A federal appeals court issued an opinion on Monday determining that a congressionally-approved provision can be invoked to block the Department of Justice from spending money to defend against appeals from people convicted of medical marijuana activity that was in compliance with state laws.
A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, which previously ruled in 2016 that the budget rider (known commonly as “Rohrabacher-Farr” or § 542) protects people who are complying with state medical cannabis laws from being prosecuted for their activities, went even further in the current opinion.
The case at issue concerns Noah Kleinman, who was sentenced to federal prison for various federal marijuana-related crimes on December 8, 2014, just weeks before Congress approved the medical cannabis protections.
“Preliminarily, we clarify that the government’s approach to this case is mistaken,” the court wrote in the Monday opinion. “[Kleinman] argues that § 542 prohibits continued DOJ expenditures on his case since its enactment, which in this case refers to the DOJ’s ongoing litigation on appeal. We determined in [the 2016 ruling] that § 542 can prohibit continued DOJ expenditures even though a prosecution was properly initiated prior to § 542’s enactment…and the same reasoning applies to continued expenditures on a direct appeal after conviction.”
Unfortunately for Kleinman, however, the court ruled that he personally cannot take advantage of the medical marijuana protections because not all of his cannabis actions were in strict compliance with California’s medical use program. Specifically, he was convicted of sending product out of the state, which is a violation of California law.
In the earlier 2016 Ninth Circuit case, known as McIntosh, the court ruled against Department of Justice arguments that the spending provision only stops the government from blocking the implementation of state medical marijuana laws and doesn’t shield patients or providers who are operating in accordance with those laws.
But the court made clear that because the spending rider only concerns individual annual appropriations bills, its protections for states and for persons are temporary.
“We note the temporal nature of the problem with these prosecutions,” the court wrote at the time. “The government had authority to initiate criminal proceedings, and it merely lost funds to continue them. DOJ is currently prohibited from spending funds from specific appropriations acts for prosecutions of those who complied with state law. But Congress could appropriate funds for such prosecutions tomorrow.”
Now, in the opinion in Kleinman’s case, the court elaborates on its reasoning and adds the caveat that DOJ could be blocked from spending money to defend against appeals:
“§ 542 does not require a court to vacate convictions that were obtained before the rider took effect. In other words, when a defendant’s conviction was entered before § 542 became law, a determination that the charged conduct was wholly compliant with state law would not vacate that conviction. It would only mean that the DOJ’s continued expenditure of funds pertaining to that particular state-law-compliant conviction after § 542 took effect was unlawful. That is because, as we explained in McIntosh, § 542 did not change any substantive law; it merely placed a temporary hold on the expenditure of money for a certain purpose… When § 542 took effect, the DOJ was obligated to stop spending funds in connection with any charges involving conduct that fully complied with state law, but that temporary spending freeze does not spoil the fruits of prosecutorial expenditures made before § 542 took effect. Instead, as it pertains to this case, because § 542 became law after Kleinman’s conviction and sentence, but before this appeal, § 542 (if it applies at all) might operate to bar the DOJ from continuing to defend this prosecution on appeal insofar as it relates to those counts that may be determined to involve only conduct that wholly complies with California medical marijuana law.”
However, the court sidestepped the question of whether the medical marijuana protections prevent federal prisons, which fall under the Department of Justice, from spending money to incarcerate people convicted of state-legal medical cannabis activity.
In a footnote in the new opinion, Judge Milan D. Smith, Jr., on behalf of a three-judge panel of the court, said:
“Kleinman separately argues that § 542 compels the Bureau of Prisons, as a subdivision of the DOJ, to stop spending money to incarcerate persons for medical marijuana convictions based on activity that fully complies with state law. We need not resolve this issue in this case. As we have explained, at least two of Kleinman’s convictions fall outside the scope of § 542 because they involved conduct that violates California law. Those two convictions (Counts 1 and 6) carried the longest terms of imprisonment (211 months) and all terms for each count were sentenced to run concurrently. Thus, even if the DOJ could not separately continue to expend funds to incarcerate Kleinman on the remaining counts because of § 542, Kleinman’s custodial status would not be changed because § 542 does not bar his continued incarceration for his conspiracy convictions. Further, Kleinman makes no argument that the Bureau of Prisons would calculate his credit for early release any differently without those concurrent sentences. Thus, we do not decide in this case the impact of § 542 on the Bureau of Prisons’ expenditure of funds to incarcerate persons who were convicted only of federal drug offenses involving conduct that was fully compliant with state medical marijuana laws.”
