With the results of last month’s midterm elections—which marijuana basically won—ten states have now legalized cannabis for adults, while 33 allow medical use. Those victories at the ballot box capped a year in which the fight to reform prohibitionist cannabis policies advanced significantly at the state, federal and international levels.
The tally of states that allow the use of marijuana is poised to jump in a big way again in 2019, largely because a slew of pro-legalization candidates for governor also won at the ballot box on Election Day—giving cannabis reform bills a huge boost toward being signed into law sooner rather than later.
“2019 could be a banner year for legalization via state legislatures,” Mason Tvert, spokesman for the Marijuana Policy Project, said in an email. “Several states across multiple regions of the country are strongly considering ending prohibition and regulating marijuana for adult use. A growing number of state lawmakers and governors are either getting behind these efforts or coming to the realization that they cannot hold them up much longer. The steady growth of public support we’ve been seeing around the country will likely translate into some major state-level victories for marijuana policy reform.”
Here are the states that are most likely to legalize marijuana next year, in alphabetical order:
Gov.-elect Ned Lamont (D) said during his campaign that marijuana legalization is “an idea whose time has come.” He followed that up after his win on Election Day by pledging during a transition press conference that moving on the issue will be one of his “priorities” in 2019.
Meanwhile, the state Senate president, who sponsored a legalization bill last year that didn’t move under unsupportive—but outgoing— incumbent Gov. Dannel Malloy (D), says that passing a bill next year is “a significant revenue item” for the state.
Even the House Republican deputy minority leader, who opposes legalization, says he “would think it would pass” when it is brought to a vote on the floor. “Many of those opposed to legalization have left the Legislature.”
Incoming Gov. J.B. Pritzker (D) made support for legalizing marijuana a centerpiece of his campaign, beginning in the primary race against fellow Democrats. At one point he even held a press conference outside of a medical cannabis dispensary.
Shortly after Election Day, Pritzker confirmed that he wants to pursue legalization “nearly right away” when the new legislature convenes.
And the state House speaker, who until now has been noncommittal on ending cannabis prohibition, says he’s on board with the incoming governor’s marijuana plans.
A study from the Illinois Economic Policy Institute and the University of Illinois determined last month that legalizing marijuana would create 24,000 jobs, generate more than $500 million in tax revenue and infuse roughly $1 billion into the state economy overall by 2020.
Incoming Gov. Tim Walz (D), who is taking over for an outgoing Democratic governor who opposes legalization, has pledged to “replace the current failed policy with one that creates tax revenue, grows jobs, builds opportunities for Minnesotans, protects Minnesota kids, and trusts adults to make personal decisions based on their personal freedoms.”
He has also championed marijuana issues as a member of the U.S. House and demonstrated that he knows how to advance reform by authoring the first-ever standalone cannabis bill to pass a congressional committee.
Walz’s efforts to legalize will get a boost from the newly elected Democratic House majority, though Republicans control the Senate by one seat. Still, the election of a pro-legalization governor puts Minnesota on the list of states to watch to end prohibition in 2019.
The Granite State is one place that could legalize marijuana in 2019 even in light of strong gubernatorial opposition.
Gov. Chris Sununu (R), despite signing a bill to decriminalize cannabis possession into law in 2017, says he’s so unwilling to go further that he will veto any legalization legislation “regardless of what the language looks like.”
But now, after Democrats took control of both chambers of the state legislature in the midterm elections, the incoming House speaker said he believes that there is enough support from lawmakers to potentially override an expected Sununu marijuana veto.
That’s a bold statement, especially coming from a lawmaker who himself twice voted against cannabis legalization bills, and it indicates how quickly the politics of marijuana continue to evolve in more and more states.
Garden State Gov. Phil Murphy (D), who was elected in 2017, campaigned on supporting marijuana legalization. Since being inaugurated earlier this year, he has continued to push for an end to prohibition.
Although the governor and lawmakers have quibbled over details such as tax rates and regulatory structures, progress is already being made toward getting a bill to Murphy’s desk. Senate and Assembly committees approved marijuana legalization legislation last month, demonstrating that momentum exists to pick up the issue in the new year, when the governor and legislative leaders will continue to negotiate the finer points of exactly how to end prohibition.
The prospects for legalizing marijuana in New Mexico got a lot better with the election of Michelle Lujan Grisham (D) as the state’s next governor.
