PART 5 of 6:  An Overview of the Various Federal and State, Marijuana-Related Legislation Currently Pending Before the U.S. Congress and on U.S. State Ballots for the 2020 General Election

This article is the fifth part of a six-part series discussing the legal issues, operational challenges, and regulatory hurdles that marijuana-related businesses (MRBs) frequently encounter. The first article discussed the various fire, health, and safety risks that MRBs encounter while growing and cultivating marijuana plants inside large, indoor, commercial spaces. The second article discussed the three most common extraction methods that MRBs use when processing cannabis plant material to extract cannabinoids, terpenes and other components from the plant; the fire, health, and safety risks associated with each cannabis extraction method; the National Fire Protection Association’s (“N.F.P.A.”) rules and regulations that govern cannabis extraction; and the Occupational Safety and Health Administration (“OSHA”) rules and regulations that MRBs must comply with in their extraction facilities. The third article discussed the lack of national standards for laboratories that test medical and recreational marijuana products, and how it adversely impacts the public health of consumers, and the marijuana industry.  It also discussed the various methodologies, approaches, and equipment that laboratories should be required to use to test marijuana products, and it presented specific, proposed national standards that the federal government should consider implementing to protect consumers who purchase marijuana products.

The fourth article discussed the various legal issues, operational challenges, and regulatory hurdles that marijuana dispensaries frequently encounter including the various terms of commercial lease agreements that could affect a marijuana dispensary’s operations, and the various operational issues that marijuana dispensaries frequently encounter.

This article discusses the substance and status of marijuana-related legislation currently pending at both the federal and state level.  First, the article discusses the following federal marijuana-related bills that were introduced and/or are currently pending in Congress: (1) “Secure and Fair Enforcement (SAFE) Banking Act” (S. 1200 & H.R. 1595); (2) “Regulate Marijuana Like Alcohol Act” (H.R. 420); (3) “Small Business Tax Equity Act of 2019” (S. 422 & H.R. 1118); (4) “Strengthening the Tenth Amendment Through Entrusting States (STATES) Act” (S. 1028 & H.R. 2093); (5) “Ending Federal Marijuana Prohibition Act” (H.R. 2012); (6) “Marijuana Justice Act of 2019” (S. 597 & H.R. 1456); (7) “Responsibly Addressing the Marijuana Policy Gap Act of 2017 (RAMP)” (S. 421 & H.R. 1824); (8) “Marijuana Revenue and Regulation Act” (S. 420 & H.R. 1120); (9) “Veterans Medical Marijuana Safe Harbor Act” (S. 445 & H.R. 1151); (10) “VA Medicinal Cannabis Research Act of 2019” (S. 179 & H.R. 712); (11) “The Sensible Enforcement of Cannabis Act”) (H.R. 493); (12) “Medical Cannabis Research Act of 2019” (H.R. 601); (13) “Compassionate Access, Research Expansion, and Respect States Act of 2019” (H.R. 127); (14) “Restraining Excessive Federal Enforcement & Regulations of Cannabis (REFER) Act” (H.R. 1455); and (15) “Marijuana Opportunity, Reinvestment, and Expungement (MORE) Act of 2019” (H.R. 3884).  Then, the article discusses the various state, marijuana-related bills and constitutional amendments that are currently on the ballot in at least seven U.S. states (possibly eight if you include Idaho) for this 2020 general election cycle, including an examination of the polling data about local support for or against them.

I. FEDERAL, MARIJUANA-RELATED LEGISLATION CURRENTLY PENDING IN CONGRESS

It would be an understatement to say that 2020 has been an incredibly challenging year for all Americans, but it has been a particularly difficult year for U.S. lawmakers in Congress. Between the pervasive and profound economic disruption caused by the coronavirus pandemic, the nationwide protests for equality and social justice sparked by the tragic and brutal murder of George Floyd, and the pressure of an impending presidential election as well as various congressional races, the U.S. Congress has struggled to cope with one national crisis after another. Most of their efforts this year have understandably been focused on crafting and passing economic relief and stimulus packages to counteract the devastating financial impact that the coronavirus pandemic has caused across the country. Consequently, marijuana-related legislation, as well as many other bills pending in Congress, have been largely overlooked or ignored all together this legislative session.

