Weed Rules: Blazing the Way to a Just and Joyful Marijuana Policy 9780520975255

Table of contents :
Contents
Introduction
Part I. Setting the stage
Part II. From grudging tolerance to careful exuberance
Conclusion: A Quick Look Back and a Brief Look Forward
Acknowledgments
Notes
Bibliography
Index

Citation preview

Weed Rules

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Weed Rules blazing the way to a just and joyful marijuana policy

Jay Wexler

university of california press

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University of California Press Oakland, California © 2023 by Jay Wexler Library of Congress Cataloging-in-Publication Data Names: Wexler, Jay, 1969- author. Title: Weed rules : blazing the way to a just and joyful marijuana policy /  Jay Wexler. Description: Oakland, California : University of California Press, 2023. |  Includes bibliographical references and index. Identifiers: lccn 2022029648 (print) | lccn 2022029649 (ebook) |  isbn 9780520343924 (cloth) | isbn 9780520975255 (ebook) Subjects: lcsh: Marijuana—Law and legislation—United States. |  Marijuana—Government policy—United States. | Drug legalization— United States. | United States. Constitution. 14th Amendment. Classification: lcc kf3891.m2 w49 2023 (print) | lcc kf3891.m2 (ebook) |  ddc 345.73/0277—dc23/eng/20221019 LC record available at https://lccn.loc.gov/2022029648 LC ebook record available at https://lccn.loc.gov/2022029649 Manufactured in the United States of America 32 31 30 29 28 27 26 25 24 23 10 9 8 7 6 5 4 3 2 1

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For my students, who also rule

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Contents

Introduction

part i

setting the stage

1.

A (Brief ) History of Marijuana Prohibition: Hitting the High Points

15

2.

Getting Meta: How Should We Think about Thinking about Marijuana Policy?

37

3.

Making a Marketplace: Ten Basic Questions

65

part ii

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1

from grudging tolerance to careful exuberance

4.

Sure You Can Sell Weed, Just Don’t Tell Anyone About It: Advertising, Marketing, and Promotion

5.

Sure You Can Smoke Weed, but You Might Get Fired for It: Marijuana Use and Employment Law

116

6.

Weed, Weed Everywhere, but Not a Place to Smoke: The Social Consumption Problem

134

7.

Marijuana Should Absolutely Be Legal—Just Not in Our Town!: The Local Control Problem

151

8.

If Cannabis Is Legal, Why Can the Cops Search You If They Smell It?: The Fourth Amendment and the Sweet Scent of Weed

169

95

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Conclusion: A Quick Look Back and a Brief Look Forward

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Acknowledgments

199

Notes

201

Bibliography

241

Index

267

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Introduction

Imagine for a moment that you work for a legislator in a state where marijuana remains illegal. One day, you arrive at the office and your boss tells you that she finally has the votes to pass a bill that would legalize the drug. Her colleagues have come around to the realization that marijuana is less harmful than alcohol and that adults should be able to visit retail stores and buy the drug for recreational or medical use. Your boss, who seems very excited, tells you to write up a draft bill with all the relevant details of what the system of legal marijuana in the state should look like, so that she can send it to her colleagues and get the legislative process started. She makes it clear that all the state’s relevant stakeholders—patients, doctors, public health professionals, minority activists, police officers, environmentalists, businesspeople, and everyone who just really digs weed (or hates it)—are eagerly awaiting the draft legislation. A lot, in other words, is riding on your work. You agree to start drafting the bill and head to your office. After you finish your coffee and scroll through Twitter and watch a video of an owl playing Jenga, you open your word processor and get ready to start typing. The cursor is blinking at you. What do you write? This is a rhetorical question, of course. You don’t have to answer. 1

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But one thing you may find helpful as you get started on the bill is to understand a little better what the goals of the statute are supposed to be. You pick up the phone and buzz your boss, who picks right up. You ask her your question about the goals. She hesitates a bit and then says something like this: Well, the idea is that adults should be able to buy a wide range of cannabis products for either medical use or just for fun and relaxation. Of course, marijuana poses some important public health risks, so we might want to be careful there, restrict advertising perhaps, maybe keep the price of the products artificially high through fees and taxes. But then again we don’t want the price so high that people keep buying from the illicit market. On the other hand, though, we want to make sure that the state as well as local governments can raise revenue for schools and infrastructure. We also want cities and towns to have some control over whether and how marijuana can be sold within their borders. But not so much control that it becomes impossible for people to access legal products. We want to create conditions for a thriving industry in the state with lots of growers and retail stores. We can’t allow too much marijuana to be grown, though, or we might end up with a glut that will drive prices down. On the other hand, we don’t want supply shortages because then people who really need it won’t be able to get their medicine. Oh, and by the way, since the war on drugs has disproportionately harmed communities of color over the past fifty years, we need to make sure that people from those communities play a central role in the industry going forward. And while we’re at it, don’t forget that marijuana is a really thirsty plant that takes lots of water and energy to grow, so make sure to include some stuff about protecting the environment. That should get you started, right?

You hang up and return to your screen. No problem, you think. How hard could it be to draft a bill that will protect the environment, promote social equity, provide wide access to a variety of products, safeguard public health, dry up the illicit market, raise lots of money in revenue, and provide local control over what gets sold within cities and towns, but not so much control that people can’t easily access legal products. Piece. Of. Cake. You start writing. It takes about fifteen seconds for you to realize that no, this is not going to be a piece of cake. A thousand questions occur to you. What kinds of licenses should the state make available? How high

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should the taxes be? Should the taxes be linked to sales of the product? The weight of marijuana sold? Amount of THC in the marijuana? Should the state set a cap on the amount of marijuana that cultivators can grow or on how many licenses it will issue or on how many licenses any one person can own? Public health is important, but what does that mean for the bill? What kinds of warnings should manufacturers have to put on their products? Should weed companies be able to advertise their products freely? Does the First Amendment even allow a state to restrict advertisements? What kind of DUI (driving under the influence) law should we have? How much control over marijuana policies should we give cities and towns? Should certain types of products like marijuana concentrates with extremely high THC levels be banned? Should employers be allowed to test their employees for marijuana use? Can employees be fired for using medical marijuana even if they’re not impaired at work? What kind of light bulbs should indoor growers use? Will home delivery be available? Can people grow plants at home? How many? We don’t want to allow too many plants because that could result in diversion to the illicit market. Should the police be able to search cars and homes based on the smell of weed even when it’s legal? What about social use establishments? We don’t want people to go to a club, smoke a lot of weed, and then drive home high. But if we don’t have them, then where will people who don’t own their own homes consume their weed? In public? Surely that has to be illegal. And what about this equity problem? How in the world will we ensure that people from disproportionately affected communities have an equal opportunity to get licenses? Do we grant priority for licenses to businesses from those communities? Provide loans or grants? Is that even constitutional under the Equal Protection Clause? Maybe the legislature shouldn’t be the body that makes all these decisions. Perhaps just give the power to come up with the details to some agency. But what agency? An existing agency? Maybe a new agency? What would that even look like? After several hours of fruitless and frustrating work, you stop and look at the clock. Luckily, it’s lunch time. A perfect opportunity to start looking for a new, simpler job. Something, perhaps, in the field of brain surgery or rocket engineering?

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not w h e t h e r t o l e g a l i z e , bu t h o w Marijuana legalization in the United States, it would seem, is here to stay. Less than a dozen years ago, not a single state allowed its citizens to use marijuana for recreational use. Today, nineteen states and the District of Columbia, encompassing more than one-third of the nation’s population, have legalized marijuana for recreational purposes, and several other states are moving in that direction.1 Marijuana remains illegal at the federal level, of course, but while the drug’s illegality creates substantial obstacles for the multibillion-dollar domestic weed industry (federal tax law, for instance, prohibits marijuana businesses from deducting expenses other than their cost of goods sold, and the fear of federal prosecution has caused most banks to keep their distance from the industry), the Justice Department has shown little interest over the past decade in interfering in states where the drug is legal. Members of Congress are beginning to soften their stance toward cannabis, and many if not most experts believe that it won’t be long before the era of federal prohibition fades into history. The inevitable full legalization of recreational marijuana in the United States is not, however, the end of the story. Indeed, in many ways, it is just the beginning. It has become almost commonplace these days to observe that how marijuana should be legalized is at least as important an issue as whether it should be legalized. And it also turns out to be a much more difficult question. Or, actually, set of questions. As my dramatization was meant to demonstrate, there are really hundreds if not thousands of questions big and small that need to be answered before a state or nation can hope to actually legalize the growth, sale, and purchase of marijuana, and even that dramatization radically simplifies the problem by assuming that private, for-profit companies, rather than nonprofits or even the government itself, should supply the market. How states (and/or the feds, if they get involved) choose to answer these questions will dictate what kind of marijuana policy we are going to have in a post-legalization America. If states choose to focus on redressing past wrongs inflicted on minority communities by the drug wars of the past, for example, we could end up with a just and equitable marijuana policy in which Black and Latinx individuals play a leading role in the

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industry. If states choose instead to ignore these past harms, the policy we end up with may very well replicate the many injustices already suffered by poor and minority communities over the past century. States that appropriately address questions about what types of licenses to provide, how much marijuana may be grown, and at what level to tax the drug will end up with an adequate but not surplus supply of cannabis being sold at suitable prices, while states that get these questions wrong may end up with gluts or shortages or a thriving illicit market. Similarly, states that rightly recognize the limits of drug testing for THC and implement this understanding in their DUI and employment laws will protect innocent drivers and employees, while states that stand firm on outdated attitudes about marijuana testing will end up punishing people unfairly and deterring would-be users from enjoying the drug. States that severely restrict advertising and other marketing techniques, cap retail licenses at some relatively small number, and provide cities and towns with broad authority to prohibit marijuana businesses from operating may end up looking a lot like Uruguay—which, when it became the first country to completely legalize cannabis in 2013, did so in a very conservative manner—while states that allow marijuana advertisements, billboards, and sports sponsorships, that provide unlimited retail licenses, and that don’t give cities and towns the power to keep marijuana businesses out of their borders might look (and smell) like the parking lot outside a Grateful Dead concert in 1978.2 Thus far, most of the jurisdictions that have legalized the use of marijuana for recreational use have gone several steps further and created licensing systems to authorize and govern the cultivation and sale of the drug. The pioneering policymakers who have designed these regulatory systems basically from scratch—legislators and agency heads and experts of all types—deserve a standing ovation for taking on these extremely difficult and largely thankless tasks. Sure, one could criticize regulatory bodies like the Cannabis Control Commission (CCC) in Massachusetts or the Bureau of Cannabis Control in California for not getting everything done 100 percent perfectly and at record speed when deciding how to regulate an entirely new legal industry from the ground up, but that would be entirely unfair. The CCC, for example, developed over a hundred pages of dense regulations in its first year of existence, while facing enormous

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pressure from constituencies on all sides of the marijuana issue. Having worked for the government, I found the job done by the CCC to be, quite frankly, amazing. Unsurprisingly, the states that have developed comprehensive regulatory schemes for marijuana have taken different approaches to many of the questions I’ve been talking about. Some states have made racial equity a key focus of their programs, while others have not. Some have taken the environmental challenges posed by marijuana growth seriously, but not all have. With respect to supply issues, by failing to cap the number of licenses handed out or the amount of cannabis that can be grown, some states have allowed for the production of far too much marijuana, thus threatening the viability of many small businesses within their states and creating incentives for growers to divert supplies both to the illicit market and to other states. Jurisdictions have adopted all sorts of tax schemes for marijuana; the state of Washington, for instance, imposes a 37 percent sales tax on the drug, while in next-door Oregon the sales tax is only 17 percent.3 A few states and localities have authorized the creation of social use clubs, but very few clubs have actually opened, and most other jurisdictions haven’t even come close to giving social use clubs the green light. Some states have protected employees who use marijuana for medical use, but others have not, and only a handful of states have protected those who use the drug for recreational purposes. All states give cities and towns some control over whether and where marijuana businesses can set up shop, but they differ in the amount of local control allowed. In some states, the police are still allowed to conduct searches of cars and homes based on the smell of marijuana alone, but other states have put a stop to such practices.4 As policymakers in the states that have already legalized marijuana for recreational purposes seek to adjust their programs, and for those citizens and leaders in states that inevitably will follow the trend toward legalization, it has now become extremely important to switch gears and think systematically not about whether to legalize marijuana but how specifically to do so. The future of the industry—and, to some degree, the nation—depends on it. Because these decisions will have such important effects on so many aspects of the lives of their citizens, jurisdictions considering legalization must first seriously consider what exactly they want

