Nebraska’s attorney general said in an opinion on Thursday that state efforts to legalize medical marijuana would be preempted by federal law and “would be, therefore, unconstitutional.”
While the opinion concerns specific legislation introduced at the beginning of the year that sought to establish a medical cannabis program—and legal experts said they disagree with its reasoning—the memo could nonetheless have political implications for a separate ballot initiative to legalize medical marijuana for which activists are in the process of collecting signatures.
The attorney general plays a direct role in shaping ballot measures. While the secretary of state certifies petition signatures, a copy of the initiative is sent to the attorney general who “will write a ballot question or title that summarizes (in 100 words or less) the purpose of the measure” and “provide materials that explains the effect of a vote for or against the measure. These items will appear on the ballot.”
The eight-page opinion on legalization legislation, which was requested by Sen. Andrew La Grone (R), describes the federal Controlled Substances Act (CSA), under which cannabis remains listed in the most strictly controlled category of Schedule I drugs. Attorney General Doug Peterson (R) wrote that “Congress has not amended the CSA to remove marijuana from Schedule I, nor have considerable efforts to administratively reschedule marijuana been successful.”
Citing a 2005 U.S. Supreme Court ruling in a case concerning California patients who sought an exemption from enforcement under the CSA for cultivating and possessing cannabis for personal use, Peterson argued that the majority’s opinion demonstrated that legalizing medical cannabis in Nebraska would be unconstitutional.
“It is the opinion of this office that the [Medical Cannabis Act] would suffer from the same legal infirmities as the California scheme in [Gonzalez v. Raich],” Peterson wrote. “Notwithstanding the fact that state-level marijuana legalization schemes have spread in the recent (and discretionary) unwillingness by the federal government to civilly enforce the CSA against states, that exercise of discretion simply does not change the federal law that remains on the books and which Congress has steadfastly maintained.”
“Given Gonzales v. Raich, and given the text and legislative history of the CSA, there is no doubt that Congress intended the CSA to serve the purpose of making all manufacture, sale, and possession of regulated drugs illegal, except to the extent explicitly authorized by the CSA. Nothing about the federal government’s relaxed view of its enforcement obligations under the CSA changes the fact that Congress intended the CSA to prohibit the type of legalization proposed by the MCA.”
“In sum, we conclude that the MSA, by creating a state regulatory scheme that would affirmatively facilitate the cultivation, processing, wholesale distribution, and retail sale of federal contraband on an industrial scale, would frustrate and conflict with the purpose and intent of the CSA,” Peterson concluded. “Accordingly, we conclude that the MCA would be preempted by the CSA and would be, therefore, unconstitutional.”
On the other hand, more than 30 states have legalized medical cannabis since 1996 and the Supreme Court has never ruled that state legalization regimes are preempted by federal law—even in the Raich case, which merely said that federal officials can enforce federal laws against people who are following state laws.
“Raich was not a case about preemption and the attorney general’s attempt to make it into one is misleading. He fundamentally misrepresents the Court’s holding in that case,” Sam Kamin, a professor at the University of Denver’s Sturm College of Law, told Marijuana Moment.
Kamin said that Peterson’s argument is similar to that made by the attorneys general of Nebraska and Oklahoma when they asked the Supreme Court to overturn the marijuana law of neighboring Colorado in 2014.
“The Court chose not to hear that case,” he said.
“Congress may not require the states to pass marijuana prohibitions or to keep their marijuana prohibitions on the books,” Kamin continued. “Nothing in Raich says otherwise.”
That said, the impact of Peterson’s memo may be primarily political, rather than legal, by raising the possibility that the federal government could make a preemption argument if the state enacted a medical marijuana program and the Justice Department chose for the first time to directly challenge it—a message that could cause some voters to rethink supporting the legalization measure if it appears on the state’s 2020 ballot.
Sen. Anna Wishart (D), sponsor of the MCA and founding member of the committee behind the ballot measure, told Marijuana Moment that her legislation “is the product of hours of work with doctors, pharmacist, law enforcement, chambers of commerce and patients.”
“We took best practices from all of the states that have already legalized medical cannabis and put together what I would consider one of the best public health models in the country,” she said in response to the attorney general’s opinion. “Two-thirds of states have medical marijuana laws, the first enacted 23 years ago and no one has successfully challenged them. In fact, Congress has directed the DOJ to back off these programs.”
Since 2014, Congress has enacted and extended an appropriations rider that blocks the Justice Department from interfering with state medical cannabis laws.
