For the second consecutive year, a Kentucky legislative committee has voted to approve a bill to legalize medical marijuana. The proposal still faces an uphill battle, but one of the leading opponents of last year’s effort to legalize conceded that there’s “a narrow path” to it becoming law this time around.
Supporters at Wednesday’s hearing by the Judiciary Committee, which drew such large crowds that staffers had to open a separate overflow room in the Capitol, clashed on familiar grounds. Legalization advocates noted the established benefits of medical cannabis and praised the bill’s reliance on scientific evidence. Opponents worried about the possibility of creating public health risks and stressed that too much about marijuana that is still unknown.
“We just need a little more clarity,” said Rep. Kim Moser (R), who voted no on the measure and was skeptical that lawmakers should be making decisions about medicine at all. “We don’t have clear answers to the indications, we don’t know how to dose this medication. It’s not a medication yet.”
Others worried that the bill could normalize cannabis use or lead to various social ills, such as increased traffic accidents and homelessness.
Supporters, meanwhile, made the case that the bill represents a thoughtful, reasonable medical marijuana system, which most Kentuckians say they support in polls.
“We tweaked the bill over the summer,” Rep. Jason Nemes (R), the legislation’s lead sponsor, told the committee. “We made some changes to it. We’ve been through this before. It’s a big issue for Kentucky.”
Ultimately the measure passed on a 17-1 vote on Wednesday, drawing cheers from the audience. Some lawmakers expressed reservations about details of the bill but said that it nevertheless represents a step forward.
“I see this as a useful tool in the toolbox for doctors and an awesome option for people who don’t want to be addicted to narcotics,” said Rep. Chris Harris (D), who voted yes on the bill.
Reps. Nima Kulkarni (D) and Reginald Meeks (D) also voted yes but warned that the legislation threatens to benefit large corporations over small farmers and other business owners.
Legalization advocates cheered the panel’s vote to advance the issue.
“Kentuckians have been waiting far too long for safe, legal access to cannabis for medical use,” Matt Simon, legislative analyst at the pro-legalization Marijuana Policy Project, said in a statement after the vote. “Patients and doctors in other states have learned through experience that cannabis is beneficial as an alternative to opioids and other prescription drugs. Passing HB 136 is a moral imperative for Kentuckians who are suffering with debilitating medical conditions.”
As introduced, House Bill 136 would legalize medical cannabis in Kentucky and regulate its use. It would establish a limited list of qualifying conditions and create an oversight system to regulate and tax commercial sales. Smoking raw cannabis would be forbidden under the bill, although flower could be sold by dispensaries for other uses.
With the Judiciary Committee’s approval, the bill now heads to the full House floor.
The same panel last year approved a medical marijuana bill but it did not receive floor consideration by the end of the session. Supporters said Wednesday that the current legislation is a better version that deserves to be passed.
Dr. Jeff Block, an anesthesiologist and addiction specialist who helped Florida set rules and regulations for its medical marijuana program, told lawmakers that the bill’s list of qualifying conditions, for example, reflects “high-quality, evidence-based data” about what ailments cannabis has been scientifically shown to treat effectively. He noted that the bill allows for the addition of new qualifying conditions as more evidence becomes available.
Eric Crawford, who was in a 1994 car accident that left him quadriplegic, reminded lawmakers that thousands of Kentucky patients already use medical marijuana to treat their conditions. Some of those patients seek alternatives after traditional therapies don’t work, while others choose cannabis in order to avoid more dangerous drugs.
“Narcotics make me out of my mind,” Crawford told the panel. “They make me high and unable to function. I haven’t had an opioid in more than six years.”
“You think we’re all criminals,” he added. “What would you do if you had a lifelong illness and cannabis helped you?”
Nemes, the bill’s sponsor, later replied that if cannabis could help his wife or children, “I would break the law in a New York minute.”
The issue has overwhelming support of Kentucky residents. Nine out of 10 Kentuckians said in a recent poll that they support legalizing medical cannabis, up from 78 percent in 2012.
While less than half of respondents said they support broader recreational legalization, support for medical marijuana was strong across party lines: 95 percent of Democrats, 92 percent of independents and 90 percent of Republicans said they support legalization.
If the measure is approved by the House, it will also need to clear the Senate to be enacted. Senate President Robert Stivers (R), widely seen as one of the main legislative opponents to medical marijuana legislation, admitted last month that there’s a possibility of the bill squeaking through.
“I know that Representative Nemes is trying hard and that he is modifying and amending,” Stivers told Kentucky Today, “and I think there is a path, but it is a narrow path.”
