For the second time in a year, the U.S. Food and Drug Administration (FDA) has designated psilocybin therapy as “breakthrough therapy,” an action that is meant to accelerate the typically sluggish process of drug development and review. This fresh look at psychedelics by the medical profession is not a completely new development. In March 2019, the FDA approved a nasal spray depression treatment for treatment-resistant patients based on Esketamine, a substance related to ketamine — an anesthetic that has also been used as an illicit party drug and animal tranquilizer.
Pursuant to the federal Controlled Substances Act of 1970 and the laws of the States, both “Marijuana” and Tetrahydracannabinol (“THC”) are classified as “Hallucinogenic substances.” Drugs, chemicals, and other substances intended for human consumption are classified by the Drug Enforcement Agency into five distinct schedules depending upon a variety of factors such as acceptable medical use and the drug’s abuse or dependency potential. Schedule I drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse.
Other drugs listed in the DEA’s Schedule I hallucinogenic substances include well-known illicit substances such as lysergic acid diethylamide (“LSD”), 3,4-methylenedioxymethamphetamine (“MDMA”), psilocybin, phencyclidine (“PCP”), and mescaline. This category of drugs is commonly split into two smaller categories: classic hallucinogens (such as LSD) and dissociative drugs (such as PCP). Both types of hallucinogens can cause hallucinations, or sensations and images that seem real though they are not. But does a drug that creates an alteration of perception necessarily mean that it is a psychedelic?
Both psychedelics and cannabis can produce mind-altering effects. But the effects produced by psychedelics and the effects produced by Cannabis are fundamentally different at the molecular level. Drugs such as LSD, DMT (the active ingredient in ayahuasca), and psilocybin contain naturally occurring neurotransmitters that produce serotonin, a mood regulator, and dopamine, associated with the reward center in our brains.
On the other hand, THC, the psychoactive molecule in Cannabis that induces the mind-altering effect, also interacts with dopamine, which can lead to feelings of euphoria. THC differs in that it interacts with the body’s own endocannabinoid system that helps to maintain the health and wellness balance (homeostasis). Moreover, Cannabis is a genus of flowering plants that contain more than 100 organic molecules with a variety of psychoactive and non-psychoactive effects. The full effect from the compounds in Cannabis are elicited from the large variety of molecules that occur within the bud of the plant.
There are two methods for determining whether a substance has psychedelic properties: a binder test and an effects test. The first method is based upon a molecular analysis of where in the human body the neurotransmitter binds and causes its effect on the brain and the body.
In the molecular analysis, scientists look at the neurotransmitter receptors and will classify a drug as psychedelic if it binds to serotonin 5-HT2A receptors as an agonist or partial agonist. The possibility also exists that other serotonin receptors may be involved in the overall psychedelic experience of a user.
THC and other compounds in Cannabis create their effects by binding as agonists or partial agonists on the cannabinoid receptors CB1 and CB2. Interestingly, scientists experimenting with THC recently have found evidence that THC can have a noticeable effect on the 5-HT2A receptors, further adding to the mounting evidence of cannabis being a psychedelic drug based on receptor binding.
In the practical effects analysis, scientists compare the practical effects of the drug on the person experiencing effects to what are classically considered psychedelic effects. If a compound meets the criteria for either or both, then it may properly be termed psychedelic.
In 1964, psychedelic researcher and advocate Timothy Leary, along with colleagues Ralph Metzner and Richard Alpert, developed a scale for measuring the intensity of a psychedelic experience. Based on its effects, they included Marijuana as a psychedelic in their analysis. The researchers said the effects of moderate to high doses of cannabis included synesthesia, enhanced perception of music, visual effects (including patterns) with the eyes closed, the emergence of unconscious emotions, and unrestrained creative and abstract thought patterns.
Now that the FDA has finally taken the first big step in normalizing the use of psychedelics as a means of improving the lives of Americans by approving the first large scale clinical trials, where can we go from here? While current policies characterize any use of these substances as illicit abuse, approving such trials demonstrates that the FDA is capable of change. Psychedelic medicine may prove to be the lever that moves drug policy away from the days of the Drug War in favor of more nuanced strategies that harness the benefits of psychotropic drugs while minimizing their risks.
When the first sales of medical cannabis in Maryland were made in December 2017, a patient could be certain that the medicine they received was raised indoors and grown under controlled conditions. By carefully regulating the light, climate, water, and nutrients that the plants received, growers could ensure that plants would produce a uniform product for harvest and use by patients. Popular wisdom held that outdoor growing on the East Coast (especially Maryland) was prone to failure due to the high humidity, the variable climate, and the pests that inhabit these parts. But sometimes, Mother Nature cooperates and popular wisdom yields to sheer determination.
And that is where Mackie Barch, the President and CEO of the medical cannabis cultivation company Culta, comes into the picture. This Fall, Culta undertook a grand experiment — the first large-scale commercial outdoor harvest of medical cannabis on the East Coast. This was historic for a number of reasons. First, medical cannabis is not typically grown outdoors on the East Coast. The weather, the temperature, and the insects all make Maryland a poor choice for outdoor growing. A new cannabis plant that does well in Maryland weather could be a big boost for patients and the availability of products. Second, outdoor grown cannabis is three times less expensive to cultivate, thereby reducing the price of popular concentrate and distillate products to consumers. And finally, outdoor growing has the advantage of having a much lower carbon footprint, being organic, and sustainable.
As Barch himself freely acknowledges, “Outdoor grown cannabis is by far the most cost-effective way to produce the biomass required to deliver the products our patients require. But make no mistake. It is hard work, labor intensive, and still very expensive.”