“The Nebraska Attorney General’s argument is nonsensical and motivated by his anti-marijuana ideology,” Matthew Schweich, deputy director of the Marijuana Policy Project, which is working with local activists on the ballot measure, told Marijuana Moment. “Nebraskans understand that many other states have functional medical marijuana programs, which demonstrates the baseless nature of this preemption argument.”
Sen. Adam Morfeld (D), who is working with Wishart on medical cannabis efforts, said that the AG’s opinions comes as “no surprise” given that he has been a “chief opponent” of marijuana reform for years.
“Further, just as the legislature can reasonably regulate other constitutional rights such as speech, firearms and religion, they will be able to do the same if medical marijuana passes on the ballot,” he added. “Right now people are suffering needlessly in Nebraska and being treated like criminals because of the attorney general and others.”
Wishart said that the committee working to advance the ballot measure—Nebraskans for Sensible Marijuana Laws—is “confident that our petition will make it onto the ballot and pass and that Nebraskans will finally have a constitutional right to access a medicine that helps them.”
“We are a country of dual sovereignty, complete with the 10th Amendment that affirms the rights of states,” she said.
Read the Nebraska attorney general’s full medical cannabis opinion below:
This story was updated to include comment from Morfeld.
GOP Congressman Falsely Claims Marijuana Can Be Legally Consumed In Public In ‘Many States’
A Republican congressman wrongly claimed that marijuana can be legally consumed in public in “many states” in a Twitter post on Friday.
Following a House vote in favor of anti-vaping legislation that also included a ban on menthol cigarettes, Rep. Andy Barr (R-KY) argued that the bill is an example of government overreach and that it would not prevent youth from using vaping products.
“Now, Democrats propose making possession of a menthol cigarette a violation of federal law when smoking a marijuana joint in public is legal in many states,” he wrote in his tweet. “Instead, we need to focus on real healthcare issues like surprise billing, the opioid epidemic and curbing coronavirus.”
Now, Democrats propose making possession of a menthol cigarette a violation of federal law when smoking a marijuana joint in public is legal in many states. Instead, we need to focus on real healthcare issues like surprise billing, the opioid epidemic and curbing coronavirus.
— Rep. Andy Barr (@RepAndyBarr) February 28, 2020
The claim about laws governing public cannabis consumption is likely to raise eyebrows among reform advocates familiar with state-legal marijuana programs.
It’s not the case that “many states” allow individuals to smoke in public areas. In fact, it’s one of the most commonly prohibited activities in legalization measures.
“Rep. Barr is anti-freedom and pro-false hysteria when it comes to cannabis,” Justin Strekal, political director of NORML, told Marijuana Moment. “Sadly, his desire to continue to see hundreds of thousands of Americans be arrested and incarcerated due to minor marijuana charges is held far too many of his colleagues in Congress.”
Karen O’Keefe, director of state policies at the Marijuana Policy Project, told Marijuana Moment that Barr’s “facts and priorities are wrong.”
“No legalization state allows public smoking of cannabis (other than in adult-only locations in some cases), and almost all medical cannabis states forbid it,” she said. “Marijuana isn’t associated with increased mortality, while cigarettes are associated with more than 480,000 deaths a year in the U.S. alone. Why is Rep. Barr maligning and voting against the safer substance, and working to keep it illegal?”
Here are some examples of public consumption policies in legal cannabis states.
Alaska: For adults over 21 years of age, the law permits “consumption of marijuana, except that nothing in this chapter shall permit the consumption of marijuana in public.”
California: “You can consume cannabis on private property but you cannot consume, smoke, eat, or vape cannabis in public places.”
Colorado: “Using marijuana in any way—smoking, eating or vaping—isn’t allowed in public places.”
Illinois: “There is no public consumption allowed for cannabis. Smoking or consuming weed is illegal in motor vehicles and public spaces, including your front porch.”
Massachusetts: “You can’t use marijuana in any form (smoking, vaping, edibles, etc.) in public or on federal land.”
Nevada: “Adults 21 years and older can legally consume marijuana, but with restrictions on where it can be consumed: You cannot use marijuana in any public place.”
Oregon: “Recreational marijuana cannot be sold or smoked in public.”
Put simply, the notion that public consumption of marijuana is widespread is a false narrative. A standout exception is Oklahoma, where medical cannabis patients are able to consume wherever tobacco is permitted. That said, Barr’s assertion that public marijuana smoking is legal in “many states” is patently false.
That the congressman is perpetuating that narrative isn’t especially surprising, however. Barr is no fan on cannabis, voting against spending bill amendments preventing the Justice Department from using its fund to interfere in state-legal medical marijuana programs as well as a separate measure last year that would’ve extended protections to all state cannabis programs.