During a debate she said legalization will bring “hundreds of millions of dollars to New Mexico’s economy.” She has also supported cannabis reform measures as a member of Congress.
The state’s House speaker said that if a legalization bill were to make it to the floor, “it would probably pass.”
Even a Republican senator who is personally opposed to legalization now publicly admits that it is likely on the way soon, saying, “I don’t want recreational marijuana, but I understand the political reality that it is here.”
A year ago few observers thought that the Empire State would be one of the next states to legalize. But in that time, Gov. Andrew Cuomo (D) flipped from calling marijuana a “gateway drug” to saying it’s time to “legalize the adult use of recreational marijuana once and for all.” He also created a task force whose sole goal is to draft legal cannabis legislation for lawmakers to consider in 2019, and directed the Health Department to study legalization, with the resulting report concluding that the “positive effects” of ending cannabis prohibition “outweigh the potential negative impacts.”
And Cuomo, who says that ending cannabis prohibition is one of his top priorities for 2019, isn’t the only prominent elected official to evolve on marijuana this year. Three days after the governor endorsed legalization, so did onetime opponent Bill de Blasio, the Democratic mayor of New York City.
The push to make marijuana legal in New York got another huge boost on Election Day, when Democrats took control of the state Senate, where Republicans had long stymied cannabis reform efforts.
While Gov. Gina Raimondo (D) has been cautious about legalization over the years, her rhetoric has shifted recently, even going so far as to suggest that the state might be effectively peer pressured into ending cannabis prohibition by neighboring states that are moving ahead.
“I’m not sure at this point it is practical to say we’re not going to legalize and regulate,” she said.
House Speaker Nicholas Mattiello (D), who has similarly been reluctant about legalization, is also now pointing to other states as a reason to more seriously consider changing Rhode Island’s laws.
“I am mindful that Massachusetts has legalized it, I believe Connecticut is going to legalize it,” he said. “I think we’re probably going to end up with more social costs without the revenues and that would probably be the worst situation of all.”
Meanwhile, the Republican House minority leader is all-in on legalization.
While Vermont lawmakers in 2018 already legalized the possession and home cultivation of small amounts of marijuana, the law does not allow any form of commercial production and sales, leaving the state without any recreational cannabis tax revenue or mechanism to regulate its trade.
Advocates believe the Democratic-led legislature is likely to send a bill adding legal cannabis commerce to the desk of Gov. Phil Scott (R) in 2019. While Scott signed the less ambitious legislation into law this year, he did so only reluctantly, and has expressed concerns about going further until the state has a better system in place to detect impaired driving. That said, the state Senate has already approved legal marijuana sales legislation in past sessions, and the House appears more open to doing so now that possession is legal—setting up a potential showdown over the issue between lawmakers and the governor in the coming months. It remains to be seen whether Scott would veto a broad legalization bill or whether lawmakers would be able to muster enough support to override him if he does so.
Still, with the regional dynamic heavily shifting in favor of legalization in the Northeast, Vermont is a key state to watch when it comes to cannabis in 2019.
Other Cannabis Moves To Watch
The above covers the states that seem poised to fully legalize marijuana in 2019. But there are others that seem potentially ready to do so via ballot initiatives in 2020 or that could pass other cannabis-related legislation in the upcoming new year.
In Kansas, for example, Gov.-elect Laura Kelly (D) supports legalizing medical cannabis, setting the state up to join its neighbors, Missouri and Oklahoma, in allowing patients to use the drug with their doctor’s recommendation.
Incoming Wisconsin Gov. Tony Evers (D) says he wants to decriminalize marijuana and allow medical cannabis, and also supports letting voters decide on a referendum to fully legalize marijuana.
In Pennsylvania, Gov. Tom Wolf (D), who until recently said that the state is not ready for legalization, now says that he’s ready to take a serious look at the issue. He also supports moving ahead immediately with less far-reaching moves to decriminalize cannabis possession.
In Texas, recently reelected Gov. Greg Abbott (R) indicated during a debate that he is open to some form of marijuana decriminalization—something the state Republican Party officially endorsed this year. Meanwhile, advocates will also push lawmakers to legalize medical cannabis.
And advocates are making it a priority to encourage South Carolina lawmakers to legalize medical cannabis.
Looking ahead to 2020, states like Arizona, Florida, Ohio and North Dakota could consider ballot measures to fully legalize marijuana, while Mississippi, Nebraska and South Dakota could see medical cannabis questions go before voters during that year’s high-turnout presidential election.
