Activism and Positive Impacts on the Cannabis Community
“I didn’t set out to work for the legalization of Cannabis. I don’t even get paid for the work I do on behalf of Cannabis reform. I do it because I wanted to educate myself about Maryland’s politics and how to participate in the political process. As a citizen with an expansive view on freedom and helping others, I wanted to find a way to impact public policy.” Luke Jones was politely answering questions over the whoops and laughter of his sons as it neared their bedtime. As the Director of the Maryland chapter of the National Organization for the Reform of Marijuana Laws (NORML), Jones wears many hats each day – dutiful employee, concerned Maryland citizen, Cannabis advocate, devoted father. But as the fiftieth year of Prohibition passed, the job of ending the criminal punishment of Cannabis users and creating a marketplace of safe and healthy products can wait no longer for Jones.
“If legalization of Marijuana in Maryland is so popular, and we all agree by a wide margin that reform should happen now, why hasn’t it happened already?” Jones began to ask himself that same question last summer in 2020. What more could he do? How could he personally speed along the political process and make conditions ripe for consensus? As Maryland is a part-time legislature, they meet each year for only 90 days. All the State’s business must be completed during that time. In 2021, the Maryland’s legislative session lasted from January 13 – April 12, 2021. Jones reasoned that if a legalization bill was going to pass this year, the same bill had to be cross-filed in the Maryland House of Delegates and the Maryland Senate early on. And it needed co-sponsors who would vigorously defend the legislation against frivolous attempts to derail it through delay and distraction.
Over the 2020 summer, Jones worked with the Marijuana Policy Project (MPP) to identify legalization bill sponsors. Jones arranged a meeting between Senator Feldman (D-15) and Jazz Lewis (D-24) in the first week of November 2020 before the session. “We brought them together over the summer to meet each other, iron out differences, and be prepared to cross-file the bills in both houses of the legislature.”
With Lewis, Jones knew he had a talented politician who could listen to opposing interests, discuss them rationally, then defend the merits of his position. In Feldman, Jones thought he had a comrade-in-arms. Maryland Senate President Bill Ferguson (D-46) assigned the legalization bill to Feldman who was happy to be the lead sponsor. But when session started, it was clear that something had changed. “During the Fall 2020, Senator Feldman assured us he was ready to make legalization a 2021 priority. By the time the 2021 session began, however, it became clear that there were a lot of caveats and expectation lowering by Senator Feldman.”
“If you just design the bill around the paid lobbyists, then the job will never get done. The citizens of Maryland are the ones to dictate the timeline for policy reform, not the monied special interests opposing legalization.” Jones believes that the failure to pass Cannabis legalization and reform this year was caused by the distorting influence of money in politics. Maryland should have been ripe for legalization legislation this past session, even before Virginia and New York passed their legalization laws. As evidence, he points to the following undisputed facts:
Point 1 – Maryland’s Medical Cannabis Program brought in nearly $ 50 million in dispensary sales in March 2021 (which becomes $ 600 million annually); Point 2 — According to Maryland’s 2019 Uniform Crime Report, the State had more than 15,000 Marijuana possession arrests which has barely moved since the enactment of medical cannabis legislation in 2014; Point 3—Two-thirds of Maryland citizens support legalization; and Point 4 – Cannabis reform was central to the two widely accepted top priorities for Maryland in the 2021 legislative session (police reform and increasing state tax revenue).
Against that backdrop, medical cannabis patient numbers rose from zero in the year 2016 (the first year of qualified patients) to over 123,000 in the year 2020. Certifying providers rose from zero in the year 2016 to more than 2,000 today. But rather than expanding this popular program to include more people and more participants, Maryland ignored the trends, ignored the voters, ignored the national tide of legalization, and kept the current medical Cannabis system in place. By not acting to legalize Cannabis this year, the Maryland legislature voted to protect the current license holders from competition, reduce supply of products for patients, increase demand, and raise the average price for patients.
Despite the setback, Jones is optimistic that legalization will come to Maryland. “Politicians are rightly saying it’s a complicated issue. But no one is trying to solve the problem. Legislators must go into a year with a willingness to compromise if they want to pass legislation. Forming a coalition and possibly making compromises — these are essential aspects of any successful legislative campaign. But money distorts the process of democracy. Citizens shouldn’t have to fight paid lobbyists to secure their personal freedom. And no regulator should take money from the businesses they seek to regulate. These have been the biggest obstacles to progress here in Maryland.”
Maryland Leaf Magazine
Tucked away on the Johns Hopkins Medical School Bayview Campus, less than 45 minutes from the outskirts of Washington, DC, sits the Center for Psychedelic and Consciousness Research. The Center is run by its Director, Professor Roland Griffiths, a professor of behavioral biology in the Psychiatry and Behavioral Sciences Departments, as well as a professor at the Johns Hopkins University School of Medicine’s Department of Neuroscience. The Center is considered to be the first such research center in the United States studying psychedelic compounds and the largest research center of its kind in the world.
