Emerging public health law and policy issues concerning state medical cannabis programs
As the medical cannabis industry grows and local governments continue to legalize medical cannabis use state programs are forced to set standards without the aid of the federal government. State governments are now facing the challenge of attempting to regulate medical cannabis while maintaining the safety of patients and the general public. States now have to regulate labeling with universal warning symbols, child-resistant packaging, advertising restrictions, and pesticide use while also addressing members of the public’s concern about the safety of medical cannabis. If cannabis is ever rescheduled in the future so that the federal government can standardize the regulation of cannabis practices across the nation it will be interesting to see how local practices change in accordance.
Despite multiple petitions and new research, the federal government has refused to reschedule cannabis. Cannabis used to be an accepted medication before a few politicians, namely Harry Anslinger began a propaganda campaign, highlighted by the film Reefer Madness (1936), turning the public opinion away from medical cannabis. This was largely thought to be a move to further ostracize minorities, further segregating races as Anslinger connected marijuana to violence to immigrants from Mexico. Cannabis never became medically dangerous in the early 1900s, merely a tool used by politicians to induce public fear and reinforce racist tendencies. In the featured article it was stated that 9 out of 10 Americans support the use of medical marijuana yet cannabis still has yet to be rescheduled and the reasons behind it are unclear but may lead back to the original push to have cannabis outlawed in the first place.
The study is available for review or download here
Association of marijuana laws with teen marijuana use- new estimates from the youth risk behavior surveys
Earlier this July a letter was published providing evidence that adolescent cannabis use may actually decrease post-legalization of medical and recreational cannabis. An analysis of Youth Risk Behavioral Surveys from the past two decades revealed that legalizing medical cannabis had little to no effect on cannabis use among adolescents in 8th and 10th grade but that legalization of recreational cannabis actually led to an overall decrease of adolescent cannabis use across the states. The authors hypothesize that the rate of adolescent use may decrease as illegal drug dealers are replaced by legal, regulated dispensaries. This evidence may prove compelling for the possible rescheduling of cannabis under the federal Controlled Substances Act.
Adolescent substance use, like that of alcohol, has been found to be detrimental to brain development. There have been varying results regarding the effects of adolescent cannabis use on brain development yet some caretakers are given special permission to administer cannabis-based products to children experiencing rare forms of epilepsy or other seizure disorders. Cannabis-based medications may be a more ethical and far less dangerous substance to administer to children so that they aren’t set up for a substance use disorder at a young age. Research focussed on adolescent cannabis use needs to be conducted for better regulations and to better advise the parents and pediatricians of adolescents who have accidentally consumed cannabis or need a cannabis-based medical intervention.
The study is available for review or download here
A Qualitative Analysis of Cannabis Vaporization Among Medical Users
Researchers have recently analyzed popular vaping behavior and revealed the advantages of vaporizing medical cannabis. The general advantages of vaporizing medical cannabis include portability, concealability, and efficiency, while the medical advantages like promoting tobacco cessation and it’s quick-acting effects. There are also limitations to vaporization, like technology-use barriers for those who find technology difficult to work with and the cost of such devices. Vaporizing may also prove to be advantageous or disadvantageous for patients depending on their medical condition, meaning that all patients should discuss consumption mechanisms with their physician.
As the cannabis industry continues to grow various consumption methods become readily available for consumers, each presenting its own benefits and limitations. Patients should thoroughly research the different consumption methods and discuss which method would work best for them. Vaporizers in the featured article were mainly portable but desktop vaporizers are also available and often more efficient. The world of edibles continues to grow and it better for those looking for longer-lasting, stronger, and delayed effects. Tinctures are easy to prepare at home or buy online and are ideal for incorporating into patients’ favorite meals, smoothies, or can be taken sublingually for fast-acting effects and raw cannabinoids. Experimentation is encouraged, just be sure to start at a slow dose and slowly feel out the effects.
The study is available for review only from the original author/publisher, per their request.
Oncologists Should Recommend Cannabis-Based Medicine for Palliative Care
Earlier this June a review was published that encourages oncologists to recommend cannabis products to their patients as a safe and effective method of palliative care. The opinion piece highlights how cannabis is a useful treatment for a variety of illnesses (nausea, vomiting, sleep, mood, anxiety), and encourages practitioners to prescribe cannabis for their patients so that they can appreciate the safety and effectiveness of the product.
Dr. Caplan and the #MDTake:
As Dr Abrams makes abundantly and eloquently clear, the reasons for oncologists to RETURN to recommending cannabis (as clinicians were accustomed to doing in generations past) are many. Weighing the safety profile of cannabinoid medicines and the long list of potential benefits for those battling cancers, against temporary adverse side effects (some of which, like appetite stimulation and sedation, can also be advantages for oncology patients), it is almost unethical for modern clinicians to NOT recommend that patients consider cannabis supplementation. The historical sociopolitical war on drugs was never founded in scientific rationale, nor supported by rigorous inquiry that has borne out half a million scientific reviews on the topic. It is high time that physicians return to a practice style that prioritizes patient well-being first, and emphasizes self-education about areas of medicine about which the providers may be less informed.