That said, Barr isn’t alone in his opposition to the menthol cigarette ban that cleared the House on Friday. Several Democrats joined Republicans in voting against the measure in committee and on the floor. But their reasoning was generally that the targeted ban would lead to overpolicing of minority communities.
Photo courtesy of WeedPornDaily.
VA Notice About Researching Medical Marijuana For Military Veterans Deleted Shortly After Posting
The U.S. Department of Veterans Affairs (VA) will soon release a notice announcing that it is seeking information about the potential of marijuana and its components to treat medical conditions that commonly afflict military veterans.
A post describing the request was briefly uploaded to a government website this week, though it’s since been deleted—but not before Marijuana Moment downloaded a copy. A representative said in response to an e-mailed query that the document was “rescinded for edits” and a revised version will be published “at a future date.”
VA’s Clinical Science Research and Development Service wrote in the filing that it is interested in establishing a research program designed to “examine the potential for medical marijuana and cannabinoids to treat disorders and diseases prevalent in our Veteran population.”
In a request for white papers on the topic, the department said it’s especially interested in identifying potential medical uses for cannabis to treat neuropathic pain and symptoms of post-traumatic stress disorder (PTSD).
“Unrelieved neuropathic pain experienced by Veterans after spinal cord or peripheral nerve injury contributes to depression, anxiety, disrupted sleep, and overall decreased quality of life,” VA said. “PTSD, also highly prevalent in Veterans, is a mental health problem often co-morbid with chronic pain.”
“A large percentage of Veterans who seek relief from these conditions, resort to smoking marijuana or use unregulated dietary cannabis supplements, etc,” it continued. “It is therefore imperative to determine which cannabinoid compounds are truly effective, for which symptoms, in which populations, as well as the associated risks.”
VA said it is committed to researching and developing evidence-based treatment options for veterans, and that’s what the program is meant to address.
“Without the needed evidence base for medical marijuana, this will not be a treatment choice within VA,” the department wrote. “We hope to support a series of clinical trials, which in case of positive outcomes, will generate robust data to support the use of cannabinoid(s) for pain and/or PTSD (or one or more of its symptoms).”
The department plans to conduct clinical trials if the evidence indicates that medical cannabis can be useful. It touted the “cadre of experienced clinical investigators, a highly participatory research population, and mechanisms in place to support every aspect of clinical research.”
White papers submitted to VA under the now-deleted solicitation must contain four components: 1) the “formulation and route of administration of the cannabinoid preparation,” 2) their ability to manufacture and supply those preparations, 3) the investigational new drug registration for compounds that aren’t already approved by the Food and Drug Administration (FDA) and 4) evidence about the product’s efficacy in treating pain, PTSD and other conditions.
As drafted, the notice gives a deadline of March 15 to submit the requested one-page white papers, though it’s not clear if that will change when the updated notice is released.
Additionally, VA said it plans to collaborate with industry partners for “further understanding and development of evidence-based treatments such as medical marijuana and cannabinoids” and on April 27, will hold an “Industry Day” to discuss the “goals of the program.”
The department is “particularly interested in obtaining information about cannabinoid drugs availability, likelihood of their approval by the FDA (if not yet approved), and the data supporting their use for pain and PTSD treatment in Veterans,” the notice says.
Members of Congress and veterans advocates discussed the need for alternative treatment options, including medical cannabis, during a joint committee hearing earlier this week.
At the same time, bipartisan legislators are asking their colleagues to cosponsor a bill that would require VA to conduct research into the therapeutic potential of marijuana for veterans. That legislation already has 104 House cosponsors.
Read VA’s since-rescinded notice on medical marijuana research below:
Photo courtesy of Mike Latimer.
House Democrats Block Amendment To Restrict Marijuana Products In Anti-Vaping Bill
House Democrats pushed back against a Republican attempt to include a flavored marijuana vaping ban in a broader anti-vaping bill that passed the chamber on Friday, arguing that it doesn’t make sense to prohibit products that are already illegal under federal law.
Instead, several lawmakers argued that Congress should enact separate cannabis reform legislation that could include provisions designed to protect public health and reduce the appeal of marijuana to youth.
The issue first came up during a House Rules Committee hearing on Wednesday, with Rep. Morgan Griffith (R-VA) introducing an amendment to “include a prohibition against flavored marijuana products” such that they would be “treated in the same manner as flavored tobacco products” under the bill.
While the congressman argued that language of the legislation implicitly already provides for such a ban, he said it was important to clarify to send a message to young people that they can’t vape products containing nicotine or THC.
“Let it not be said in 2029 that we had a chance and we felt maybe we were getting to it in 2020,” he said. “Let’s just go ahead and do it. Let’s say you can’t sell flavored marijuana THC vaping products. My amendment makes that clear.”