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from legalization. Which values do they want to promote? What criteria do they want to maximize? How will they balance competing concerns? Do they value public health more than racial equity? Are low prices more important than conserving energy? Should local control outweigh concerns about availability, or vice versa? Will protecting the environment be a priority? Once states have thought about these big-picture issues, they will be much better positioned to make informed and thoughtful choices about the countless specific questions they will have to answer when modifying or designing their legalization regimes. And the same goes for those who would reform our federal stance toward weed: the earlier we start thinking about what federal legalization should look like, the better.

what i s t h i s b o o k , a n y way ? Back in 2015, I was working in my office at the Boston University School of Law when a representative from one of the major legal publishing houses (we’ll call her Kathy) came by to chat. A couple of times a year, reps like Kathy stop in to talk with professors about what materials we plan to use for our upcoming courses and to let us know if their company has published any new books in our fields that we might want to assign. We chatted about my First Amendment and Environmental Law courses, and then Kathy told me about a new casebook (the legal profession’s version of a textbook) that her company was planning to publish on marijuana law. The book, written by a terrific constitutional law scholar at Vanderbilt University named Robert Mikos, was in development, and Kathy wanted to know if I knew of anyone at Boston University who might be interested in teaching a course in cannabis law.5 Hmmmmm, I thought to myself, maybe me? I had been looking for a new seminar to teach, and although I didn’t really know anything about marijuana law, the brand-new field seemed groundbreaking and exciting. Also, I love weed. I knew the students would be interested, but I wasn’t so sure about the administration. I got a copy of the book in progress and decided I’d give the course a try. I ran the idea by the associate dean, who then talked to the dean about it, and although there were a few raised eyebrows here and there for sure, I got the green light to teach the course,

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although the dean insisted that I call it “The Law and Regulation of Cannabis” instead of my preferred “Marijuana Law” because she thought the former sounded more serious and legitimate.6 I’ve been teaching the course ever since. The class is unsurprisingly popular, and it has turned out to be even more fascinating than I had expected. Partly, this is because weed itself is just completely interesting. But it’s also because, as we will see throughout this book, marijuana law touches nearly every area of law you can think of—from obvious candidates like criminal law and constitutional law to corporate, banking, and tax law, as well as just about everything else, from intellectual property to immigration to employment law and beyond. As I started teaching and reading and writing about cannabis law over the past few years, I learned a great deal about the racist and irrational history of marijuana prohibition, thought a lot about what the various goals of marijuana policy ought to be, and considered how those goals relate to specific issues that arise every day in this new, highly uncharted territory. These concerns are at the heart of this book’s first part (chapters 1–3), the main goals of which are to identify the key potential criteria for evaluating different models of marijuana legalization and to explain how the ranking of these criteria will affect some of the more critical decisions that states must make regarding legalization. Chapter 1 lays out a brief history of how the law has treated marijuana in the United States over the past century, highlighting the overtly racist and unscientific nature of that history and the continuing harms of federal illegality. Chapter 2 then systematically analyzes the various criteria that one might employ to evaluate any given marijuana legalization regime, explores the ways that those criteria conflict, and suggests a prioritization of criteria that I believe should guide any sensible and equitable marijuana policy. In chapter 3, I apply this framework to a set of ten basic questions that all states must consider when first setting up their marijuana markets—everything from whether to impose caps on how many licenses any one person can control, to whether to allow people to grow their own weed, to what level of taxes to impose on cannabis sales. Although I will, of course, argue for my preferred policy choices, I will also leave room for those who do not share my value preferences to understand what practical consequences stem from their preferred criteria. Ultimately, my primary purpose in this part of the

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book is to provide a conceptual framework that anyone can use to think about how marijuana should be legalized in the United States. Still, I have some pretty strong preferences, and although I’ll say much more about them beginning in chapter 2, I’ll say a bit about them now. After all, everyone who writes about marijuana policy comes to the subject with their own biases, and readers deserve to know something about those biases in order to better evaluate whatever they’re reading. So, here’s my bias, in case you missed it earlier: I love weed. I love everything about it: its look, its smell, its taste, and, of course, its effects. Depending on what product or strain I’ve used and what my mood is and what I’m doing while I’m under its influence, marijuana might make me think in ways I find exciting and unexpected or make me feel like a dollop of warm chocolate melting over an ice cream sundae or make me laugh like a hyena over a ludicrous joke or give me a feeling of euphoria like I’m soaring over the earth on top of a giant cartoon bird. Weed also has the benefit of making everything else so much better than it is without weed. I’ve eaten at Michelin starred restaurants while high, squeaking with pleasure at every bite, listened to live music that, with the drug’s help, brought me to tears of joy, and watched idiotic sitcoms that marijuana transformed into comic masterpieces. No matter what the stresses of the day have been or what deadlines I’m up against or what people have said about me on social media, when I’ve finished doing whatever I have to do and I’ve unlocked my treasure chest of fragrant flower and tasty edibles, I know that at least the next few hours will be filled with bliss. In short, weed rules! Okay, so weed rules, now what? Well, it certainly does not mean that I think everything goes. It’s not like I’m writing the book while high or anything (mostly). For one thing, I’m quite aware of my own privilege as a well-off white person and of the long history of racist marijuana policy and enforcement. With the knowledge that Black people have been almost four times more likely than whites to be arrested for a marijuana offense and that the ill-conceived “war on drugs” has devastated cities and neighborhoods and families of color for several decades,7 I believe that promoting equity in the marijuana industry is of paramount importance. Moreover, as someone who taught classes in environmental law for nearly twenty years and has a deep appreciation for the natural world, I support the imposition of fairly strict environmental and energy controls in the

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new industry. Finally, as someone who cares about other people and, oh yeah, has a teenage son, I’m concerned about some of the public health effects of legalization, especially the potential for increased driving under the influence and the possible increased use of cannabis by adolescents, whose brains, studies have shown, are particularly susceptible to the longlasting negative effects of cannabis.8 But here’s another bias. Although I do seriously care about the public health implications of marijuana legalization, I do not believe that the protection of public health should be the centerpiece of our burgeoning marijuana policy. By taking this position, I obviously reject the views of cannabis alarmists who think that legalization will turn the United States into a land of zombies and violent psychopaths. Far more importantly, though, my position differs from that of a well-known group of highly influential policy wonks who have written reams of balanced, reasoned, and useful articles and reports about how best to legalize marijuana. The work of these wonks is invaluable, but in my view it is incomplete because it largely fails to appreciate the full and often ineffable value that many users get from marijuana.9 For instance, Jonathan Caulkins, a supporter of legalization and one of the more prominent members of this group, once wrote that “it is clear we would all be better off if marijuana did not exist,” 10 a sentence that seems like it could only be written by someone who has never used marijuana. Perhaps the most influential of these writers, the late Mark Kleiman, famously argued for “grudging toleration” of marijuana and other intoxicants.11 Kleiman believed that the war on drugs was not worth its costs, but (at least in his writings) he was no fan of the drug itself, arguing for strict marketing and advertising regulations, high taxes to discourage use, personal quantity limits, and even a requirement that users be licensed.12 Although no state has yet to require recreational pot users to receive a government license, most states have largely followed these other suggestions and have otherwise essentially adopted approaches to marijuana regulation that are consistent with the approach of grudging toleration supported by Kleiman and the wonks. As I will describe in the second part of the book, five key features of this grudging toleration regime, as it has played out in the states thus far, are (1) imposing highly restrictive advertising and marketing restrictions on

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marijuana businesses; (2) allowing employers to fire (or to not hire in the first place) employees who use marijuana outside of work, even for medical purposes; (3) failing to authorize social consumption establishments for people to use marijuana in public social settings; (4) granting cities and other localities substantial authority to regulate or even ban marijuana establishments within their borders; and (5) allowing police to search cars and homes on the basis of the mere smell of cannabis or information indicating the presence of even a few marijuana plants on the premises.13 Through each of these policies, the states have essentially said to their citizens: Yes, marijuana is now legal, but we’re not particularly happy about it, and we’re not going to make it easy for you to sell it or use it. I think this is a grave mistake. If we’re going to legalize marijuana, then we should recognize the innumerable benefits of that policy and celebrate them. Grudging toleration is an approach that makes marijuana users feel like second-class citizens, people whose recreational choices—unlike those of people who enjoy nature or exercise or classical music or picking apples or drinking wine—are unfortunate and dangerous. Yes, legalizing marijuana has its risks, and a rational public policy should guard against those risks. But we can guard against the risks while also appreciating the great benefits that legalization brings, including the pure joy that so many users feel under the drug’s influence. In short, I propose that states follow an approach to marijuana legalization that I call “careful exuberance” rather than the current model of grudging toleration. This is the focus of the second part of the book. In chapters 4 through 8, I consider in turn the five core features of the grudging toleration regime that I’ve just identified and explain why they are problematic, given the criteria for evaluating marijuana policy choices that I set out in chapter 2. I argue that states can and should adopt legalization polices that allow advertising to adults, prohibit employment discrimination against users, provide social spaces for people to use the drug, limit local control over marijuana businesses, and prohibit police from searching private property on the basis of the smell of weed alone. Only when we’ve taken all these steps will we be able to put behind us the undeserved stigma that attaches to marijuana use as a result of the past century of unjust and unjustified prohibition and to normalize the use of weed in America.

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introduction •

•

•

•

•

The primary focus of this book is forward-looking. But since we can’t know where we are or where we might be going without understanding how we got here, I turn first in chapter 1 to a discussion of the history of marijuana criminalization, a brief account of how states have courageously battled back against this history, and the debilitating continuing effects of federal illegality on the burgeoning marijuana industry.

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part i

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Setting the Stage

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1

A (Brief ) History of Marijuana Prohibition hitting the high points

Many excellent books have been written about the history of marijuana prohibition in the United States.1 This, however, is not one of them. This chapter will merely hit the high points along marijuana’s journey from legal to kind of illegal to really illegal to kind of legal to wherever we are now. I will emphasize the two primary themes of marijuana prohibition: racist animus and scientific ignorance. I’ll start in the early twentieth century and bring us up to the present moment, highlighting the ways in which federal prohibition have made it difficult, even today, for states to adopt and implement effective, evidence-based marijuana policies. And because the role of constitutional law in this history is both extremely important and widely misunderstood, I’ll spend some time along the way explaining how various provisions of the U.S. Constitution have affected the history of marijuana prohibition and de-prohibition and will likely affect the shape of marijuana policy going forward.