“In state after state, lawmakers are coming out of the woodwork in favor of legalization,” Justin Strekal, political director for NORML, said. “Be it on the grounds of criminal justice reform, community-police relations, racial justice, tax revenue or that they just see the writing on the wall, the political evolutions are accelerating at a tremendous rate.”
Photo courtesy of Jurassic Blueberries.
Federal Judge Gives Arkansas Marijuana Legalization Activists A Boost With Signature Gathering Ruling
Activists behind a marijuana legalization initiative in Arkansas are seeing glimmers of hope that they will be able to qualify for the November ballot despite serious setbacks caused by the coronavirus pandemic.
A federal judge ruled on Monday that the secretary of state must accept signatures that were not collected in-person or notarized, as has been required by existing policy, because of excessive burdens that imposes on campaigns amid the health crisis. Legalization advocates say the temporary injunction, which comes before a final ruling, gives them confidence their measure can qualify ahead of a July 3 deadline to submit signatures.
Now people can download, print and mail in signed petitions—significantly bolstering the chances the legal cannabis campaign can make up for the petitioning deficit created by stay-at-home orders and social distancing requirements enacted due to the COVID-19 outbreak.
In the April lawsuit that brought about the federal injunction (which was not filed by legalization activists but by another initiative campaign), plaintiffs also made the case that full-scale electronic signature gathering should be permitted. U.S. District Judge P. K. Holmes empathized with that request in his order, noting that in many scenarios outside the ballot process, officials have recognized the validity of digitally signed documents—including in legal proceedings he oversees.
“It is not that electronic signatures cannot similarly be determined to be genuine. In fact, electronic signatures are commonplace and accepted for all manner of official business, and not only by the State, but by this Court,” he said. “Counsel for Plaintiffs and the Secretary of State electronically signed the briefing on this very motion, and the Court has electronically signed this opinion and the order.”
However, the judge said there must be a balance that takes into account the state’s interest in ensuring the validity of signatures and so he’s doubtful the final ruling will provide for digital signatures.
In any case, the court’s temporary injunction bodes well for the marijuana reform campaign, Arkansans for Cannabis Reform, which says it was on the path to qualifying before in-person signature gathering was suspended. Melissa Fults, executive director of the group, told Marijuana Moment in a phone interview on Wednesday that she’s confident the new policies will help the initiative get placed before voters.
“I am still confident. We’re going to give a hard push these next four-and-a-half weeks—hoping and praying that we get signatures and get them turned in and get on the ballot,” she said. “And I think it’ll pass once it gets on the ballot.”
Arkansas voters approved a medical cannabis ballot measure in 2016.
As the state begins the process of reopening, Fults said the campaign will also be engaging in limited in-person collection with enhanced safety mechanisms in place, as well as “drive by” gathering for people to sign the initiative from their vehicles.
In order to make the ballot, the group needs to submit about 90,000 valid signatures from registered voters by July 3. Fults said they’ve collected roughly 20,000 so far, and so these last five weeks will prove critical.
Under the proposal, adults 21 and older would be able to purchase and possess up to four ounces of cannabis flower and grow up to six plants and six seedings.
A minimum of one dispensary must be licensed per county, and there must be at least 30 shops per congressional district.
Tax revenue from marijuana sales would first go toward implementation. After that, 60 percent would be used to fund public pre-K and after school programs and 40 percent would fund the operations of the University of Arkansas for Medical Sciences.
Another campaign that was working to put cannabis legalization on the state’s ballot told the Arkansas Democrat Gazette on Tuesday that it is ending its effort for the year and will shift its focus to 2022. An Arkansas True Grass spokesperson said “we weren’t able to do any of our spring events” because of the virus, leaving them without an opportunity to qualify.
Here’s a status update on other drug policy reform efforts throughout the country:
Activists in Montana and Nebraska have resumed signature gathering with new safety measures in place for campaigns to legalize adult-use marijuana and medical cannabis, respectively.
In Arizona, the organizers of a legalization effort asked the state Supreme Court to instruct the secretary of state to allow people to sign cannabis petitions digitally using an existing electronic system that is currently reserved for individual candidates seeking public office. That request was denied but in March the campaign expressed optimism that they had amassed enough signatures to qualify anyway.
Separate Oregon campaigns to decriminalize drug possession while significantly expanding substance misuse treatment and to legalize psilocybin mushrooms for therapeutic purposes recently submitted more than enough raw signatures to qualify for ballot access, though they must still be verified.