Prior to the pandemic, however, many cannabis advocates were hopeful that Congress would pass major cannabis reform at the federal level, which would create massive new opportunities for marijuana-related businesses nationwide.  Indeed, on July 30, 2020, the House of Representatives, by voice vote, approved legislative language restricting the Department of Justice from interfering with the tens of millions of consumers and businesses operating in legal marijuana states.[1]  Named the Blumenauer-McClintock-Norton-Lee amendment, this bipartisan proposal’s final vote total was 254 to 163, with 97% of the Democratic caucus (222 of 228) and 16% of the Republican caucus (31 of 188) in favor.[2]

However, according to industry experts, the likelihood of Congress passing any major cannabis reform during the 2020 cycle is very low at this point. For instance, Don Murphy, Marijuana Policy Project’s director of federal policies and a former Republican state lawmaker, said, “I think between coronavirus and [the] election season, we are in the bottom of the ninth.”[3]  Rep. Lou Correa also observed that, “It is going to be very difficult to get direct aid for the cannabis industry [this legislative session].”[4]

Notwithstanding the countless obstacles that Congress and cannabis advocates have encountered this year, many marijuana-related bills were introduced in Congress during the 2019 session, and many of those bills still have a chance of becoming law. The following is a brief summary of all of the various, marijuana-related, bills that were introduced to Congress, including the bills that still currently pending before Congress, and a brief discussion about each of the pending bill’s respective status.

Secure and Fair Enforcement (SAFE) Banking Act (S. 1200 & H.R. 1595)

The Secure and Fair Enforcement Banking Act of 2019, or the SAFE Banking Act of 2019, generally prohibits a federal banking regulator from penalizing a depository institution for providing banking services to a legitimate marijuana- or hemp-related business.[5] Specifically, the bill prohibits a federal banking regulator from: (1) terminating or limiting the deposit insurance or share insurance of a depository institution solely because the institution provides financial services to a legitimate marijuana- or hemp-related business; (2) prohibiting or otherwise discouraging a depository institution from offering financial services to such a business; (3) recommending, incentivizing, or encouraging a depository institution not to offer financial services to an account holder solely because the account holder is affiliated with such a business; (4) taking any adverse or corrective supervisory action on a loan made to a person solely because the person either owns such a business or owns real estate or equipment leased or sold to such a business; or (5) penalizing a depository institution for engaging in a financial service for such a business.[6]

As specified by the bill, a depository institution, a Federal Reserve bank, or an insurer shall not, under federal law, be liable or subject to forfeiture for providing a loan or other financial services to a legitimate marijuana- or hemp-related business.[7]  The bill further provides that a federal banking agency may not request or order a depository institution to terminate a customer account unless: (1) the agency has a valid reason for doing so, and (2) that reason is not based solely on reputation risk.[8]  Valid reasons for terminating an account include threats to national security and involvement in terrorist financing, including state sponsorship of terrorism.[9]

The bill also provides that the Government Accountability Office must report on: (1) access to financial services for minority-owned and women-owned marijuana- or hemp-related businesses; and (2) the effectiveness of suspicious-transaction reports at finding engagement with organized criminal activity in jurisdictions that allow the cultivation, sale, or distribution of marijuana.[10]

The bill was introduced in the U.S. House of Representatives on March 7, 2019 by Rep. Ed Perlmutter (D-CO).[11]  This bill passed in the House on September 25, 2019, with a bipartisan vote of 321-103.[12]  It is currently pending in the U.S. Senate.[13]

The bill appeared to have momentum last year when it passed the House of Representatives with bipartisan support and began making progress in the Senate.[14]  Despite the bill’s early momentum, it appears to have stalled in the Senate.[15]

Regulate Marijuana Like Alcohol Act (H.R. 420)

The “Regulate Marijuana Like Alcohol Act” directs the Department of Justice to issue a final order that removes marijuana in any form from all schedules of controlled substances under the federal Controlled Substances Act (CSA).[16]  The bill also provides that marijuana is exempted from the CSA, except as provided in the bill, that the definition of “felony drug offense” does not include conduct related to marijuana, and that marijuana is not included in the provisions setting forth penalties applicable to prohibited conduct under the CSA.[17]  However, under the bill, it shall still be unlawful to ship or transport marijuana from any place outside a jurisdiction of the United States into such a jurisdiction in which its possession, use, or sale is prohibited.[18]  The bill also eliminates marijuana from regulation under various federal laws including the Controlled Substances Import and Export Act, the National Forest System Drug Control Act of 1986, the federal Wiretap Act, and the Office of National Drug Control Policy Reauthorization Act of 1998.[19]  Further, like the regulation of alcohol, the bill subjects marijuana to the same provisions that apply to: (1) intoxicating liquors under the Original Packages Act, the Webb-Kenyon Act, and the Victims of Trafficking and Violence Protection Act of 2000; and (2) distilled spirits under the Federal Alcohol Administration Act.  The bill also provides that the Food and Drug Administration (FDA) shall have the same authorities with respect to marijuana as it has for alcohol.[20]  Under the bill, the functions of the Administrator of the Drug Enforcement Administration (DEA) relating to marijuana enforcement shall be transferred to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), and the ATF is renamed the Bureau of Alcohol, Tobacco, Marijuana, Firearms and Explosives, and the Alcohol and Tobacco Tax and Trade Bureau is renamed the Alcohol, Tobacco, and Marijuana Tax and Trade Bureau.[21]

The bill was introduced in the U.S. House of Representatives on January 9, 2019 by Rep. Earl Blumenauer (D-OR). On February 8, 2018, the bill was referred to the House Subcommittee on Conservation and Forestry, where it remains.