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in th e f i r s t h a l f o f t h e t w e n t i e t h centu ry, t h e f e d s s t e p i n It’s possible to roughly divide the history of marijuana prohibition into several somewhat distinct eras or waves of racism. The first spans the early part of the twentieth century through the early 1930s. Around the turn of the century, marijuana, like other narcotics such as cocaine and heroin, was not only legal but also used medicinally.2 Because the medical profession at the time was largely unregulated, overprescription of some of these drugs was common, resulting in a fair amount of addiction.3 As a result, some localities and states started passing laws regulating or prohibiting cocaine, opium, heroin, and other drugs—though not, at first, cannabis. The first national narcotics law was the 1914 Harrison Act, which required anyone dealing in opium, cocaine, or their derivatives to register with the government and pay substantial taxes on each drug transaction.4 Congress chose this register and tax system, rather than a straightforward prohibition regime, because at the time it was not clear that the federal government had the constitutional authority to issue such nationwide restrictions.5 Marijuana use in the United States began to markedly increase around the time of the outbreak of the Mexican Revolution in 1910.6 Although marijuana and hashish had begun to appear in other parts of the country by then, most notably in large East Coast cities like New York, most of the nation’s marijuana use was found in the Southwest, as the drug was brought into the country largely by Mexican immigrants and members of the military.7 Until around 1914, when the Harrison Act was passed, most Americans hardly thought or cared about marijuana.8 Between about 1914 and 1930, around twenty states passed laws regulating or prohibiting marijuana use.9 Part of the rationale for these state laws involved the perceived importance of keeping people from substituting one drug for others that were now either regulated under the Harrison Act or outright prohibited, as alcohol was by the Eighteenth Amendment between 1920 and 1933.10 The other part of the rationale for marijuana prohibition, however, was straight-up anti-Mexican racist sentiment.11 Both the government and the media explicitly linked marijuana use with Mexican immigration and a purported increase in crime, specifically using the term marijuana rather

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a (brief) history of marijuana prohibition

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than cannabis because of the foreign-sounding nature of the former.12 “Newspaper accounts of the time,” write two cannabis law experts from the University of Michigan, “reflect quite racist, and no doubt exaggerated, accounts of crazed men, under the influence of this new drug, committing all sorts of violent and deprived acts.” 13 As one Texas senator put it at the time, “Mexicans are crazy, and [marijuana] makes them crazy.” 14 A second wave of racist marijuana legislation took hold in the 1930s under the direction of Harry Anslinger, a thoroughgoing racist who served as the first commissioner of the newly formed agency known as the Federal Bureau of Narcotics.15 In his terrific and comprehensive book Smoke Signals, marijuana historian Martin A. Lee describes Anslinger this way: “With a large square head, huge ears, a cleft chin, and glowering eyes, Anslinger took great pride in his role as the archnemesis of marijuana smokers. He was the Godfather of America’s war on drugs, and his influence on public policy would be felt long after death stiffened his fingers in 1975.” 16 Anslinger used his power and influence to spread anti-cannabis propaganda among the media, religious groups, temperance organizations, and anyone else who would listen, publishing articles like one from 1938 called “Marijuana: Assassin of Youth,” in which he posited: “How many murders, suicides, robberies, criminal assaults, holdups, burglaries, and deeds of maniacal insanity [marijuana] causes each year, especially among the young, can only be conjectured.” 17 Part of Anslinger’s “message” was that marijuana led to interracial sex between white women and men of color. “To gain public support for his crusade,” writes Lee, “Anslinger depicted marijuana as a sinister substance that made Mexican and African American men lust after white women. One of the worst things about marijuana, according to the [Federal Bureau of Narcotics] chief, was that it promoted sexual contact across color lines. ‘Marijuana causes white women to seek sexual relations with Negroes,’ Anslinger frothed. . . . He never tired of telling new versions of the same morality tale, which featured a vulnerable young white woman whose tragic downfall is triggered by smoking marijuana with dark-skinned rogues.” 18 Under the influence of Anslinger, William Randolph Hearst, and others, the 1930s was the heyday of racist anti-cannabis furor. This was the era of Reefer Madness, false newspaper stories about the “dangers” of “the Devil’s weed,” and sensational pulp fiction featuring scantily clad women

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who sell their bodies “FOR DRUGS—AND KICKS!” 19 Despite the fact that the only scientific studies on marijuana up to this point—the 1893 British Report on Hemp in India, for instance, and the U.S. Panama Canal Zone Governor’s Report of 1925—had found no link between cannabis and either crime or the use of harder drugs,20 Congress in 1932 passed the Uniform Narcotic Drug Act to encourage states to regulate marijuana in a uniform manner.21 Following the passage of this statute, all the remaining states that had not yet regulated marijuana did so between 1932 and 1937.22 Despite the nationwide illegality of marijuana at the state level, Congress nonetheless passed the first federal cannabis statute in 1937. Titled the Marihuana Tax Act, the statute followed the example of the Harrison Act by requiring anyone using marijuana to register with the Internal Revenue Service, pay an occupational tax, and pay a “transfer tax” for each transaction involving the drug.23 Because of the high tax amounts and the fact that complying with the federal law basically involved conceding that the user had violated at least one state law, the Marihuana Tax Act essentially served as a prohibitory statute.24 Although the federal government justified the statute as necessary to fill enforcement gaps at the state level, it is clear that the act was motivated by the same unscientific, sensationalist, and racist attitudes toward marijuana that dominated the public discourse of the 1930s. Writer and historian Martin Booth gives some flavor of the hearings that led to the bill in his classic Cannabis: A History: The various preliminary hearings for the proposed bill commenced in April 1937. Anslinger repeated his shock stories and, with no qualifications whatsoever, gave his own medical opinion of the dangers of marijuana and went so far as to state to the hearings, Here we have a drug that is not like opium. Opium has all the good of Dr. Jekyll and all the evil of Mr. Hyde. This drug is entirely the monster Hyde. . . . No valid statistics or scientific evidence were put forward. The “expert” witnesses called all but perjured themselves. When Anslinger asked Dr. Carl Voegtlin, chief of the Division of Pharmacology of the National Institute of Health, if insanity was produced by smoking marijuana, the answer came back, I think it is an established fact that prolonged use leads to insanity in certain cases.25

The Marihuana Tax Act of 1937 remained the law of the land until 1969, when the Supreme Court of the United States struck it down in a

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case involving none other than Harvard LSD researcher Timothy “Turn on, tune in, drop out” Leary. In Leary v. United States, the Court unanimously held that by forcing Leary to register as a marijuana user, the federal statute had forced him to admit violating state laws, thus running afoul of the Fifth Amendment’s prohibition on self-incrimination.26 Like the state statutes before it, the 1937 act was unsupported by any real scientific evidence concerning the purported dangers of marijuana. Indeed, soon after the act was passed, the mayor of New York, Fiorello La Guardia, commissioned a government study to determine the health effects of cannabis. The report, which was published in 1944, found that the drug was not addictive and did not lead to either the use of harder drugs or crime.27 “The publicity concerning the catastrophic effects of marihuana smoking in New York City,” the report concluded, “is unfounded.”28 The government, not surprisingly, ignored these findings. Anslinger encouraged prominent medical associations to criticize the report, which he referred to as a “government printed invitation to youth and adults—above all teenagers—to go ahead and smoke all the reefers they feel like.”29

in th e s e c o n d h a l f o f t h e t w e n t i e t h c e n t u ry, the f e d s g e t s e r i o u s The 1960s, of course, witnessed all sorts of cultural and political changes in the United States, including the rise of marijuana use by well-off white college students, hippie war protesters, and the like. The diversification of the cannabis-using demographic, combined with Harry Anslinger’s departure from the government in 1962, provided some hope that the government’s war on marijuana might soften somewhat, particularly because President Lyndon Johnson was himself skeptical of treating drug users as criminals.30 Johnson, however, turned out to have other things to do, like prosecuting a massive war in Southeast Asia, and so drug policy reform never made it to the forefront of his agenda. Drug policy was, however, at the forefront of the agenda of the country’s next president, Richard M. Nixon, who viewed drugs as one of the nation’s greatest dangers. Nixon’s hostility toward drugs was likely linked

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to a genuine distaste for intoxicating substances, but an all-out “war on drugs” (the phrase entered the lexicon in 1971 thanks to Nixon)31 also dovetailed well with the president’s genuine misanthropy, dislike of the “other,” and outright racism. According to John Hudak’s excellent, compact Marijuana: A Short History, “the War on Drugs also fit into Nixon’s broader political strategy. Nixon’s well-known Southern Strategy sought to vilify out-groups in society, particularly racial minorities and members of the counterculture. It capitalized on white Americans’ fears of a changing society and sought to shift blame for these changes onto the integration of schools, crime, drug use, urban unrest, and the quest for civil rights. In fact, Nixon’s White House counsel, John Ehrlichman, has been quoted as explicitly stating that Nixon’s drug policies were racially motivated.” 32 Nixon pursued several strategies to crack down on drug use in the United States, including issuing an executive order that created a new office in the White House to fight drugs and spending enormous amounts of money to stop the flow of drugs from Central America into the United States.33 His crowning achievement, however, was the passage of the Controlled Substances Act of 1970, or CSA, the nation’s most ambitious statute thus far aimed at the extirpation of drug use in America. The CSA divides the world of intoxicating drugs into five categories, or schedules, with restrictions on use increasing along with the purported dangerousness of the drugs.34 Schedule I drugs are considered the most dangerous—they are defined specifically as those that (A) have a “high potential for abuse”; (B) have “no currently accepted medical use in treatment in the United States”; and (C) “lack . . . accepted safety for use of the drug . . . under medical supervision.” 35 Marijuana is included in Schedule I alongside heroin, LSD, and ecstasy. Schedule II narcotics, which are supposedly less dangerous than marijuana, include methamphetamine, cocaine, oxycodone, and PCP. With very limited exceptions, Schedule I drugs like marijuana may not be used or prescribed for any reason at all.36 Interestingly, the CSA authorized a commission to study the effects of marijuana and to report its findings to the government. President Nixon fully expected the study to support his position on the dangerousness of cannabis, and he appointed a friend, former Pennsylvania governor Raymond Shafer, to head up the commission.37 However, when the com-

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mission submitted its report to Congress and the executive branch in March 1972, its conclusions were not what Nixon expected. The report— entitled “Marihuana: A Signal of Misunderstanding”—echoed the La Guardia report of three decades earlier by announcing a lack of evidence linking marijuana use to the use of harder drugs or to significant increases in crime.38 “The Commission is of the unanimous opinion,” the new report read, “that marihuana use is not such a grave problem that individuals who smoke marihuana and possess it for that purpose, should be subject to criminal procedures.” 39 Nixon basically ignored the report, and then handily won reelection eight months after its publication.40 The election of Jimmy Carter as president in 1976 might have taken the nation’s approach to marijuana in an entirely different direction— Carter himself was in favor of research and treatment as opposed to harsh incarceration41—but for one of the strangest series of events in the history of cannabis (or, to be honest, the history of anything). The story involves Peter Bourne, a decriminalization advocate whom Carter named director of the Office of Drug Abuse Policy—basically the president’s top drug advisor. Carter and Bourne were hatching a more humane approach to marijuana when Bourne decided to stop by a holiday party hosted by Keith Stroup, the head of the National Organization for the Reform of Marijuana Laws, or NORML. Nobody is entirely certain what happened at this party, but according to the well-traveled story, largely confirmed by the meticulous marijuana historian Emily Dufton, Bourne found himself upstairs in a room with some other VIPs when he either did or did not partake of a line of cocaine. Although Stroup and Bourne were friends, Stroup had become increasingly angry with Carter’s and Bourne’s insistence on allowing and/or encouraging Mexico’s use of the herbicide paraquat on its illegal marijuana crops, and he leaked Bourne’s possible cocaine use to the press as a way of getting Bourne and Carter to switch gears on the paraquat issue. Partially as a result of the leak, Bourne was forced to resign.42 As Dufton explains in her book Grass Roots, “days later, Carter admonished his staff against any illegal drug use, and his support for federal decriminalization disappeared.” 43 After the Carter administration, the federal government showed no interest whatsoever in softening its approach to marijuana regulation for the next few decades. The 1980s was the era of Ronald and Nancy Reagan,