Kentucky Gov. Andy Beshear (D), who was elected in November, has said he supports medical cannabis legalization. “I would vote for it because I’ve seen the impact opioids have had on every Kentucky community,” he said during last year’s campaign.
“So many Kentucky families have seen a loved one fall into addiction, and their lives have been devastated,” he said. “If medical marijuana is an alternative and gives people the chance to get pain relief without being subjected to opioids, I think it’s something we’ve got to explore.”
Photo courtesy of Philip Steffan.
GOP Senator Presses Treasury Secretary On Tax Credits For Marijuana Businesses
A Republican senator recently pressed the head of the Treasury Department on whether marijuana businesses qualify for a federal tax benefit.
During a Senate Finance Committee hearing on Wednesday, Treasury Secretary Steven Mnuchin was asked about the “opportunity zone” tax credit, which is meant to encourage investments in “distressed,” low-income communities through benefits such as deferrals on capital gains taxes.
Sen. James Lankford (R-OK), whose state’s voters approved a medical marijuana ballot measure in 2018, told Mnuchin that businesses that derive more than five percent of their profits from things like alcohol sales are ineligible for the tax credit, but there’s “not a definition dealing with cannabis businesses.”
“Are they within that five percent amount or are they not at all because there’s a federal prohibition on cannabis sales?” the senator asked.
“I’m going to have to get back to you on the specifics,” Mnuchin replied.
“That’d be helpful to get clarity because there are cannabis businesses across the country that, if they fall in opportunity zones, they’ll need clarification on that,” Lankford said. “When you and I have spoken about it before—it’s difficult to give a federal tax benefit to something that’s against federal law.”
Lankford, who opposes legalization and appeared in a TV ad against his state’s medical cannabis ballot measure, has raised this issue with the Treasury secretary during at least two prior hearings. When he questioned whether cannabis businesses qualify for the program last year, he clarified that he personally does not believe they should.
While Mnuchin’s department has yet to issue guidance on the issue, he said in response to the earlier questioning that his understanding is that “it is not the intent of the opportunity zones that if there is this conflict [between state and federal marijuana laws] that has not been cleared that, for now, we should not have those businesses in the opportunity zones.”
Mnuchin has also been vocal about the need for Congress to address the lack of financial resources available to state-legal marijuana businesses. Because so many of these companies are forced to operate on a largely cash-only basis, he said the Internal Revenue Service has had to build “cash rooms” to store their tax deposits.
“There is not a Treasury solution to this. There is not a regulator solution to this,” he said during one hearing. “If this is something that Congress wants to look at on a bipartisan basis, I’d encourage you to do this. This is something where there is a conflict between federal and state law that we and the regulators have no way of dealing with.”
Last week’s Finance Committee hearing was centered around President Trump’s Fiscal Year 2021 budget request, which separately includes a provision calling for the elimination of an appropriations rider that prohibits the Justice Department from using its fund to interfere in the implementation of medical cannabis laws as well as a continued block on Washington, D.C. spending its own local tax dollars to legalize marijuana sales.
Photo courtesy of C-SPAN.
American Bar Association Wants Protections For Marijuana Banking And Lawyers Working With Cannabis Clients
The American Bar Association (ABA) approved two marijuana-related resolutions during its midyear meeting on Monday.
The group’s House of Delegates voted in favor of proposals endorsing pending federal legislation to protect banks that service cannabis businesses and calling for a clarification of rules to ensure that lawyers will not be penalized for representing clients in cases concerning state-legal marijuana activity.
Under the banking resolution, ABA “urges Congress to enact legislation to clarify and ensure that it shall not constitute a federal crime for banking and financial institutions to provide services to businesses and individuals, including attorneys, who receive compensation from the sale of state-legalized cannabis or who provide services to cannabis-related legitimate business acting in accordance with state, territorial, and tribal laws.”
HOD Res 103D: Adopted. Urges enactment of laws to ensure that it shall not constitute a federal crime for banks and financial institutions to provide cannabis-related services. #ABAMidyear
— American Bar Association (@ABAesq) February 17, 2020
ABA added that “such legislation should clarify that the proceeds from a transaction involving activities of a legitimate cannabis-related business or service provider shall not be considered proceeds from an unlawful activity solely because the transaction involves proceeds from a legitimate cannabis-related business or service provider, or because the transaction involves proceeds from legitimate cannabis-related activities.”
A bill that would accomplish this goal was approved by the House of Representatives last year, but it’s currently stalled in the Senate, where it awaits action in the Banking Committee. That panel’s chair, Sen. Mike Crapo (R-ID) is under pressure from industry stakeholders to advance the legislation, but he’s also heard from anti-legalization lawmakers who’ve thanked him for delaying the bill.