The state medical cannabis protections temporarily expired over the weekend as part of a federal government shutdown, but have now been extended through February 8 as part of a short-term appropriations deal. It is unclear if they will be included in a longer-term Fiscal Year 2018 spending package that congressional leaders are currently negotiating.
(The new Ninth Circuit opinion is actually an amended version of a ruling the court issued last June, and adds additional analysis about other aspects of Kleinman’s case which don’t directly concern the congressional rider. While the original opinion received some press coverage, most of it focused on jury nullification aspects of the case and the broader interpretation of the medical cannabis protections to cover the appeals process was mostly overlooked at the time.)
Former FDA Chief Wants Federal Government To Regulate State Marijuana Markets
Former Food and Drug Administration (FDA) Commissioner Scott Gottlieb said on Monday that the federal government should regulate state marijuana programs.
In his clearest comments on the issue to date, Gottlieb said in a CNBC appearance that the rise in vaping-related lung injuries underscores the need for a federal regulatory scheme that would empower agencies to impose industry standards on aspects of legal cannabis markets such as THC potency and allowable forms of consumption.
Previously, the official had been ambiguous about the extent to which the federal government should get involved, broadly arguing that vaping issues reflect a consequence of conflicting state and federal laws without specifically saying what his preferred policy fix would be. However, in an editorial for The Wall Street Journal published last week, he provided some clarification—hinting that federal drug scheduling laws should be reformed for cannabis—but still left room for interpretation.
But now, he is beginning to lay out specific details of a regulatory agenda.
Gottlieb said during the TV interview that enforcing prohibition is no longer “politically practicable” and that Congress should pass “a federal law that actually can be enforced and allow federal regulatory authorities to impose appropriate supervision.”
While he said he’s not in favor of adult-use legalization and would “like to see the recreational uses shut down entirely,” the reality is that many states have made that decision and so any federal regulatory scheme would have to include “some accommodation of that.”
“I think the time has come that we need to grapple with this at a federal level. We can’t ignore it any more.”
Asked whether states are capable of providing the types of regulations he’s calling for, Gottlieb said no because there’s a patchwork of policies across the country and states “don’t have the capacity to both police what’s being sold in their so-called legal dispensaries as well as shut down the black market.”
“I think you’re going to need federal authorities in there to do that,” he said.
Under the regulatory model Gottlieb is envisioning, FDA and other agencies such as the Drug Enforcement Administration (DEA) “could regulate what’s being sold for the potency, for the manufacturing, for the ingredients, for the claims that are being made.”
“Even if we were to federalize it and allow some form of recreational use, we could limit what can be sold, the potency of what could be sold, the forms in which it can be sold,” he said, adding that he doesn’t think vaping THC products should be allowed.
Federal agencies could impose “tighter controls on the medical claims, holding them to a higher standard and allowing some form of recreational use, probably for products that are lower concentration, that are only delivered in forms that pose less harm than vaping e-liquids,” he said.
“There’s a way to have a compromise where you allow some form of recreational access in the states that want to allow it but something that looks far different than what you have today, something that’s far less permissive than the state laws,” he said. “That’s not a great outcome in my view from a public health standpoint, but what we have now is far worse where you have a federal government not enforcing the law at all—barely enforcing the law—because they know the existing law isn’t practical, and the states not imposing any supervision because they’re incapable of doing it or they don’t want to step in in a vigorous way.”
Photo courtesy of YouTube/CNBC.
Scotland’s Ruling Party Unanimously Backs Drug Decriminalization Measure
Delegates of the Scottish National Party (SNP) unanimously approved a resolution calling for the decriminalization of drug possession and consumption on Sunday.
At a conference in Aberdeen, lawmakers representing Scotland’s largest party and the third largest in the UK Parliament argued that removing criminal penalties for drug offenses and treating addiction as a public health issue would combat an ongoing overdose crisis.
The proposed amendment to the 1971 Misuse of Drugs Act stipulates that the current law is “not fit for purpose in 21st Century Scotland” and would add a provision “to allow for decriminalization of possession and consumption of controlled drugs so that health services are not prevented from giving treatment to those that need it.”
— Alison Thewliss (@alisonthewliss) October 13, 2019
Members of Parliament Tommy Sheppard, Ronnie Cowan and Alison Thewliss of the SNP introduced the measure.
“Our law enforcement agencies are focused on the weak and vulnerable at the bottom of the pyramid, when they should be focused on the organized criminals at the top,” Sheppard said.
He added that if the UK government declines to pursue the reform move, it should “give Scotland the ability to do it instead, because we will take the steps necessary.”