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George H. W. Bush, “Just Say No,” “This Is Your Brain on Drugs,” aggressive action both nationally and internationally to curb the import of illegal drugs into the country, the formation of D.A.R.E., and the creation of the so-called drug czar to pursue the “war on drugs” at all costs.44 In 1992, Bill Clinton defeated Bush to become the first Democratic president in over a decade, but even though Clinton had admitted to using marijuana, he also asserted, ridiculously, that he “didn’t inhale,” and his policy on crime reflected this absurdity. Clinton’s 1994 crime bill introduced threestrikes laws, exponentially increased federal spending on prisons and police, and enthusiastically supported mandatory minimum sentences, all of which resulted in mass arrests and incarceration of marijuana users.45 Between 2001 and 2010, for instance, police made 8.2 million arrests for marijuana in the United States, 88 percent of which were for mere possession of the drug.46 Although only a relatively small percentage of those arrests resulted in jail time for offenders, incarceration numbers were still significant. In 2004, for example, one estimate put the number of people in either federal or state prison for marijuana possession at about fortyfive thousand.47 The costs of enforcing the war on marijuana during those years exceeded a billion dollars annually.48 Crucially, and undeniably, this enforcement was aimed predominantly at people of color. According to the ACLU’s watershed 2013 report “The War on Marijuana in Black and White,” nationally Black people were 3.73 times more likely to be arrested for marijuana use than whites during the first decade of the twenty-first century, and this discrepancy was fairly consistent in nearly every geographic region of the country and in every type of area, whether rural, urban, or somewhere in between.49 Interestingly, there have been several attempts—all unsuccessful—to get marijuana rescheduled to a category other than Schedule I. The most fascinating of these attempts was the very first one. NORML filed a petition with the predecessor of the Drug Enforcement Administration to reschedule weed in 1972. Because of various episodes of foot-dragging and procedural irregularities, the agency did not substantively consider the petition until 1988, when a DEA administrative law judge named Francis L. Young finally heard testimony.50 The issues in the case came down to whether marijuana had a “currently accepted medical use” and whether it was safe when used under medical supervision. The judge

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found both criteria to be satisfied. On the “medical use” issue, he found it sufficient that a “respectable minority” of doctors had accepted that marijuana is useful for treating nausea in cancer patients and certain types of spasticity symptoms.51 On the safety issue, the judge noted that there was “no record in the extensive medical literature describing a proven, documented cannabis-induced fatality,” that “a smoker would theoretically have to consume nearly 1,500 pounds of marijuana within about fifteen minutes to induce a lethal response,” and that while “eating ten raw potatoes can result in a toxic response . . . it is physically impossible to eat enough marijuana to induce death.” 52 On appeal, however, the administrator of the DEA reversed the finding of the judge, labeling the judge’s conclusions “appalling” and faulting him for “his acceptance of, and reliance upon, irresponsible and irrational statements propounded by the pro-marijuana parties.” 53 On review, a federal court of appeals upheld the administrator’s decision in all relevant aspects.54 Despite being reversed by his superiors, Judge Young remains a bit of a hero in legalization circles even to this day.55

the s tat e s s ta rt e x p e r i me n t i n g At this point, it makes sense to back up a bit to review what was happening in the states. One key trend involved the decriminalization of marijuana at the state level. In the wake of the Shafer report, eleven states in the 1970s, led by Oregon in 1973, made low-level marijuana possession a civil violation instead of a criminal one. After a long break, a few other states followed suit in the late 2000s, including Massachusetts. In states that have decriminalized, marijuana possession is met with something like a traffic ticket rather than the full force of criminal law.56 More important than decriminalization, however, was the move to legalize marijuana for medical purposes. California became the first state to do this in 1996 when it passed Proposition 215. The story of medical marijuana in California is, in large part, a story about AIDS in San Francisco in the late 1980s and 1990s. The creator and champion of Prop 215 was a man named Dennis Peron, whose partner, like so many others in the city at the time, was dying of the disease. When patients and their

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caregivers realized that marijuana was one of the only things that provided any relief to patients with the brutal end-stage suffering of AIDS, members of the community like Peron and the famed Mary Jane “Brownie Mary” Rathbun formed a collective buyers club to get cannabis to patients who needed it.57 Police periodically raided the buyers club and arrested those involved in it. During a stay in prison, Peron conceived of Prop 215 and led the fight to try and get it on the ballot. The effort would likely have failed for lack of necessary signatures until George Soros learned about the problem and, along with Ethan Nadelmann of the Drug Policy Alliance, got together the needed funds to the certify the question, which was passed by roughly a 55 percent to 45 percent margin in November 1996.58 Other western states—Alaska, Oregon, and Washington— followed California and legalized medical marijuana within their borders in 1998. Maine, Colorado, Hawaii, and Nevada came fairly soon thereafter, and, as of this writing, over thirty states have generally legalized marijuana for medical purposes.59 Many others have legalized CBD, or cannabidiol, a non-psychoactive cannabinoid prevalent in marijuana, for medical uses, leaving the number of states without any provision for medical weed at somewhere around three.60 Way to go, Idaho! The medical marijuana legalization era of the late 1990s and early 2000s saw a number of high-profile clashes between medical states and the federal government, which was still insisting on enforcing its national laws on marijuana use and possession. From time to time, over the course of the period between California’s historic Prop 215 vote and the early years of the Obama administration, federal agents carried out raids on grow operations or otherwise went after various types of marijuana suppliers, particularly in California,61 occasionally giving rise to important judicial decisions. In one high-profile case, the U.S. Justice Department went to federal court to get an injunction forcing the Oakland Cannabis Buyers’ Cooperative to stop providing marijuana to critically ill patients. The club asserted a defense of “necessity” on behalf of its members, arguing that without the drug, those members would undergo needless pain and suffering. The case went all the way to the Supreme Court, which unanimously held that no necessity defense was available to a violation of the CSA.62 In another important case, the Justice Department and the Department of Health and Human Services issued a policy shortly after the passage of

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Prop 215 targeting doctors who were recommending marijuana to their patients under state law. The policy would have revoked those doctors’ licenses to prescribe any controlled substances whatsoever. Fortunately for the growing legalization movement, a federal appeals court in California held that the policy violated the First Amendment rights of doctors to counsel their patients without government interference.63 The highest-profile marijuana case of the era—Gonzales v. Raich— involved the question of whether the federal government even has the constitutional power to criminalize the use of small amounts of homegrown marijuana for medical purposes.64 To be valid, every action of the federal government must be authorized by some power granted by the Constitution itself. The federal government’s power to regulate marijuana use (outside of federal property) is rooted in the Commerce Clause of Article I, section 8, which gives Congress the power to “regulate Commerce . . . among the several States.” For most of the twentieth century, the Supreme Court basically let Congress (and thus also the executive branch, since Congress often delegates its powers to that branch) do anything it wanted under the Commerce Clause power as long as the action had some connection, however tiny, to interstate commerce.65 But the Court started placing some significant limits on that power in the late 1990s, holding in one case that Congress couldn’t make possession of a gun near a school a federal crime,66 and in another that Congress couldn’t authorize a federal civil remedy for victims of violence against women.67 In both cases, the Court held that there was an insufficient connection between what Congress wanted to do and interstate commerce and thus struck down the laws as exceeding Congress’s constitutional authority. The 2005 Raich case was brought before the Supreme Court in the wake of those two decisions, and both the lawyers who brought the case and their clients therefore had good reason to believe they might win. The case involved two women who used marijuana for medical purposes. One of the women, Diane Monson, grew a small stash of six plants and used the marijuana from those plants to treat her painful degenerative spine disease. The other defendant, Angel Raich, used marijuana given her by friends to treat the symptoms of her inoperable brain tumor, among other conditions. None of the marijuana was sold in the illicit market, and none crossed state lines. So, when the federal government seized the relevant marijuana plants

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after an hours-long standoff, the two women sued the federal government, arguing that the Commerce Clause did not authorize the federal government to criminalize the possession and use of small amounts of marijuana for personal medical use. The Supreme Court, however, disagreed, with six justices (including Justice Antonin Scalia, whose dislike of the federal government was apparently not enough to overcome his even greater dislike of the devil’s lettuce) holding that the small-scale personal use involved in the case was sufficiently related to the interstate market for illegal drugs that the Commerce Clause supported Congress’s blanket prohibition on possession. “The regulation is squarely within Congress’ commerce power,” the Court wrote, “because production of the commodity meant for home consumption [marijuana] has a substantial effect on supply and demand in the national market for that commodity.” 68 The Supreme Court’s decision in Raich made it clear that if the federal government wants to enforce the federal prohibition on marijuana use or possession, it has every right to do so, no matter how minor the use or possession might be. On the other hand, however, since 2014, Congress has consistently passed appropriations riders that prohibit the Justice Department from enforcing federal law against medical marijuana users, growers, or providers. Specifically, the amendment states: “None of the funds made available in this Act to the Department of Justice may be used, with respect to [listing states with medical marijuana], to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” 69 The Justice Department has tried to challenge this provision, arguing that it doesn’t really say what it clearly says, but fortunately a federal appeals court, in the 2016 case United States v. McIntosh, held that the provision in fact does really say what it clearly says.70 The appropriations rider does not, however, extend to actions taken pursuant to a state’s recreational or adult-use marijuana laws. After a failed attempt by California to legalize weed for recreational use in 2010 (the proposed law failed by a 54 percent to 46 percent margin), Colorado and Washington became the first states to legalize marijuana for adult use in 2012. Oregon and Alaska followed fairly soon thereafter, and in 2016 California, Maine, Massachusetts, and Nevada joined the party. Legalization in all of these states came through the process of popular ini-

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tiatives or referenda—no state legalized marijuana for recreational use by legislation until Vermont did so in 2018. At the time of this writing, nineteen states and the District of Columbia have legalized pot for adult use.71 For the most part, the federal government has left the states alone when it comes to their recreational marijuana policies. During the Obama administration, this hands-off policy was formalized somewhat by a memorandum entitled “Guidance Regarding Marijuana Enforcement,” issued first in 2013 by the deputy attorney general, James M. Cole. The memo, universally referred to simply as the “Cole Memo,” basically stated that the federal government would leave enforcement of marijuana laws to the states unless the marijuana activity at issue implicated one of the federal government’s priorities. The memo listed eight of those priorities, including preventing the “distribution of marijuana to minors,” preventing “revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels,” and preventing the “diversion of marijuana from states where it is legal under state law in some form to other states.” 72 The memo stayed in effect until January 4, 2018, when Donald Trump’s attorney general, Jeff “I thought the KKK was swell until I heard they smoke weed” Sessions, rescinded it and returned discretion to enforce federal marijuana laws back to the U.S. Attorneys for the various states.73 Despite the rescission, however, the Trump administration turned out to be no more interested in enforcing federal marijuana law than the administration that preceded it. The Biden administration, which took over in 2021, has continued this mostly hands-off approach, although hopes that a government controlled by Democrats would push to liberalize marijuana policy have yet to bear any fruit.

wait, h o w ca n s tat e s l e g a l i z e m a r ij ua na i f i t rem a i n s i l l e g a l u n d e r f e d e ra l l aw ? I’ve been teaching marijuana law for several years now, and the one question I get more than any other when I’m talking about the subject is “How can states legalize weed when the drug remains entirely illegal under federal law?” Pushing the question even further, why is it that states can not only legalize the possession and use of weed but also create complex

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regulatory systems for cultivation, processing, and sales of the drug, sufficient to support billions of dollars of commerce every year, when the Supremacy Clause of Article VI of the U.S. Constitution specifically says that “the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”?74 It’s certainly possible to discuss the ins and outs of state marijuana policies without addressing this question—we could just assume that states can do what they want without explaining or understanding why—but the question is so fundamental that I think any discussion of this area of law would be incomplete without giving at least a couple of pages of attention to it. And, as we’ll see, it does turn out to be crucially important to the details of state legalization in at least one critical aspect, so understanding the answer to the question is important for practical as well as theoretical reasons. Under the Supremacy Clause and the judicial decisions interpreting it, federal law nullifies or “preempts” state law in four different situations: (1) when the federal law expressly states that state law is preempted; (2) when the federal law and the state law literally cannot both be followed at the same time; (3) when a state law stands as a substantial obstacle to the fulfillment of federal objectives; and (4) when Congress has implicitly expressed that it intends to occupy some field of regulation.75 The first type of preemption is referred to as “express” preemption, and the latter three are known as “implied” preemption. I could go into some depth explaining the nature and scope of these various preemption doctrines, but the explanation would be so boring that I fear most readers would rather run screaming onto a busy highway than follow along, so I’ll just cut to the chase and tell you that the CSA has an express provision (section 903 for those who care about such things) that says the following: “No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.” 76