The Center focuses its research on how psychedelic compounds affect behavior, brain function, learning and memory, the brain’s biology, and mood. In particular, much of the Center’s early work focused on psilocybin — the principal psychoactive component found in “magic mushrooms.” Since the Center published its first studies in the early 2000’s, the Center has been collecting human clinical data about psilocybin’s efficacy as a wellness drug for opioid addiction, post-traumatic stress disorder, anorexia nervosa, and alcohol use in people with major depression. Researchers hope to use these findings to create precision treatments tailored to individual patients’ needs.
Since early human existence and continuing through the 1960’s, psilocybin, LSD and other psychedelic compounds were used and prized for their wellness benefits and mystic effects. By the 1960’s these compounds had been pushed from a controlled clinical setting to the general population by countercultural forces. These psychedelic compounds became stigmatized amidst the mania of the Controlled Substances Act of 1970, as well as the “War on Drugs.” A subsequent backlash led to a strict prohibition against legitimate research on these compounds for the next five decades.
In 2000, the psychedelic research group at the Center for Psychedelic and Consciousness Research obtained regulatory approval once again in the U.S. to conduct research with psychedelics in healthy volunteers who had never used a psychedelic. Their 2006 publication on the safety and enduring positive effects of a single dose of psilocybin sparked a renewal of psychedelic research worldwide. Since then, the researchers have published studies in more than 60 peer-reviewed journal articles.
The Center’s research illustrated the therapeutic benefits of psilocybin for people who suffer from conditions including nicotine addiction and depression and anxiety caused by life-threatening diseases such as cancer. It has also paved the way for current studies on treatment of major depressive disorder by offering the first long-term relief for such patients. Due, in part, to the knowledge they gained from the first human clinical trials in more than fifty years, the Center has helped other universities around the world gain approval for psychedelic studies by publishing safety guidelines. It has also developed new ways of measuring mystical, emotional, and meditative experiences while under the influence of psychedelics.
In the meantime, research at the Center has spawned a whole new generation of curiosity-seekers who see the benefits that psychedelics have to offer. On November 3, 2020, Oregon made history by becoming not just the first U.S. state to legalize psilocybin, but also the first jurisdiction in the world to lay out plans for regulating the drug’s therapeutic use. Although Oregon is not the first place in the U.S. to loosen restrictions on psilocybin—the cities of Oakland, Denver, Ann Arbor, Somerville, and Washington, D.C., voted in the past two years to effectively decriminalize the drug—it is the first State to offer a framework for legal therapeutic use.
In addition, data from the human clinical trials of psychedelics around the Country continue to support the use of new therapies to treat the most intractable psychiatric illnesses — such as Major Depressive Disorder (MDD), which effects more than 17 million Americans. For the second time in two years, the U.S. Food and Drug Administration (FDA) has designated psilocybin therapy as a “breakthrough therapy,” an action that is meant to accelerate the typically sluggish process of drug development and review, and is usually only granted when preliminary evidence suggests the drug may be an enormous improvement over already available therapy.
Law Column: Female Representation in the Maryland Cannabis Industry
Writer: Mike Rothman
Pull Quote: Part of the difficulty in measuring women’s impact on this industry is found with the data tracking itself.
Body Word Count: 668, 773 with bio
This month’s issue pertains to women in the Cannabis industry. As these stories make clear, women are shaping Maryland’s burgeoning medical Cannabis industry in ways that no one could have previously envisioned. However, according to a recent industry survey conducted by Vangst – a national Cannabis industry employment site – women make up only 39% of the employees of these companies. According to the Bureau of Labor and Statistics, the percentage of female employees in the industry ranks behind other more traditional female-dominated industries, such as education (68%) and real estate (50%). This represents an improvement over other male-dominated industries such as technology (20%), agriculture (25%), and beverage and tobacco (26%).
However, this does not mean that women and men have reached parity in this new industry. On the contrary, women continue to lag behind men in the executive suites of these Cannabis companies, in economic opportunity, and in overall employment rates. In 2017, the State of Maryland commissioned an economic disparity study to analyze the participation of minority-owned and women-owned enterprises in the state. That study found that women and minorities continue to experience statistically significant differences in their access to state and private sector contracts, as well as in the factors necessary for business success. Moreover, the study recognized that there was an evidentiary basis to apply race and gender conscious remedial measures to increase participation and ownership in the medical Cannabis businesses.
According to the most recent diversity statistics provided on the MMCC website, 57% of Maryland Cannabis businesses were owned by minorities (including females), while 75% of the employees in the Cannabis industry are minorities (including females). While these statistics are encouraging, they certainly do not tell the whole story.
Part of the difficulty in measuring women’s impact on this industry is found with the data tracking itself. Under the new diversity regulations promulgated by the MMCC last year, women are considered to be disadvantaged equity applicants. As of May 2018, Maryland cultivators, processors, and dispensaries were required to submit an annual report to the MMCC about how many minority and women owners were associated with each business. And in the most recent applications period that just ended in June 2019, bonus points were awarded to applications that had a diversity plan designed to employ “disadvantaged equity applicants,” again including women.