Activists in Washington State are continuing to work on a drug decriminalization and treatment measure.
Washington, D.C. activists behind a psychedelics decriminalization campaign are more confident that they will be able to make the ballot after the District Council voted in favor of a series of changes to signature gathering protocol.
A federal judge recently ordered Ohio officials to accept electronic signature submissions to place local marijuana decriminalization measures on the ballot—a decision that could potentially have positive implications for a statewide legalization campaign in the works.
California activists had hoped to get a measure to legalize psilocybin on the state’s November ballot, but the campaign stalled out amid the coronavirus pandemic.
A California campaign seeking to amend the state’s cannabis law asked for a digital petitioning option, but state officials haven’t signed on.
A campaign to legalize cannabis in Missouri officially gave up its effort for 2020 due to signature collection being virtually impossible in the face of social distancing measures.
North Dakota activists said they plan to continue campaign activities for a marijuana legalization initiative, but it’s more likely that they will seek qualification for the 2022 ballot.
Idaho medical cannabis activists announced that they are suspending their ballot campaign, though they are still “focusing on distributing petitions through online download at IdahoCann.co and encouraging every volunteer who has downloaded a petition to get them turned in to their county clerk’s office by mail, regardless of how many signatures they have collected.”
Prior to the COVID-19 outbreak and stay-at-home mandates, measures to legalize marijuana for medical and recreational purposes qualified for South Dakota’s November ballot.
The New Jersey legislature approved putting a cannabis legalization referendum before voters as well.
And in Mississippi, activists gathered enough signatures to qualify a medical cannabis legalization initiative for the ballot—though lawmakers also approved a competing (and from advocates’ standpoint, less desirable) medical marijuana proposal that will appear alongside the campaign-backed initiative.
Read the federal judge’s order on Arkansas signature gathering below:
Scientists And Veterans File Lawsuit Challenging DEA’s Marijuana Rescheduling Denials
The Drug Enforcement Administration (DEA) is facing yet another marijuana-related lawsuit—and this time, researchers and veterans are challenging the agency’s denial of prior cannabis rescheduling requests.
The Scottsdale Research Institute (SRI) filed suit last week in the U.S. Ninth Circuit Court of Appeals, asking for a review of DEA’s scheduling determinations in 2020, 2016 and 1992. In all cases, the agency denied the petitions, citing statutory obligations to maintain the status of cannabis as a Schedule I drug under the Controlled Substances Act.
Petitioners are taking exception to the basis of those denials, raising questions about DEA’s reliance on scheduling standards that they feel are arbitrary and misinterpret federal law. In particular, they are seeking reviews of the agency’s claims that marijuana must be strictly scheduled because, the government has claimed, it has no currently accepted medical value and has not been proven to be safe.
They also argue that another statutory policy DEA says necessitates marijuana being strictly controlled is unconstitutional.
“The reason we’re filing this is because, ultimately, the research has been impeded,” Matt Zorn, an attorney representing SRI in the case, told Marijuana Moment. “We’re trying to get the administration to remove those roadblocks.”
In terms of valid therapeutic value, the agency has said there are five criteria that a substance must meet, including the reproducibility of the drug, the existence of controlled studies establishing safety and efficacy and “whether the drug is not accepted by qualified experts.”
Lawyers representing SRI argued in a filing that the test “has no basis in the statute, is contrary to the statutory text, structure, history, and purpose, departs from the original understanding of the statute and rests on flawed and outdated case law.”
Further, they said DEA’s determination that there’s a “lack of accepted safety for use of marijuana under medical supervision” is wrong because it “misconstrues the statute and is arbitrary, capricious, and contrary to law because the agency has improperly imported a clinical efficacy requirement.”
In its past denials of rescheduling petitions, the agency has asserted that marijuana can only be placed in either Schedule I or II. But the attorneys said the statute justifying that determination is “an unconstitutional delegation of legislative authority” that “violates core separation of powers principles” by granting the attorney general authority to schedule drugs on his or her discretion based on an interpretation of international treaty obligations.
“[T]he statute outsources regulatory power to create domestic criminal law to international organizations and subordinates domestic law to treaty obligations, conventions, and protocols,” the suit states. “Then, it entrusts the Attorney General, a member of the executive branch, to execute non-self-executing international treaty obligations, providing him no intelligible principle, instructions, standards, or criteria whatsoever against which to measure what ‘he deems most appropriate.’ This is unconstitutional.”
