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US Supreme Court Asked To Settle States’ Conflict On Medical Marijuana Insurance Reimbursements

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The U.S. Supreme Court is being asked to settle an emerging dispute on whether employers can be forced to reimburse workers for the cost of medical cannabis used to treat job-related injuries. To date, state courts have come to differing conclusions on the issue, a situation advocates say warrants intervention from the high court.

In a friend-of-the-court brief filed last week, Empire State NORML and two other groups—the New York City Cannabis Industry Association and the Hudson Valley Cannabis Industry Association—say the justices should take up an appeal out of Minnesota, using it to settle the broader tension on the conflict between state and federal cannabis laws for good.

Going further than the narrow issue of workers’ compensation reimbursements for marijuana, a key piece of the group’s argument is that the federal government has been so inconsistent in its enforcement of cannabis laws that prohibition should be overturned entirely.

“The Court should take this opportunity to prevent the further spread of this insidious condition by invocation of the Doctrine of Estoppel,” the brief says. “It should find that the Schedule I status of cannabis under the federal Controlled Substance Act is no longer enforceable. Doing so will cure the problem.”

The case itself, Musta v. Mendota Heights Dental Center, arises out of a dispute over whether the Controlled Substances Act (CSA) pre-empts a Minnesota state law requiring employers to reimburse workers for the cost of medical marijuana to treat a work-related injury. In October, the Minnesota Supreme Court ruled that the CSA indeed prevented the reimbursement.

That ruling contributed to an emerging split between state courts on the issue. The Maine Supreme Court had decided a case in that state along similar lines, while supreme courts in both New Hampshire and New Jersey have ruled that reimbursements to medical marijuana patients can go forward regardless of federal prohibition.

Susan Musta, the patient in the Minnesota case, filed a brief last month asking the U.S. Supreme Court to take up the case.

“Courts have been bedeviled with difficult questions regarding how to apply state marijuana laws in the shadow of the federal prohibition on marijuana,” her appeal states. “As more and more states legalize and regulate medical and recreational marijuana, cases raising these questions will multiply. This Court’s guidance on this important issue is urgently needed.”

While neither Empire State NORML nor the two industry groups are party to the suit itself, their amicus brief encourages justices to reconsider the state court’s ruling and settle the inconsistency between states.

“The U.S. Supreme Court’s job is to tell when there’s a split between the highest courts in two states or more,” said David C. Holland, a New York attorney and the executive director of Empire State NORML. Holland, who filed the new brief, is also co-founder of the New York City Cannabis Industry Association and the Hudson Valley Cannabis Industry Association.

Generally Holland’s brief argues that although the letter of the CSA is clear—cannabis is a prohibited drug of the most restricted class—permissive actions by the federal government in recent decades have made it virtually impossible for states or medical marijuana patients to know what’s actually allowed.

“Nobody wants to enforce it anymore, but nobody wants to rewrite it,” Holland told Marijuana Moment in an interview. “There’s no longer a good faith basis to let it continue to be enforced.”

States shouldn’t have to settle such a fundamental constitutional questions themselves, his brief says. Failure by the federal government to squarely address the conflict, however, has led to a situation in which most states have passed some form of cannabis legalization despite an almost-categorical ban at the federal level.

“The vast majority of states have found cannabis to be an effective medicine and passed legislation to that effect in direct contravention of the CSA,” the brief says. “It seems fundamentally unfair to place the onus on State Supreme Courts to have to make determinations about the applicability of federal preemption and determine the existence of a ‘positive conflict’ when the U.S. attorney generals [sic] have refused to do [so] for the past 25 years.”

Holland made similar arguments in a separate amicus brief to the Supreme Court last year in a different case.

While federal agencies often claim that the CSA broadly prohibits cannabis activity, Holland’s brief highlights examples of where the government has made sweeping exceptions.

A series of Department of Justice memos under President Barack Obama, for example, advised federal prosecutors not to spend their limited resources to disrupt legal state marijuana programs or target individual patients. Congress has also passed spending restrictions and other measures over the years that effectively allowed state-level legalization of medical cannabis to move forward.

The Trump administration further muddied the waters. Early on, Jeff Sessions, the former president’s first AG and an outspoken critic of cannabis use, rescinded the so-called Cole memo, a Justice Department guidance document advising federal prosecutors not to target state-legal cannabis systems. But Sessions’s successor, Attorney General Bill Barr, promptly pivoted.

“I’m not going to go after companies that have relied on the Cole memorandum,” he said at his confirmation hearings, saying it was “important not to upset the interests and expectations of the businesses and investors who have entered the legal marijuana industry.”

Barr called the situation “untenable,” describing it as “almost like a backdoor nullification of federal law.