Year 2019 was an up and down year for the cannabis industry. As the year comes to a close, let us take some time to reflect on what transpired during this transitional period for the cannabis industry. Hopefully, a detailed look at what happened may shed some light on what is ahead in 2020.
First, public opinion on cannabis has continued to rise. For the first time, poll results suggested that more than two-thirds of Americans support legalization. Such a pervasive, bipartisan, agreement for a fundamental change in the law is rare, and is a true reflection of the state of the industry now, and where the industry is headed.
Riding along with public opinion, Congress saw more movement towards full legalization than in any single year prior. The list of cannabis-related bills that were introduced in Congress this year tops 15, covering topics from banking to immigration. Most noteworthy among those bills are the MORE Act, a comprehensive legalization bill that passed its committee in the House, and the SAFE Banking Act, which passed the full House by a landmark 321-102 bipartisan vote. At the same time that these provide an optimistic outlook for the federal regime, no actual progress has been made in Congress, largely because the Republican-led Senate remains staunchly opposed to reform (google “Mitch marijuana machete” for an idea of Mitch McConnell’s recent activities relating to drug policy reform).
The executive branch has not been without movement either. President Trump does not have the traditional hard-lined anti-cannabis stance that some Republican leaders espouse. He campaigned on a platform of not interfering with states’ ability to manage their own medical and adult-use programs. He has publicly stated his support for the States’ Act, a bill that would essentially codify the same, leaving enforcement up to the states. Under Trump, the FinCEN continued its policy of allowing banks to do business with the cannabis industry, assuming that the Suspicious Activity Report (“SAR”) requirements were being followed. There are also no known examples of DEA or other federal law enforcement actions taken against operators lawfully operating under state law.
At the same time, the executive branch has made moves against the legalization movement. In 2018, then-AG Sessions rescinded the Cole Memorandum, signaling that the feds were looking into increasing enforcement against cannabis businesses (Thankfully Sessions is no longer a part of the administration, as his views are notoriously more anti-legalization than Trump’s). Just last week, as Trump signed the yearly spending bill into law, he attached a vague statement reserving the right to enforce federal law even in the face of full state-law compliance. Overall the federal government has progressed, albeit slowly, in the right direction.
Many states had significant progress towards legalization in 2019. Illinois became the 11th state to fully legalize adult-use, while Hawaii, New Mexico, and North Dakota decriminalized. We now stand with 33 states having passed a robust medical program, a full two-thirds of the union. Bills were proposed in more than two dozen states, some to expand existing frameworks, and others to create new ones. Just this week Alabama’s legislature’s commission recommended legalizing for medical purposes, a stark shift from the traditional views thought to be widely-held in the deep south. Overall the trend is clearly moving towards more states joining the legalization team, some quicker than others.
Though 2018 set a high bar for the hemp/CBD industry in terms of significant reform, Year 2019 arguably topped the significant progress of the 2018 Farm bill. In October, the USDA published its interim final rule, providing much-needed guidance to the hemp community. It created a federal framework for hemp farmers, creating registration, licensing, and testing requirements. It also allowed states to create their own systems, and many of the largest states for hemp farming are doing just that. FinCEN, the same treasury bureau that regulates banking for marijuana businesses, announced in December that banks may do business with the hemp industry without having to adhere to the SAR reporting requirements like those doing business with marijuana.
At the same time, the hemp/CBD industry skyrocketed in 2019. We saw an explosion of CBD products, and the industry is now estimated to be worth $4 billion. Tinctures, edibles, lotions, balms, you name it, someone has put CBD in it and made money this year. There remains so much uncertainty about the legalities of the market, and many have taken advantage of this “Wild West” atmosphere to quickly seize market shares, without guaranteed continuity once enforcement occurs. Year 2019 was not without foreshadowing of enforcement, however. In November, the FDA sent out warning labels to several companies that were selling CBD products. The letters go into detail regarding the various items being sold and analyzed how each company was violating various laws. Although the FDA hasn’t actually seized anyone’s assets or froze any bank accounts, they are clearly watching and thinking about doing it.
A really interesting piece of news swept the nation this year. At the beginning of November, the NYPD posted a picture of two officers posing with “106 pounds of marijuana that was destined for our city streets”, bragging about its success. Only one problem… it was all legal hemp, with certifying papers and all. The NYPD quickly dropped all the charges, and recently returned the hemp to the owner. This incident also highlights a significant issue with the hemp industry, in that it comes from and has all the outward appearance of marijuana, leading to confusion and enforcement problems. Until law enforcement agencies are properly trained, this type of incident is likely to repeat itself.
