A New Jersey Senate and Assembly committee approved identical bills on Monday to implement marijuana regulations following voter approval of an adult-use legalization referendum last week.
The Senate Judiciary Committee and Assembly Oversight, Reform and Federal Relations Committee discussed the legislation, which was introduced on Friday. The Senate panel approved the bill in a 5-1 vote, with several abstentions, after debate over provisions concerning social equity, home cultivation and tax revenue allocation for law enforcement purposes.
A companion bill cleared the Assembly committee about an hour later.
Members of the Senate panel also took up and merged two bills to decriminalize cannabis in the short term. That passed as well. Meanwhile, the leader of the chamber is calling on the state attorney general to issue a directive to end prosecutions for low-level marijuana offenses.
Sen. Nicholas Scutari (D), chair of his Senate panel and sponsor of the legalization bill, called the drug war a “miserable failure” that has has a disparate impact on communities of color. He also argued that regulating cannabis would help quash the illicit market, generate needed tax revenue and free up law enforcement resources.
Under his bill—the Cannabis Regulatory, Enforcement Assistance and Marketplace Modernization Act—adults 21 and older would be allowed to purchase and possess up to an ounce of marijuana or five grams of concentrates. Retailers wouldn’t launch right away, but as the licensing system is set up, medical cannabis dispensaries would be able to sell marijuana products to adult consumers.
Local bans on cannabis shops would be permitted, but delivery services would be allowed statewide regardless of each jurisdiction’s policy. Retailers could also provide for on-site consumption with local approval. Home cultivation for personal use would be prohibited, unlike in most legal states.
These proposed regulations largely align with those included in a bill Scutari sponsored in the previous session that did not have enough votes to pass. The failure of the legislature to approve legalization led lawmakers to place the question of legalization before voters as a referendum.
“The people have spoken. Many have decided that what I’ve been saying for over a decade is true,” the senator said. “We’ve had enough. Marijuana should not be something that we treat differently than alcohol—that we should regulate it. We should ensure the safety of our citizens. And we should make reasonable regulations so that we can achieve a product that is safe for our people’s ingestion.”
In the Senate committee, certain legislators and advocates argued that the social equity and restorative justice provisions of the legislation are insufficient. For example, they said the home grow ban and licensing caps are antithetical to the intent of the ballot measure. A representative of the ACLU New Jersey called for some tax revenue to be reinvested in communities most harmed by the drug war.
With marijuana legalization, we have a historic opportunity for racial and social justice. We have to do it right.
There are two hearings today, and two Thursday, on legalization and decriminalization.
Above all, these policies MUST address the harms of the drug war.
— ACLU of New Jersey (@ACLUNJ) November 9, 2020
The legalization bill needs 3 more things:
-Investment in communities most harmed by the drug war
– Ensuring access to licenses for people with marijuana records
-Full funding for expungement
Call them right now. Then watch the hearings this week.https://t.co/sqSuEHYVs9
— ACLU of New Jersey (@ACLUNJ) November 9, 2020
The panel also discussed two separate bills to further decriminalize marijuana and provide a pathway for expungements for prior cannabis convictions. The Assembly approved a marijuana decriminalization bill in June.
The legalization legislation will now head to the Senate Budget and Appropriations Committee and Assembly Appropriations Committee—which last year advanced a cannabis expungements bill that was later signed into law—before arriving on the floor of either chamber. Hearings are scheduled for Thursday in both panels.
Over in the Assembly Committee, members and witnesses similarly discussed the social justice components of the chamber’s companion bill, with advocates calling for tax revenue to be earmarked for disadvantaged communities and for lawmakers to allow people to grow their own marijuana at home.
Assemblywoman Annette Quijano (D), sponsor of the legislation, told activists, “I appreciate your voice on this issue and I am listening.”
"We strive to put forth legislation that will not only end cannabis prohibition but empower the communities that have been impacted the most." – @AnnetteQuijano on her bill guiding the regulation of adult use cannabis in New Jersey pic.twitter.com/sPjo1qj37d
— NJ Assembly Democrats (@njassemblydems) November 9, 2020
Chairman Joseph Danielsen (D) argued that despite the pushback from those testifying, the proposal is “one of the most creative, progressive bills in the country” and that it would “be hard for any state to do better than we have.”
On home cultivation, the chairman predicted that “New Jersey will get there at some point in the future—just not today.”
— NJ Assembly Democrats (@njassemblydems) November 9, 2020
Gov. Phil Murphy (D), who strongly advocated for the legalization referendum, appointed Dianna Houenou, a current administration staffer and former policy counsel to the ACLU of New Jersey, to head the state’s Cannabis Regulatory Commission (CRC) on Friday. She emphasized the social justice would be a key regulatory priority.