However, according to Joy Strand, the Executive Director of the MMCC, the state does not separately track the number of women involved in the Maryland medical Cannabis industry or their relative ownership percentages, apart from other minority groups. As a result, the state does not have any real hard data about the relative numbers of women being hired by the medical Cannabis industry here in Maryland.
But the glass ceiling for women seems to be giving way in Maryland, and practitioners like Dawn-Marie Steenstra are leading the way. Prior to her involvement in the medical Cannabis industry in Maryland, Steenstra ran her own assisted living facility for more than 21 years as a registered nurse. Seven years ago she attended the “Patients Out of Time” Conference in Arizona where she was introduced to the medical research and experiences of patients using medical Cannabis for terminal illnesses. All at once she became aware of the benefits that medical Cannabis could offer to her clients in the areas of hospice care and long-term palliative care. And she realized then that medical Cannabis could bring relief in ways that could never be provided by traditional medicine.
Since that time, Ms. Steenstra has immersed herself in advocating for patients and lobbying the State of Maryland for greater patient protections. She is now a National Ambassador for United Patients Group, works as an outreach coordinator for Mission Dispensaries, and is co-producing a series on medical Cannabis called “The Sacred Plant” for its second season. As she stated in a recent interview for an Americans for Safe Access profile, “I’m grateful I’m getting to be a force for positive change for all these things, furthering the mission of destigmatizing Cannabis.”
*Mike Rothman is the founder and principal of the Medical Cannabis Law Group located in Rockville, Maryland. For more than ten years, Mr. Rothman has advised clients in Maryland and around the country regarding the laws and regulations pertaining to Cannabis, its medical uses, its regulation, its oversight, and its changing legal status. Mr. Rothman has testified regarding Cannabis before a Maryland House of Delegates committee, taught classes on medical Cannabis to the Maryland State Bar Association, the Montgomery County Bar Association, Maryland Public Television’s Law School for the Public, as well as Anne Arundel Community College and Patients Out of Time Seminar in Baltimore.*
This month’s issue of Maryland Leaf covers the broad topic of “Leisure” and focuses on the activities enjoyed by people during recreation while using cannabis. This issue explores the activities and classic cultural references that have spread due to the broad, popular appeal of cannabis around the world. But as I sat down to recount the new and varying ways that people are using Cannabis to complement their leisure and recreational activities, I could not stop thinking about the tragic news concerning the shooting death of Mr. Ahmaud Arbery while jogging in Brunswick, Georgia. While Mr. Arbery’s death had nothing to do with cannabis, it nevertheless reinforced, once again, how the lens of race contorts everything – even the pleasure of leisure activities such as jogging.
Despite the federal prohibition of cannabis as a controlled substance, thirty-three (33) states have now passed laws legalizing the medical use of cannabis, while fourteen (14) states have passed laws permitting access to cannabis with limited THC content or cannabidiol (CBD) only — a non-psychoactive component of the cannabis plant. Eleven (11) states have legalized the adult use of cannabis altogether, while fifteen (15) states have decriminalized the possession of small amounts of cannabis. In the US, 327 million people live in such states. Conversely, the outright criminal prohibition of cannabis now exists in only two states — Idaho and South Dakota. There are only 2.7 million people left who now live in a state that retains criminal penalties for the simple possession of cannabis.
With nearly 327 million Americans living in a state where cannabis is consumed legally, medically, or without penalty for a personal possession amount, it would be reasonable to predict that arrests would be on the decline nationally and the disparity in the arrest rates amongst the races would be disappearing. Unfortunately, old habits are hard to break. While arrests for simple marijuana possession (as defined under the Controlled Substances Act of 1970) have decreased 18% since 2010, the national trend line in arrests appears to be on the rise again. In fact, there were more arrests for simple marijuana possession in 2018 than 2015. In all 50 states, black individuals are more likely to be arrested for marijuana possession than their white counterparts, including some states where black people were almost 10 times more likely to be arrested. In 31 states, racial disparities amongst the arrest rates were even larger and more pronounced in 2018 than they were in 2010.
Earlier this year, the ACLU published a follow-up to its landmark 2013 report on racial disparities in marijuana arrests in the United States called “A Tale of Two Countries: Racially Targeted Arrests in the Era of Marijuana Reform.” In the report, the authors found that nationally black individuals were 3.64 times more likely than white individuals to be arrested for simple marijuana possession even though usage rates amongst the various races were virtually identical.
When you drill down into the fine details, Maryland’s cannabis arrest numbers, for example, contains both good news and bad news. On the one hand, Maryland now records one of the lower disparities amongst the states between the arrest rate of white people and black people per 100,000 individuals (ranking 44th). And Maryland’s rate of disparity has come down since 2010, when Maryland had the Fourth highest marijuana arrest rate in the Country. For the bad news, Black people make up over 30% of Maryland’s population, yet they make up 52% of the simple possession marijuana arrests. Maryland still arrests black people for Cannabis crimes at a rate 2.1 times more frequently than white people.