Year 2019 also took its toll on many cannabis companies. Large companies like Eaze and MedMen had to lay off many employees, as the actual returns were less than what their projections anticipated. Many stocks took big hits in 2019, for the same reasons. The projections for the industry have been huge, and are likely accurate, but are also likely skewed because of the nature of the industry. There is still a large “traditional” market in existence, which continues to dwarf the legal one. While some have come out of the shadows, progress remains slow because of the monumental taxes, regulations, and difficulties associated with being a fully-legal operating cannabis company.
WHAT ABOUT 2020?
The year 2020 is upon us. The cannabis industry is not going anywhere. It will continue to grow and mature as the year goes on. We aren’t going to see any reversal of the general trend towards legalization. At the federal level, I don’t believe that 2020 will see a single cannabis bill passed and enacted into law, and certainly nothing like full legalization. The country is not ready for it yet, as many of the industry leaders remain staunchly opposed for two reasons. First, there remains distrust and skepticism that is leftover from the reefer madness days. Many politicians still feel that marijuana is a gateway drug to other substances, and until they are convinced otherwise will stay opposed. Second, and more sinister perhaps, legalization denotes trouble for industries like alcohol, tobacco, and pharmaceuticals, all of whom stand to lose significant market shares once cannabis replaces these vices as people’s substance of choice. Lobbyists for these industries continue to work tirelessly to oppose legalization, and members of Congress are still forced to follow. Until these issues change, we must wait for full legalization.
At the state level, change will happen, and rapidly. Already several states seem poised to have recreational programs on the ballot, in states where it is almost certain to pass. These include New Jersey, New York, North Dakota, Minnesota, Vermont, and Pennsylvania, all of whom will pass legalization by years end. More states will join the medical bandwagon, leaving perhaps one or two states with absolutely no cannabis legalization framework.
Public opinion will continue to positively increase and have more of an impact on the industry. If in 2019 we finally hit 66%, I predict that Year 2020 will have us hit 75%. As the younger generation grows up, and as the older one retires and fades away, the numbers will continue to rise. At the same time, science continues to develop, as new studies are coming out nearly every week showing another beneficial use of the cannabis plant. At the same time, organizations like CED Foundation and The IJCA continue to run awareness campaigns and spread the word, adding to the number of people who are exposed to ideas and understanding of the plant’s many uses. More studies and more awareness, reaching even more people, means more backing for legalization.
Hemp is poised for a huge gain in 2020. With the federal regulations in place, the industry now has definitive guidance on the government’s position. While CBD as medicine remains a tricky subject, certainly hemp’s use as a tobacco alternative, a plastic alternative, textiles, fabric, and other industry uses will skyrocket. I also believe that 2020 will see the FDA, DEA and USDA will work out some of the kinks with using CBD as an active ingredient, providing helpful guidance to an industry running around like a headless chicken. Once that occurs, again, the industry will expand rapidly, as more certainty from the government will allow more companies to enter the market.
Lastly, I think 2019 brought some valuable lessons to the industry. The way the projections did not turn into reality, and the hits that many businesses had to take, give us some really important lessons. Caution is urged when investing in an industry plagued by burdensome regulations and strong financial incentives not to join the legal market. The “traditional” market remains the elephant in the room. The likelihood of real enforcement crackdown is low, because of limited resources, sheer numbers, and the probability that any enforcement would result in really bad press. Because investors have now been warned, the industry’s growth will slow. We will continue to see startups join the market, but perhaps on a smaller scale.
I hope that this discrepancy between projections and sales will also be a lesson for our legislatures. They need to come up with solutions that create subsidies for those coming out of the shadows so that states can see the actual revenues they hoped for. They may have to accept several billion in illegal sales as water under the bridge. They may have to lower tax rates to incentivize people to legitimize their operations. They may have to lessen the licensing requirements, making it easier and cheaper for those interested in joining to actually do so. The specific decisions are theirs to make, but they need to get creative about solving this problem.
Overall 2019 was a successful year for the industry. Even the downsizing and financial hits taken will prove to be valuable in the long run. Just like getting out of bed too fast can result in injury, an industry that expands too rapidly can result in harmful consequences.
Benjamin Caplan, MDWHAT 2019 HAS TAUGHT US ABOUT WHAT 2020 WILL LOOK LIKE: PROCEED WITH CAUTION
A lawsuit was filed against the Justice Department alleging that keeping cannabis on the CSA posed serious health risks. Originally dismissed, an appeal was filed and it was decided to leave the case open to apply pressure to the DEA to de-schedule cannabis. Action could be taken soon http://bit.ly/30Yrue3
Benjamin Caplan, MDA lawsuit filed against the Justice Department re: de-scheduling