Small Business Tax Equity Act of 2019 (S. 422 & H.R. 1118)

This bill exempts a trade or business that conducts marijuana sales in compliance with state law from Internal Revenue Code Section 280E, which prohibits business-related tax credits or deductions for expenditures in connection with trafficking in controlled substances.[22]

The bill was introduced in the U.S. House of Representatives by Sen. Roy Wyden (D-OR) on February 7, 2019, where it remains.

Strengthening the Tenth Amendment Through Entrusting States (STATES Act) (S. 1028 & H.R. 2093)

Strengthening the Tenth Amendment Through Entrusting States Act, or the STATES Act, eliminates regulatory controls and administrative, civil, and criminal penalties under the Controlled Substances Act for certain marijuana-related activities that comply with state or tribal law.[23] The bill also requires the Government Accountability Office to study and report on the effects of marijuana legalization on traffic safety.[24]

The bill was introduced in the U.S. House of Representatives by Sen. Elizabeth Warren (D-MA) on April 4, 2019, where it remains. According to Whitt Steineker, a writer for the Cannabis Business Times, “[t]he bill does not currently appear to have sufficient support to pass Congress.”[25]

Ending Federal Marijuana Prohibition Act (H.R. 1588)

The Ending Federal Marijuana Prohibition Act of 2019 (HR 1588) eliminates federal criminal penalties for possessing and growing marijuana.[26]  This legislation gives states the power and flexibility to establish their own marijuana policies free from federal interference.[27]  This bill would also remove marijuana from the CSA, which would allow for more marijuana research both recreationally and medicinally.[28]

The bill was introduced in the U.S. House of Representatives by Rep. Tulsi Gabbard (D-HI) on March 7, 2019, where it remains.

Marijuana Justice Act of 2019 (S. 597 & H.R. 1456)

The Marijuana Justice Act of 2019 decriminalizes marijuana by removing the drug from the list of scheduled substances under the CSA, and the bill eliminates criminal penalties for an individual who imports, exports, manufactures, distributes, or possesses with intent to distribute marijuana.[29]

Additionally, the bill reduces federal funds for states that have not legalized marijuana and that have a disproportionate arrest rate, or a disproportionate incarceration rate, for marijuana-related offenses, directs federal courts to expunge convictions for marijuana use or possession, and establishes a fund—the Community Reinvestment Fund—to support grants in communities most affected by the war on drugs.[30]

The bill was introduced in the U.S. House of Representatives by Sen. Cory Booker (D-NJ) on February 28, 2019, where it remains.

Responsibly Addressing the Marijuana Policy Gap Act of 2017 (RAMP) (S. 421 & H.R. 1824)

The Responsibly Addressing the Marijuana Policy Gap Act of 2017 eliminates regulatory controls and administrative, civil, and criminal penalties under the CSA for marijuana-related activities authorized by state or tribal law (i.e., state-authorized); allows businesses that sell marijuana in compliance with state or tribal law to claim certain federal tax credits and deductions; eliminates restrictions on print and broadcast advertising of state-authorized marijuana-related activities; creates protections for depository institutions that provide financial services to marijuana-related businesses; specifies that a marijuana-related business is entitled to federal bankruptcy protections; establishes a process to expunge criminal records related to certain marijuana-related convictions; reestablishes federal student aid eligibility for certain students convicted of a misdemeanor offense for marijuana possession; exempts real property from civil forfeiture due to state-authorized marijuana-related conduct; prohibits the inadmissibility or deportability of aliens for state-authorized marijuana-related conduct; specifies that drug-related criminal activity, which is prohibited in federally assisted housing, does not include state-authorized marijuana-related conduct; establishes a new, separate registration process to facilitate medical marijuana research; authorizes health care providers employed by the Department of Veterans Affairs to recommend participation in state marijuana programs; and authorizes medical providers through an Indian health program to make medical recommendations regarding marijuana.

The bill was introduced in the U.S. House of Representatives by Sen. Roy Wyden (D-OR) on March 30, 2017, but it did not receive a vote.

Marijuana Revenue and Regulation Act (S. 420 & H.R. 1120)

The Marijuana Revenue and Regulation Act removes marijuana from the list of controlled substances under the CSA and establishes requirements for the taxation and regulation of marijuana products.[31] The bill imposes (1) an excise tax on marijuana products produced in or imported into the United States, and (2) an occupational tax on marijuana production facilities and export warehouses.[32]

The bill further provides that the excise tax includes exemptions for: (1) products used for research or by government entities for non-consumption purposes; and (2) the transfer of products between production, import, and export facilities.[33]  And, the term “marijuana product” does not include: (1) any article containing marijuana that has been approved by the Food and Drug Administration (FDA) for sale for therapeutic purposes and is marketed and sold solely for such purpose, or (2) industrial hemp.[34]

The bill prohibits marijuana from being shipped or transported into any state or jurisdiction where it is illegal, and producers, importers, and exporters of marijuana products must: (1) obtain a permit from the Department of the Treasury, and (2) comply with certain requirements regarding recordkeeping, packaging, labeling, and advertising.[35]  Finally, the bill establishes penalties for violations of marijuana laws; prohibits the sale of more than one ounce of marijuana in any single retail transaction; and provides specified authorities to the FDA and the Bureau of Alcohol, Tobacco, Firearms, and Explosives with respect to marijuana.[36]

The bill was introduced in the U.S. House of Representatives by Rep. Earl Blumenauer (D-OR) on February 8, 2019, where it remains.