As SNP back decriminalisation to address the drug-death crisis, we spoke to @TommySheppard MP on the need for urgent action to save lives. If Westminster won't act, Scotland must. #SNP19 #skotia pic.twitter.com/zoUWeVYkIZ
— Skotia (@TheSkotia) October 13, 2019
Cowan noted that many people suffering from addiction have experienced some form of trauma and are self-medicating.
“Decriminalization demystifies drugs and places them firmly in the health arena,” he said. “Drug policy is about a mindset. Decriminalization changes the mindset and by changing that you can treat people as human beings and we can start a recovery process.”
As Common Space reported, previous SNP conferences have also seen the passage of progressive drug reform amendments, including one that would establish safe consumption sites to prevent overdoses and help people transition into treatment. Advocates have expressed frustration that the UK Parliament has generally resisted such harm reduction policies.
The Labour Party announced last month that it would launch a Royal Commission dedicated to reviewing the country’s drug laws if elected to the majority.
“The UK government’s cavalier attitude towards Scotland’s drugs emergency is simply appalling,” Thewliss said. “People are dying on our streets and the risk to the general public from discarded needles and transmission of blood borne diseases is very real—yet the Tories at Westminster sit on their hands.”
Glasgow Councillor Mhairi Hunter said at the conference that “challenging the stigma around addiction means challenging the laws that criminalize addiction.”
Over in the U.S., lawmakers remain primarily focused on reforming federal marijuana laws, but talk of broader decriminalization is growing. A survey released earlier this month found that a majority of Americans (55 percent) support the policy change.
Dietary Supplement Industry Pushes Congress To Allow CBD Product Sales
Four trade associations representing the dietary supplement industry signed a letter urging federal lawmakers to take action to provide for the lawful marketing of CBD products while the Food and Drug Administration (FDA) develops its regulations.
The American Herbal Products Association, Consumer Healthcare Products Association, Council for Responsible Nutrition and United Natural Products Alliance said Congress should “pass legislation to clarify that CBD derived from the hemp plant is a lawful dietary ingredient if the dietary supplement containing the CBD meets established product safety and quality criteria.”
To do that, the groups recommended granting a limited waiver that would exempt CBD products from a provision of the Food, Drug and Cosmetic Act that would allow companies to sell CBD as dietary supplements as long as the products are derived from hemp and meet health and safety standards.
“Given the rapidly growing marketplace of products, it is crucial that Congress take quick action to clarify the legal status of hemp-derived CBD dietary supplements,” the letter states. “At the same time, it is equally essential for FDA to have the resources it needs to protect the public from unsafe CBD products.”
A united supplement industry is urging Congress to take swift action on CBD to assure consumer protection and a clear regulatory framework. See what CHPA, @AHPAssociation, @CRN_Supplements, and @unpafrank have to say, here: https://t.co/pUBGSpXFQf
— CHPA (@CHPA) October 10, 2019
“These actions are urgent given the strong consumer interest in CBD, the growth in products and sales, and the need for clarity among consumers, retailers, and manufacturers about the legal status of these products,” the groups said.
Congressional action is needed, they argued, because FDA officials have indicated that the rulemaking process for CBD could take up to five years. They also expressed appreciation for agriculture spending legislation approved by a the Senate committee that would allocate $2 million to FDA to support their efforts to develop cannabidiol regulations.
“We urge Congress to go even further to include substantial new resources to enable effective FDA oversight of this fast-growing category, including funding for efficient and timely review of new dietary ingredient notifications and enforcement of existing laws governing the safety, manufacturing, and labeling of dietary supplements containing CBD,” the letter continues. “We urge that you work with FDA to determine a level of funding adequate to assure effective regulation of the CBD marketplace that does not detract from other agency enforcement priorities.”
“This is the best, most efficient, and most timely way to both set a clear regulatory framework for the marketplace and better assure consumer protection. While we can appreciate the FDA’s deliberative interest in making sure that consumers have access to safe CBD products, we are concerned that continuing to leave the marketplace without clarity and adequate oversight for an extended period of years will both endanger consumers and the bright future of the hemp-derived products they seek. Since it appears FDA is unlikely to provide a timely and effective resolution to this challenge, Congress must act.”
The dietary supplement industry is far from alone in its call for an expedited process to allow CBD products to be marketed.
A bipartisan coalition of senators—and notably, Senate Majority Leader Mitch McConnell (R-KY)—have also urged FDA to clear a path to allow for the lawful marketing of CBD products while the agency continues to develop regulations.
Read the full CBD letter from the dietary supplement industry groups below:
Photo by Kimzy Nanney.