While indoor cultivation can regularly produce perfect cannabis plants with the full expression of a plant’s terpenes and trichromes, such intensive horticultural methods are not always necessary. Sometimes, the products only require certain cannabinoids (such as CBD, CBG, or CBN) or Delta-9 Tetrahydrocannabinol (known as THC, the psychoactive ingredient in cannabis). And this is where the outdoor market becomes indispensable to connecting patients with their medicine.
As Maryland does not have a “home-grow” exception included in its medical cannabis law, patients must rely upon the growers who have been licensed by the State of Maryland. Cultivators, such as Culta, must find new ways to expand the availability of medical products to patients, while keeping them affordable to drive away black markets. This is the key to a sustainable state-sponsored medical cannabis program where medicinal products are accessible by patients at a price they can afford.
Last month, a survey by the United Cannabis Business Association found that in California there was more than three times the number of black market unlicensed dispensaries than licensed dispensaries. An industry-backed financial audit projected that roughly $8.7 billion will be spent on unregulated cannabis products in California in 2019, compared with just $3.1 billion spent on cannabis sold by legal businesses. If Maryland is going to take the approach that it will only permit licensed growers, processors, and dispensaries of medical cannabis, then it must encourage outdoor cultivation by all its growers.
As Barch put it, “We went big. We grew one acre of outdoor grown cannabis in Maryland to be harvested this Fall. While outdoor is not analogous to indoor grown cannabis, the outdoor grow certainly exceeded our expectations.”
A Day of Thanksgiving
As the pandemic continues to upend plans this year across the board, traditional family gatherings will be giving way to a smaller, more socially distant Thanksgiving. Instead of sitting closely together in a poorly ventilated space with your family and friends and sharing food from the same serving dishes, families are taking the safe way out and staying at home. But as we commiserate over what we are missing out on, maybe it’s more useful to think about why we should be thankful and how far we have come. Why was 2020 different than all other years any of us can remember? Let’s take a look at the top five reasons 2020 was a record-breaking year for medical Cannabis in Maryland:
- Cannabis Deemed an Essential Business During the Pandemic. On March 23, 2020, Governor Hogan issued an emergency order today requiring all non-essential businesses in the State to close. As medical cannabis growers, processors, dispensaries, and registered testing laboratories were state-licensed health care providers and facilities under the Health-General Article, the medical cannabis supply chain was deemed essential businesses and were not required to close pursuant to the Governor’s emergency order.
- Federal Decriminalization Was Scheduled for a House Vote. The Marijuana Opportunity, Reinvestment and Expungement (“MORE”) Act was voted out of the Judiciary Committee of the United States House of Representatives on a bipartisan basis. The MORE Act would federally de-schedule cannabis, expunge the records of those with prior marijuana convictions and impose a federal five percent tax on sales, revenue from which would be reinvested in communities most impacted by the drug war. It would also create a pathway for resentencing for those incarcerated for marijuana offenses, as well as protect immigrants from being denied citizenship over cannabis and prevent federal agencies from denying public benefits or security clearances due to its use. Although it was supposed to be put to a full vote before the House in late September 2020, it was pulled from consideration by leadership with a promise to be raised again before the end of the session. Nevertheless, this is the first legislation involving the legal status of “marijuana,” not including hemp, to be considered before the full House since the Controlled Substances Act of 1970.
- Two-Thirds of Americans Support Making Cannabis Legal. According to a recent Pew Research Center survey, 67% (two-thirds) of Americans believe the use of marijuana should be legal, representing a steady, rapid increase from a low of 16% in 1989. The share of U.S. adults who oppose legalization has also fallen rapidly from 52% opposed in 2010 to only 32% today. Meanwhile, an overwhelming majority of U.S. adults (91%) say marijuana should be legal either for medical and recreational use (59%) or that it should be legal just for medical use (32%). Fewer than one-in-ten (8%) prefer to keep marijuana illegal in all circumstances.
- Cannabis Is Recognized for Its Medicinal Properties. The Food and Drug Administration (“FDA”) has not yet approved the Cannabis plant for any medical use. However, the FDA has approved several drugs that contain individual cannabinoids. Epidiolex, which contains a purified form of Cannabidiol (“CBD”) derived from cannabis, was approved for the treatment of seizures associated with two rare and severe forms of epilepsy. Marinol and Syndros contain dronabinol (synthetic THC), and Cesamet contains nabilone (a synthetic substance similar to THC). Both synthetic forms of THC are approved by the FDA. Drugs containing cannabinoids were shown to have palliative effect in treating certain rare forms of epilepsy, nausea and vomiting associated with cancer chemotherapy, and loss of appetite and weight loss associated with HIV/AIDS. In addition, some evidence suggests modest benefits of cannabis or cannabinoids for chronic pain and multiple sclerosis symptoms.
- Unintended Social Benefits. According to FBI crime statistics, violent crime in Washington decreased in the years after legalization. Traffic deaths dropped 11% on average in states that legalized medical marijuana. Research also indicates that people drink less and alcohol sales drop in places where marijuana has been legalized. According to the CDC, six people die from alcohol poisoning every day and 88,000 people die annually due to excessive alcohol use in the United States. There are no recorded cases of death from marijuana overdose.
So, remember this Thanksgiving that medical cannabis patients in Maryland (and nationwide) have much to be thankful for. The State of Maryland, and for that matter the United States as a whole, have made rapid and significant leaps in its understanding and acceptance of Cannabis over a very short period. Very few social movements have advanced this far, this quickly. But the experiment is not over. Maybe next year when we all get together for Thanksgiving, we can do so together, without masks, without social distancing, and without prejudice.