CRC would be responsible for granting licenses to growers, processors, wholesalers, laboratory testing facilities, distributors, delivery services and retailers.
But as those are set up, the bill will let medical cannabis dispensaries sell marijuana products for the recreational market. Scutari proposed that plan last month, saying that adults could start purchasing cannabis from dispensaries within just weeks after the election. However, a top regulator pushed back on the proposal, noting that the state’s existing medical marijuana have already struggled to keep up with patient demand.
The senator addressed that issue in the legislation. His bill would allow each medical producer to open two more cultivation facilities to increase the available supply. “There’s no reason why, in the next 90 days, they can’t grow any more product and get it out on the shelves,” he told Marijuana Moment in a phone interview last week. “I mean, not saying they will, but they could—it’s not a physical impossibility.”
Also under the legislation, 15 percent of cannabis licenses would go to for minority-owned businesses, and an additional 15 percent would be given to businesses owned by women or veterans. If an applicant pledges to hire people from communities disproportionately impacted by crime or unemployment, they would get licensing priority.
Further, the bill would establish an Office of Minority, Disabled Veterans and Women Cannabis Business Development that would be tasked with promoting participation in the industry by marginalized groups.
The proposal would apply the state’s current sales tax rate of 6.6625 percent on adult-use marijuana sales, which is relatively low compared to other legal states. Individual municipalities could impose an additional two percent tax on the market. Revenue would go toward the implementation of the program, law enforcement for training purposes and the state’s general fund.
Assembly Speaker Craig Coughlin (D) said on Monday that he will be pushing to add a recreational marijuana “user fee” to the legislation, saying it will “help reduce the financial burden on New Jersey’s taxpayers and specifically its urban communities.”
Now that residents have voted to #legalizemarijuana in NJ, the Legislature will be working on establishing the necessary regulatory infrastructure. Both the Assembly and Senate will hear testimony today on proposed cannabis legislation. Follow along: https://t.co/6s6HRdYUWk pic.twitter.com/5JJspnM5tg
— Speaker Craig Coughlin (@SpeakerCoughlin) November 9, 2020
Now that NJ has legalized recreational cannabis, we can grow our revenue base by imposing an additional user fee that will help reduce the financial burden on New Jersey's taxpayers and specifically its urban communities. I will work to include it in enabling legislation.
— Speaker Craig Coughlin (@SpeakerCoughlin) November 9, 2020
“The legal sale of cannabis will allow us to fairly address issues of criminal justice and provide needed revenue for our state,” Coughlin said in a statement. “The enabling legislation will ensure that this money is returned to our communities and that it is distributed fairly.”
— NJ Assembly Democrats (@njassemblydems) November 9, 2020
Murphy wrote that he agreed with the speaker on the need to add additional marijuana taxes and thanked him for “prioritizing fairness throughout the process” of legislating on cannabis reform.
As we pursue adult-use marijuana legalization, we finally have an opportunity to raise revenue through an excise tax to invest in communities most harmed by the War on Drugs.
— Governor Phil Murphy (@GovMurphy) November 9, 2020
But Senate President Steve Sweeney (D) joined Scutari and another senator in issuing a joint statement opposing any added taxes on cannabis sales.
“To further protect this revenue flow, we should not touch the voter-approved tax schedule,” they said. “We should not impose any additional taxes that will put the cost of legally purchasing marijuana out of reach for the communities that have been impacted the most.”
Meanwhile, as legislators work to advance the legalization enabling legislation, New Jersey Attorney General Gurbir Grewal (D) is encouraging police and prosecutors to exercise discretion around marijuana offenses in the interim.
Sweeney said that the top prosecutor should “use his legal and moral authority to issue clear guidelines to all law enforcement authorities—state, county and municipal—to stop all arrests and suspend all pending criminal cases against individuals for possession of amounts of marijuana that would be considered personal use.”
“It’s time for these arrests that have disproportionately affected people of color to stop,” he said.
It is time for the @NewJerseyOAG to use both the legal & moral authority to issue protocols to all of our NJ’s law enforcement agencies. It is time to stop the arrests & suspend all pending cases against individuals for possession of personal #cannabis.https://t.co/mBtVN9es2m pic.twitter.com/tqJ7G5bPJQ
— Steve Sweeney (@NJSenatePres) November 9, 2020
He also said in response to the Senate committee vote that the action marks “an historic step forward for New Jersey.”