In his “Letter from a Birmingham Jail” written during the Birmingham Campaign in 1963, Martin Luther King, Jr. wrote, “Injustice anywhere is a threat to justice everywhere.” He wrote that letter in response to other clergy members who urged him to give up his non-violent resistance campaign throughout the South and let the fight for civil rights continue in the courts and not in the streets. King argued that not only was civil disobedience justified in the face of unjust laws, but it was necessary and even patriotic.
I ask that anyone reading this column, engaged in a leisurely activity such as reading this fine publication, and enjoying cannabis, remember how far the United States has come in the recognition of cannabis in this Country. But also remember how far we need to go to make sure that every American, regardless of race, can enjoy their version of life, liberty, and the pursuit of happiness.
If it has been more than ten years since you’ve tried Cannabis, a trip to a modern-day dispensary might leave you a bit confused. Of course, you would recognize the green, leafy buds of the Cannabis plant, now referred to by budtenders as “flower.” But stashed beneath the glass and bright lights, you will also find a wide assortment of new products termed, “Concentrates.” These concentrates represent the fastest growing sector of Cannabis products, and come in a wide variety of forms, textures, and viscosities, such as honey oil, Rick Simpson oil, diamonds, sauce, wax, budder, shatters, sugars, and live resin (to name just a few). Each of these Cannabis-derived extracts contains refined and concentrated amounts of Delta-Nine Tetrahydrocannabinol (THC), as well as other cannabinoids and terpenes also in concentrated amounts. The resulting finished products are challenging the traditional notions of what is Cannabis and how it should be regulated.
Maryland law defines a medical Cannabis concentrate as “a product derived from medical cannabis that is kief, hashish, bubble hash, oil, wax, or other product, produced by extracting cannabinoids from the plant through the use of Solvents; Carbon dioxide; or Heat, screens, presses or steam distillation.” According to new rules recently published by the Maryland Medical Cannabis Commission, an edible Cannabis product in Maryland cannot contain a concentrate or an infused product.
There are two main methods by which Cannabis concentrates are created — solvent-based and non-solvent-based extraction. A solvent is a liquid in which something is dissolved to form a solution. In extraction, a solvent is a liquid used to separate the psychoactive compound THC (and other cannabinoids and terpenes), from the cannabis flower. The most popular solvents used today are butane, carbon dioxide (CO2), propane and alcohol. In solvent-based extraction, chemical solvents are used to separate resin glands containing the psychoactive compound THC from the Cannabis flower. In non-solvent extractions, water, temperature and pressure are the predominant factors for separating compounds.
Dabbing is the most popular way to consume Cannabis concentrates. Often referred to as “doing a dab” or “taking a dab hit,” this method of ingestion refers to the vaporization and consumption of a Cannabis concentrate. On average, a concentrate consumer might ingest a few inhalations between 60-80% THC, compared to smoking cannabis flower which averages 10-25% THC. Not surprisingly, the increased potency makes dabbing more economical for most users–as less product needs to be consumed to reach optimal or desired effects. The effects of a dab usually come on stronger and quicker than smoking flower. Because of this, dabbing is often recommended for experienced or frequent smokers due to the high potency of the product.
The difference in flavor between concentrates and flower is also pretty dramatic. Cannabis extracts not only concentrate cannabinoids in the finished product (such as THC, CBD, CBN, etc.), but also increase the amount of flavorful and beneficial terpenes (such as limonene, pinene, and myrcene, to name a few). Concentrate vaporization permits a Cannabis consumer to more clearly smell the parts of the plant that contribute to taste, such as the aroma from the terpenes, which usually evaporate at very low temperatures. These highly volatile gases can easily become overwhelmed when combustible plant matter is burned (which occurs while smoking flower).
Concentrates in Maryland can be consumed by medical Cannabis patients without civil or criminal penalty–within their 30-day recommended supply. But they still cannot be consumed in public or by non-medical patients without criminal penalty. Possession in Maryland of a Cannabis concentrate in any amount, even below the civil penalty 10 gram amount, would constitute the misdemeanor criminal charge of possession of THC (a Schedule 1 Controlled and Dangerous Substance under Maryland and Federal Law), which carries a penalty of up to one year in jail and up to a $ 5,000 fine.
Maryland Law defines medical Cannabis to include THC and exclude Hemp. But the defined term “Marijuana” is completely silent on the issue of whether THC is one of the prohibited products contained within it. As a result, if an arresting officer issues a citation or makes an arrest on an individual for simple possession of a Cannabis concentrate, the officer must make the unenviable choice of charging the defendant with a more severe crime based on their status as a non-patient (possession of THC) or with a crime that many State’s Attorney’s Offices refuse to prosecute (possession of Marijuana).
It is not surprising then that some states have tried to ban concentrates or at least reduce the maximum percentage of THC that can be sold in any concentrate or infused product. States such as Washington State, Arizona, and even Colorado have brought bills before the legislature to cap overall THC percentages in concentrates. These state actions have alarmed Cannabis activists. But they also demonstrate that there are more health studies that need to be conducted before we decide that concentrates are as low-risk as full spectrum flower or hemp.