U.S. Supreme Court Justice Clarence Thomas also recently took issue with the government’s inconsistent stance on cannabis. In a statement issued in June, after the court declined to take up a tax case centered on cannabis, Thomas criticized the government’s approach as “contradictory” and “unstable.”

“Once comprehensive, the Federal Government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana,” he wrote.

“Whatever the merits of Raich when it was first decided, federal policies of the past 16 years have greatly undermined its reasoning,” Thomas continued, referring to a 2005 Supreme Court ruling, Gonzales v. Raich, where the court ruled the federal government could prohibit state-level cannabis activity irrespective of state law. “Though federal law still flatly forbids the intrastate possession, cultivation, or distribution of marijuana … the Government, post-Raich, has sent mixed signals on its views.”

Thomas wrote that the situation “strains basic principles of federalism and conceals traps for the unwary.”

“Given all these developments,” he said, “one can certainly understand why an ordinary person might think that the Federal Government has retreated from its once-absolute ban on marijuana.

In light of the federal government’s ambiguous approach, Holland’s brief contends that the cannabis’s Schedule I designation under the CSA should be done away with completely as a matter of fundamental fairness.

“The festering supremacy and nullification legal carbuncle continues to infect American jurisprudence with regard to the Schedule I designation of cannabis,” the brief concludes. “It must be eradicated to end this constitutional crisis. The need for supremacy of all rational federal laws, Due Process, and notions of fairness all should compel this Court to invoke the Doctrine of Estoppel to cure this problem once and for all.”

Mendota Heights Dental Center is due to file its response to Musta’s request for the Supreme Court to take up the case on January 14. After that time, the justices will decide whether to hear the appeal.

IRS Official Gives Marijuana Businesses Advice On Tax Compliance

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Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.

Ben Adlin is a Seattle-based writer and editor. He has covered cannabis as a journalist since 2011, most recently as a senior news editor for Leafly.

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Bipartisan Pennsylvania Senators File Bill To Let Medical Marijuana Patients Grow Their Own Plants

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A bipartisan group of Pennsylvania senators introduced a bill on Thursday that would allow medical marijuana patients to cultivate their own plants for personal use.

Sens. Dan Laughlin (R) and Sharif Street (D) first announced their intent to file the legislation in November, arguing that it is a necessary reform to ensure patient access by giving people a less costly alternative to buying from dispensaries.

Registered patients who are 21 and older, and who have been residents of the state for at least 30 days, could grow up to six plants in an “enclosed and locked space” at their residence, according to the text of the bill. They would be allowed to buy cannabis seeds from licensed dispensaries

 

In an earlier cosponsorship memo for the new home grow bill, the lawmakers said that letting patients cultivate their own medicine would “help ease the cost and accessibility burdens for this important medicine.”

The new legislation has three other initial cosponsors in addition to Street and Laughlin.

Street had attempted to get the reform enacted as an amendment to an omnibus bill this summer, but it did not advance.

The senators argue that patients in particular are deserving of a home grow option, as some must currently travel hours to visit a licensed dispensary and there are financial burdens that could be alleviated if patients could grow their own plants for medicine.

Late last year, Laughlin and Street also unveiled a separate adult-use legalization proposal that faces significant challenges in the GOP-controlled legislature. And Street is behind another recent cannabis measure to provide state-level protections to banks and insurers that work with cannabis businesses.


Marijuana Moment is already tracking more than 1,000 cannabis, psychedelics and drug policy bills in state legislatures and Congress this year. Patreon supporters pledging at least $25/month get access to our interactive maps, charts and hearing calendar so they don’t miss any developments.

Learn more about our marijuana bill tracker and become a supporter on Patreon to get access.

In the interim, Lt. Gov. John Fetterman (D), who is running for U.S. Senate this year, said one of his key goals in his final year in office is to ensure that as many eligible people as possible submit applications to have the courts remove their cannabis records and restore opportunities to things like housing, student financial aid and employment through an expedited petition program.

Pennsylvania lawmakers could also take up more modest marijuana reform proposals like a bill filed late last year to expand the number of medical marijuana cultivators in the state, prioritizing small farms to break up what she characterized as a monopoly or large corporations that’s created supply problems.

Rep. Amen Brown (D) separately announced his intent to file a legalization bill that he’ll be working on with Sen. Mike Regan (R), who expressed his support for the policy change a day earlier.

Additionally, another pair of state lawmakers—Reps. Jake Wheatley (D) and Dan Frankel (D)—formally unveiled a legalization bill they’re proposing last year.

Philadelphia voters also approved a referendum on marijuana legalization in November that adds a section to the city charter saying that “the citizens of Philadelphia call upon the Pennsylvania General Assembly and the Governor to pass legislation that will decriminalize, regulate, and tax the use, and sale to adults aged 21 years or older, of cannabis for non-medical purposes.”