The #Senate took steps to implement the public referendum legalizing adult-use marijuana as approved by the #voters. Our legislation will take the necessary actions to create a regulatory system to oversee the operations of the cannabis industry in NJ.https://t.co/bNXHTLKyjt
— Steve Sweeney (@NJSenatePres) November 9, 2020
“With the public’s approval, we will be able to move forward to correct social and legal injustices that have had a discriminatory impact on communities of color at the same time that marijuana is regulated and made safe and legal for adults,” he said. “This represents a significant change in public policy that will have a real-life impact on social justice, law enforcement and the economy.”
Assemblyman Jamel Holley (D) similarly said last week that all low-level cannabis prosecutions should be ended, stating that the vote demonstrates that “there is no patience anymore for prosecuting people caught smoking and possessing marijuana.”
This article has been updated to include additional comments and information about the Assembly committee vote.
Photo courtesy of Brian Shamblen.
Federal Agency Loosens Marijuana-Related Grant Funding Restrictions For Mental Health Treatment
The federal Substance Abuse and Mental Health Services Administration (SAMHSA) loosened restrictions this week on grant funding for state health providers and other entities that allow patients to use medical marijuana for mental heath treatment.
The Pennsylvania Department of Drug and Alcohol Programs flagged the new policy change in a notice to SAMHSA grant recipients on Monday. It said that the federal agency has removed language from its terms and conditions that until now has prevented grant funds from going to any institution that “provides or permits marijuana use for the purposes of treating substance use or mental disorders.”
This restriction led the state department to issue a memo in June warning recipients and applicants about the possible withholding of funding.
Despite the recent change, SAMHSA is still continuing a narrower ban that says federal funds themselves “may not be used to purchase, prescribe, or provide marijuana or treatment using marijuana.”
The broader prohibition, which has now been rescinded, prompted a notice last year from Maine’s Education Department, which said is was no longer eligible for certain federal funds to support mental health programs in schools because the state allows students to access medical marijuana.
It seems the federal agency is now being somewhat more permissive.
Here’s how SAMHSA’s updated marijuana restriction reads:
“SAMHSA grant funds may not be used to purchase, prescribe, or provide marijuana or treatment using marijuana. See, e.g., 45 C.F.R. 75.300(a) (requiring HHS to ensure that Federal funding is expended in full accordance with U.S. statutory and public policy requirements); 21 U.S.C. 812(c)(10) and 841 (prohibiting the possession, manufacture, sale, purchase or distribution of marijuana).”
The older, more broad prohibition read:
“Grant funds may not be used, directly or indirectly, to purchase, prescribe, or provide marijuana or treatment using marijuana. Treatment in this context includes the treatment of opioid use disorder. Grant funds also cannot be provided to any individual who or organization that provides or permits marijuana use for the purposes of treating substance use or mental disorders. See, e.g., 45 C.F.R. § 75.300(a) (requiring HHS to “ensure that Federal funding is expended in full accordance with U.S. statutory requirements.”); 21 U.S.C. §§ 812(c)(10) and 841 (prohibiting the possession, manufacture, sale, purchase or distribution of marijuana). This prohibition does not apply to those providing such treatment in the context of clinical research permitted by the DEA and under an FDA-approved investigational new drug application where the article being evaluated is marijuana or a constituent thereof that is otherwise a banned controlled substance under federal law.”
The marijuana restrictions were first added to grant award terms for Fiscal Year 2020. The language was initially carried over to Fiscal Year 2021 but was more recently switched out for the narrower language by the federal agency.
In a January 2020 FAQ that the Pennsylvania department shared from SAMHSA this June, the federal agency responded to a prompt inquiring whether grant recipients can serve patients who are “very clear about their wish to remain on their medical marijuana for their mental or substance use disorder.”
“No. The organization cannot serve a patient who is on medical marijuana for a mental or substance use disorder and wishes to remain on such treatment,” it said. “SAMHSA promotes the use of evidence-based practices and there is no evidence for such a treatment; in fact, there is increasing evidence that marijuana can further exacerbate mental health symptoms.”
While the agency seemed adamant in enforcing that policy at the time, it appears to have had a change of heart and has since loosened the restriction.
A SAMHSA spokesperson told Marijuana Moment that the new rules took effect on Sunday, but played down their significance.
“This Aug. 1 clarification simply made clearer what was already in place: SAMHSA funds should not be used to procure a federally prohibited substance,” he said in an email.
While it is true that the revised provision, as was the case in the prior language, states that federal funds cannot be used to pay for marijuana, the spokesperson avoided commenting on the new deletion of the broader prohibition on grants going to entities that otherwise allow patients to use medical cannabis to treat substance use or mental disorders.
