·  Legal News, Analysis, & Commentary

News & Politics

Passing Marijuana Ballot Proposal Guarantees Little

— November 1, 2018

In November, the number of states that allow medical and recreational marijuana use will likely increase from 30.

In November, the number of states that allow medical and recreational marijuana use will likely increase from the 30 (plus the District of Columbia) that allow at least some forms of medical cannabis (Louisiana, for instance, only allows it as a pill or an oil; no smoking or vaping permitted), and the nine that also permit recreational (though two —Vermont and the District of Columbia—don’t allow sales within their borders). When or if federal legalization will come still remains a big question mark.

An October Forbes article states, “there will be 36 separate major cannabis reform measures on the ballot next month, across seven states,” including recreational use in two: Michigan and North Dakota. (Voters in both states previously passed medical marijuana proposals that the legislatures were reluctant and slow to implement, which may have energized the pro-legalization supporters further.)

(Actually, it may be only six states. Utah seems to have reached a compromise—brokered by the Church of Jesus Christ of Latter-Day Saints(!)—ahead of the election permitting “the medical use of marijuana, if doctor-prescribed in dosage form through a licensed pharmacy”.)

In addition, New Jersey is considering making recreational marijuana legal legislatively, which makes it only the second to do so. (Vermont was first back in January.)

Legal Problems Remain for Marijuana Users

Even if those numbers swell to 50 and 50—and even though our neighbor to the north may have started selling marijuana in liquor stores by the time this appears (scheduled for Oct. 17, but that goal post has been moved before)—that won’t be the end of problems for marijuana users and growers unless and until the federal and perhaps international laws change.

Crossing the Border

For instance, Canadians crossing the U.S.-Canada border may be asked if they have ever used marijuana, medical or recreational; if they answer yes—or answer no and are found to be lying—they could be banned from the U.S. “forever”.

Though marijuana may be legal in Canada and may be legal in the border state through which Canadians attempt to enter the US (such as Washington and possibly, after Nov. 6, in Michigan), it still will be illegal under U.S. federal law and international treaties.

The Right to Toke and Bear Arms

Also, past or present marijuana users in the U.S. are prohibited from becoming gun owners—or even using a gun—by a provision of the Gun Control Act of 1968 (GCA), a provision that the Bureau of Alcohol, Tobacco and Firearms (ATF) affirmed was still the law of the land in 2011.

Surprisingly, the National Rifle Association hasn’t taken a stand on this (though NRA members have defended giving the blind and the mentally ill the right to buy and bear arms). Earlier this year, past NRA president David Keene did speak in defense of at least medical marijuana: “Trading a constitutional right for pain relief is a choice no one should have to make”.

Woman holding pistol; image by Sofia Sforza, via
Woman holding pistol; image by Sofia Sforza, via

A pregnant Arkansas woman who killed her estranged husband in self-defense may face prison time because there is a marijuana charge on her record (though if she had been legally or completely blind, she would have been in the clear under the GCA).

In Oklahoma, which passed a medical marijuana voters’ measure during its 2018 primary a few months ago, Rep. Jon Echols is working on legislation forbidding state law enforcement officers to enforce that federal law. “If the feds want to come down and do it, then they can do what they gotta do. But our law enforcement officers are not gonna do it”.

Unenthusiastic or Obstructionist State Governments

Such state civil disobedience cuts both ways. Many officials in state governments don’t like marijuana legalization or the fact that most were enacted by voter referendum, not the elected legislators. In response, they drag their feet and set up roadblocks.

The Oklahoma Board of Health tried to impose rules restricting access to marijuana despite the law—by banning the sale of “smokable forms of marijuana and requiring that dispensaries hire pharmacists”—but had to rescind them after “lawmakers from both parties criticized the board for overreaching and the attorney general said the board likely exceeded its authority”.

(At least one other state, Louisiana, currently has a similar law. Florida had a similar law, but in May a circuit court judge ruled it unconstitutional.)

Hopes for Federal Legalization Uncertain

Chances of federal reconsideration are iffy at best. President Obama—reputedly at least a past marijuana user—never tried to change marijuana’s official status, though he encouraged the feds to not enforce the laws in states where marijuana had been legalized.

President Trump, who says he’s never used alcohol or any illegal drugs, seems inclined to leave it to the states—as recently as June he said he was likely to support the Strengthening the Tenth Amendment Through Entrusting States Act, a legalization bill that will probably reach the floor next year – but it’s possible he’ll change his mind.

If he does, it may be due to his attorney general. Jeff Sessions is an unrepentant drug warrior who has proclaimed marijuana addiction only a little better than heroin addiction, although no one has ever died of a marijuana overdose and many experts question whether marijuana is even addictive.

On the other hand, one stumbling block to legalization is that the U.S. Food and Drug Administration (FDA) had never found that marijuana had any legitimate medical benefits. That’s no longer completely true.

In June, the FDA approved Epidiolex, an epilepsy drug containing cannabidiol (CBD), the second most abundant cannabinoid in marijuana. Although CBD doesn’t get you high, it was still a significant decision because heretofore, the U.S. Drug Enforcement Agency considered CBD as illegal as marijuana.

In late September, the DEA changed its mind enough to allow Epidiolex to be regulated under Schedule V of the Controlled Substances Act rather than banned under Schedule I.

It wasn’t news to all departments of the government that CBD might be safe and beneficial. Back in 2015, the National Institute on Drug Abuse (NIDA) concluded that “CBD appears to be a safe drug with no addictive effects, and the preliminary data suggest that it may have therapeutic value for a number of medical conditions”.

Chances for International Legalization

Last November, the United Nations’ World Health Organization (WHO) agreed, writing that “In humans, CBD exhibits no effects indicative of any abuse or dependence potential”.

More recently still, in June the WHO’s Expert Committee on Drug Dependence (ECDD) began to consider revising its cannabis policy—that it made marijuana illegal in the first place was largely due to lobbying by the U.S.—finding in a pre-review that:

  • “There was sufficient evidence to proceed to a critical review of cannabis and related substances at the next ECDD meeting in November 2018”.
  • “The ECDD recommended that preparations considered to be pure cannabidiol (CBD) not be placed under international drug control as the substance was not found to have psychoactive properties, and presents no potential for abuse or dependence”.

Mexico has already legalized medical marijuana and legalization or decriminalization of recreational marijuana seems likely. Canada has legalized recreational marijuana. It’s possible that the UN will legalize it, too.

Both the FDA and the UN have asked for input on reclassifying marijuana in general and CBD in particular. It could be that they are looking for a way out.

Join the conversation!