“Passage of the [Secure and Fair Enforcement] Banking Act or similar legislation will provide security for lawyers and firms acting to advise companies in the industry against having their accounts closed or deposits seized,” a report attached to the ABA resolution states. “This will also foster the rule of law by ensuring that those working in the state-legalized legitimate cannabis industry can seek counsel and help prevent money laundering and other crimes associated with off-the-books cash transactions.”
“Currently, the threat of criminal prosecution prevents most depository institutions from banking clients, including lawyers, who are in the stream of commerce of state-legalized marijuana. This Resolution is necessary to clarify that such provision of legal and other services in compliance with state law should not constitute unlawful activity pursuant to federal law.”
The second marijuana-related resolution ABA adopted on Monday asks Congress to allow attorneys to serve clients in cannabis cases without facing federal punishment.
Text of the measure states that the association “urges Congress to enact legislation to clarify and explicitly ensure that it does not constitute a violation of federal law for lawyers, acting in accord with state, territorial, and tribal ethical rules on lawyers’ professional conduct, to provide legal advice and services to clients regarding matters involving marijuana-related activities that are in compliance with state, territorial, and tribal law.”
HOD Res 103B: Adopted as revised. Urges enactment of laws to ensure lawyers can provide legal advice and services for clients' legal marijuana-related activities. #ABAMidyear
— American Bar Association (@ABAesq) February 17, 2020
Such a change would provide needed clarity for lawyers as more states legalize cannabis for adult use. ABA’s own rules of conduct have been a source of conflict for attorneys, as it stipulates that they “shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.” Federal law continues to regard marijuana as an illegal, strictly controlled substance.
An ABA report released last year made the case that there’s flexibility within that rule, however, as “it is unreasonable to prohibit a lawyer from providing advice and counsel to clients and to assist clients regarding activities permitted by relevant state or local law, including laws that allow the production, distribution, sale, and use of marijuana for medical or recreational purposes so long as the lawyer also advises the client that some such activities may violate existing federal law.”
A new report attached to the resolution states that “statutory guidance is needed that explicitly ensures that attorneys who adhere to their state ethics rules do not risk federal criminal prosecution simply for providing legal counsel to clients operating marijuana businesses in compliance with their state law.”
“This Resolution accomplishes this elegantly by harmonizing federal criminal liability with States’ ethical rules regarding the provision of advice and legal services relating to marijuana business. If a state has legalized some form of marijuana activity and explicitly permitted lawyers to provide advice and legal services relating to such state-authorized marijuana activity, such provision of advice and legal services shall not be unlawful under the Controlled Substances Act or any other federal law.”
Last year, ABA adopted another cannabis resolution—arguing that states should be allowed to set their own marijuana policies.
Border Patrol Union Head Admits Legalizing Marijuana Forces Cartels Out Of The Market
The head of the labor union that represents U.S. Border Patrol agents acknowledged on Friday that states that legalize marijuana are disrupting cartel activity.
While National Border Patrol Council President Brandon Judd was attempting to downplay the impact of legalization, he seemed to inadvertently make a case for the regulation all illicit drugs by arguing that cartels move away from smuggling cannabis and on to other substances when states legalize.
Judd made the remarks during an appearance on C-SPAN’s Washington Journal, where a caller said that “the states that have legalized marijuana have done more damage to the cartels than the [Drug Enforcement Administration] could ever think about doing.”
“As far as drugs go, all we do is we enforce the laws. We don’t determine what those laws are,” Judd, who is scheduled to meet with President Trump on Friday, replied. “If Congress determines that marijuana is going to be legal, then we’re not going to seize marijuana.”
“But what I will tell you is when he points out that certain states have legalized marijuana, all the cartels do is they just transition to another drug that creates more profit,” he said. “Even if you legalize marijuana, it doesn’t mean that drugs are going to stop. They’re just going to go and start smuggling the opioids, the fentanyl.”
One potential solution that Judd didn’t raise would be to legalize those other drugs to continue to remove the profit motive for cartels. Former presidential candidate Andrew Yang made a similar argument in December.
Federal data on Border Patrol drug seizures seems to substantiate the idea that cannabis legalization at the state level has reduced demand for the product from the illicit market. According to a 2018 report from the Cato Institute, these substantial declines are attributable to state-level cannabis reform efforts, which “has significantly undercut marijuana smuggling.”
Additionally, legalization seems to be helping to reduce federal marijuana trafficking prosecutions, with reports showing decreases of such cases year over year since states regulated markets have come online.
In his annual report last year, Supreme Court Chief Justice John Roberts also noted reduced federal marijuana prosecutions—another indication that the market for illegally sourced marijuana is drying up as more adults consumers are able to buy the product in legal stores.