10/5/2017 1 The Catch-22s of Cannabis Legalization Maren Schroeder, MBA, RP®, MnCP President, Sensible Minnesota October 12, 2017 NFPA Annual Convention, New Orleans, Louisiana Maren Joyce Schroeder, RP®, MnCP MarenSchroeder,MBA,RP®,MnCPisaPACERegisteredandMinnesotaCertifiedparalegalandQualifiedRule 114 Neutral for Borgos Law, PLLC working in the areas of family law, criminal defense, debtor relief, and medical cannabis patient rights. She has a B.S. in Paralegal Studies and an M.B.A. in Legal Administration. Maren is currently the Director of Marketing and NFPA Secondary for the Minnesota Paralegal Association, and previously served as MPA’s Director of Professional Development (2016), Director of Greater Minnesota (2013-2014), Regulation Committee Chair (2014-2015), and Rochester Chapter Director (2012), and NFPA Regulation Review Coordinator (2016-2017). Additionally, Maren served on the MSBA’s Task Force on AlternativeLegalServicesModelswhichmaderecommendationsonexpandinglegalservicesforunderserved populations. Also active in the community, Maren chairs her city’s Planning & Zoning Commission, is a volunteercrisisadvocateforvictimsofsexualassault,andisavolunteerfamilyandschoolmediator. Maren began cannabis-related advocacy in the mid-2000’s when she began researching and writing on the topicofmedicalcannabis,inspiredbyhermother’sMultipleSclerosisdiagnosis.In2014,shebeganherformal advocacyworkingwiththeMinnesotaChapteroftheNationalOrganizationtoReformMarijuanaLaws,where shewaselectedtotheBoardofDirectors.Inearly2015,MarenbrokeawayfromMNNORMLandco-founded SensibleMinnesotawhereshepreviouslyheldthepositionsofTreasurer(2015-2016)andVicePresident(2016- 2017).ShecurrentlyservesasPresident,whereshemanagesstrategicoversightandisaspokespersonforthe organization. In 2016, she successfully petitioned for the addition of Post-Traumatic Stress Disorder to Minnesota’sMedicalCannabisprogram,andin2017,workedwithateamtopetitiontheadditionofDementia, Parkinson’s Disease, Liver Disease, and Autism. Additionally, she works to build coalitions throughout Minnesota and the national cannabis industry, and has done interviews with journalists and written for publications both locally and nationally on Minnesota’s medical cannabis law and introduced adult-use legislation. Through Sensible Minnesota, Maren works with national organizations such as Marijuana Policy ProjectandStudentsforSensibleDrugPolicy.Asanauthorityonthetopic,Marenenjoysspeakingonmedical cannabis,cannabislaw,andharmreductiontobothprofessionalandcommunitygroups.
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10/5/2017
1
The Catch-22s of Cannabis Legalization
Maren Schroeder, MBA, RP®, MnCP
President, Sensible Minnesota
October 12, 2017
NFPA Annual Convention, New Orleans, Louisiana
Maren Joyce Schroeder, RP®, MnCP
Maren Schroeder, MBA, RP®, MnCP is a PACE Registered and Minnesota Certified paralegal and Qualified Rule114 Neutral for Borgos Law, PLLC working in the areas of family law, criminal defense, debtor relief, andmedical cannabis patient rights. She has a B.S. in Paralegal Studies and an M.B.A. in Legal Administration.Maren is currently the Director of Marketing and NFPA Secondary for the Minnesota Paralegal Association,and previously served as MPA’s Director of Professional Development (2016), Director of Greater Minnesota(2013-2014), Regulation Committee Chair (2014-2015), and Rochester Chapter Director (2012), and NFPARegulation Review Coordinator (2016-2017). Additionally, Maren served on the MSBA’s Task Force onAlternative Legal Services Models which made recommendations on expanding legal services for underservedpopulations. Also active in the community, Maren chairs her city’s Planning & Zoning Commission, is avolunteer crisis advocate for victims of sexual assault, and is a volunteer family and school mediator.
Maren began cannabis-related advocacy in the mid-2000’s when she began researching and writing on thetopic of medical cannabis, inspired by her mother’s Multiple Sclerosis diagnosis. In 2014, she began her formaladvocacy working with the Minnesota Chapter of the National Organization to Reform Marijuana Laws, whereshe was elected to the Board of Directors. In early 2015, Maren broke away from MN NORML and co-foundedSensible Minnesota where she previously held the positions of Treasurer (2015-2016) and Vice President (2016-2017). She currently serves as President, where she manages strategic oversight and is a spokesperson for theorganization. In 2016, she successfully petitioned for the addition of Post-Traumatic Stress Disorder toMinnesota’s Medical Cannabis program, and in 2017, worked with a team to petition the addition of Dementia,Parkinson’s Disease, Liver Disease, and Autism. Additionally, she works to build coalitions throughoutMinnesota and the national cannabis industry, and has done interviews with journalists and written forpublications both locally and nationally on Minnesota’s medical cannabis law and introduced adult-uselegislation. Through Sensible Minnesota, Maren works with national organizations such as Marijuana PolicyProject and Students for Sensible Drug Policy. As an authority on the topic, Maren enjoys speaking on medicalcannabis, cannabis law, and harm reduction to both professional and community groups.
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Roadmap!Where we’re going
How we got to where we are.
International “hand cuffs”
Constitutional provisions
Federal laws and policy
State level policy status
What the courts say
Litigation happening now
Issue ObjectivesWhat to think about during and after
Patient and personal possession
Legality of industrial hemp products, including cannabidiol (CBD)
Cultivation and distribution
Banking and financial issues
Civil asset forfeiture applicability
Conflicts of law
Hurdles for the industry
Prohibition HistoryAlcohol Prohibition
Woman’s Christian Temperance Union and Anti-Saloon League pressed alcohol prohibition
Prohibition was mandated state-by-state
1920 – 18th Amendment a/k/a Volstead Act
1933 - Ratification of 21st Amendment repealing alcohol prohibition
States and local government continued forms of prohibition
Now? Sunday liquor sales, dry counties, etc.
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Prohibition HistoryFederal Bureau of Narcotics
Successor to Bureau of Prohibition
Established in 1930
Harry Anslinger was first commissioner; staunch
prohibitionist
Consolidated the Federal Narcotics Control Board and
the Narcotic Division
Enforced Harrison Narcotics Tax Act and Narcotic
Drugs Import and Export Act
Lobbied for harsh drug use penalties; criminalized drug
use
Responsible for the Marihuana Tax Act of 1937, The
Opium Poppy Control Act of 1942
Taxed sale of cannabis
First arrest: Denver, CO – first cannabis related conviction under federal law.
Stamps offered during WWII for cultivation of hemp fiber
Ruled unconstitutional in 1969 – Leary v. United States
Gave authority to FDA to oversee safety of food, drugs, and cosmetics
Authority for approving “new” drugs to FDA
Prohibition HistoryMarihuana Tax Act (1937)
Pure Food, Drug, and Cosmetics Act (1938)
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Prohibition HistoryInternational Treaties
1961 U.N. Single Convention on Narcotic Drugs
Efforts to consolidate other int’l treaties began in 1948
Limited to cannabis, opium, and coca related drugs
Basis for Controlled Substances Act
Article 49: encouraged phasing out traditional drug use (coca chewing, opium smoking), but provides that "the use of cannabis for other than medical and scientific purposes must be discontinued as soon as possible.”
U.S. was adamant about toughest scheduling (Schedule IV) for cannabis
1971 U.N. Single Convention on Psychotropic Drugs
Covers benzodiazepines, amphetamine-stimulants, barbiturates, and
psychedelics
Lists THC in Schedule I; drabinol (synthetic THC) in Schedule III
1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
Intends to increase penalties for organized criminal activity related to controlled substances, including money laundering
Meets U.S. obligation under UN Single Convention on Narcotic
Drugs
Schedule I
The drug or other substance has a high potential for abuse
The drug or other substance has no accepted medical use in
treatment in the United States
There is a lack of accepted safety for use of the drug or other
substance under medical supervision
Shaffer Commissioner (1972)
Recommended cannabis be decriminalized and removed from
the CSA
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Prohibition HistoryOther Federal Changes
Bank Secrecy Act of 1970: Requires financial institutions
to assist the U.S. Government with detecting and
preventing money laundering
Comprehensive Crime Control Act of 1984: General
comprehensive revision of U.S. Criminal Code
Creates Sentencing Commission
Increased penalties for cultivation, distribution, and
possession of cannabis
Stipulations about civil asset forfeiture for criminal
activity
Prohibition HistoryAnti-Drug Abuse Act (1986)
“Tough on crime” legislation
Established mandatory minimum sentencing
100 plants/100 kilos – 5 years without parole
1000 plants/1000 kilos – 10 years without parole
Violent Crime Control and Law Enforcement Act (1994)
Mandatory life imprisonment if the Defendant:
is convicted in federal court of a "serious violent felony" and
has two or more prior convictions in federal or state courts, at least one of which is a "serious violent felony."
The other prior offense may be a "serious drug offense.”
A "serious drug offense" includes continuing criminal enterprise, violations of Title 21 involving distribution,
manufacture, or possession with intent to distribute significant quantities of controlled substances, or equivalent
state offenses.
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Prohibition HistoryResults of Prohibition 1914-2010
“The Onion”Levels of Cannabis Regulation
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International Treaty1961 U.N. Single Convention on Narcotic Drugs
Parties must enact laws to comply w/the treaty, but are not required to enforce them
Prohibits the production and supply of specific drugs
Allows for medical treatment and research
May or may not require criminalization of drug possession for personal use
Schedules I and IV: Cannabis and cannabis resin
UN Economic and Social Council's Commission on Narcotic Drugs (CND) given power to add or delete based on recommendations from WHO findings and recommendations
UN National Assembly does not have the power to approve or deny CND scheduling decisions
Non-compliance may result in economic sanctions on medical narcotics industry
Article 28 excludes industrial hemp from Single Convention
International Treaty1971 U.N. Single Convention on Psychotropic Drugs
Does not control plants, but controls natural and synthetic THC, in addition to other
psychotropic drugs (MDMA, LSD, peyote, mescaline)
THC: Tetrahydrocannabinol; a psychoactive cannabinoid
Provides looser controls than the 1961 UN Single Convention on Narcotic Drugs
1988 U.N. Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988
Attempts to control drug trafficking; escalates international “war on drugs”
Mandates cooperation for tracing and seizing drug-related assets
Article 3: Arguably requires penalties for personal use:
Subject to its constitutional principles and the basic concepts of its legal system, each Party shall adopt such measures as
may be necessary to establish as a criminal offence under its domestic law, when committed intentionally, the possession,
purchase or cultivation of narcotic drugs or psychotropic substances for personal consumption contrary to the provisions of
the 1961 Convention, the 1961 Convention as amended or the 1971 Convention.
Article 5: Requires forfeiture of proceeds from cultivation and distribution of scheduled drugs (incl. cannabis)
Article 6: Provides for extradition
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U.S. ConstitutionSupremacy Clause (Art. VI, Clause 2)
Due Process (5th Amendment)
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or whichshall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shallbe bound thereby, anyThing in the Constitution or Laws of any State to the Contrary notwithstanding.
Privileges and Immunities Clause (Art. IV, Section 2, Clause 1)
Commerce Clause (Art. VIII, Section 8, Clause 2)
[The Congress shall have Power] To regulate Commerce with foreign Nations,
and among the several States, and with the Indian Tribes;
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
No person shall ... be deprived of life, liberty, or property, without due process of law ..
Reserved Powers (10th Amendment)
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the
States respectively or to the people.”
Federal CodeControlled Substances ActMarijuana is a Schedule I drug under the Controlled Substances Act.
Schedule I drugs have a high potential for abuse and have no medical usein the United States.
Other Schedule I drugs include mescaline, MDMA, GHB, ecstasy, bath salts,LSD, and heroin.
Doctors cannot prescribe from Schedule I
The manufacture, sale and/or distribution of cannabis (medical, industrial, orotherwise) violates federal law.
The term "marihuana" means all parts of the plant Cannabis sativa L., whether
growing or not; the seeds thereof; the resin extracted from any part of such plant;
a and every compound, manufacture, salt, derivative, mixture, or preparation of
such plant, its seeds or resin. Such term does not include the mature stalks of such
plant, fiber produced from such stalks, oil or cake made from the seeds of such
plant, any other compound, manufacture, salt, derivative, mixture, or preparation
of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or
the sterilized seed of such plant which is incapable of germination.
Special requirements for research, including only obtaining product from a
federally approved cultivator
Provides a legislative and administrative process for rescheduling and
descheduling substances
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Federal Code2014 Farm Bill
Industrial Hemp: “the plant Cannabis sativa L and any part of such plant,whether growing or not, with a delta-9 tetrahydrocannabinol concentration ofnot more than 0.3 percent on a dry weight basis.”