Gov. Tom Wolf (D) said last year that marijuana legalization was a priority as he negotiated the annual budget with lawmakers. However, his formal spending request didn’t contain legislative language to actually accomplish the cannabis policy change.

The governor, who signed a medical cannabis expansion bill in June, has repeatedly called for legalization and pressured the Republican-controlled legislature to pursue the reform since coming out in favor of the policy in 2019. Shortly after he did that, a lawmaker filed a separate bill to legalize marijuana through a state-run model.

A survey from Franklin & Marshall College released last year found that 60 percent of Pennsylvania voters back adult-use legalization. That’s the highest level of support for the issue since the firm started polling people about it in 2006.

An attempt to provide protections for Pennsylvania medical marijuana patients from being charged with driving under the influence was derailed in the legislature last year, apparently due to pushback by the state police association.

Nebraska Activists Say New GOP Medical Marijuana Bill Is A ‘Poison Pill’ Meant To Detract From Ballot Efforts

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Minnesota Democratic Leaders Preview Marijuana Legalization Plan For 2022

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Minnesota Democratic leaders are preparing for another push to legalize marijuana this session, with the sponsor of the House-passed reform bill saying he will be reworking the legislation in an effort to build further support—though it continues to face an uphill climb in the GOP-controlled Senate.

House Majority Leader Ryan Winkler (D) and Senate Minority Leader Melisa Franzen (D) discussed the legislative strategy during a roundtable event hosted by the Minnesota Hemp Growers Cooperative on Wednesday.

Winkler said that his bill, which moved through 12 committees before being approved on the House floor last year, is the “product of hundreds of hours of work involving thousands of people’s input, countless hearings and public listening sessions—but it is not a perfect bill.”

“As we look ahead to this session…our goal is to go back and reexamine provisions of the bill,” he said. Licensing structures, public safety and substance misuse concerns are among the issues that lawmakers will be looking at to improve upon the legislation.

“We will be working with our colleagues in the Minnesota Senate,” Winkler added. “We’re interested in pursuing legalization to make sure that the bill represents senators’ priorities for legalization as well.”

The leader said that “any effort this year that would be successful would require Republican support as well.”

But while advocates are encouraged to hear that the House may again vote to pass the legalization legislation, the Senate minority leader tempered expectations about the bill’s prospects in her Republican-run chamber.

“Unfortunately, I don’t think there’s a path to legalization this year in the Minnesota Senate,” Franzen said. “It’s controlled by the Republican party, and they have there’s a few members who are really adamantly opposed to legalization.”

Gov. Tim Walz (D) is supportive of cannabis legalization, and while the broad reform didn’t advance last session, he did sign a bill to expand the state’s medical marijuana program, in part by allowing patients to access smokable cannabis products.

Winkler said on Wednesday that “it was because of the work done” by advocates on legalization that put pressure on Senate Republicans to advance that legislation.

Another cannabis issue playing out in Minnesota concerns CBD. The state agriculture department and pharmacy board have increased enforcement against the sale of the non-intoxicating cannabinoid in recent months, prompting calls for legislative reform.

Winkler said that the political dynamics around legalization that led to the expansion of the state’s medical cannabis program will be “a template for how we will address challenges with CBD this year.”

“My staff is working very closely with advocates, working with senators, working with other House members to get in a repair for the CBD industry, and I have every confidence that we will be able to do that with your help,” he said.

A poll conducted by Minnesota lawmakers that was released last year found that 58 percent of residents are in favor of legalization. That’s a modest increase compared to the chamber’s 2019 survey, which showed 56 percent support.

Winkler said in 2020 that if Senate Republicans don’t go along with the policy change legislatively, he hopes they will at least let voters decide on cannabis as a 2022 ballot measure.

Rhode Island Governor Includes Marijuana Legalization And Expungements In Budget Request

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Nebraska Activists Say New GOP Medical Marijuana Bill Is A ‘Poison Pill’ Meant To Detract From Ballot Efforts

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A Republican Nebraska senator introduced a bill on Thursday that ostensibly seeks to legalize medical marijuana in the state—but activists have raised concerns that the restrictive measure may be an attempt to subvert an effort to pass even broader patient protections on the 2022 ballot.

Sen. Mike Groene (R) filed the legislation, which would allow certain patients to buy and possess cannabis oils, pills and up to two and a half ounces of flower at a limited number of dispensaries. Smoking or inhaling marijuana would be banned, however, as would making edibles—so it’s not clear how patients would consume the flower they could possess.