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Basically, this bit of what I’d call light express preemption legalese means that (1) Congress did not intend to occupy the field of drug law, such that any state law in that field would immediately be preempted; and (2) only those state laws that cannot “consistently stand together” with federal prohibition are preempted. The scope of item 2 is a little unclear— what does it mean to say that state law and federal law “cannot consistently stand together”?—but at the very least it does seem clearly to suggest that a state law that requires someone to violate federal law would be preempted and have no legal effect. So, for example, if a state tried to require that every one of its legislators smoke weed once a week (not a particularly bad policy idea, if you ask me), that would be preempted. But what kinds of state laws, short of laws that would require someone to violate federal law, “cannot consistently stand together” with federal prohibition such that they are preempted by the CSA? To fully understand the answer to this question, it is necessary first to understand one other provision of the U.S. Constitution. The Tenth Amendment, which confusingly states that “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,” 77 has been interpreted by the Supreme Court to prohibit the federal government from forcing or commanding a state or the officers of a state to carry out federal law. This doctrine is known as the “anti-commandeering” rule.78 The Court has applied this doctrine only a few times, but, for instance, it once invoked the rule to invalidate a federal law that required state officials to carry out background checks on certain gun purchasers.79 In another case, it struck down a federal law that required any state failing to provide for the disposal of all internally generated radioactive waste by a particular date to take title to that waste.80 The Court has justified the anti-commandeering rule as necessary to protecting the states as separate sovereigns in our federalist system of government.81 Whatever the CSA’s phrase “cannot consistently stand together” might mean, then, it cannot have the effect of allowing the federal government to violate the constitutional authority of the states under the Tenth Amendment. With these principles in mind, we can start to understand why most state laws related to marijuana legalization are not preempted by federal law. It helps to approach the issues step by step. First, consider whether

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the federal government could pass a law saying something like “All states must, as a matter of state law, make it illegal to possess or use marijuana within the state.” Under the Court’s Tenth Amendment anti-commandeering cases, this type of federal law would be clearly unconstitutional, as it would basically require the state legislature to take a certain action. It would be as though representatives of the federal government were sitting in the state legislature and physically forcing the state representatives to write and pass a law making it illegal to use or possess marijuana. If it would be unconstitutional for the federal government to require states to make marijuana use illegal, then it follows that a federal law making marijuana use illegal cannot be read to preempt a state’s attempt to repeal its laws prohibiting marijuana use. That’s because the two actions are fundamentally equivalent. If the federal government cannot require a state to make marijuana illegal, why would it be any less of a constitutional violation for it to prohibit the state from repealing its criminal laws regarding marijuana, thus requiring the state to continue doing what Congress couldn’t have required the state to do in the first place? And indeed, in a relatively recent case that was celebrated with bong hits by marijuana legalization proponents across the nation, the Supreme Court held unconstitutional under the Tenth Amendment a federal law that essentially prohibited states from modifying or repealing their laws prohibiting sports gambling within their borders.82 In that case—called Murphy v. NCAA—the Court, in an opinion written by Justice Samuel Alito, stated: “It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is not easy to imagine.” 83 Okay, so now it should be clear why the federal government cannot prohibit or preempt a state’s attempt to take off the books its own state laws prohibiting marijuana possession and use. The next question, which is somewhat more difficult, is whether state laws that create a regulated market for marijuana sales are laws “that cannot consistently stand together” with federal prohibition such that they are preempted. The case that such state laws are not preempted was first put forward comprehensively by Vanderbilt Law School professor Robert Mikos (mentioned in the introduction as the author of the first-ever “casebook” on marijuana

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law for use in law school classrooms). According to Mikos, if federal illegality does not preempt a state from making marijuana completely legal for everyone for any purpose, then state laws that govern who can sell, buy, grow, and use marijuana must necessarily also be immune from preemption, since those laws restrict rather than expand the scope of the state’s marijuana program. “Registration/ID and licensing programs are similarly safe from preemption,” Mikos writes, and “do not make marijuana use any more likely than it would be in a state of nature, free of state legal sanctions. Since Congress cannot force states to impose legal sanctions, it cannot block states from adopting measures like registration and licensing that help them sort out who is exempted from sanctions.” 84 Two other legal scholars, Erwin Chemerinsky, the dean of Berkeley Law, and Sam Kamin, the Vicente Sederberg Professor of Marijuana Law and Policy at the University of Denver, have (along with two coauthors) made the same point using an elegant “day one, day two” analogy. According to Kamin and Chemerinsky, if it’s true on day one that Congress cannot preempt a state from scrapping its marijuana limitations entirely, then it must be the case that the state can impose regulations on day two that restore some of those limits without running into federal preemption. As they put it: Imagine that the day after repealing all its marijuana laws, the same state enacted a new regulatory scheme under which only adults twenty-one and over would be allowed to possess marijuana and only up to one ounce. Assume further that this new state regulatory scheme empowered local jurisdictions to license commercial cultivation and the sale of marijuana to adults; production and sales conforming to these regulations—but only such sales—would now be permitted. . . . The state’s new laws are a greater support to the federal goals on day two than they were on day one. On day one the state permitted all marijuana activity; on day two it prohibited most marijuana activity, permitting only regulated sales and possession of small amounts. If the state can remove all its marijuana prohibitions on day one despite the [CSA’s] prohibition and despite the Supremacy Clause—and it clearly can—the state can certainly add some prohibitions back on day two without running afoul of the CSA.85

As I noted a few pages back, some state laws concerning marijuana— namely, those that actually require someone to violate federal law—would

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in fact be preempted by the CSA. For example, as Mikos points out, a state law requiring a landlord to rent property to a marijuana dispensary would likely be preempted because the CSA expressly prohibits landlords from renting property to known drug distributors.86 Although few, if any, of the state laws that have been enacted across the country likely actually require anyone to violate federal law, it is important to recognize what policy options this principle of federal legal supremacy puts off the table. A recurring theme in much of the policy wonk/public health literature that I referred to in the introduction is that a system of marijuana distribution run entirely by the government might have some significant advantages over a private market-based system.87 Scholars who make this suggestion have argued that if the government were the one growing and selling the marijuana to customers, it could more easily control the amounts and types of marijuana sold while also keeping advertising down to a minimal level (and ensuring that children and problem users are not targeted) and reaping all of the profits that would otherwise flow to private corporations.88 Of course, the idea has its flaws—among other things, it’s hard to believe that the government could or would supply customers with the quality and quantity of products they want or need—but what’s important to understand is that federal prohibition makes this type of policy experiment impossible because a state that actually grew and sold marijuana would in fact be directly violating federal law. Whether states would have experimented with this public supply model in the absence of federal prohibition is impossible to know, but it potentially could have happened. The fact that this model was never actually an option is at least one factor, then, that has contributed to the development of the multibillion-dollar marijuana industry in the United States. And once such an industry exists, it’s hard to imagine that it’s ever going to go away. Thus, federal prohibition combined with our constitutional structure has profoundly shaped the nature of the current industry and its likely future. As such, even though a government-run marijuana system might have been preferable to one dominated by the private market, I will not spend much time in this book evaluating the pros and cons of such a public system, since it is highly unlikely that one will ever be adopted in the United States on any substantial scale.

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why f e d e ra l i l l e g a l i t y s t i l l m at t e r s The continuing, complete federal illegality of marijuana may not prohibit states from making weed legal within their borders, but it sure is an enormous pain in the ass. For one thing, since everyone involved with cannabis in any way (not just growers or users, by the way, but bankers and lawyers and accountants and software engineers and everyone else) knows that at any time and for any reason the federal government could just change its mind and start arresting people for violating federal law, the CSA does kind of stomp on the collective buzz of the industry. Most people are optimistic that federal prohibition cannot possibly continue much longer, given the overwhelming popular support for legalization across the country, but one never knows, particularly because powerful interests such as Big Pharma and the private prison industry have a lot to lose from legalization. And so, as long as the feds technically keep marijuana illegal, many people will continue to have that gnawing feeling in the back of their heads that they are violating federal law and that anything could happen. Donald Trump’s appointment of Jeff Sessions as attorney general, and Sessions’s rescission of the Cole Memo in 2017, reminded all of us who had become complacent that this entire endeavor involving hundreds of thousands of people and billions of dollars rests precariously on the continued apathy of just a very few powerful individuals who could destroy it all on a whim if they felt like it. But beyond the feeling of insecurity, federal illegality brings with it a number of concrete obstacles to the industry reaching anything near its full potential. In addition to the inherent market-dampening effects of having to create state-by-state markets instead of a single national one (for example, even though California grows tons more marijuana than its citizens can consume, it cannot legally export its product to Minnesota, where growing is obviously more difficult),89 federal prohibition continues to have profound effects on issues as wide-ranging as banking, taxation, intellectual property, veterans’ rights, bankruptcy, environmental protection, immigration, and federal housing. Until marijuana is fully removed from the CSA, the weed industry will remain artificially stunted, and many would-be users will continue to have difficulty accessing the cannabis they either want or need.

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The big three obstacles are banking, taxes, and intellectual property. On the banking issue, although things are getting slightly better as time goes by, most large banks and credit unions have simply been unwilling to get involved with the marijuana industry for fear of being charged with money laundering and other federal financial crimes.90 Although both the Justice Department and the Treasury Department have issued memoranda indicating that federal enforcement authorities will focus their efforts on financial crimes involving marijuana that implicate the priorities set out in the Cole Memo,91 the fact remains that as long as cannabis remains illegal under federal law, most financial transactions involving the drug will remain federally illegal. Banks have plenty of business already, so the risks of getting involved with the weed industry are generally not worth the reward. As a result, the industry continues to be highly cash based, which is not only incredibly inconvenient for businesses but also super dangerous. News reports over the past decade have been peppered with stories of marijuana employees being mugged, attacked, or even killed for the cash they are holding.92 And, of course, without banking services, many people— particularly people with limited means and people of color—simply cannot access the capital necessary to enter the marijuana industry, leaving the industry open to being dominated by big corporate players that can access funds in other ways.93 Recent years have seen some movement on the banking issue in Congress, with the House of Representatives passing the Secure and Fair Enforcement (SAFE) Act, also called the “SAFE Banking Act,” multiple times to make clear that banks will not be held liable for servicing cannabis businesses.94 But although many Republicans have joined Democrats in supporting the SAFE Banking Act in the House, Republicans in the Senate have been much less supportive of the bill, particularly Senate Banking Committee powerhouse Mike Crapo from Idaho, who appears steadfastly opposed to marijuana legalization of any sort.95 With regard to taxes, the dreaded section 280E of the federal tax code continues to artificially (and idiotically) hold back the marijuana industry by prohibiting plant-touching companies from deducting business expenses other than the costs of goods sold.96 Congress enacted section 280E in 1982 in response to the U.S. Tax Court’s decision in a case called Edmonson v. Commissioner, in which the court allowed a cocaine and