Watch the conversation below:
Democratic members said they shared Griffith’s concern about underage use of flavored cannabis vaping products. However, Rep. Ed Perlmutter (D-CO) pushed back and said the proposal is not germane because marijuana remains illegal under federal law and so regulating these products requires separate congressional action.
Earlier in the hearing, he suggested that his House-passed cannabis banking bill—the Secure and Fair Enforcement (SAFE) Banking Act—could serve as a vehicle to address the body’s concerns.
“We have to start addressing it because we have 47 states that now are allowing some level of marijuana use when the statute under the Controlled Substance Act clearly makes it illegal,” the congressman said. “There’s a bill sitting in the Senate called the SAFE Banking Act that may get back here at some point, and we could put some testing and regulatory components on it.”
Watch this exchange below:
Is a flavored marijuana vaping ban even necessary?
Also during the hearing, Rep. Rob Woodall (R-GA) pressed Rep. Frank Pallone (D-NJ) about the lack of specificity in the bill as it concerns marijuana vaping products. Woodall said he wanted that aspect addressed before he leaves office in nine months.
“It strikes me…more than strange that banana crush [nicotine vaping products] will no longer be available to adults in my district. But banana strawberry cream, which is an illegal [marijuana] product today, will continue to be available at 180 retailers near you,” Woodall said. “I don’t know how I take that message into my high schools and say that we’re going to reduce drug dependency in the months and years ahead.”
Watch the conversation below:
Pallone said he appreciates Woodall’s concern that flavored vaping products can mislead consumers about what they’re actually putting into their bodies and that he “would tend to think that the same problem would exist” for flavored marijuana products. However, he said there’s a distinction to be made.
“Most people tell me that nicotine is much more toxic and much more dangerous to your health than marijuana so maybe we shouldn’t have restrictions on marijuana at all and maybe we shouldn’t have any restrictions on flavored marijuana because the marijuana doesn’t have the same health problems that nicotine has,” he said. “Maybe I should say, assuming that marijuana is dangerous then maybe the flavored should be. But it’s not as dangerous.”
“The reality is that we know that nicotine is much more dangerous than marijuana so maybe the flavors masking it is not as serious a problem as it would be for nicotine,” he said.
Griffith’s amendment was blocked from floor consideration in a party-line vote of 3-6 by the panel, but the conversation around flavored marijuana products continued on Friday on the House floor.
Rep. Greg Walden (R-OR) brought a poster board showing pictures of flavored cannabis vaping products and lamented that they are not explicitly included in the anti-vaping bill.
“If you want to do something about kids—if you want to do something about lung disease—then we need to do something about marijuana and the oils it gets mixed with that this bill does not address,” he said.
But Rep. Earl Blumenauer (D-OR) pointed out that if Republicans are interested in ensuring that such marijuana products are properly regulated, the substance needs to be removed from the Controlled Substances Act to provide Congress with the means to enact regulations.
Rep. Earl Blumenauer counters by pointing to marijuana's schedule I status, saying federal regulation of flavored cannabis would be like trying to regulate "flavored heroin." Plugs the MORE Act to deschedule marijuana. https://t.co/w4Jpudt137
— Emily Kopp (@emilyakopp) February 28, 2020
Imposing regulations on marijuana while it’s still federally prohibited is “like regulating flavored heroin,” he said. The congressman added that a bill to deschedule marijuana called the Marijuana Opportunity Reinvestment and Expungement (MORE) Act would give lawmakers the tools to protect public health.
“The challenge that we have now is to be able to move forward—to be able to protect young people and the public,” Blumenauer said. “Cannabis is a red herring. If we tax and regulate it, then we can deal with the products they’re talking about. But unless and until we bring it—as two-thirds of the states have done—to actually tax and regulate it, we can’t deal with that. It doesn’t matter.”
We have a crisis of youth vaping. And we’ve seen a disturbing number of lung injuries & deaths tied to the oil used in marijuana vaping. Unfortunately #HR2339 before us today does nothing to impact either. Instead, it's a partisan publicity stunt by big government liberal elites. pic.twitter.com/AUx8ZMar0L
— Richard Hudson (@RepRichHudson) February 28, 2020
Not all Democrats were on board with the anti-vaping bill.
It was a tight 213-195 vote in the House on Friday. Top Democratic leaders are faced challenges as they worked to get the broader legislation approved. Some members of the party have expressed opposition over policies to ban flavored tobacco, including menthol, which they argue would lead to overpolicing of minority communities.
Image by Lindsay Fox from Pixabay.