Veterans Medical Marijuana Safe Harbor Act (S. 445 & H.R. 1151)

The Veterans Medical Marijuana Safe Harbor Act provides guidance related to veterans and medical marijuana that shall be effective for five years.[37] Specifically, the bill authorizes: (1) a veteran to use, possess, or transport medical marijuana in accordance with applicable state or Native American tribal law; (2) a Department of Veterans Affairs (VA) physician to discuss with a veteran the use of medical marijuana as a treatment if the physician is in a state or on tribal land that authorizes such treatment; or (3) a VA physician to recommend, complete forms for, or register veterans for participation in a medical marijuana treatment program in accordance with applicable state or tribal law.[38]

The bill also requires the VA to report on: (1) the effects of medical marijuana on veterans in pain; and (2) the relationship between state-approved medical marijuana treatment programs, program access, and opioid abuse reduction.[39]

The bill was introduced in the U.S. House of Representatives by Sen. Brian Schatz (D-HI) on February 12, 2019, where it remains.

VA Medicinal Cannabis Research Act of 2019 (S. 179 & H.R. 712)

The VA Medicinal Cannabis Research Act of 2019 requires the Department of Veterans Affairs (VA) to conduct a clinical trial of the effects of medical-grade cannabis on the health outcomes of covered veterans diagnosed with chronic pain, and also those diagnosed with post-traumatic stress disorder.[40] Covered veterans are those who are enrolled in the VA patient enrollment system for hospital care and medical services.[41]

The bill was introduced in the U.S. House of Representatives by Sen. Jon Tester (D-MT) on January 17, 2019, where it remains.

The Sensible Enforcement of Cannabis Act (H.R. 493)

The Sensible Enforcement of Cannabis Act of 2019 prohibits the Department of Justice from prosecuting marijuana-related conduct that is authorized by state law, subject to specified exceptions.[42]

The bill was introduced in the U.S. House of Representatives by Rep. Luis Correa (D-CA) on January 11, 2019, where it remains.

Medical Cannabis Research Act of 2019 (H.R. 601)

The Medical Cannabis Research Act of 2019 establishes a new, separate registration process for manufacturers of cannabis for research.[43]  Specifically, the bill provides that the DEA must annually assess whether there is an adequate and uninterrupted supply of research cannabis and register additional manufacturers.[44]  The bill also authorizes health care providers of the Department of Veterans Affairs to provide information to veterans regarding participation in federally approved cannabis clinical trials.[45]

The bill was introduced in the U.S. House of Representatives by Rep. Matt Gaetz (R-FL) on January 16, 2019, where it remains.

Compassionate Access, Research Expansion, and Respect States Act of 2019 (H.R. 127)

The Compassionate Access, Research Expansion, and Respect States Act of 2019 amends the CSA, so that it does not apply to “medical marijuana” as that term is defined by state law.[46]  The bill also prohibits banking regulations from punishing individuals or organizations associated with cultivating the drug, similar to the SAFE Banking Act.[47]  Further, the bill downgrades marijuana from Schedule I to Schedule II under the federal classification system set forth in the CSA.[48]

The bill was introduced in the U.S. House of Representatives by Sen. Cory Booker (D-NJ) on March 10, 2015, but it did not receive a vote.

Restraining Excessive Federal Enforcement & Regulations of Cannabis (REFER) Act (H.R. 1455)

The Restraining Excessive Federal Enforcement & Regulations of Cannabis (REFER) Act withholds any federal spending that would be used to impede state-level legal recreational marijuana.[49]  Since 2014, the federal government has been prevented from inhibiting state-level medical marijuana programs.[50] In addition to the prohibition against the federal government interfering with state-level medical marijuana programs, this bill also prohibits the federal government from interfering with state-level recreational marijuana programs.[51]  And, under the bill, these restrictions would become permanent, and they would no longer have to come up for a renewal vote annually.[52]

The bill was introduced in the U.S. House of Representatives by Rep. Barbara Lee (D-CA) on January 11, 2018, a week after former Attorney General Jeff Sessions repealed the Cole Memo.[53]  The bill did not receive a vote.