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amphetamine dealer to deduct business expenses related to his dealing, including rent, travel expenses, and a set of scales.97 Section 280E bars companies from deducting any amounts paid in connection with “carrying on any trade or business if such trade or business consists of trafficking in controlled substances.” 98 The courts have made very clear that this section continues to apply to marijuana businesses even in states where marijuana is legal for medical and recreational purposes, and the result is basically that corporations that grow, process, or sell marijuana in any form are subject to outrageously inflated tax rates, sometimes approaching upwards of 70 percent.99 For sure, creative tax lawyers and accountants have come up with ways for companies to deduct the highest possible amounts (for example, retail stores that sell both marijuana products and other kinds of products, like magazines and t-shirts, can deduct expenses connected with the latter if they properly segregate the business),100 but there’s only so much they can do under the statute. Until 280E is repealed or marijuana is legalized at the federal level, the industry will continue to suffer an unfair economic disadvantage that keeps prices high, profits low, and the illicit market thriving. Finally, federal illegality makes protection of intellectual property difficult for marijuana companies and individuals. The U.S. Patent and Trademark Office has issued hundreds of patents for marijuana-related products—including, most famously, U.S. Patent 6,630,507, granted to the federal government in 2003 for the potential use of cannabinoids to protect the brain from damage or degeneration101 (so much for a total lack of medical use!). Yet that same office continues to refuse to grant trademark protection to any mark related to marijuana products and services, due to the office’s “illegality doctrine,” which states that the office will not grant protection to any mark, no matter how distinctive and currently used in commerce, if it is related to illegal activity.102 The doctrine was created long before states started legalizing marijuana for medical and recreational purposes, but the office has consistently applied it to proposed cannabis marks.103 Although some states offer protection to marijuana trademarks,104 the impossibility of federal protection means that companies cannot protect their brands outside those few states, and this only makes it more difficult for them to cultivate the goodwill and loyalty of customers. Along with the banking and tax restrictions, the trademark

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restriction works to hold businesses back from reaching their full potential, thus harming both those businesses and their consumers for no good reason. Although these are probably the three most prominent negative effects of federal illegality, they are hardly exhaustive. Because marijuana remains illegal, Veterans Affairs (VA) doctors cannot recommend or prescribe marijuana to their patients, despite clear evidence that the drug helps alleviate the effects of PTSD.105 Veterans who receive VA housing assistance, as well as anyone living in federally subsidized housing, cannot use marijuana in their own homes.106 Cannabis growers cannot legally use most pesticides to protect their crops because the Environmental Protection Agency will not register pesticides for use on what it considers an illegal crop.107 Marijuana use can be the basis for negative immigration actions, including deportation, even when that use occurs in states where the drug is completely legal.108 Marijuana companies that go under cannot take advantage of the federal bankruptcy laws like other businesses.109 Federal illegality continues to make it extremely difficult to do research on the effects of marijuana, impeding scientists’ efforts to understand the possible benefits of the drug for treating a whole range of medical conditions.110 And the list goes on and on. •

•

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Most people agree that at some point in the near future, the federal government will remove marijuana from the CSA, thus alleviating all of these problems and allowing the industry to flourish (or not) according to its own merits, rather than hindering it on the basis of outdated, racist, and antiscientific attitudes. But whether this federal change happens or not, it seems almost certain that marijuana will continue to be legal in many, if not most, states. Therefore, we first need to carefully consider what our goals for marijuana policy should be. Only then can we make the informed choices necessary to create and sustain the industry in a way that furthers those goals. The next chapter begins this inquiry by asking: What might (and should) we want from our marijuana policy?

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Getting Meta how should we think about thinking about marijuana policy ?

Okay, lunch time’s over. Back to work. This legislation isn’t going to draft itself! Getting back to where the book started, now that we’ve discussed the history of marijuana prohibition, the constitutional context of the current situation, and the effects of federal illegality on existing state efforts to legalize weed for medical and/or recreational use, the next set of issues to consider are the relevant criteria for evaluating any given policy choice or overall policy when it comes to legalization. In any area of public policy, before we can decide whether a decision or collection of decisions is “good” or “bad,” we need to define the values against which we are measuring those choices. And when it comes to legalization of the sweet, sweet ganja, those potential values are numerous, complicated, and often in tension. The plan for this chapter is as follows. First, I will list and explain ten possible criteria that might be relevant to evaluating any given marijuana policy. These criteria are intended to reflect the most prominent goals that have been expressed when it comes to evaluating marijuana policy, but they are not intended to be exclusive. The goal at this stage of the discussion will not be to rank the criteria or to defend some criteria over others, but simply to articulate what criteria might be used. 37

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Second, I’ll illustrate how these criteria are often at odds or in tension with one another. If all the criteria pointed the same way—for example, if protecting the environment were entirely consistent with increasing access and reducing the size of the illicit market, and so on—then marijuana policy would be easy. Unfortunately, as with most real-world problems, solutions require trade-offs. Here, I’ll explain in some detail how this plays out, and I’ll identify what I see as the four dominant models or paradigms that have animated the “marijuana space” thus far, including what I will call the Public Health Paradigm, the Market Freedom Paradigm, the Equity Paradigm, and the Statist Paradigm. Each of these treats certain collections of criteria as more important than others and uses them to build distinct approaches to the regulation of legalized marijuana. Finally, I will describe my own approach to marijuana legalization, which is roughly the Equity Paradigm sprinkled liberally with normalization and joy. My distinct contribution, I hope, will be to urge all those who make decisions and craft policies on cannabis regulation to acknowledge and credit the pleasure, joy, and even euphoria that many people experience when using the drug.

what a r e t h e r e l e va n t c r i t e r i a f o r e va luat i n g a marij ua na p o l i c y ? Here, then, without further ado, and in no particular order, are ten important criteria that we might use to evaluate any given policy decision having to do with marijuana and its legalization. 1. Equity.  As described in chapter 1, it is widely understood that the criminalization of marijuana was originally animated by racial and national enmity against Mexicans, and subsequently by animus against people of color in the United States. It is also clearly true that marijuana laws have been disproportionately enforced against Black and Latinx individuals throughout the nation over the span of several decades. Because the war on drugs has devastated the lives of individuals, families, and communities of color, the equity criterion focuses on the need for legalization policy to redress those harms in a variety of ways, ranging from expunging prior convictions, to providing money to help harmed commu-

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nities recover from the war on drugs, to giving minority-owned businesses priority access to licenses, to assisting those businesses through training programs, loans, or grants.1 2. Public health.  Marijuana is not a risk-free substance—not even close. Although some users dispute the point, most agree that driving while under the influence of marijuana, while perhaps not as dangerous as driving under the influence of alcohol (it’s often said that drunk people run red lights, while stoned people stop at green ones), poses a significant danger to the driver, passengers, other drivers, and pedestrians.2 Cannabis can cause psychological problems for some users, and some people become dependent on the drug (including me—more on this later), resulting in problems with work, school, relationships, and other areas of life.3 Using marijuana is particularly risky for young people, whose brains are susceptible to being influenced by the drug, and some evidence links marijuana use among teenagers with increased rates of psychotic symptoms or even schizophrenia, although the evidence is hardly conclusive.4 People who don’t know what they’re doing with edibles—marijuana consumed in this way can take an hour or two to take effect—can take too much, resulting in highly unpleasant and even occasionally dangerous experiences.5 A horrifying condition called “cannabis hyperemesis syndrome” appears to be on the rise (you could Google the word “scromiting” if you really want to know more, but I’d suggest resisting the urge),6 and, of course, marijuana that is adulterated with pesticides or other unsafe substances can be harmful to smoke, vape, or eat.7 Those who embrace the public health criterion view these safety concerns as paramount and seek to minimize them by implementing tight controls over access, imposing high fees and taxes that raise prices and thus reduce demand, prohibiting marijuana retailers from marketing or advertising their products, and engaging in messaging that reinforces the dangers of marijuana use.8 3. Ease of access.  Legalized marijuana is a multibillion-dollar industry,9 which shows, perhaps better than anything else, that people like to use the drug and want to have wide and easy access to it. If you have any doubt about the size and complexity of the industry, I’d recommend checking out the marijuana industry convention held every autumn in Las Vegas,10 where the expo floor over the past few years has grown to approximately the size of Rhode Island. The ease of access criterion recognizes

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that people want access to a broad range of marijuana products and argues in favor of policies that would make it relatively simple for consumers to buy and use cannabis. These may include policies that ensure an adequate supply of the drug; provide for numerous and convenient retail outlets where consumers can purchase at reasonable prices a wide range of strains and products, including concentrates and edibles; allow businesses to open and operate social use spaces where people can publicly enjoy the drug; and protect the rights of both businesses and consumers to spread and receive information about available products through advertising and marketing campaigns. A subset of the ease of access criterion would focus on the specific needs of patients who need marijuana to treat specific medical conditions and would seek to ensure that patients have low-cost, priority access to strains that are particularly helpful in treating those conditions. 4. Revenue maximization.  As a political matter, the prospect of taxing marijuana production and sales and using that increased revenue to fund schools, build roads and other types of infrastructure, and provide other public goods explains a lot of the increased support for legalization, particularly among those who are not otherwise huge fans of the drug.11 Those who support marijuana legalization for the public funds it promises to provide will tend to support higher taxes and fees and will likely pay more attention to what the increased revenue should be used for than to other types of details that go along with legalization. 5. Environmental protection.  Growing marijuana is highly energy intensive. Outdoor grows require immense amounts of water, with some estimates from California suggesting that six or more gallons of water may be needed per plant per day during the growing season.12 Inside grows, on the other hand, call for lighting that can be as intense as the illumination inside a surgery theater.13 The production process results in large amounts of waste, some of it hazardous, that must be disposed of somehow,14 and growing operations cause emissions of dangerous air pollutants that can harm the atmosphere.15 Consciousness regarding the potential environmental harms of growing and selling legal marijuana has come somewhat late in the legalization process, but it is now recognized as an important issue.16 How important, though, depends on the individual, and those who prioritize the environmental protection criterion will be more vigi-

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lant about requiring businesses to use ecological best practices such as efficient light bulbs and proper waste treatment techniques despite the inherent costs of those options. 6. Rationality.  Policy decisions that are rational—that are supported by data and common sense, that have an important purpose as their goal and appropriate means to achieve it, and that are neither over- nor underinclusive with respect to that goal—are to be preferred over decisions that are irrational. This may seem almost too obvious to state here, but given the complexities of the typical legislative process and the perhaps inherently human instinct to promote one’s private good over that of the public, I think it is worth making explicit. Anyone who has studied the legislative process or has any familiarity with either public choice or social choice theory—or who has ever watched the news—knows that the products of legislative and regulatory processes do not always make sense.17 Laws are often crafted through compromise, pandering, unequal power dynamics, private posturing, random agenda setting, and other less-than-perfectlyrational approaches to solving public problems. Insisting on some minimum amount of rationality (how large an amount will depend on how important one thinks the criterion is, of course) can potentially serve as a worthy check on at least the most detrimental forms of unreasonable policymaking. 7. Market freedom.  Those who participate in the industry—either in plant-touching capacities like cultivation, processing, and selling or in ancillary businesses such as law, accounting, software, and security—often strongly believe that the government should regulate the industry less rather than more.18 Those who adopt the criterion of market freedom as paramount will likely support a softer government touch than those who do not, in all sorts of regulatory areas, from those involving marketing, packaging, and labeling to what kinds of products can be sold, where retail shops can be established, and on and on. They will likely believe that allowing businesses wide-ranging freedom to create and sell their products will result in a robust industry with higher profits, more jobs, and a more satisfied consumer base than a system involving costly and seemingly endless regulatory requirements. Although the market freedom criterion points in many of the same directions as the ease of access criterion discussed already, it is important to distinguish the two approaches