FINALLY, THE EDIBLES HAVE ARRIVED
On January, 12, 2022, all eyes will once again turn to Annapolis and the General Assembly where the eternally hopeful Cannabis-consuming residents of Maryland will wait expectantly as legislators wrestle with the question, “Will this be the year?” Will this be the year that the Maryland General Assembly and the Governor finally agree to do what the residents of the State of Maryland have asked them to do for years now, and legalize Cannabis (in all its forms) for adult use and recreational purposes? And when will the State finally end the War on Cannabis, free its prisoners, and reconcile with its many victims?
But while we wait for the tea leaves to settle, the Maryland Medical Cannabis Commission (“Commission”) has been diligently pursuing its mission developing the policies, procedures, guidelines, and regulations making medical cannabis available to qualifying patients in a safe and effective manner. In April 2021, the Commission fulfilled one of its initial promises to patients when it issued its final regulations creating the framework for edibles products in Maryland dispensaries.
Effective April 19, 2021, any “medical cannabis product intended for human consumption by oral ingestion . . . that dissolve[s] or disintegrate[s] in the mouth,” will be recognized as a Cannabis product and subject to regulation. These new regulations finally fill the product void that has existed since Maryland’s dispensaries first opened. This is great news for Cannabis patients in Maryland, as it will mean more products, more categories of products, and more ways to experience the benefits of the medicine. Let me explain.
One of the weaknesses of Maryland’s medical Cannabis program has been the lack of availability of edible products containing delta-9-tetrahydrocannabinol (THC). Some edibles had been previously available in dispensaries prior to the enactment of these new rules. Those products were poorly made and packaged. Now all edible products previously on the market in dispensaries must come into compliance within 90 days. And all edible products offered for sale in dispensaries must be approved and overseen by the MMCC.
Edibles can be an important tool for health care workers, caregivers, and others to provide a patient with a convenient, effective, reliable, safe, therapeutic, and measured dose. These new final regulations for edibles provide processors with the market specifications about how to create, label, prepare, and sell these products at licensed dispensaries in the State. For the typical patient, this will mean that at the dispensary level you will see more products containing THC with a wider variety of dosage forms, while providing patients with more choices in how they want to administer their medicine.
Now that the edibles product category is available in Maryland, patients can enjoy a commercially produced, regulated, and standardized dosage of THC that has been tested, certified, and packaged by the State. In addition, the THC comes delivered in a variety of edible forms such as tinctures, pills, sublingual strips, or gummies; in child-proof packaging, in geometric shapes (not characters), and in packaging designed to warn parents and children about its contents.
As more edible dosage forms become available, more patients will be able to experience the therapeutic benefits of the plant without harmful routes of administration. For example, smoking or vaporizing THC is the most popular way that Marijuana is ingested by patients. But what if smoking or vaporizing isn’t possible for a patient due to their location in a hospital. Or worse, is unsafe for a patient at all due to their respiratory condition? This is where the new class of edible THC products provide superior relief for chronic conditions. By offering a wide variety of routes of administration and standardized doses, edibles can offer a broad spectrum of relief for patients.
The good news is that the Commission is now encouraging Maryland’s medical Cannabis Processors to produce edibles containing THC. This means that patients can now purchase at their local dispensary pre-measured doses of THC with better labeling, in child proof packaging, with warning labels, and produced by commercial, good manufacturing processes, that supposedly won’t be confused for kids vitamins. For patients, these regulations will result in a greater variety of products at your local dispensary catering to an increasingly sophisticated medical patient clientele.
MARYLAND LEAF MAGAZINE
In February 2003, the United States Department of Justice launched its most misguided indirect attack on Cannabis known as “Operation Pipe Dreams.” At the time, four western states had already enacted legislation permitting the statewide use of medical Cannabis, despite the federal prohibition against it. And more states were about to do so. In response, Attorney General John Ashcroft joined forces with US Attorney Mary Beth Buchanan from the Western District of Pennsylvania to indict fifty-five individuals for selling hand-blown glass water pipes across state lines in violation of federal law. Defendants would argue that federal law enforcement officials were looking for a high-profile and outspoken defendant in which to make an example. Those arrested and charged included comedy-icon-turned-entrepreneur Tommy Chong and his son.
In the end, in exchange for an agreement not to prosecute his son or wife, Chong agreed to plead guilty to one conspiracy count. He served the longest sentence from Operation Pipe Dreams. He was sentenced to nine months in a minimum-security correctional facility in California, he paid a fine of $20,000, and he agreed to forfeit $103,000 in earnings. It was the harshest sentence to come out of this strange chapter in the federal government’s failed War on Drugs.
Eighteen years later, it is hard not to see Attorney General Ashcroft and conservatives at the time as trying to hold back the ocean with a spoon. Cannabis and the glass industry have won the culture wars by attrition. Sure, the use and possession of Cannabis remains illegal at the federal level under the Controlled Substances Act. But the Cannabis genie is out of the bottle, and she ain’t going back in. Thirty-five states, four out of five permanently inhabited U.S. territories, and the District of Columbia have all enacted medical Cannabis regulations in direct contravention of federal law. Fourteen states, the District of Columbia, the Northern Mariana Islands, and Guam have legalized Cannabis for adult use without restriction or license, while another 16 states and the U.S. Virgin Islands have decriminalized its use altogether. And most recently, during this pandemic, Cannabis has been deemed an “essential business” which is part of Maryland’s Critical Health Infrastructure.
As Maryland lawmakers consider two marijuana legalization bills this session, a new poll shows that the State’s residents are strongly on board with the policy change. Two-thirds (67 percent) of Marylanders now back legalizing cannabis, according to a Goucher College survey published earlier this week. In fact, support for legalizing cannabis in Maryland has risen in the two years since the last time Goucher College asked about the issue in 2019, when 57 percent of residents backed the idea. More dramatically, in 2013, just 51 percent of Marylanders supported legalization –a 15 percentage point opinion swing in favor of legalization in just seven years.
In light of the nationwide normalization of Cannabis as a medicine and a recreational adult substance, what then do we do with the paraphernalia laws? Why do we still continue with the legal fiction that bongs are “water pipes” or that pipes are “for tobacco use only?” Why do these laws continue to exist if they are only a misplaced remnant of a different time? The answer has to be rooted in fear.
Maryland’s prohibition against paraphernalia provides that “a person may not use or possess with intent to use drug paraphernalia to . . . ingest, inhale, or otherwise introduce into the human body a controlled dangerous substance.” Both Marijuana and its psychoactive derivatives are Schedule I drugs under the Controlled Substances Act. However, in 2016 after enacting the framework for Medical Cannabis in Maryland, the Maryland General Assembly specifically added an affirmative defense for the possession of “Marijuana.” That is correct. I said it, “You cannot be charged with the possession of paraphernalia if the Controlled Dangerous Substance (CDS) you were allegedly in possession of was “Marijuana” and your intent was to use the paraphernalia (i.e., the water pipe) to ingest or inhale the Marijuana.” Sounds ridiculous? Wait, it gets more preposterous.
While there is an affirmative defense to possession of paraphernalia if you are intending to use it to ingest Marijuana, there is no legal protection for the store that supposedly sold you it. That is why a head shop, glass shop, or vape shop has to kick you out if you start talking about any drugs in the store. If intend to use the pipe to ingest or inhale a CDS that is not Marijuana, including concentrates and any Cannabis product in its non-botanical form, then the store has committed a crime in selling you the glass pipe. Confused? You should be. Not only do the laws against paraphernalia–like glass water pipes–make no sense, they legitimately harm the dialogue that happens between a knowledgeable shop sales person and a prospective customer. In that way, the paraphernalia laws harm everyone. It restricts the free-flow of accurate information and creates an adversarial relationship between sales person and customer where secrecy is encouraged and store owners are incentivized to learn nothing about their clients.
According to a recent Yahoo News/Marist Poll, “Weed & The American Family,” nearly 52% of American adults have tried Marijuana. This works out to roughly 129 million adult Americans who have used Marijuana at some point in their lives (in one form or another) with more than 44% of these individuals currently continuing to use it. Fifty-five million of them (or 22%) would describe themselves as current consumers — with the survey defining “current use” as having used marijuana at least once or twice in the past year. Of those 55 million current users of Marijuana, more than 35 million would describe themselves as “regular users” who use marijuana at least once or twice a month.
Now before we begin to complain that these numbers are either high or low, please observe these survey responses with more than a bit of skepticism. These social survey respondents agreed to provide details about their Marijuana use to a random stranger who dialed them on their landline or mobile phone and began asking them questions from an elaborate social survey. While the survey purports to have an error rate of plus or minus 2.9%, I have my doubts. Given the current prohibition of Marijuana under federal law, it is quite reasonable that not every respondent who agreed to answer these questions from a stranger purporting to take a social survey was entirely forthcoming with their responses. In short, the real number is probably much larger.
Diving deeper into the numbers, you can see a number of important trends that emerge. Amongst the Americans who currently use Marijuana, a majority are parents (54%) with nearly one-third with children under 18. There are generally more males than females that use Marijuana (55% to 45%); a majority are Millenials (52%); a majority earn less than $ 50k per year (54%); and nearly 7 of 10 self-admitted Marijuana consumers do not have a college degree and do not practice a religion at all. They are more likely to describe themselves as Democrats (43%) or independents (42%), than Republicans (14%).
According to a recent 2019 survey by the Pew Research Center, two-thirds of Americans say the use of marijuana should be legal, reflecting a steady increase over the past decade. The share of U.S. adults who oppose legalization has fallen from 52% in 2010 to 32% today. The relatively recent change in the legal status of Cannabis in the United States has corresponded with a rapid rise in the social acceptance of Cannabis and change in social opinions and values. For example, the US, eleven States and the District of Columbia have legalized the possession and use of Cannabis, along with thirty-three States who have legalized its medical use. This has correlated during the same time with an exponential increase in the number of Americans who believe the use of Cannabis should be legal.
This has opened the doors to the possibility of eliminating the largest social consequence of being a Cannabis consumer – namely, the threat of arrest and conviction for a crime of possession. A recent analysis of the FBI’s National Incident-Based Reporting System (“NIBRS”) demonstrates that despite the larger societal-wide acceptance of Cannabis, arrests for Marijuana continue to go up (even for small amounts) and that racial disparities persist in those arrest rates.
According to FBI crime statistics in September 2018, there were 1.6 million arrests for drug possession, sale, or manufacture — a number that has increased every year since 2015 after declining over the previous decade. Meanwhile, arrests for violent crime and property crime have continued to trend downward. The FBI gathers crime statistics from thousands of law enforcement programs around the country that voluntarily report their numbers to keep track of larger trends. Drug arrests are classified into four categories: 1) heroin or cocaine and their derivatives, 2) marijuana 3) synthetic or manufactured drugs like fentanyl and 4) other dangerous non-narcotic drugs like barbiturates. In 2018 nationwide, there were approximately 663,367 arrests involving marijuana. These Marijuana arrests account for 71% of all of the arrests for drug crimes – meaning that the “War on Drugs” is still a “War on Marijuana.”
White people make up three out of every five Marijuana arrests, with Blacks accounting for a quarter and Hispanics still less. Overall, Marijuana arrests make up the largest single category of drug arrests. And, as recent headlines have attested, Blacks and Hispanics are arrested disproportionately in terms of their share of the overall population.
Given that a majority of adult Americans now favor legalization at a national rate of nearly 67% and given that a majority of the States have enacted some form of cannabis regulation, it is clear that the United States is about to enter a period where Cannabis support is at super-majority levels. This raises any number of possibilities about how the United States can absorb Cannabis Culture into a new legal structure that reflects the generally accepted nature of the plant.
A number of options are currently under consideration. For instance, the States may call a Constitutional Convention to enshrine access to Cannabis as a right under the United States Constitution (with two thirds of the States enacting it, much like with Prohibition of Alcohol in the 1920’s). Or that Congress may pass laws permitting the States the freedom to decide for themselves (the STATES Act now introduced in both Houses). Or that the President by Executive Order can order the Food and Drug Administration (FDA) to de-schedule or re-schedule Cannabis under the Controlled Substances Act based upon new discoveries about the medical benefits of the plant.
Regardless, Cannabis Culture has driven powerful change in America over the last twenty years and will continue to do so into the foreseeable future. As the public opinion surveys clearly indicate, American Cannabis consumers are young and opposition to general acceptance is rapidly dying away as the States continue to chip away at the last remaining barriers to access.
“Marijuana” is used in this article to indicate the Schedule I drug known as Cannabis Sativa, and not Hemp, also recognized as Cannabis Sativa but having a THC content under .3% under State and federal law.
KEITH STROUP, FOUNDER AND LEGAL COUNSEL
NORML (NATIONAL ORGANIZATION FOR THE REFORM OF MARIJUANA LAWS)
The year was 1970. The United States was entering its ninth year of armed involvement in the Vietnam War. Not two years earlier, civil rights leader Rev. Martin Luther King, Jr., and presidential hopeful Robert Kennedy were assassinated. Later that same year, the public learns that President Richard Nixon secretly approved the use of American ground troops in neutral Cambodia, further escalating what had become a widely unpopular war. As public opposition mounts, cities and campuses across the Nation erupt into anti-war marches and protests. During one such protest at Kent State University in Ohio, National Guardsmen fire live rounds of ammunition at protesters, killing four unarmed students (and wounding nine others).
Against this backdrop, twenty-five-year-old Keith Stroup graduates from Georgetown University Law School—typically a cause for great celebration for a poor, farm boy from a small town in Southern Illinois. But Stroup was still eligible for induction into military service for another two years, and he had run out of reasons to defer reporting for duty.
With nowhere else to turn, Stroup contacts the volunteer lawyers from the National Lawyers Guild (NLG) for advice regarding how to avoid being inducted into the military. Stroup and his lawyers identified the “critical skills deferment” as one such possible pathway for avoiding the draft. Stroup was offered a job on the staff of a newly created Congressional commission called the National Commission on Product Safety, based on the ground-breaking consumer protection advocacy done by Ralph Nader. The purpose was to identify products that were dangerous to consumers and recommend legislation to protect them. Now his local draft board in Southern Illinois granted his deferment two weeks before he was scheduled to report for active duty, and changed the course of his life.
Once Stroup completed his two-year commitment with the Commission, he was too old to be drafted, and finally free to imagine the future. For the last two years, Stroup worked alongside the master consumer advocate, Ralph Nader. No one appointed him, but Nader advocated for the safety interests of the public. No one elected or hired Nader. But his skillful use of the media and willingness to take on large corporations made him a hero for public interest lawyers. In his book, It’s NORML to Smoke Pot: The 40-year Fight for Marijuana Smoker’s Rights, Stroup recalled that, “Nader was the individual who first piqued my interest in starting a marijuana legalization lobby. He was an inspiring consumer advocate.”
In March 1971, Stroup and other Board members filed incorporation papers in the District of Columbia for a new marijuana consumer’s advocacy organization known as NORML (the National Organization for the Reform of Marijuana Laws). No one had previously attempted to build such a nationwide, grassroots, marijuana consumer’s lobby. Nevertheless, Stroup pushed forward after an encouraging meeting with former U.S. Attorney General Ramsey Clark. Later, it would be Clark who suggested that Stroup and NORML reach out to the Playboy Foundation for its initial financial support–a five-thousand dollar grant.
Seven years later, in 1978, NORML’s efforts were finally bearing fruit. Thanks to NORML’s legislative outreach efforts and former President Richard Nixon’s National Commission on Marihuana and Drug Abuse, better known as the Shafer Commission, eleven (11) states rapidly enacted marijuana decriminalization measures in the mid to late 1970’s. At the time, National polls indicated that nearly 30% of the public supported the idea of marijuana legalization. And most importantly, NORML was enjoying an extraordinarily close relationship with the sitting administration of President Jimmy Carter, the first American president to ever endorse the decriminalization of marijuana. All signals seemed poised for launch . . . that’s when the bottom fell out.
In 1978, NORML and the Carter Administration began heated discussions over the Administration’s policy of spraying the deadly herbicide paraquat on the marijuana fields in the Sierra Madre region of Mexico. Stroup was strongly opposed to such action. To further fan the flames, the Washington Post broke a story about Dr. Peter Bourne, the President’s drug policy adviser, who wrote a prescription for Quaaludes for his assistant under a false name while serving the Administration. Ordinarily, this would be an internal matter for the White House. However, the Washington Post further reported that a year earlier Bourne attended a private party hosted by NORML in a Dupont Circle home. At that party, Stroup reportedly greeted Bourne and escorted him upstairs into a private VIP room occupied by guests, which included Hunter S. Thompson, Tom Forçade, Christy Hefner, David Kennedy, John Walsh (Washington Post editor), and other luminaries. Needless to say, drugs were alleged to have been consumed.
When the Washington Post first published the story that Bourne was using drugs, including cocaine, at the NORML party in Washington, DC, no one would corroborate the story. Despite his repeated denials, Stroup eventually let his anger at the Administration and at Bourne get the best of him. Once the story was published and reporters called for comment regarding Bourne’s drug usage at the party, Stroup uttered the now infamous “denial-non-denial” which he still cringes from today. “I can neither confirm nor deny the story,” Stroup recalls telling the media. And with that one wry, off-the-cuff remark Keith Stroup unravels the good will and the work that he and the organization developed over the last ten years. Even worse, he loses the trust of the organization that he helped found ten years earlier.
“The Peter Bourne incident was clearly the low-point of my time at NORML, in terms of undermining the good work we had done for the better part of a decade. I assumed that when I left NORML in the early 80’s, my tenure there was over for good. But I had to admit that I missed working on the issue that was most important to me. Nothing has been as personally and professionally rewarding to me as my time at NORML. Nothing.”
Stroup stepped aside as Executive Director of NORML after the Bourne incident became public news, but remained on the Board of Directors until 1982. From 1982 to 1994, Stroup had no affiliation with NORML and pursued public interest law as the executive director of the National Association of Criminal Defense Lawyers (NACDL), as well as other non-profits. But when Dr. Lester Grinspoon reorganized the NORML Board in 1994, Stroup was the only original founder to be invited back to rejoin the Board in 1982. Stroup was initially hesitant about rejoining. He wondered if he could still be effective and command the trust of his colleagues. Would his presence be more harmful than helpful to the cause?
Eventually he accepted the offer and agreed to return as a NORML Board Member. Within the year, Stroup would return to the Executive Director position he occupied for its first ten years on a full-time basis. He would serve as Executive Director until 2005, after which he would assume the role of Legal Counsel, a position he continues to occupy today. Regarding his return to NORML in the position he occupied originally, he noted, “I was glad to have a second chance.”
Looking forward, Stroup is very optimistic about the prospects for passage of marijuana legalization legislation. “I am of the belief that legalization is almost inevitable at this point given the public levels of support. There are several polls, including Gallup, indicating that 68-70% of the Country supports legalization, while between 88 and 90% support the medical use of marijuana. Because of a lot of hard work done for several decades, we have largely won the ‘hearts and minds’ of the American people—to use a well-worn phrase from the era.”
When asked about the biggest lessons from the early days, Stroup noted that while crowd size matters, access to power is more important. “The reality is that you don’t change laws in this Country very often with mass demonstrations. The War was an exception because hundreds of thousands of people took to the streets to protest the President’s policies. But those demonstrations of strength are only good for figuring out who is on your side and messaging. Changing laws is only possible when you have access to power. I was generally looking for those chances as head of NORML.”
As a front-row witness to the history of Cannabis prohibition for more than fifty years, I asked Stroup what the final end-game looks like. How does the United States finally end this eighty plus year war on its own people? The answer was a pragmatic one. For more than fifty years, NORML has been the only grassroots Cannabis advocacy group in the world solely dedicated to consumers. As NORML represents millions of Cannabis consumers in the United States and around the world, Stroup’s response reflected a firm optimism that the battle for legalization was nearing its end.
Once most of the Country is on your side, then the goal is simply overcoming the zealots on the other side of the issue who are preventing progress . . . I am relatively certain, at this point, that there is no turning back. And we will win this issue fully and completely in every state within just a few years. Within 5 years, no one will be arrested for smoking marijuana in any state.
Keith Stroup, Founder and Legal Counsel, NORML
On Sept. 4, 2020, the USDA announced that it would reopen the comment period for the interim final rule on domestic hemp production for an additional 60 days. Two particular regulations are at the center of this industry revolt — one that requires labs testing farmers’ hemp to be registered with the Drug Enforcement Administration (DEA) and one that would require disposal of hemp plants with non-compliant levels of THC to happen with law enforcement involved. Despite the industry backlash, the new proposed regulations represent a significant step forward for the broad commercial normalization of hemp as an agricultural product.
When President Trump signed the Agricultural Improvement Act of 2018 into law two years ago, few people realized how this new law would speed the commercialization of hemp as an agricultural product. Prior to 2014, state and federal law had never differentiated hemp from cannabis. While hemp had previously been lawfully cultivated for thousands of years for a variety of uses, it had languished as a crop since the early 1900’s as a controlled substance that could not be lawfully cultivated. In 2014, the hemp plant became the subject of intense interest when Congress enacted a farm bill defining hemp as the plant Cannabis sativa L. and any part of the plant with concentrations of THC no greater than .3 percent on a dry weight basis. The new law authorized institutions of higher education and state departments of agriculture to license the cultivation of hemp as part of a pilot program when authorized by State law for research.
The 2018 Farm Bill paved the way for commercial hemp cultivation. It removed hemp from the list of controlled substances—thereby federally decontrolling hemp production in all States and Native American Tribes–unless prohibited by state or tribal law. It also prevented states from interfering in the interstate transport of hemp, including those states and tribes where hemp production and sales were prohibited. As a result of the new law, the U.S. Department of Agriculture (“USDA”) began to offer crop insurance programs to hemp farmers, thereby reducing the risk to producers and providing ready access to capital. It also provided assurances to the banking industry to convince them to develop guidance regarding deposits and lending to hemp operations.
The 2018 Farm Bill vested authority to cultivate hemp in the departments of agriculture for the various states, tribal governments, and the USDA. Under the new law, states and tribes were required to submit to the USDA plans for cultivating hemp commercially, which included provisions for maintaining information about the land where hemp is cultivated, for measuring the levels of THC, for disposal of non-conforming plants (i.e., plants containing over .3 percent THC), and procedures to ensure compliance with these new rules. All plans were required to be approved by the USDA.
While the 2018 Farm Bill removed hemp from the list of controlled substances, it did not broadly legalize the widespread distribution and use of hemp and its derived products. The new law explicitly preserved the authority of the Food and Drug Administration (“FDA”) to regulate products that contain cannabis and cannabis-derived compounds. The FDA retained the authority to issue regulations allowing the use of such ingredients in food and dietary supplements, because of their status as pharmaceutical ingredients. The FDA treats such products as it does any other FDA-regulated products, regardless of whether the cannabis or cannabis-derived compounds are classified as hemp under the 2018 Farm Bill.
Under the Food, Drug, and Cosmetic Act (FD&C Act), any product intended to have a therapeutic or medical use, and any product (other than a food) intended to affect the structure or function of the body of humans or animals, is defined as a drug. Cannabidiol (CBD), a compound derived from the cannabis plan, has not been approved as a drug by the FDA for the treatment of any disease or condition. However, the FDA has approved one cannabis-derived and three cannabis-related drug products, which are only available with a prescription from a licensed healthcare provider. There are no other FDA-approved drug products that contain CBD.
The FDA is aware that some firms are marketing CBD products to treat diseases or for other therapeutic uses, and has issued several warning letters to such firms. The FDA is also aware that several states have either passed laws that remove state restrictions on the medical use of cannabis and its derivatives or are considering doing so. To date, the FDA has not approved a marketing application for cannabis for the treatment of any disease or condition and thus has not determined that cannabis is safe and effective for any particular disease or condition.
Seed Money in Maryland
In my daytime gig as a criminal defense attorney, I am often called upon to explain to my clients the purpose of criminal laws. Sometimes the law reflects a clear and shared understanding by society of what is legally permissible–murder and theft are two good examples. But sometimes the law is not so clear, which can lead to a fairness problem when a violation of the law comes with a criminal sanction such as a fine or incarceration. One important concept essential to our understanding of fairness is procedural due process. This right for a defendant is enshrined in the Due Process Clause of the Fifth Amendment and the Fourteenth Amendments to the U.S. Constitution. The constitutional protection against government abuse is based on the idea that there must be a clearly defined law before there can be a crime. But what if a patient or caregiver is unaware that they are breaking the law because the law is so widely unenforced and ignored? Is it fair to punish someone who didn’t know their conduct was unlawful?
A trial court must presume that every individual who appears before it knows the law and understands it. In fact, the court system depends upon that unspoken premise. Otherwise, every litigant could claim ignorance of the law. Which brings us back to the US Constitution’s protections for defendants. The Due Process Clause of the Fifth Amendment, made applicable to the states through the Fourteenth Amendment, requires a Court to invalidate a criminal statute if it is “so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” What happens when the laws pertaining to Cannabis are so highly specialized, contradictory, and confusing that neither the police nor the courts can fairly apply the law?
Let’s use the purchase of Cannabis seeds as an example. Under Maryland law, you can order Hemp seeds from a seed bank anywhere in the world and lawfully grow one pound of it at your home without question. However, if you order seeds and grow one pound of Marijuana at your home, you would be committing a felony punishable by up to five years incarceration and/or up to a Fifteen Thousand Dollar fine.
Hemp and Marijuana are not distinguishable by physical appearance or smell. And both Hemp and Marijuana come from the same plant from the genus Cannabis. So what is the difference? How would one know if their Cannabis plant was above or below the .03% threshold distinguishing Hemp from Marijuana? What if the seed didn’t germinate as advertised? There is no mechanism in Maryland law for an individual to get their Cannabis plant tested to make certain that it is Hemp. And medical Cannabis dispensaries dispensaries in Maryland do not sell seeds to patients to grow their own medicine. So why is the sale of Cannabis Seeds so easy, available, and not prosecuted?
The web sites I checked clearly warned me that it was illegal to grow a Marijuana plant from my seed. But it assured me that it was perfectly lawful to purchase the seed itself so long as I didn’t germinate it. I could tell that there were only a few major large-scale seed banks selling Marijuana seeds in three varieties (Regular, Feminized, and Autoflowering). And they all disclaimed any liability, criminal or otherwise, for filling a seed order.
So I checked again, and Maryland law is clear. Marijuana seeds are part of the defined term Marijuana, which in Maryland means “all parts of any plant of the genus Cannabis, whether or not the plant is growing; the seeds of the plant . . . and each compound, manufactured product, salt, derivative, mixture, or preparation of the plant, its seeds, or its resin.” And of course, Marijuana does not include Hemp as Marijuana.