According to a recent poll taken in January of this year, 57% of all Marylanders support legalizing marijuana for recreational use, as do 76% of Marylanders under 50. Given this broad mandate for marijuana legalization across the State, one might believe that this is the year that adult-use, recreational marijuana legislation finally passes here in Maryland. But political realities are once again intruding on the best laid plans of Maryland legislators, as legislative priorities become shaped by the current events driving the day.
During the 2019 legislative session, leaders of the Maryland General Assembly created a legislative working group to study how to best implement the legalization of marijuana. Due to safety and health concerns created by the coronavirus, however, Maryland legislators voted to end this year’s session early. Ultimately, the Working Group made no legislative recommendations for the 2020 legislative session.
Delegate Kathleen M. Dumais, a co-chair of the Marijuana Working Group, is concerned that pressing legislative priorities such as the constitutional mandate to pass a budget, covid relief packages, eviction foreclosures, funding for programs, and police accountability measures just might take up all the General Assembly’s time during Maryland’s 90-day legislative session. She is also concerned that the 2021 legislative session will be shortened again, further limiting what can get done.
“So, the message that is coming from House and Senate leadership is to introduce whatever bills you want, and every bill will get a hearing, as it always does. But there will be a limited number of bills that actually pass this year. And if its controversial and there is not a consensus on it, it may not get through this year.”
Dumais acknowledged that the roll-out of medical Cannabis here in Maryland did not go very well a couple of years ago. Dumais expressed concern about how Maryland could create a diverse Cannabis legalization program with equity and fairness for everyone. “Whether we keep medical and recreational separate or not, there are still questions that we have not completely grappled with yet [as a legislature]. And I don’t know if there will be the bandwidth to do it this session.”
Nevertheless, nearly one year later, the world has changed dramatically. The pandemic has ravaged the country. Economic realities have left many Maryland residents without employment. Police reform has become unavoidable. And just last month, the Nation participated in a highly divisive election where every Cannabis measure on the ballot across the United States passed with bipartisan support. With the passage of these initiatives, one-third of the United States population now live in jurisdictions that have legalized cannabis for adult use, and 70% of all states have embraced Cannabis for medical use.
To top it all off, just last week the United States Congress passed the MORE Act [Marijuana Opportunity Reinvestment and Expungement Act of 2019] by a wide majority (228-164). While this Act has no chance of passing in the Senate and becoming law this year, it does represent the first time in nearly 50 years that the House has taken up legislation to remove “marihuana and tetrahydrocannabinols” from the schedules of controlled substances.
But other Working Group members are more optimistic that current events are propelling the State towards Cannabis legalization. Delegate David Moon, another member of the Working Group, noted that events this year have only further highlighted why Cannabis legalization is an urgent issue. “I think the arguments not to do this [Cannabis legalization] are rapidly disappearing.” In past legislative sessions, Moon has co-sponsored Cannabis legalization legislation. He expects to introduce legalization legislation once again this upcoming session regardless of what else is on the agenda.
“Everybody is bracing for the possibility of budgets being tightened during the pandemic,” Moon noted. “New revenue sources are few and far between. Cannabis legalization is one of the obvious ones left on the table that Maryland has not yet tapped. It won’t solve all of our money woes, but certainly we’re in a place right now where every dollar, every million dollars is going to matter quite a bit.”
Moon opined that racial injustice and institutional inequality have forced Cannabis legalization to the top as a priority. “We’ve obviously been moving more and more towards a reckoning with our incarceration epidemic. By and large, the public in Maryland and nationally is quicker to get behind the concept that we need a system other than criminal prohibition as a policy framework.”
But Moon hedged his answer, tempering expectations for legislative action this session. “If I were a betting person, and I’m not, I would say that Maryland is highly likely to pass legalization before the next election. We have two legislative cycles and two years tops where we are likely to see legalization move forward within that period. Now is that going to happen in the next two months. Well that is a good question.”
Late last month, in November 2019, the U.S. Food and Drug Administration (FDA) issued a second set of warning letters to companies across the country for illegally selling products containing cannabidiol (CBD) as dietary supplements. In its letters, the FDA warned that based upon the lack of scientific data supporting the safety of CBD in food, it could not conclude that CBD was generally recognized as safe for its use in human or animal food.
While avid consumers of CBD continue to dispute the FDA’s conclusions, those same consumers cannot fault the FDA for pursuing its mission to ensure that the food and drug products consumed by humans and animals are safe and effective. In fact, these warning letters highlight the dual nature of the FDA’s long history of protecting the public’s health and safety from products marketed or sold to the public as food or drugs.
Before the 20th century, there were few federal laws regulating the contents and sale of domestically produced food and pharmaceuticals. A patchwork of state laws provided varying degrees of protection against unethical sales practices, such as misrepresenting the ingredients of food products or therapeutic substances. During this period which became known as the Progressive Era, the public became concerned about the hazards of the marketplace. Spurred on by books such as Upton Sinclair’s, “The Jungle,” the public demanded increased federal regulations in matters pertinent to public safety.