After SAMHSA announced in 2019 that its marijuana policy would impact organizations applying for its two main opioid treatment programs and another that provides funding to combat alcoholism and substance misuse, the Illinois Department of Human Services and Oregon Health Authority issued notices on the impact of the rule.
Read the Pennsylvania department’s notice on the SAMHSA marijuana policy change below:
Photo courtesy of Philip Steffan.
Mexican Lawmakers Could Finally Legalize Marijuana Sales Next Month (Op-Ed)
The legislature missed repeated deadlines, and then the Supreme Court moved to allow homegrow. What’s next?
By Zara Snapp, Filter
Mexico has never seemed so close and yet so far from fully regulating the adult-use cannabis market.
A first Supreme Court resolution determined in 2015 that the absolute prohibition of cannabis for personal use was unconstitutional because it violates the right to the free development of personality. To reach jurisprudence in Mexico, five consecutive cases, with the same or more votes each time, must be won before the Supreme Court. This was achieved in October 2018, which detonated a legislative mandate that within 90 days, the Senate should modify the articles in the General Health Law that were deemed unconstitutional.
The first deadline came and went without the Senate modifying the articles; so the Senate requested an extension, which was granted. The second deadline to legislate expired on April 30, 2020—but another extension was provided because of the COVID-19 pandemic.
At first, it looked like the third time was the charm. The Senate overwhelmingly approved the Federal Law to Regulate and Control Cannabis in November 2020 and passed it to the Chamber of Deputies, the lower house, for review and approval. Since the deadline of December 15, 2020, was fast approaching, the Chamber asked for its own extension. The Supreme Court granted it (until April 20, 2021) and the bill underwent significant changes before being approved by the Chamber on March 10, and so sent back to the Senate.
The Senate certainly had enough time to review and either reject or accept the changes made by the lower house. That would have made this a shorter story. However, the Senate had other plans. Rather than approve the bill or request an additional extension, it simply did not do anything. June’s national midterm elections were approaching, and political calculations were made. The legislative process came to a standstill.
Since the Senate did not approve the bill by the deadline, the Supreme Court basically did what it had mandated Congress to do. It activated a mechanism to guarantee rights that had only been undertaken once before in Mexican history: the General Declaration of Unconstitutionality (GDU).
On June 28, the Supreme Court approved, with a qualified majority of eight of the 11 Ministers, that two articles in the General Health Law must be modified to permit adults to cultivate cannabis for personal use in their homes.
These changes were officially published on July 15, with specific instructions to the Health Secretary to approve authorizations for any adult who applies.
The GDU has certain restrictions attached, including that this is only for personal use and cannot be used to justify any commercialization of cannabis or cannabis-derived products. Adults cannot consume in front of minors, or other adults who have not expressly given their permission. Nor can they operate heavy machinery or drive while under the effects.
With the GDU, the judicial process concludes. However, the Supreme Court was clear in its final recommendations: Congress can and should legislate to clear up inconsistencies and generate a legal framework for cannabis users.
Whether the Senate decides to take up the matter again in September when it returns to its legislative session will depend largely on its political whim. The body no longer has a deadline to meet; however, there are growing calls from society to regulate the market beyond home-grow, as well as several legal contradictions that obviously need to be harmonized.
The General Health Law has now been modified and the health secretary must approve permits or authorizations for adults to cultivate in their homes. But the Federal Criminal Code has not changed—it still penalizes those same activities with sanctions ranging from 10 months to three years or more in prison.
The Supreme Court decision ignores the need for a comprehensive regulation that would allow the state to apply taxes to commercial activities, which are currently still criminalized with penal sanctions. It also overlooks the urgency of an amnesty program for the thousands of people currently incarcerated on low-level cannabis charges, or hampered by criminal records for such charges.
The Senate should now revisit the bill it initially passed. It should maintain the positive aspects of the bill, which would improve things well beyond the scope of the Supreme Court decision. These include provision for cannabis associations (permitting up to four plants per person for up to 20 members), for home-grow without the need to request authorization, and for a regulated market with a social justice perspective—allocating 40 percent (or more!) of cultivation licenses to communities harmed by prohibition and imposing restrictions on large companies.
The Senate could also build upon the previous version of the bill by eliminating simple possession as a crime, by allowing the associations to operate immediately and guaranteeing the participation of small and medium companies through strong government support.
During the last three years, and before, civil society has closely accompanied the process of creating this legislation, providing the technical and political inputs needed to move forward in a way that could have great social benefits for Mexico.