But the main problem is, the bill would maintain that cultivating marijuana in Nebraska for commercial or personal use is illegal, meaning dispensaries wouldn’t even have a legal means of obtaining cannabis products for patients.

The bill is also severely restrictive in terms of who would qualify for cannabis. It would only permit access to people with stage IV cancer, uncontrolled seizures, severe muscle spasms caused by multiple sclerosis or muscular dystrophy or a terminal illness with less than a one year probable life expectancy.

It’s being backed by the Nebraska chapter of the prohibitionist group Smart Approaches to Marijuana (SAM), leading some advocates to suspect that the lack of cultivation provisions is designed to be a “poison pill” while misleading voters into thinking that there is a good faith effort to legalize medical cannabis legislatively.

“This appears to be a political stunt,” Jared Moffat, state campaigns manager at the Marijuana Policy Project, said in a press release. “Opponents of medical cannabis know there is a viable campaign to put medical cannabis on the ballot, and they know Nebraskans will overwhelmingly support that effort.”

“This is an attempt to take our focus away from that,” he said. “But it won’t succeed because it’s clear that this proposal is not a good faith effort to find some middle ground on the issue.”

The bill comes as Nebraskans for Medical Marijuana (NMM) continues to work to collect signatures for a pair of medical cannabis legalization initiatives that advocates hope to place on the November ballot. They have until July to collect 87,000 valid signatures to qualify each of their complementary measures.

Activists with the group collected enough signatures to qualify a medical marijuana legalization measure for the 2020 ballot, but the state Supreme Court invalidated it, finding that the proposal violated the single-subject rule for citizen initiatives.


Marijuana Moment is already tracking more than 1,000 cannabis, psychedelics and drug policy bills in state legislatures and Congress this year. Patreon supporters pledging at least $25/month get access to our interactive maps, charts and hearing calendar so they don’t miss any developments.

Learn more about our marijuana bill tracker and become a supporter on Patreon to get access.

Now this legislation from Groene is entering the mix for the 2022 session. And SAM Nebraska co-chair John Kuehn told The Lincoln Journal-Star that it’s “a good faith effort and we are willing to look at this as an acceptable alternative to creating a marijuana industry in the state of Nebraska.”

While advocates aren’t necessarily buying that argument given that it would authorize dispensaries without providing the ability to cultivate marijuana products, some like NMM co-chair Sen. Anna Wishart (D) are willing to work with the senator to get the bill into a more acceptable shape for patients.

“It would be the status quo,” Wishart said. “I want a safe system, but there are practical realities patients are living with every day. No one wants a system that doesn’t work.”

Notably, Groene did support a procedural motion to advance Wishart’s more expansive medical cannabis bill last session.

Jane Kleeb, chair of the Nebraska Democrats, pounced on the restrictive nature of Groene’s bill and said it makes it “not easy or feasible for most” to obtain a medical cannabis recommendation from a doctor.

Shari Lawlor, a member of Nebraska Families for Medical Cannabis, said that the group is “grateful that Sen. Groene recognizes the importance of medical cannabis,” but as drafted, “this is a medical cannabis bill with no cannabis.”

“It envisions a system with dispensaries but no farmers or cultivators who actually produce the medical cannabis that patients need,” she said. “And since patients are not allowed to cultivate medical cannabis themselves under this proposal, there is effectively no way for patients to get the relief they need.”

Gov. Pete Ricketts (R) is no fan of legalization. He partnered with SAM Nebraska on a recent ad urging residents to oppose cannabis reform in the state. Given the organization’s support for this new GOP proposal, there’s some suspicion that he might back it to give the appearance that the administration isn’t deaf to calls for reform by voters.

Advocates aren’t going to be deterred by the bill’s introduction. They will be moving forward with the complementary medical cannabis initiatives in hopes to getting the issue to voters.

The campaign deliberately chose to take a bifurcated approach because of the state Supreme Court invalidation over the single-subject rule.

One of the statutory initiatives would establish legal protections for patients and doctors around cannabis, while the other would allow private companies to produce and sell medical marijuana products.

Lawmakers attempted to advance medical cannabis reform legislatively last year, but while the unicameral legislature debated a bill to legalize medical marijuana in May, it failed to advance past a filibuster because the body didn’t have enough votes to overcome it.

Wishart and NMM co-chair Sen. Adam Morfeld (D) announced in late 2020 that they would also work to put the question of legalizing marijuana for adult use before voters in 2022. But for now their focus appears to be on the medical cannabis effort.

For what it’s worth, Nebraska’s attorney general argued in an opinion in 2019 that efforts to legalize medical marijuana legislatively in the state would be preempted by federal law and “would be, therefore, unconstitutional.”

Rhode Island Governor Includes Marijuana Legalization And Expungements In Budget Request

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