Marijuana Opportunity, Reinvestment, and Expungement (MORE) Act (H.R. 3884)

The Marijuana Opportunity, Reinvestment, and Expungement (MORE) Act removes cannabis from the CSA and addresses the past implications of prohibition through social justice and equity programs.[54]  The bill also imposes a tax on sales from cannabis growers to processors.[55]

The bill was introduced in the U.S. House of Representatives by Rep. Jerrold Nadler (D-NY) on July 13, 2019, and it was submitted to the Committee on the Judiciary on November 21, 2019, where it remains.

According to attorney Whitt Steineker, the bill has yet to garner the kind of strong bipartisan support it needs.[56] Steineker opines that the bill’s most significant obstacle is the “Republican-controlled Senate, which does not appear to support measures that would expunge prior (even non-violent) cannabis convictions.”[57]

The Marijuana Business Daily is equally concerned about the MORE Acts chances in the Senate.[58]  Specifically, the publication observed that the, “[d]escheduling marijuana, of course, could lead to a massive transformation of the industry and additional business opportunities,” but noted that, “eight House committees must pass or waive their jurisdiction to the MORE Act, and that process could take months more.”[59]  Finally, the Marijuana Business Daily observed that the MORE Act has “only one Republican co-sponsor in the House at this point.”[60]

II. STATE, MARIJUANA-RELATED LEGISLATION CURRENTLY PENDING ON STATE BALLOTS IN THE 2020 ELECTION CYCLE

On June 25, 2020, CNN Business writer Allison Wallace wrote that “[l]egalization advocates have long touted the righting of past criminal justice wrongs, eliminating illegal market activity and generating additional tax revenue when they’ve pushed for the overhaul of state cannabis laws.”[61]  Indeed, according to marijuana industry experts, actions by states to reduce criminal penalties for marijuana use and possession are fueling momentum for the broader movement to legalize cannabis and have it serve as an economic engine for cash-strapped coffers.[62]  Moreover, Wallace reports that, according to data from BDS Analytics, which tracks dispensary sales, cannabis sales in states that have legalized the plant for medical and recreational purposes totaled about $15 billion in 2019, and are expected to top $30 billion by 2024.[63]  Also, according to cannabis information site Leafly, at the start of 2020, the US cannabis industry had an estimated 243,700 full-time employees.[64]  And, a total of 35 states now allow medical marijuana, and of those, 11 states (including Washington, D.C.) allow recreational marijuana use for adults 21 and older.[65]

In the 2020 election cycle, the following seven (7) states (possibly 8 if you include Idaho) are considering marijuana-related legislation: Arizona, Montana, Mississippi, Nebraska, New Jersey, South Dakota, and Oregon. Specifically, Arizona, Montana, New Jersey, and South Dakota are voting on adult-use (recreational) cannabis legalization.[66] Mississippi, Nebraska, and South Dakota (and maybe Idaho) are voting on medical marijuana legalization.[67]  Oregon voters will consider two separate drug reform measures. One would legalize the medical use of psilocybin.[68] The other would decriminalize small amounts of all drugs.[69]

A. State Recreational Marijuana Legislation Currently on State Ballots in 2020

ARIZONA (Arizona Smart and Safe Act)

Arizona’s Smart and Safe Act would legalize the possession and use of cannabis recreational use for Arizona citizens 21 years or older, and it would create a market for regulated sales.[70]  Furthermore, it would require that fixed amounts of tax revenue be allocated to various education, public health, and public safety programs.[71]

According to a poll conducted by HighGround Public Affairs in June 2020, 65% of eligible Arizona voters support legalization.

MONTANA (Montana Initiative 90 and Montana Constitutional Amendment 118)

Montana’s Initiative 190 would legalize recreational marijuana in Montana, “establish a regulatory framework for cultivation and sales,” and tax it at a rate of 20%.[72]  Montana’s Constitutional Initiative 118 sets the legal age for purchasing, consuming, or possessing marijuana at 21.[73]

According to the University of Montana’s Big Sky Poll conducted in Feb. 2020, 54% of Montanans support legalization, while 37% are opposed.[74]

NEW JERSEY (New Jersey Marijuana Legalization Amendment S2703/A4497)

The New Jersey Marijuana Legalization Amendment (S2703/A4497) would amend the state constitution to legalize the recreational use of marijuana for adults age 21 and older.[75]  It would also legalize the cultivation, processing, and sale of retail cannabis.[76]  The constitutional amendment would take effect on January 1, 2021.[77]

According to a poll conducted by Brach Eichler in July 2020, 68% of New Jersey registered voters support adult-use cannabis legalization.[78]

SOUTH DAKOTA (South Dakota Constitutional Amendment A)

South Dakota Constitutional Amendment A (CA-A) would legalize the recreational use, possession, and distribution (up to one ounce) of marijuana for individuals 21 years old and older.[79] Additionally, the amendment would require the state legislature to create a medical marijuana program and legalize the sale of hemp by April 1, 2022.[80]  Furthermore, it would require all revenue—aside from implementation costs—to be split between the state’s general fund and public education system.[81]

Currently, there isn’t any polling information available regarding local support for or against this proposed constitutional amendment.