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because it is at least theoretically possible for either a highly regulated market or an entirely government-run production system to result in easy access to marijuana products. Thus, believing in the importance of ensuring that customers have easy access to a wide range of products does not necessarily mean that one also believes in a wide-open private market free of pesky regulations. 8. Reduction of the illicit market.  Most would agree, at least to some extent, that if the government is going to legalize marijuana production, sale, and use, with the idea that it can then tax and regulate the legal industry to pursue goals like protecting children and promoting public safety, then it also makes sense to take steps to minimize the continuing vitality of the illicit market.19 Allowing an illicit market to coexist alongside the legal market threatens to undermine all of the goals of creating the legal market in the first place, and it is also unfair to those businesses that choose to follow the law rather than operating in its shadow.20 Of course, saying that the government should take steps to eliminate the illicit market is easier than actually doing it. Enforcement is certainly an important part of any attempt to curb the illegal market, but it’s hardly the only necessary component. Keeping taxes and fees low enough to ensure that the legal market can compete with the illicit market is also important (economists believe that over time, the price of marijuana will be substantially cheaper in the legal market than in the illicit one,21 but this can obviously be affected by high taxes and fees). Finally, the regulatory environment should not be overwhelmingly restrictive, such that it becomes far easier and more palatable for businesses (and customers) to remain below the legal radar, rather than buying into the aboveboard system. 9. Local control.  For some supporters of legalization, and probably for most opponents, one of the more important aspects of any legalization system is the ability of local cities and towns to make their own rules about what kinds of activities may take place within their borders. Ordinarily, the amount of local control that cities and towns within a state can exercise with respect to marijuana activities is a function of the state legalization statute itself, although there are some nuances of local government law here that I’ll explain in a later chapter. Most states that have legalized weed thus far have given substantial control to cities and other localities to prohibit or regulate marijuana businesses and to impose zoning require-

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ments that keep those businesses in certain areas of town, limit the number of businesses that can operate, or impose distance requirements between businesses or between a business and places where children congregate. Conferring authority on local governments to decide what happens within their communities in regard to cannabis certainly has advantages (and is, of course, extremely politically popular), but it has downsides as well. In some states, local authorities have substantially slowed down the process of moving to legalization by imposing bans or temporary bans on sales of the product within their borders, and in some cases local officials have even abused their power to extort money and other concessions from marijuana businesses that are simply trying to comply with state law.22 10. Normalization.  Although more and more people are using marijuana these days, the drug is still nowhere near as widely accepted as other risky activities such as drinking alcohol, eating pastries, or skiing. For those of us who deeply appreciate cannabis, the goal of normalizing its use is extremely important. Nobody should feel like an outcast or an oddball for using marijuana, or feel like they need to hide or disguise or deny that they enjoy the drug. Of course, normalization is in large part a function of individual and social attitudes and is, to some degree, independent of how the government treats the activity, but the government still has a role to play in sending the right messages about cannabis. Should the idea be that marijuana is a harmful drug that must nonetheless be grudgingly tolerated because the harms of criminalizing it outweigh the benefits of keeping it illegal? Should the government treat marijuana, as one industry expert put it at a conference I recently attended, “as only barely above criminal”? Or should the government treat marijuana like other pursuits that people engage in but that also carry risks, like playing football or eating cupcakes? The government can influence social messaging in a variety of ways, both by how it regulates and by what it says about its regulations. Public service billboards and commercials and publications and other explicit forms of government speech represent one obvious way that the government can spread a message of normalization, but how the government actually regulates is at least equally important. If the government imposes overly strict regulations—particularly when it comes to the ability of marijuana companies to advertise and market themselves and their

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products—or fails to protect users from employers and the police, then the government is essentially sending a message that marijuana use is not normal and that legalization is not something to be happy about. Obviously, for many people who oppose legalization or at least do not strongly support it, normalization will be unimportant or even a disadvantage, but there’s also no doubt that for many users, including myself, legalization by itself is insufficient if it is not done in a way that makes us feel like full and valued members of society.

what a r e s o m e o f t h e k e y pa ra d i g m s f o r evaluat i n g a m a r ij ua na p o l i c y ? These, then, are ten criteria that will be helpful in evaluating any given policy choice or choices when it comes to the details of a marijuana legalization system: equity, public health, ease of access, revenue maximization, environmental protection, rationality, market freedom, reduction of the illicit market, local control, and normalization. As I’ve said, these are not meant to be exclusive, and surely other scholars and policymakers would put them somewhat differently, or add to or subtract from the list. That’s fine. The point is simply to provide a common starting point from which to begin analyzing specific policy choices regarding marijuana legalization. The difficulty, of course, is that these ten criteria are often in tension. If all the goals of marijuana policy pushed in the same direction, such that, for example, every policy that promoted easy access to a wide range of products also promoted public health, local control, and each of the other seven criteria, then marijuana policy would be easy. As it is, however, crafting a policy that will promote one of the criteria will often have the effect of undermining others. If we insist, for instance, on requiring marijuana cultivators to comply with thorough and complex regulations in order to protect the environment, we will necessarily be limiting the freedom of cultivators, as well as probably causing an increase in prices that might both undermine consumer access to products in the market and keep the illicit market—where cultivators need not follow burdensome environmental regulation—competitive with the legal market. If we insist that cities and towns maintain substantial control over whether and how

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marijuana businesses can operate within their borders, we will promote the local control criterion over the ease of access and market freedom criteria—and perhaps the equity criterion as well, if local control turns out to make it more difficult for minority-owned businesses to establish themselves within a state. If we insist on protecting public health by limiting access to certain products, increasing prices through high taxes to reduce demand, and prohibiting certain marketing and advertising practices, we will be deciding to promote the public health criterion at the expense of widespread access, reduction of the illicit market, and market freedom. If we seek to promote market freedom, on the other hand, by refusing to place limits on how many licenses within a state can be controlled by one corporate entity, we may very well be sacrificing an interest in equity by making it easier for big businesses to dominate the industry.23 And so, we must make choices—ideally, before we act—about what criteria we value most highly and what criteria we are willing to sacrifice. Every person (or group of people, or legislature, or state) faced with making choices among the ten criteria I’ve put forward will inevitably have their own combination of preferences. I like to visualize those preference combinations as represented by an audio equalizer, one of those gizmos that allow you to adjust various aspects of the sound of a device by sliding different levers up and down, with the proviso that raising some levers will automatically lower others. Each person’s Marijuana Legalization Equalizer Preference Combination (MLEPC) will look different, depending on their personal preferences and choices. Some people will want to push the “environmental protection” lever up to ten, for example, thus lowering the “market freedom” and “easy access” levers down to three or four, while others will choose the exact opposite equalizer settings. Although every legalization supporter has a unique MLEPC, some combinations are widely shared and represent particularly important policy approaches, such that we might usefully label them as paradigms. I’ll suggest four: • The Public Health Paradigm. This paradigm is particularly prominent

in the wonky literature regarding legalization, as well as among many of the state regulators who are in charge of developing specific regulations. Obviously, a paradigm focused primarily on public health will raise the public health lever about as high as it can go, with the idea that the most

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important goal, by far, of any legalization program must be to protect individuals, particularly children, from the dangers of marijuana— including dependence and addiction, other mental health issues, “overdoses” from edibles, and driving under the influence. This is the paradigm of “grudging toleration” discussed in the introduction. Of course, as the public health lever goes up, the ease of access and market freedom levers go down, because these are not often a high priority for anyone focused on public health. In addition, those who follow the Public Health Paradigm tend to prefer a good amount of local control as well, along with a high level of cultural messaging focused on the dangers of marijuana and how to use it safely, rather than normalizing the use of the drug. • The Market Freedom Paradigm. Unsurprisingly, while generally

conceding that there are some public health risks to marijuana legalization, the industry is focused primarily on developing the conditions for a free and robust market in marijuana products and services. A typical follower of this paradigm will push the market freedom lever up, up, and up, while keeping those criteria that favor regulatory interventions—such as equity, public health, revenue maximization, environmental protection, and local control—on the low side. On the other hand, ease of access and reduction of the illicit market are complementary criteria to market freedom and would probably score fairly high among those who are concerned primarily with promoting the industry.

• The Equity Paradigm. For many marijuana reformers, the most

important justification for legalization by far is the need to end the racially discriminatory drug war and take steps to start remedying the harmful effects of that war on communities of color. For these legalization supporters, the equity criterion will be paramount, and most specific decisions about how to legalize will be evaluated on the basis of whether they promote equity or not. The MLEPC of a typical Equity Paradigm supporter, then, will have the equity lever pushed up as high as it can go. Because equity is almost certainly not going to come about in an unregulated free market, most who support this paradigm will recognize the necessity for regulatory interventions to push the industry in an equitable direction (license priorities for minority-owned businesses, for example, and caps on how many licenses any one entity can own or control), and thus the market freedom criterion will score fairly low among their list of priorities.

• The Statist Paradigm. Unlike the equity proponents, for whom the main

beneficiaries of legalization should be people and communities of color,

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and unlike the market freedom folks, for whom the main beneficiaries of legalization will be marijuana businesses and their customers, for the statists the main beneficiary of legalization is the government itself and, by extension, the citizenry. Marijuana is something neither to be celebrated nor to be much concerned about—rather, it is something to be taxed, to provide public benefits such as education and infrastructure. Statist supporters of legalization place a premium on revenue maximization before all other goals, although they may also consistently value local control on the grounds that the autonomy of different levels of the state is at least as important as overall revenue. The main problem for the statists, of course, is that artificially high taxes and fees prop up prices in the legal market, threatening to keep the illicit market thriving and thus undermining the revenue maximization goal that was the point in the first place. A sophisticated statist view that also values the rationality criterion would recognize that there’s an ideal level of taxation out there—not too high, not too low—that will result in true revenue maximization for the state.24

para d i g m s , va lu e s , a n d s ta rt i n g d o w n the r oa d t o “ ca r e f u l e x u b e ra n c e ” Behind each of these four paradigms is a different fundamental value. One might describe the values somewhat differently, and obviously this is overly simplistic, but it seems fair to suggest that a primary commitment to public safety, economic liberty, equal justice, and government provision of public goods undergirds (respectively) the Public Health, Market Freedom, Equity, and Statist paradigms described above. One’s rankings of these commitments, then, will go a long way toward determining which paradigm one finds most attractive. Someone who believes that safety should be the state’s primary concern, for instance, will likely lean toward something like the Public Health Paradigm even if that person also values justice, freedom, and public goods. Likewise, one may value public safety but nonetheless adopt something like the Equity Paradigm if one believes that the state should place justice before anything else, including safety. How one ranks these values in the abstract, however, will not be the only factor that determines the paradigm one finds most attractive. Someone may, for example, value public safety above any other value but

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still not adopt the Public Health Paradigm for regulating cannabis if that individual does not believe, on the basis of the facts as they understand them, that marijuana poses a serious public safety concern. Likewise, if someone generally ranks the pursuit of liberty over justice (or believes that liberty, rather than equality, is the key to justice), but believes that the treatment of minorities in connection with marijuana has been particularly egregious, that person may lean toward the Equity Paradigm over the Market Freedom Paradigm in the specific case of marijuana regulation. In other words, one of the key variables that will inevitably affect what one’s paradigm of marijuana policy will be is the notion of appropriateness, or maybe what we could call the “fit,” of each value within the specific context of cannabis regulation. One’s choice of paradigm, then, will turn heavily on a combination of how one ranks the various values at play in the abstract and how one believes that these values are specifically implicated by marijuana prohibition and regulation. My own ranking of these four fundamental values in the abstract would probably place equal justice first, public safety second, and then the liberty and public goods values behind the other two. As one fairly simple example of this approach, during the relatively early days of the COVID-19 pandemic, I felt strongly that the nation’s public health and safety needs outweighed, by far, almost any liberty interest claimed by businesses or individuals who argued for continuing life as usual. On the other hand, I thought that the massive Black Lives Matter protests in the wake of the murder of George Floyd were entirely acceptable and justified, regardless of the risks they posed to public health and safety. I will not make any attempt here to explain or justify these rankings, or to try and convince anyone to abandon their own rankings for mine, however, because I think that these fundamental commitments are so highly ingrained and instinctual, rather than rationally derived, that arguing over them is generally not a fruitful endeavor. On the other hand, I will talk a little about how I think these four values fit within the specific context of marijuana regulation. Again, though, my main concern is not trying to convince you to adopt my views, but rather explaining why I approach marijuana regulation the way that I do. A full discussion of how the equal justice, public safety, public goods, and liberty interests play out in the context of marijuana regulation would take the