Similarly, federal law is also clear, and defines the plant similarly. The term “Marihuana” is defined as “all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; . . . and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.” The term does not include Hemp oil or cake made from the seeds of the plant . . . or the sterilized seed of such plant which is incapable of germination.” So what then is the point of these largely symbolic laws that are formally in effect in the criminal code, but which are not penalized by a jurisdiction? Long story short—there is no point other than to serve as a trap for the unwary and provide cover for selective enforcement.
Such legislation appears to be largely the remains of drug wars past. The Maryland criminal code is filling up with legislation that is increasingly contradictory and symbolic in nature. No doubt there are real problems with unenforced laws remaining on the books, especially if those leads to arbitrary application of the laws across different groups either by police or the courts. Does the existence of laws that are no longer enforced create a disrespect for the laws or a diminishment of its deterrence effect? We still don’t know. But we do know that the failure of our lawmakers to enact clear legislation governing Cannabis makes us all unsafe.
Maryland Law requires that licensed cannabis growers, processors, and dispensaries develop a plan for inventorying, safekeeping, and tracking all medical cannabis from “seed to sale.” All licensed cannabis-touching businesses must participate in a unified security tracking system designed to uniquely identify each cannabis plant from germination of the seed to harvest and then to sale to the end consumer. The tracking system is designed to ensure the quality and purity of the final products, to track the chain of custody throughout the production process, and to avoid the criminal diversion of the legal production of cannabis from the medical market to the black market and vice versa.
Forty-seven states, including the District of Columbia and Puerto Rico, have passed laws either legalizing cannabis for adult and/or medical use, or have simply decriminalized it. The majority of the states that have passed laws to regulate cannabis mandate that any state-licensed cannabis-touching businesses must incorporate product inventory management and tracing. The available track-and-trace systems, often referred to as seed-to-sale tracking systems, have been developed and marketed by third-party companies who license their software and technology to the various states, the District of Columbia, and the U.S. Territories.
So far, the majority of the third-party seed-to-sale software tracking contracts have been awarded to one of five companies: Franwell (based in Florida/Tennessee) markets its track-and-trace system known as METRC (Marijuana Tracking Enforcement Compliance) which operates in thirteen states including Maryland and the District of Columbia; BioTrackTHC (based in Florida) which operates in eight states and Puerto Rico; MJ Freeway (based in Colorado) which operates in three states; Microsoft has partnered with Kind Agrisoft (based in California) operates in one state; and finally BioMauris (based in OR) operates in one state.
These third-party track-and-trace systems record the travels of a cannabis seedling through the growing and harvest process, until it ends in a sale of a product to the final consumer. This security combines a mixture of manually tagging each seedling with a scannable radio-frequency identification tag bearing a barcode, as well as scanning the movement of each plant as it moves through the growing, processing, and dispensing facilities. While this creates valuable data as to the location of the plants, it is easily manipulated because the RFID must be physically placed on each seedling.
After the flowers and any leaves are harvested, they are packaged for transport and again entered into the database. The nicest buds will go to a distributor, from which a testing lab will select samples to check for contaminants such as mold or pesticide residue. Assuming the samples pass, the grower may then sell the remaining product to a processor, where it will be packaged, sent back to a distributor, and transported to a dispensary for sale. Information about each of these transfers, including ID numbers, business names, package weights and quantities, pick-up and delivery times, each get entered into METRC every step of the way. The same thing is true of less-attractive buds and other cannabis parts, such as trimmed leaves, destined to be turned into cannabis oil and ultimately used to infuse edibles, vape cartridges, or other products.
Even crop failures must be documented. If a plant dies at any point in the growing process, it must be destroyed, and the action recorded in the system. Testing companies must destroy all of what remains of their samples. Slight differences in quantity received during a transfer must be documented in METRC. If the difference is too large, the recipient of the cannabis is expected to refuse the transfer.
Each state has its own, unique legal and regulatory regime that guides the growing, processing, and reporting of the data created by the process. Against the backdrop of those mandated reporting requirements, cannabis is still prohibited federally. Consequently, each third-party seed-to-sale software provider must develop and tailor its software to meet the reporting and compliance demands specific to that state where it operates.
The level of regulatory oversight provided by this seed-to-sale technology is impressive by any measure. For example, Franwell’s software solution known as METRC, the track-and-trace system chosen by Maryland, integrates all the functions of the business which includes data collection, communications, record-keeping, inventory control, and every other function needed to run both the front-end and back-end of the business. METRC also reports all that data to the State on time and in the proper form. Failure in the data gathering or reporting features of the software can expose the business or its agents to a simple fine, to a license revocation, to criminal liability.
While seed-to-sale tracking has been adopted by most states as the means for reducing the risks associated with growing, producing, and dispensing cannabis, it has not been all smooth sailing for the industry. For example, in 2018 in Maryland, a software error in the State’s version of METRC began rejecting patients and preventing new sales at dispensaries. In February 2018, the MJ Freeway’s track-and-trace software known as the Leaf Data Systems experienced a security breach yet again. Reports indicate that an “intruder” downloaded a copy of the traceability database associated with four days of marijuana deliveries, as well as other information.
But for the time being, seed-to-sale software is providing the security that the burgeoning cannabis industry needs to expand its reach to new consumers, to provide security to the states that the product is not being illegally diverted or resold, and to track how and when the various products are consumed. Given the broader acceptance of cannabis in the various states, it is safe to assume that seed-to-sale software will continue to dominate any questions regarding security.