B. State Medical Marijuana Legislation Currently on State Ballots in 2020

MISSISSIPPI (Mississippi Initiative 65 (Citizen Advocate Version) and Mississippi Initiative 65A (Republican Version)

Mississippi Initiative 65, put forward by citizen advocates, would allow patients with qualifying conditions to use medical marijuana.[82]  This amendment would allow medical marijuana to be provided only by licensed treatment centers (dispensaries), and create a system to permit caregivers to administer cannabis to debilitated individuals. The Mississippi State Department of Health would regulate and enforce the provisions of this amendment.[83]

Mississippi Initiative 65A, an alternative bill proposed by Republican state legislators, would “restrict smoking marijuana to terminally ill patients; require pharmaceutical-grade marijuana products and treatment oversight by licensed physicians, nurses, and pharmacists.”[84]  However, “pharmaceutical-grade marijuana products” do not exist within existing medical marijuana systems, and it’s unlikely that any medical cannabis flower or oil would meet 65A’s definition of “pharmaceutical-grade.”[85] The only pharmaceutical-grade marijuana products that currently exist are FDA-approved drugs like Epidiolex (CBD) and Dronabinol (THC), which are already available to all appropriate patients via prescription.[86]

Mississippi House Democrats argue that Mississippi Initiative 65A is “designed to confuse voters by placing a similar initiative on November’s ballot to dilute the vote to legalize medical marijuana. … The sole intention of HCR 39 [65A] is to mislead and confuse voters and kill a measure for which the majority of Mississippians are in favor.”[87]

According to a poll conducted by Millsaps College & Chism Strategies poll in Jan. 2019, 67% of Mississippians say they support medical marijuana.[88]  However, it’s unclear whether that polling reflects local opinion regarding Mississippi Initiative 65, Mississippi Initiative 65A, both, or just the legalization of medical marijuana in general.[89]

NEBRASKA (Nebraska Medical Cannabis Constitutional Amendment)

The Nebraska Medical Cannabis Constitutional Amendment would permit individuals 18 years or older (and minors, too, with a parent of guardian’s consent) to obtain a recommendation from a physician or nurse practitioner for the use of medical cannabis to treat a serious medical condition.[90]  It would also legalize the sale and use of medical marijuana, and authorize the state government to develop laws, rules, and regulations to govern the industry.[91]

According to a poll conducted by Fairbank/FPP in Feb. 2017, 77% of eligible Nebraska voters were in favor of legalizing medical marijuana for patients with serious or debilitating conditions.[92]

SOUTH DAKOTA (South Dakota Initiated Measure 26)

South Dakota’s Initiated Measure 26 (IM-26) would establish a medical marijuana program for individuals with a physician-certified debilitating medical condition (including minors).[93]  Patients would be allowed to possess a maximum of three ounces of marijuana, plus additional marijuana products.[94]  Patients could grow at least three plants at home, and more with a physician’s approval.[95]  The program’s rules would be established and enforced by the South Dakota Department of Health.[96]

Currently, there isn’t any polling information available regarding local support for or against this proposed constitutional amendment.

C. Oregon’s Trailblazing Efforts to Decriminalize All Drug-Related Offenses

The Oregon Psilocybin Program Initiative (IP 34)

Psilocybin is the main ingredient found in several types of psychoactive mushrooms.[97]  Its effects on the brain are attributed to its active metabolite, psilocin.[98]  Psilocybin is most commonly found in wild or homegrown mushrooms and sold either fresh or dried.[99]  The most popular species of psilocybin mushrooms is Psilocybe cubensis, which is usually taken orally either by eating dried caps and stems or steeped in hot water and drunk as a tea, with a common dose around 1-2.5 grams.[100]

Oregon’s Initiative 34 (the Oregon Psilocybin Program Initiative) would create a program and screening process for providing psilocybin to individuals 21 years of age or older.[101]  Consumption would be supervised by licensed ‘facilitators,’ and the program would exist under the purview of the Oregon Health Authority, as well as an advisory board of 14-16 individuals appointed by the governor.[102]  The measure requires a two-year development period for the Oregon Health Authority to lay out regulations for the program.[103]

According to a poll conducted by DHM Research in Feb. 2019, 64% of Oregon voters expressed support for lawful access to therapeutic psilocybin services, and 55% supported reducing existing criminal penalties for possessing psilocybin mushrooms.

The Oregon Drug Addiction Treatment and Recovery Act (IP 44)

Oregon’s Initiative 44 (the Oregon Drug Addiction Treatment and Recovery Act) is the first measure of its kind to reach a statewide ballot in the United States.[104]  It would remove criminal penalties for the personal, non-commercial possession of all drugs listed as Schedule I, II, III, or IV under the CSA.[105]  Possession of small quantities would be classified as a “violation” similar to a speeding ticket.[106]  Penalties would be a $100 fine and/or a health assessment at an addiction recovery center.[107]

It would also provide holistic, wide-reaching treatment to drug users, including housing and accessible consultations with social service providers.[108]  And, it would be funded almost exclusively through $100 million in annual cannabis tax revenue.[109]

Currently, there isn’t any polling information available regarding local support for or against this proposed constitutional amendment.