By becoming the third country in the world to regulate adult cannabis use, after Uruguay and Canada, Mexico could transition from being one of the largest illegal producers to being the largest legal domestic market in the world. As well as economic benefits, this could have substantial impacts on how criminal justice funds are spent, freeing up law enforcement dollars to focus on high-impact crimes and changing the way the state has shown up in communities that cultivate cannabis.
Rather than eradicating crops, the government could accompany communities in gaining legal licenses, provide technical assistance and improve basic services. These positive externalities of regulation could signal a shift from a militarized state of war to a focus on rights, development and social justice.
Of course, this all depends on key political actors recognizing the benefits—and that requires political will. Mexico deserves better; however, it remains to be seen whether legislators will act.
This article was originally published by Filter, an online magazine covering drug use, drug policy and human rights through a harm reduction lens. Follow Filter on Facebook or Twitter, or sign up for its newsletter.
Oregon Governor Plans To Veto Bill To Regulate Kratom Sales That Advocates Say Would Protect Consumers
The governor of Oregon has announced her intent to veto a bill that’s meant to create a regulatory framework for the sale and use of kratom for adults.
The Oregon Kratom Consumer Protection Act is bipartisan legislation that would make it so only people 21 and older could purchase the plant-based substance, which some use for its stimulating effects and which others found useful in treating opioid withdrawals.
Vendors would have to register with the state Department of Agriculture to sell kratom. The agency would be responsible for developing regulations on testing standards and labeling requirements. The bill would further prohibit the sale of contaminated or adulterated kratom products.
But while the House and Senate approved the legislation in June, Gov. Kate Brown (D) said on Sunday that she plans to veto it, in large part because she feels the federal Food and Drug Administration (FDA) is better suited to regulate the products.
“Given there is currently no FDA-approved use for this product and there continues to be concern about the impacts of its use, I would entertain further legislation to limit youth access without the state agency regulatory function included in this bill,” the governor said.
This comes as a disappointment to advocates and regulators who share concerns about the risks of adulterated kratom but feel a regulatory framework could help mitigate those dangers and provide adults with a safe supply of products that have helped some overcome opioid addiction.
“Kratom has been consumed safely for centuries in Southeast Asia and Americans use it in the same way that coffee is used for increased focus and energy boosts. Many use kratom for pain management without the opioid side effects,” Rep. Bill Post (R), sponsor of the bill, wrote in an op-ed published in June. “The problem in Oregon is that adulterated products are being sold.”
“Kratom in its pure form is a natural product,” he said. “Adulterated kratom is a potentially dangerous product.”
Pete Candland, executive director of the American Kratom Association, said in written testimony on the bill in February that four other states—Utah, Georgia, Arizona and Nevada—have enacted similar legislation with positive results.
He said that “the number of adulterated kratom products spiked with dangerous drugs like heroin, fentanyl, and morphine in those states has significantly decreased” in those states.
Meanwhile, six states—Vermont, Alabama, Indiana, Wisconsin, Arkansas and Rhode Island—have banned kratom sales altogether.
Candland said that number is actually a testament to the noncontroversial nature of the plant, as prohibition is only in effect in six states despite “a full-throated disinformation campaign on kratom by the FDA with outrageously untrue claims about kratom being the cause of hundreds of deaths.”
After failing to get kratom prohibited domestically, FDA recently opened a public comment period that’s meant to inform the U.S. position on how the substance should be scheduled under international statute.
“Kratom is abused for its ability to produce opioid-like effects,” FDA wrote in the notice. “Kratom is available in several different forms to include dried/crushed leaves, powder, capsules, tablets, liquids, and gum/ resin. Kratom is an increasingly popular drug of abuse and readily available on the recreational drug market in the United States.”
Responses to the notice will help inform the federal government’s stance on kratom scheduling in advance of an October meeting of the World Health Organization’s (WHO) Expert Committee on Drug Dependence, where international officials will discuss whether to recommend the substance be globally scheduled.
Last week, the U.S. House of Representatives approved a report to spending legislation that says federal health agencies have “contributed to the continued understanding of the health impacts of kratom, including its constituent compounds, mitragynine and 7-hydroxymitragynine.”
It also directed the Health and Human Services secretary to continue to refrain from recommending that kratom be controlled in Schedule I.
Late last year, the Agency for Healthcare Research and Quality (AHRQ) asked the public to help identify research that specifically looks at the risks and benefits of cannabinoids and kratom.
The Centers for Disease Control and Prevention (CDC) last year separately received more than one thousand comments concerning kratom as part of another public solicitation.
Photo courtesy of Wikimedia/ThorPorre.