Stephen Zyskiewicz, who filed the handwritten 2020 rescheduling petition that is central to the new suit’s claims, is not a party to the case. Instead, several military veterans, as well as SRI and its principal investigator Sue Sisley, are the plaintiffs.
“Marijuana’s schedule I status and DEA’s determinations hinder SRI’s clinical research—the very clinical research that DEA requires under its unlawful interpretation of 21 U.S.C. § 812(b)(1)(B) to consider removing marijuana from schedule I—in several key respects,” the lawsuit states. For example, the scheduling status has meant that “SRI has had to delay FDA-approved clinical trials to investigate the safety and efficacy of smoked marijuana in treating breakthrough pain in terminal cancer patients.”
This isn’t SRI’s first time taking the feds to court over their marijuana decisions. The institute, which is among several dozen applicants to become a federally authorized manufacturer of cannabis for research purposes, successfully forced DEA to issue an update on the status of their application processing and then got the Justice Department to hand over a “secret” memo that DEA allegedly used to justify a delay in deciding on those proposals.
“What has been animating all of these lawsuits is that we can’t get the research done,” Zorn said. “The ideal result is that we stop filing lawsuits and the administration decides it wants to support cannabis research. But until that happens, we’ll be in the courts.”
Meanwhile, a public comment period recently ended for proposed rules that DEA published as part of its attempt to expand the number of authorized cannabis manufacturers. Many advocates made the case that marijuana research should not be the purview of DEA at all and should instead be handled by a federal health agency.
DEA could also find itself being challenged over its marijuana scheduling decisions in the U.S. Supreme Court in a separate case. After an appeals court dismissed a lawsuit because the plaintiffs said they wouldn’t push for rescheduling through administrative channels, attorneys in the case said they will soon request that the nation’s highest court take it up.
Read the new lawsuit challenging DEA’s marijuana rescheduling denials below:
Photo by Aphiwat chuangchoem.
USDA Approves Hemp Plans For U.S. Virgin Islands And Four Indian Tribes
The U.S. Department of Agriculture (USDA) announced on Wednesday that it has approved hemp regulatory plans from a U.S. territory and four additional Indian tribes.
The U.S. Virgin Islands is the first territory to have its proposal accepted. USDA also signed off on plans from the Cheyenne River Sioux Tribe, Chippewa Cree Tribe, Lac Courte Oreilles Band of Lake Superior Chippewa Indians and Red Lake Band of Chippewa Indians.
That brings the total number of approved plans across states, territories and tribes to 47.
USDA has been signing off on hemp plans on a rolling basis since the crop and its derivatives were federally legalized under the 2018 Farm Bill. Earlier this month, Massachusetts joined the list of states where proposed regulations for hemp have been approved.
The department said in a new notice that it “continues to receive and review hemp production plans from states and Indian tribes.”
While the agency released an interim final rule for a domestic hemp production program last year, industry stakeholders and lawmakers have expressed concerns about certain policies it views as excessively restrictive.
USDA announced in February that it will temporarily lift two provisions that the industry viewed as problematic. Those policies primarily concern testing and disposal requirements. The department declined to revise the THC limit, however, arguing that it’s a statutory matter that can’t be dealt with administratively.
Agriculture Secretary Sonny Perdue has said on several occasions that the Drug Enforcement Administration influenced certain rules, adding that the narcotics agency wasn’t pleased with the overall legalization of hemp.
Meanwhile, the Food and Drug Administration (FDA) is still in the process of developing regulations for CBD. It sent an update on its progress to Congress in March, explaining that the agency is actively exploring pathways to allow for the marketing of the cannabis compound as a dietary supplement and is developing enforcement discretion guidance.
An FDA public comment period was reopened indefinitely for individuals to submit feedback on CBD regulations.
Amid the coronavirus pandemic, hemp industry associations pushed for farmers to be able to access to certain COVID-19 relief loans—a request that Congress granted in the most recent round of coronavirus legislation.
However, USDA said last week that hemp farmers are specifically ineligible for its Coronavirus Food Assistance Program. While the department initially said it would not reevaluate the crop’s eligibility based on new evidence, it removed that language shortly after Marijuana Moment reported on the exclusion.
Hemp farmers approved to produce the crop do stand to benefit from other federal loan programs, however. The department recently released guidelines for processing loans for the industry.
Photo courtesy of Brendan Cleak.