D. So…What’s the Deal with Idaho?

Back in late March, it looked like the coronavirus pandemic-induced shutdown had killed the Idaho Medical Marijuana Act’s chances of making it onto the State’s 2020 ballot.[110]  Advocates of the legislation had to suspend their campaign due to local closures.[111]

But in late June, leaders of a separate initiative campaign (unrelated to the Idaho Medical Marijuana Act) won a federal lawsuit in which they successfully argued that Idaho state officials infringed upon their constitutional petitioning rights.[112]  The presiding judge entered a final order giving state officials the option of simply placing the prevailing group’s measure on the 2020 ballot, or giving the group’s campaign additional time to collect the requisite number of electronic signatures to get their measure placed on the 2020 ballot.[113]  Relying on this federal court decision, supporters of the Idaho Medical Marijuana Act contend that state officials should also either place their marijuana-related legislation on the 2020 ballot, or allow them additional time to obtain the required number of electronic signatures to get their measure placed on the 2020 ballot.[114]

Idaho state officials dispute the validity and enforceability of the federal court’s ruling.  On July 1, 2020, Idaho state attorneys filed an appeal challenging the federal court’s decision.[115]  The 9th U.S. Circuit Court of Appeals is expected to hear and rule on the case soon.[116]

According to a poll conducted in March 2019, 73% of eligible Idaho voters “strongly” or “somewhat” support medical marijuana, while 57% are opposed to recreational marijuana.[117]

III. CONCLUSION

Ready or not, major cannabis reform legislation is going to be passed at the federal level sooner or later, and eventually, nearly all (if not all) 50 states will pass legislation legalizing marijuana for medicinal and/or recreational use. The only question at this point is when will federal legalization occur?

At the federal level, cannabis industry observers say that while it’s unlikely the Republican-controlled Senate will pass a major piece of marijuana reform this year, they expect continued momentum towards that ultimate goal.[118]  Indeed, in 2019, the full U.S. House of Representatives overwhelmingly passed the SAFE Banking Act, and a House committee advanced the MORE Act.[119]

In addition to the recent passage of these landmark cannabis-related bills in Congress, cannabis industry associations and businesses are continuing to keep federal reform moving forward by accelerating their lobbying efforts and expenditures on Capitol Hill.[120]  For example, according to Washington DC-based OpenSecrets.org, which is operated by the nonpartisan Center for Responsive Politics, the Cannabis Trade Federation spent $790,500 on lobbying through the first nine months of 2019, compared with $170,000 for all of 2018.[121]

At the state level, the momentum for legalization of marijuana for medicinal and/or recreational use also continues to grow due in large part to the financial success of the cannabis industry, which continues to exceed expectations. For instance, according to data from BDS Analytics, which tracks dispensary sales, cannabis sales in states that have legalized the plant for medical and recreational purposes totaled about $15 billion in 2019, and are expected to top $30 billion by 2024.[122]  Also, according to cannabis information site Leafly, at the start of 2020, the US cannabis industry had an estimated 243,700 full-time employees.[123]  These types of figures cannot be ignored by cash-strapped states.

Indeed, the cannabis industry’s strong financial results during the coronavirus pandemic has lent credence to a growing notion within the industry that cannabis may be recession-proof and could be a boon to beleaguered state government budgets.[124]  During the pandemic, cannabis businesses were deemed essential in most states where the drug is legal.[125]  Despite some initial volatility from mid-March panic-buying and a subsequent short-term drop off, cannabis sales have remained steady, if not robust.[126]  For example, according to a June market report from Stifel analysts, citing data from analytics firm Headset, sales were up 26% in Washington State and 46% in California.[127]

What was set to be a banner year for the cannabis industry on both the federal and state level has been substantially disrupted and slowed down by the coronavirus pandemic, nationwide protests for equality and social justice, and the impending 2020 presidential election. Regardless, as the country continues to recover, the cannabis industry will continue its momentum to becoming fully legal at the federal level, and in most, if not all, of the 50 states.  Once that happens (and it will eventually), the cannabis industry will begin a meteoric growth that will utterly eclipse the industry’s already strong financial performance.  It will truly be a watershed moment for the industry that will benefit the entire country.

_________________________________________________________________________

In Case You Missed It

PART 1 of 6: The Various Fire, Health, and Safety Risks Associated with Growing and Cultivating Marijuana in Large, Indoor, Commercial Grow Facilities

PART 2 of 6: Fire, Health, and Safety Risks Associated with Cannabis Extraction Methods, and the Rules and Regulations Designed to Address Such Risks

PART 3 of 6:  An Overview of How the Lack of National Standards for Laboratory Tests of Marijuana Products Affects the Public Health and the Marijuana Industry

Part 4 of 6: Medical and Recreational Marijuana: An Overview of the Various Issues Involved in Starting and Operating Marijuana Dispensaries 

 

____________________________________________________________________________

[1] See https://norml.org/blog/2020/07/30/congress-votes-to-protect-legal-marijuana/

[2] Id.

[3] See https://www.politico.com/news/2020/05/12/coronavirus-cannabis-legislation-252313

[4] Id.

[5] See https://www.govtrack.us/congress/bills/116/hr1595/summary

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] See https://www.bradley.com/insights/publications/2020/07/3-cannabis-legislation-predictions-ahead-of-the-2020-election

[15] Id.

[16] See https://www.billtrack50.com/BillDetail/866429

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] See https://www.govtrack.us/congress/bills/116/s422/summary

[23] See https://www.govtrack.us/congress/bills/116/s1028/summary

[24] Id.

[25] See https://www.bradley.com/insights/publications/2020/07/3-cannabis-legislation-predictions-ahead-of-the-2020-election

[26] See https://norml.org/act/federal-bipartisan-bill-to-end-federal-marijuana-prohibition/

[27] Id.

[28] Id.

[29] See https://www.govtrack.us/congress/bills/116/s597/summary

[30] Id.

[31] See https://www.govtrack.us/congress/bills/116/hr1120/summary

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] See https://www.govtrack.us/congress/bills/116/s445/summary

[38] Id.

[39] Id.

[40] See https://www.govtrack.us/congress/bills/116/s179/summary

[41] Id.

[42] See https://www.govtrack.us/congress/bills/116/hr493/summary

[43] See https://www.govtrack.us/congress/bills/116/hr601/summary

[44] Id.

[45] Id.

[46] See https://www.govtrack.us/congress/bills/114/s683/summary

[47] Id.

[48] Id.

[49] See https://www.govtrack.us/congress/bills/115/hr4779/summary

[50] Id.

[51] Id.

[52] Id.  The medical marijuana amendment has been passed every year since 2014, including this past January, 2020.

[53] Id.

[54] See https://www.bradley.com/insights/publications/2020/07/3-cannabis-legislation-predictions-ahead-of-the-2020-election

[55] Id.

[56] Id.

[57] Id.

[58] See https://mjbizdaily.com/us-federal-cannabis-reform-outlook-progress-expected-in-2020-but-distractions-high-hurdles-persist/

[59] Id.

[60] Id.

[61] See https://www.cnn.com/2020/06/24/business/cannabis-legalize-2021-recession/index.html

[62] Id.

[63] Id.

[64] Id.

[65] See https://www.leafly.com/news/politics/2020-marijuana-legalization-voter-guide

[66] Id.

[67] Id.

[68] Id.

[69] Id.

[70] See https://www.leafly.com/news/politics/arizona-2020-marijuana-legalization-initiative

[71] Id.

[72] See https://www.leafly.com/news/politics/election-2020-montanas-marijuana-weed-legalization-initiatives

[73] Id.

[74] Id.

[75] See https://www.leafly.com/news/politics/election-2020-new-jersey-cannabis-legalization-guide

[76] Id.

[77] Id.

[78] Id.

[79] See https://www.leafly.com/news/politics/election-2020-south-dakota-cannabis-legalization-guide

[80] Id.

[81] Id.

[82] See https://www.leafly.com/news/politics/election-2020-mississippi-medical-marijuana-legalization-guide

[83] Id.

[84] Id.

[85] Id.

[86] Id.

[87] Id.

[88] Id.

[89] Id.

[90] See https://www.leafly.com/news/politics/election-2020-nebraska-medical-marijuana-legalization-guide

[91] Id.

[92] Id.

[93] See https://www.leafly.com/news/politics/election-2020-south-dakota-cannabis-legalization-guide

[94] Id.

[95] Id.

[96] Id.

[97] See https://www.leafly.com/news/politics/election-2020-oregon-psilocybin-and-drug-decriminalization-initiatives-guide

[98] Id.

[99] Id.

[100] Id.

[101] See https://www.leafly.com/news/politics/election-2020-oregon-psilocybin-and-drug-decriminalization-initiatives-guide

[102] Id.

[103] Id.

[104] Id.

[105] Id.

[106] Id.

[107] Id.

[108] Id.

[109] Id.

[110] Id.

[111] Id.

[112] Id.

[113] Id.

[114] Id.

[115] Id.

[116] Id.

[117] Id.

[118] See https://mjbizdaily.com/us-federal-cannabis-reform-outlook-progress-expected-in-2020-but-distractions-high-hurdles-persist/

[119] Id.

[120] Id.

[121] Id.

[122] See https://www.cnn.com/2020/06/24/business/cannabis-legalize-2021-recession/index.html

[123] Id.

[124] Id.

[125] Id.

[126] Id.

[127] Id.