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entire rest of this book (or would result in the book being six hundred pages long, which I don’t think anyone wants). Since my main goal in this part of the book is to develop a framework that anyone can use to think through how marijuana regulation ought to proceed, regardless of their particular commitments or rankings, I prefer to spend more time on that endeavor than on persuading anyone to adopt my specific paradigm. That said, here are some thoughts, beginning with the relationship between marijuana legalization and public safety.

mar ij ua na a n d p u b l i c h e a lt h The debate over the public health dangers of legalizing marijuana is substantial and complex, and it is made exponentially more difficult by the vast amount of uncertainty that exists concerning almost everything having to do with the effects both of marijuana use and of marijuana legalization, an uncertainty that is partially a consequence of the drug’s federal illegality, which has made research into the drug’s effects notoriously difficult.25 Opinions on the dangerousness of legal marijuana run the gamut from hardly dangerous at all (it’s just a plant!),26 on one side of the spectrum, to histrionic, Reefer Madness–esque claims that legalized weed will lead to a rampant spread of schizophrenia-induced violence on the other side.27 My own view is in the middle somewhere, closer to the “less harmful” side of the spectrum than the “more harmful” side. I recognize that marijuana poses significant health and safety risks, particularly to young people and people on the roads, and that any sensible regulatory regime must address those risks. Moreover, it is clear that much more research needs to be done and that any marijuana policy must be flexible enough to accommodate new findings about the dangers of the drug. I do not, however, think that the risks of marijuana, as we understand them today, are particularly great compared to other types of recreational activities that people pursue or are substantial enough that the drug either deserves to remain illegal or should be regulated in a draconian manner. In the following pages, I explain the basis for reaching this conclusion. To begin with, it’s important to be clear that, despite the A-minus I received in the “Astronomy for Non-Scientists” course I took during my

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sophomore year in college, I am not a scientist. I am certainly no doctor. I do try to read and understand scientific papers about weed when I can, but like nearly everyone who thinks about marijuana policy, I have to rely on the conclusions and findings of others to evaluate the risks of legalization. Luckily, despite marijuana being largely illegal for the past century, researchers have conducted countless studies evaluating various dimensions of how marijuana affects human health and safety. Some of these studies are better than others. Many are inconclusive. Oftentimes, studies reach findings that are inconsistent with other studies. Given this situation, my approach has been to rely on the most complete, objective, and careful reports summarizing the existing literature that I can find. Ideally, these reports would be written by genuine scientific experts without any clear bias or agenda, would survey and evaluate the literature in the most comprehensive fashion possible, and would convey the literature’s findings along with a clear assessment of the confidence of those results. The two reports I’ve found to date that best fit this description are the 2015 RAND Corporation Research Report entitled Considering Marijuana Legalization: Insights for Vermont and Other Jurisdictions,28 prepared by eight members of the RAND Drug Policy Research Center in response to a request from Vermont’s governor; and the 2017 report from the National Academies of Sciences, Engineering, and Medicine (NASEM) entitled The Health Effects of Cannabis and Cannabinoids: The Current State of Evidence and Recommendations for Research.29 Both of these reports are incredibly helpful for those—experts and laypersons alike— who want to understand the existing research on marijuana’s health risks and benefits. Both are written by highly trained experts who are neither cheerleaders for marijuana nor kneejerk naysayers. They are comprehensive—the RAND report, for instance, contains nearly thirty pages of references,30 while the NASEM publication “considered more than 10,000 scientific abstracts relevant to the report” 31—and clearly explain what we know about marijuana and, at least as importantly, what we don’t yet know. On this score, the NASEM report, for instance, describes each of its conclusions in terms of whether the scientific literature demonstrates “conclusive,” “substantial,” “moderate,” “limited,” “insufficient,” or “no” evidence to support a connection between marijuana and some particular health or safety effect.32

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The clearest finding of both reports is that what we don’t know about marijuana’s health and safety effects, particularly over the long term, far exceeds what we do know about those effects.33 I’ll have more to say about what we should do about this uncertainty in a moment, but before that, let me explain what we can learn from the reports. Together, they strongly suggest that marijuana use poses some significant risks to health and safety, particularly psychological harms, cognitive harms, and dangers on the road. For example, the most important findings of the NASEM report with respect to the dangers of marijuana conclude that there is “substantial evidence of a statistical association between cannabis use and an increased risk of motor vehicle crashes,” 34 a similar link between cannabis use and “the development of schizophrenia or other psychoses, with the highest risk among the most frequent users,” 35 and “moderate evidence of a statistical association between cannabis use and the impairment in the cognitive domains of learning, memory, and attention.” 36 The report also concludes that there is “substantial evidence on a statistical association between increases in cannabis use frequency and the progression to developing problem cannabis use,” 37 with the term problem cannabis use defined as encompassing “various levels of hazardous or potentially harmful cannabis use problems, including those relating to CUD [cannabis use disorder], dependence, and abuse.” 38 Note, importantly, that many of the important conclusions of this report are described in terms of “statistical association,” which does not by itself mean “causation.” In other words, the report’s finding of a statistical association between marijuana use and the development of schizophrenia does not necessarily mean that there is substantial evidence that marijuana use causes schizophrenia. It could be, for example, that some third variable causes people to be susceptible both to marijuana use and schizophrenia. The RAND report reaches fairly similar conclusions—which, at least to my mind, is confidence-inspiring (it would be weird if the two reports, dispassionately looking at the same body of scientific literature, reached significantly different bottom lines). After raising the causation versus correlation caveat, the report concludes that “the literature does identify some clear acute and chronic health effects, especially of frequent, highdose marijuana use. Acute risks include accidents. . . . Longer-term risks of persistent heavy use include dependence. . . . Some evidence suggests

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other serious risks for heavy marijuana users, particularly with psychotic symptoms (which is not the same as being diagnosed with schizophrenia).” 39 With respect to accidents, the report explains that “there is clear evidence from strictly controlled laboratory trials that marijuana use reduces psychomotor performance in ways that increase overall risk of accidents and, in particular, impairs driving.” 40 On the dependence point, the report cites a study showing that “about 2.6 percent of adults would meet” the criteria for cannabis dependence in the Diagnostic and Statistical Manual of Mental Disorders, fourth edition (DSM-IV) “in their lifetime” 41 and that “the impact on the user’s life can be significant.” 42 Finally, concerning the relationship between cannabis use and psychological harms, the RAND report is somewhat equivocal, reaching the following four conclusions. (1) “Meta-analyses of the literature suggest that associations between marijuana use and cognitive functioning are fairly weak and somewhat inconsistent, and they appear to be limited to a subset of very heavy users who began using very early.” 43 (2) There is “a statistical association between marijuana [use] and experiencing psychotic symptoms,” 44 and “in numerous longitudinal studies, the temporal pattern of the association is usually more consistent with the marijuana-useleads-to-mental-illness model than with a self-medication (i.e., mental illness leads to marijuana use) account,” 45 but “researchers have been unable to rule out the possibility that the association between marijuana use and psychotic symptoms is due to some common risk factor.” 46 (3) “If cannabis use does have a causal impact on psychosis, it appears to be highly contingent on the timing and intensity of cannabis use and possibly on a genetic propensity and other personal and environmental risk factors.” 47 (4) “The best available evidence is that any population effects of marijuana on the psychoses are likely to be small.” 48 Both reports say all sorts of other, somewhat less important things about the potential harms of marijuana use, but I won’t catalogue them here. The reports are easy to find online, and I’d suggest taking a look at them if you want to know more. On the whole, they paint a picture of a drug that poses some genuine public health risks, but hardly one that deserves to be made illegal or particularly difficult to obtain. Of course, for those who are personally affected in a seriously negative way by marijuana—someone killed or injured in a car crash caused by a driver who was high, or the family

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members of someone who suffers serious mental illness as a result of chronic, long-term use of the drug—the fact that marijuana is not generally very dangerous will bring no relief, just as a swimmer who loses a leg to a shark or a hockey player who breaks his neck during a game will hardly be comforted by the statistical unlikelihood of their injuries. Most activities that people take part in are risky to some degree, but this does not mean that they should be prohibited or even frowned upon. This is particularly true, in my view, for activities that pose risks primarily to the individual who chooses to engage in them, rather than to third parties—which includes just about all the risks of marijuana use. As Jonathan Caulkins, no huge fan of the drug (remember, he’s the one who said that we’d be better off if marijuana never existed), puts it, “Marijuana is, for the most part, not directly harmful to third parties. While impaired driving and workplace use are concerns, and 1 million children live with a parent or guardian who meets diagnostic criteria for marijuana abuse and dependence, most of marijuana’s direct harms fall on its users, and the families and friends who care about them.” 49 Caulkins concludes, moreover, that marijuana’s “health harms are, for the most part, minor” and that “the scale of those harms . . . does not distinguish it from other permitted recreations, including skiing and sky diving.” 50 What, though, about all of the uncertainties? As I noted earlier, the biggest message one gets from looking at the literature on marijuana and public health is that there are many, many things we don’t know. And a lot of those uncertainties are extremely important. We don’t know, for instance, whether legalization leads to more marijuana use, particularly among kids.51 Another critical thing we don’t know is how increased availability of marijuana affects usage of other substances, including alcohol.52 This is a critical variable, because if it turns out that people tend to substitute marijuana for alcohol (and if legalization increases marijuana use), then use of alcohol, which is far more dangerous than marijuana, will decrease overall, perhaps causing a net benefit in public health and safety.53 If, on the other hand, marijuana and alcohol turn out to be complements, such that people increase their use of alcohol when they increase their use of marijuana, then the public health risks of marijuana become more problematic.54 Similar uncertainty thus far characterizes our knowledge of the relationship between marijuana and opiate use, with some studies showing that people

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use opiates less when marijuana is available and other studies reaching different conclusions.55 A third crucial area of uncertainty surrounds the use of products with extremely high concentrations of THC.56 Most studies have looked at the effects of marijuana with relatively low levels of the cannabinoid, but marijuana in concentrated form (wax, shatter, etc.) often contains 80 percent or more THC. Many fear that such high-THC products may be more dangerous, particularly when used over the long term, than weed with THC levels more typical for today’s use (15–25 percent), much less the low-percentage (3–7 percent) dreck people used to smoke in earlier decades.57 Whether this is true, however, is currently unknown. The critical question, then, is what effect these uncertainties should have on our approach to legalizing and regulating marijuana. Deciding how to regulate an activity or a substance in the face of substantial uncertainty concerning its risks is a highly familiar problem in the health law field, as it is in the field of environmental law,58 which I’ve taught and written about for a long time. In environmental law, one of the classic responses to this problem is to adopt the so-called precautionary principle, which can mean a lot of things, depending on who is using it and in what context, but which basically boils down to “Better safe than sorry.” 59 In environmental policymaking circles, then, the precautionary principle asserts that the government should err on the side of protecting against risk even when the magnitude of the risk is uncertain. The principle has special force when it comes to environmental problems because ecological injuries are uniquely harmful and tend to fall on third parties, and because the benefits of not regulating are primarily economic and are typically reaped by those who are already economically powerful. Adopting the precautionary principle in our approach to regulating marijuana may be a reasonable choice, but it is not one I find very persuasive. Both the potential harms of marijuana and the benefits of a light regulatory touch are much different than is typically the case in the environmental context. Even if it turns out that legalization increases use, for example, and this leads to a substantial increase in the instances of psychosis, the potential magnitude of the harms will be nothing like the potential magnitude of major environmental harms, such as species loss, habitat destruction, and climate change, all of which risk catastrophic and irreversible damage on a global scale. Moreover, as mentioned above,

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most harms from marijuana fall on users themselves, rather than on third parties. Finally, while marijuana legalization does benefit economic actors, it also brings many benefits that accrue to the population as a whole and, at least potentially, to those minority individuals and communities that have been devastated by the drug wars. That is, all three key factors—the potential extent of the harm, who bears the burden of those harms, and who benefits from deregulation—weigh against any forceful application of the precautionary principle when it comes to making choices about how to regulate marijuana. