed on cigarettes, and it would establish an occupational tax on marijuana producers and on marijuana products. It would establish federal permitting for marijuana business under a system operated by the Department of Treasury. It would also allow for regulations to control marijuana advertising and packaging.

In a statement, Rep. Blumenauer used his home state to highlight the problems with conflicting state and federal laws on cannabis:

As more states follow Oregon’s leadership in legalizing and regulating marijuana, too many people are trapped between federal and state laws. It’s not right, and it’s not fair.

Passage of all three bills would drastically change an industry that has matured and grown despite federal opposition. It is too early to know whether these bills stand a chance of becoming law, but if these trio of cannabis bills does pass, they would leapfrog the U.S. into one of the (if not the) most progressive countries on cannabis. Even if these bills do not pass this legislative session, they will almost certainly serve as guidelines for eventual legalization. Many are skeptical of these bills passing in light of our current presidential administration, and yet, this may be exactly why their chances may be so good right now. Write your senator and your congressperson to let them know that full legalization is important to you.

Cannabis reform Alabama

This week in ridiculous cannabis quotes that ignore science is brought to you by Dr. Joe Godfrey, Executive Director of the Alabama Citizens Action Program (ALCAP). Godfrey claims to serve as “Alabama’s moral compass” and the aim of his group is to “protect…children from the dangers associated with immoral behaviors and the temptations they face in life.” Though we like the idea of protecting children Godfrey is either ignorant or disingenuous  for claiming keeping cannabis illegal will make it harder for kids to try it.

Studies show legalization actually works to keep cannabis away from children. It is no accident that states that have legalized marijuana have seen child marijuana use decrease. What’s frustrating about opinions such as Dr. Godfrey’s is that they allow stigma and misinformation to proliferate.

We need legalization and we need it now. Only with legalization and regulation will children truly be protected. Give us a chance to prove that.

Cannabis lobbyingNot much gets done in American politics, especially in Congress, without the influence of the hundreds of lobbyists that represent industries, labor, and other interest groups before Congress and federal agencies. The overwhelming role of lobbying has so far been seen as a net negative for the cannabis industry. Powerful alcohol, tobacco, private prison and pharmaceutical lobbies have every incentive to block federal cannabis reforms that could displace demand for competing products and certain prescription medication or cut down on prison time. Pessimists for the future of marijuana prohibition point to these groups as a primary impediment to generating the political will necessary to legislate an end to cannabis prohibition under the Controlled Substances Act.

In an effort to level the playing field, a coalition of cannabis industry leaders recently formed the New Federalism Fund (NFF). NFF aims to wield the increasing popular support and financial success of state-level cannabis programs to bring pressure on federal lawmakers to support progressive reform.

Who is NFF? Support for the group comes from a wide variety of cannabis industry stakeholders, both recreational and medical, and it runs the gamut from dispensaries to private equity funds. The most widely recognizable company on its founding board is Scotts Miracle-Gro, which entered the ancillary cannabis market in 2016. Other notables include LivWell EnlightenedHealth, Privateer Holdings, Native Roots, and Medicine Man.

NFF is organized as a 501(c)4 non-partisan lobbying organization.

What are NFF’s specific priorities? NFF’s website outlines the group’s founding initiatives for particular reforms and the following priorities:

State-first cannabis regulation. NFF advocates for a state-first approach to cannabis policy, emphasizing that it is the best framework for enhancing local economic prosperity through tax revenue and job creation, ensuring patient access, and diverting cannabis from the criminal market. NFF emphasizes the success of early cannabis states and their potential to serve as policy laboratories to serve as examples for other states as envisioned by the Tenth Amendment.

Codification of the Cole Memo. The tenuous legal authority of the Cole Memo is probably the most immediate threat to the cannabis industry. To that end, NFF advocates for codifying the memo’s hands-off approach to state marijuana legalization. Though Jeff Sessions recently signaled that the Cole Memo is still good authority, codification would provide the cannabis industry greater certainty.

Equitable taxation. NFF argues for changing IRC 280(e), the infamous tax provision that greatly limits cannabis businesses’ ability to take advantage of the tax advantages afforded other legal businesses.

Will NFF succeed? Who knows, and, for that matter, defining “success” in this context is tricky. So long as the federal government does not crack down on existing state cannabis programs, NFF may be able to claim victory simply for having helped to maintain the status quo. But, if the question is whether NFF will secure federal legalization of cannabis, the prospects for success dim significantly. Nonetheless, having a strong pro-marijuana lobby is in the interest of all cannabis stakeholders and is an important sign that the legalization movement is maturing.

Cannabis usageTwo years ago we did a post, Top Ten Dubious Claims About Marijuana, listing “legalization will lead to more marijuana in the hands of children and unfettered access for all” as the first dubious claim. A new survey from the Washington Department of Health shows we were right to doubt the legitimacy of that claim as teen marijuana use has not increased after legalization.

The survey collected data from roughly 230,000 Washington students and showed 26% of 12th graders, 17% of 10th graders, and 6% of 8th graders reported using marijuana in the last 30 days. The graph below from Vox shows that marijuana use among Washington State teens has not increased since cannabis became legal in 2012.

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The teen numbers in Washington are consistent with what has happened in Colorado as well, where a study showed teen use in that state remained steady after Colorado legalized marijuana, also in 2012.

Prohibitionists love claiming that legalizing cannabis will increase adolescent use, but really, why should it? States that have legalized recreational marijuana track the plant from seed to sale. Sales require the purchaser show ID and a retail store that sells to minors can lose its license. A well-functioning legal market should and does reduce unlawful diversions to kids. We predict that as legalization spreads, it will become increasingly difficult for adolescents to get access to cannabis. We also predict that as cannabis becomes normalized, its “coolness” factor will decrease and that too will lead to a decline in teen usage.

When Washington legalization advocates argued for Initiative 502 to legalize marijuana they touted a regulatory regime that would lead to responsible cannabis use. This study on teen use supports the notion that Washington is achieving its goal of providing a forum where adults can enjoy cannabis recreationally without giving increased access to teens. A well-regulated cannabis market does not harm society the way legalization opponents would have you believe. If you care about facts and if you want your state’s policies to be based on facts and not politics or myth, you should take heart from the above statistics.

 

 

colbert

Should we laugh or cry?

Comedian Stephen Colbert’s analogy hits the mark on the absurdity of Jeff Session’s cannabis views. Colbert was responding to the following Sessions comment about combatting violent crime:

I realize this may be an unfashionable belief in a time of growing tolerance of drug use.  But too many lives are at stake to worry about being fashionable.  I reject the idea that America will be a better place if marijuana is sold in every corner store.  And I am astonished to hear people suggest that we can solve our heroin crisis by legalizing marijuana – so people can trade one life-wrecking dependency for another that’s only slightly less awful.  Our nation needs to say clearly once again that using drugs will destroy your life.

Sessions’ comment about marijuana being sold in every corner store is fallacious, though cannabis being legalized and normalized enough to be sold in corner stores would not be such a bad thing anyway, so long as those sales are confined to adults. Further, any “suggestions” about marijuana’s ability to ease heroin addiction are based on scientific evidence. But what’s truly ridiculous about Sessions’ comments, and what Colbert is responding to in the above, is the notion that cannabis is only “slightly” less awful than heroin. Nobody has ever died of a cannabis overdose compared to the estimated 91 deaths per day from opioid overdoses. Cannabis is not chemically addictive. Cannabis can be used as medicine. Neither of those things can be said for heroin. Equating the two of them is a flat out lie and a harmful one at that as it minimizes our country’s massive heroin problem.

Comparing cannabis to heroin is like comparing a paper cut to a gunshot wound or a rain cloud to a monsoon. Not only are they not the same. Colbert gets it, but our country’s top attorney apparently does not.