Two years later in 1906, President Theodore Roosevelt signed into law the, “Food and Drug Act.” The Act prohibited the interstate transport of food which had been “adulterated,” colored to conceal “damage or inferiority,” or formulated with additives “injurious to health.” The Act also applied similar penalties to the interstate marketing of “adulterated” drugs, in which the “standard of strength, quality, or purity” of the active ingredient was not either stated clearly on the label or listed in the United States Pharmacopeia or the National Formulary. The Act also banned “misbranding” of food and drugs.
Today, under the Federal Food, Drug, and Cosmetic Act (the Act), the FDA is responsible for ensuring the safety of all food except for meat, poultry and some egg products; ensuring the safety and effectiveness of all drugs, including biological products (e.g., blood, vaccines and tissues for transplantation), medical devices, and animal drugs and feed. Cannabis could rightly be determined to be a drug in its raw form or a food in its component form. Under the Act, a drug is defined as any product intended to treat a disease or otherwise have a therapeutic or medical effect, or any product (other than a food) intended to affect the structure or function of the body of humans or animals.
Not surprisingly, the FDA has a regulatory mandate to test CBD to determine whether it can be used safely and effectively as a drug. This includes a testing protocol to determine whether a drug is effective for its intended use, what the proper dosage might be for the drug, how the drug might interact with other FDA-approved drugs, and whether there are dangerous side effects or other safety concerns for the general public regarding the drug. The FDA must also approve the manufacturing methods of any CBD product to assure the drug’s identity, strength, quality, and purity.
If a drug is permitted to be prescribed under state and federal criminal laws, the drug must have been approved by the FDA and placed within one of the permissible Controlled Substances Act (CSA) Schedules. To obtain that FDA approval, the manufacturer must demonstrate the drug’s safety and effectiveness during clinical trials according to criteria specified in law and agency regulations, ensure that the drug’s manufacturing plant passes FDA inspection, and obtain FDA approval for the drug’s labeling. Thus far, only one CBD product has been approved as a prescription human drug product – Epidiolex – an oral solution for the treatment of seizures associated with two rare forms of epilepsy.
Which brings the discussion back to where it originally started – does Cannabis promote health and wellness? Answer: It depends who’s asking. The FDA is the federal regulator for food and drugs in the United States. Food and drugs are only approved for manufacture and distribution if they have been deemed safe and effective by the FDA. Cannabis has been designated by Congress and the FDA as a Schedule I drug under the Controlled Substances Act of 1970 (with a high potential for abuse, no currently accepted medical use in treatment, and cannot be safely under medical supervision). Pursuant to that designation, no prescriptions may be written for Schedule I substances, and those drugs are not readily available for clinical use.
However, according to the political will of the States, Cannabis does have an accepted medical use. Thirty-three States and the District of Columbia have enacted laws that permit the use of Cannabis for medical purposes. Eleven States and the District of Columbia have enacted legal use of Cannabis for adults 21 and over. Given the fact that over two-thirds of the states have enacted medical use laws and two-thirds of the country’s population live in medical cannabis states, the FDA may one day soon be forced to abandon its political leanings and acknowledge the science that Cannabis (and all its component organic compounds) can promote health and wellness.
“For Tobacco Use Only.” That is the fig leaf supposedly covering the stores who sell glass water pipes (aka bongs), bangers, bowls, and other assorted paraphernalia that are used to ingest or inhale cannabis and other drugs. Sold in high end glass galleries, head shops, smoke shops, and even the local convenience stores, these products are available in large cities and small towns across this country. But this “disclaimer” is really a legal fiction that reminds us of the many political and law enforcement priorities that have ebbed and flowed through the glass industry. For example, it wasn’t too long ago, 2003 to be exact, that 55 manufacturers of glass water pipes were charged and given jail time for making the very products featured in this issue.
In February 2003, the United States Justice Department launched its first large scale frontal assault on the glass water pipe/glass pipe industry out of the United States Attorney’s Office for the Western District of Pennsylvania. Code named “Operation Pipe Dreams,” hundreds of businesses and homes were raided in an investigation resulting in the indictment of 27 individuals, including Tommy Chong (famous for his role in the comedy duo of Cheech and Chong). The investigation purportedly cost over $12 million to conduct, and consumed the resources of over 2,000 law enforcement personnel. Fifty-four of the fifty-five individuals charged in the Operation were sentenced to a fine and home confinement. Chong was the only individual to face jail time. He was sentenced to nine months in a minimum-security Taft Correctional Institution in Taft, California, a fine of $20,000, and agreement to forfeit $103,000. It was the harshest sentence to come out of this chapter in the federal government’s, “War on Drugs.”
Looking back on Operation Pipe Dreams, it is hard to see what greater good was achieved. Did the high-profile prosecution of Tommy Chong, his family, and his son’s glass business “Nice Dreams” change any minds? The answer would have to be a resounding, “No.” In fact, cultural norms seem to have made the prosecution even more out-of-step with the times. As States have begun to legalize Cannabis for adult use and medical use, States have put a low priority on the enforcement of paraphernalia laws. In fact, the law that was used to prosecute Operation Pipe Dreams is still the federal law of the land. And it is still federally illegal to sell or offer for sale drug paraphernalia, including water pipes, and to use the mail, phone, internet or any other interstate facility to transport it. Yet, an average Marylander can go onto the Internet any day of the week and purchase a glass water pipe and have it mailed to them.
Is there a difference between a water pipe in a glass gallery, head shop or convenience store and a water pipe located in your home? Strangely, the answer is maybe. Under federal law the term drug paraphernalia means “any equipment, product or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance.” But there is no federal prohibition against personal possession of paraphernalia. Those laws are left to the States.
Maryland Criminal Law provides a list of Thirteen (13) factors that police and courts can use to determine if an object is prohibited paraphernalia, and hence a crime. Specifically, Maryland Law 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.” But in 2016, after enacting the laws laying down the framework for Medical Cannabis in Maryland, the Maryland General Assembly specifically added an affirmative defense for the possession of “Marijuana.” That is correct. You heard it here. You cannot be charged with the possession of paraphernalia if the Controlled Dangerous Substance (CDS) you were allegedly in possession of is 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 worse.
While there is an affirmative defense to possession of a glass water pipe if you are intending to use it to ingest Marijuana, there is no legal protection for the store that is supposedly selling you the glass water pipe if they know you 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. 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. It is even worse when one considers that a Medical Cannabis patient in Maryland may be misusing a product or purchasing one they do not need. 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.
On March 23, 2020, Maryland Governor Larry Hogan issued an emergency “shut-down” order declaring that a catastrophic, statewide health emergency existed within the State due to the outbreak of COVID-19. The Order closed all “non-essential businesses” to control the spread of the disease — effective immediately. But tucked into the Governor’s Order prohibiting the public from attending large gatherings and events was a curious exception to the list that had never before been mentioned as critical infrastructure. Indeed, the Order permitted the Maryland’s Medical Cannabis growers, processors, and dispensaries to remain open during the pandemic and serve the public.
While it should not come as a complete surprise that Cannabis was listed as an “essential” industry under the Order — it is noteworthy how quickly and dramatically its public reputation had changed. One might recall that less than six years ago, during the heart of the War on Drugs, Maryland introduced its first legislation seeking to decriminalize Cannabis and create a medical recommendation system for patients. Less than six years later, Cannabis in Maryland has transcended its “street-drug” label. It is no longer considered in Maryland to be an illegal, highly addictive, Schedule I drug with no known medical benefits that is unlawful to possess. Now it’s considered part of Maryland’s critical Public Health Sector.
But the Cannabis market around the country (or Maryland’s market, for that matter) did not begin its ascendence as a commodity by virtue of a change in law alone. Rather, the Cannabis industry began its rise to prominence due to a corresponding development of companies that saw the opportunity to support the industry through technology, software, and business processes. These companies can be best categorized by their business’ function as it relates to the Cannabis plant. Not surprisingly, companies in the Cannabis industry are termed to be either “plant-touching” or “ancillary.”
Plant-touching businesses handle the Cannabis plant itself, either cultivating, distributing, processing or selling it. These tend to be the businesses most people think of when they imagine the Cannabis industry. Plant-touching businesses are generally subject to the strictest regulations and must navigate complicated licensing processes before they can begin manufacturing, processing, or distributing Cannabis.
On the other hand, ancillary businesses support the growth, processing, and sale of Cannabis products throughout the supply chain. These businesses include data platforms, agriculture-technology companies, point-of-sale systems, payment processors, digital marketers, attorneys, accountants and more. They are the same types of companies that would support business processes in any other industry.
Some examples of ancillary companies include developers of seed-to-sale compliance software like METRC or BioTrackTHC, manufacturers developing packaging for products from dried flower to concentrates, the providers of cultivation equipment and supplies such as Scotts Miracle-Gro’s subsidiary Hawthorne Gardening Company, and the point-of-sale software and analytics firms like Baker Technologies and BDS Analytics. By next year, experts believe that the revenue from the ancillary Cannabis market will exceed the market for medical and adult-use Cannabis products combined.
Beyond what these sales numbers suggest, ancillary businesses are essential for a number of other reasons also. First, ancillary Cannabis businesses do not carry the risks associated with plant-facing businesses. Fundamentally, businesses built around ancillary products such as growing media, lights, and packaging do not have the same problems associated with interstate commerce, banking, or legal liability.
For example, ancillary businesses can conduct business across state lines, while plant-touching businesses cannot. Plant-touching businesses generally have difficulty scaling efficiently since they are currently not able to ship their products across state lines, even in conjoining states where recreational use is legal in both. Cannabis products produced in legal state markets cannot be shipped to other legal states, as crossing state boundaries constitutes interstate commerce and falls under federal jurisdiction. This exposes any investment in a plant-touching business to additional regulatory risks and costs.