Allows for industrial hemp grown or cultivated for purposes of researchconducted under an agricultural pilot program or other agricultural or academicresearch
Establishes a pilot program whereby States that permit growth or cultivation ofhemp under state law do so in a manner that –
Ensures that only institution of higher education and State departments ofagriculture are used to grow or cultivate industrial hemp
Requires that sites used for growing or cultivating industrial hemp in aState by certified by, and registered with, the State department ofagriculture, and
Authorizes state departments of agriculture to promulgate regulations tocarry out the pilot program in the States in accordance with the purposesof this section.
Federal CodeAppropriations (2014-2017)
None of the funds made available by this Act or any other Act may beused-- (1) in contravention of [the 2014 Farm Bill] section 7606 of theAgricultural Act of 2014 (7 U.S.C. 5940); or (2) to prohibit thetransportation, processing, sale, or use of industrial hemp that is grownor cultivated in accordance with [the 2014 Farm Bill] subsection section7606 of the Agricultural Act of 2014, within or outside the State in whichthe industrial hemp is grown or cultivated. (2016)
Current appropriations, through December 2017, continue to protectpatients and industrial hemp cultivators.
None of the funds made available in this Act to the Department of Justice may be used, with respect to any of the Statesof Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Iowa, Kentucky, Louisiana,Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, NewMexico, New York, North Carolina, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia,Washington, Wisconsin, and Wyoming, or with respect to the District of Columbia, Guan, or Puerto Rico, to prevent any of them fromimplementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana. (2016)
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Federal PolicyDEA/FDA Scheduling Authority
FDA and DEA may decide scheduling under the CSA
Scheduling determination made based on potential for abuse, currently accepted medical use, and accepted safety
Definition of abuse:
Evidence that individuals are taking the drug inamounts sufficient to create a hazard to their health orto the safety of other individuals or to the community
There is significant diversion of the drug or drugscontaining such a substance from legitimate drugchannels
Individuals are taking the drug on their own initiative
The drug containing such a substance are new drugs sorelated in their action to a drug or drugs already listedas having a potential for abuse to make it likely that thedrug will have the same potential for abuse, making itreasonable to assume there may be significantdiversions from legitimate channels, significant usecontrary to or without medical advice, or that it has asubstantial capability of creating hazards to the healthof the user or to the safety of the community
Elements of “currently accepted medical use” Alliance forCannabis Therapeutics v. DEA, 15 F.2d 1131, 1135 (D.C. Cir. 1994)
The drug’s chemistry must be known and reproducible
There must be adequate safety studies
There must be adequate and well-controlled studiesproving efficacy
The drug must be accepted by ”qualified experts”
“Qualified experts” defined as a consensus of thenational community of experts, qualified by scientifictraining and experience to evaluate the safety andeffectiveness of drugs
The scientific evidence must be widely available
Lack of accepted safety for use of marijuana under medicalsupervision
No FDA-approved cannabis drug products
No evidence that substance is contamination free;assurance of consistent and predictable dose
Federal PolicyDept. of Justice
Department of Justice policy memorandums have been issued relating to medical (and recreational) cannabis:
Ogden (2009): Prosecutors should not focus federal resources where actions comply with state medical cannabis laws.
Cole (2011): Transactions dealing with proceeds of medical cannabis sales may trigger money laundering statutes.
Cole II (2013): Sets enforcement priorities to:
Prevent the distribution of cannabis to minors;
Prevent revenue from the sale of cannabis from going to criminal enterprises, gangs, and cartels;
Prevent the diversion of cannabis from states where it is legal under state law in some form to other states;
Prevent state-authorized cannabis activity as a cover or pretext for the trafficking of other illegal drugs or activity;
Prevent violence and the use of firearms in the cultivation and distribution of cannabis;
Prevent drugged driving and the exacerbation of other adverse public health consequences associated with cannabis use;
Preventing the growing of cannabis on public lands and the attendant public safety and environmental dangers posed by cannabis production on public lands; and
Preventing cannabis possession or use on federal property.
Cole III (2014): Clarifies that financial institutions are subject to money laundering and other finance related criminal statutes, but enforcement should remain consistent with the priorities outlined in Cole II.
Wilkinson (2014): Directs U.S. Attorneys to confer with tribal governments regarding cannabis on native reservations.
The current Administration is working under the Obama Administration policies, for now…
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State LawsMedical Cannabis
State LawsPersonal Use Cannabis
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State LawsIndustrial Hemp
State LawsWhere issues can arise
Patient Protection Issues – Employment, child protection, family court, necessary medical care,
schooling, housing
Regulation – No of licenses, hours of sales, minimum age to purchase, number of producers, labeling