Finally, banking remains one of the last impediments to normalizing essential businesses that serve the Medical Cannabis market. This problem primarily plagues plant-touching industries, because Cannabis remains illegal under federal law, and is currently labeled a Schedule 1 drug under the Controlled Substances Act. As a result, any bank that provides services to a legal Cannabis business faces possible criminal prosecution for “aiding and abetting” a federal crime and money laundering.
Banks may choose to service a legal Cannabis operator, but the government requires them to file a suspicious activity report for every transaction involving a Cannabis business. These rules extend beyond the Cannabis operator itself to any company it interacts with, from accountants to cleaners, resulting in mountains of red tape and expense that most banks simply choose to not deal with. Still, most Cannabis business owners cannot accept credit cards, pay their payroll taxes by check or make wire transfers to other businesses because of the federal prohibition.
As a result, Medical Cannabis may have made the leap to becoming an “essential” industry during the pandemic due to Governor Hogan’s Order. However, due to its traditionally disfavored status, the industry still has a long way to go before it can enjoy the same benefits that other businesses enjoy under the law.
Look Who’s Inhaling Now: 2020 Elections Reinforce New Cannabis Reality Maryland Leaf — December 2020 Issue
“When I was in England, I experimented with marijuana a time or two, and didn’t like it. I didn’t inhale, and I didn’t try it again.”
Governor Bill Clinton during a March 29, 1992, televised candidates’ forum.
“When I was a kid, I inhaled [marijuana], frequently. That was the point.”
Senator Barack Obama during a 2006 meeting with magazine editors.
“I joke about it—half my family is from Jamaica, are you kidding me? And I inhaled. I did inhale. It was a long time ago . . . I think it gives a lot of people joy. We need more joy in the world.”
Senator Kamala Harris during a 2020 radio interview.
Some political changes occur like a flash of lightning — such as when the Berlin Wall came down in 1989, marking the fall of the Iron Curtain in Eastern Europe and the end of Communism. For other political and social movements, however, change takes place more slowly – advancing and receding with the changing times. The acceptance of Cannabis falls squarely into the second category. But in one of the most divisive elections in United States history that ended just last month, the only conclusion the United States can reliably draw from the vote is that Cannabis finally won big at the ballot box.
In 2007 and 2008, then-Senator Obama bemoaned America’s high incarceration rate, warned that the racially disproportionate impact of drug prohibition undermines legal equality, advocated a “public health” approach to drugs emphasizing treatment and training instead of prison, repeatedly indicated that he would take a more tolerant position regarding medical marijuana than George W. Bush, and criticized the Bush administration for twisting science to support policy.
Unfortunately, Obama never delivered on his promises of Cannabis reform. The Obama Justice Department did make some progress — issuing legal guidelines, such as the Ogden Memo and the Cole Memo — delimiting the use of federal law enforcement resources against Cannabis providers operating pursuant to state law. Nevertheless, arrest rates remained high, federal raids continued, and the “Drug War” raged unabated. President Obama’s most conspicuous failures featured more-frequent raids by the Drug Enforcement Administration (DEA), IRS audits, and threats of prosecution against not only dispensaries but anyone who dealt with them.
Which brings us to the results of the most recent election. A solid majority of the American public now agree that responsible Cannabis users should not be treated like criminals. Eight out of ten Americans support the medical use of Cannabis, and nearly 3 out of 4 Americans support a fine-only (no jail) for adult use Cannabis consumers. Over 60% of Americans now favor legalizing Cannabis, according to the most recent Gallup poll — the highest percentage support ever reported in a nationwide scientific poll.
Specifically, voters approved the legalization of medical Cannabis access in two states, Mississippi and South Dakota. Voters in Arizona, Montana, New Jersey, and in South Dakota legalized the adult use of Cannabis. The measures in Arizona, Montana, and South Dakota each permit adults to possess and cultivate Cannabis for personal use and establish a regulated retail market.
All of the Cannabis measures on the ballot this year won with relatively strong support — by 5 percentage points or more. The States of Montana, Mississippi, and South Dakota illustrate the broad support Cannabis access measures enjoy across the Country — regardless of party affiliation. Those states handed big wins to both President Donald Trump and to Cannabis access supporters. In total, 15 states have now either enacted or have voted to enact adult-use legalization laws, while 36 states have either enacted or have voted to enact medical Cannabis access laws.
Not surprisingly, the issue of federal legalization and/or decriminalization of Cannabis has finally bubbled to the surface where it can no longer be ignored. United States House of Representatives Majority Leader Steny Hoyer (D-MD) previously announced this summer that the chamber would vote on the Marijuana Opportunity, Reinvestment and Expungement (MORE) Act in September. But in October, that plan was postponed following pushback from certain centrist Democrats who worried about the optics of advancing cannabis reform before passing another coronavirus relief package.
Several of those members were voted out during an election in which voters in states such as Montana and South Dakota approved Cannabis legalization ballot measures. Hoyer confirmed on Monday that marijuana legalization is still on the table before the presidential transition and will get a vote in December.
Will Cannabis access finally get a vote at the federal level? Only time will tell. But one thing is for certain – Cannabis has won the culture wars and currently, it is the only thing we can all agree upon.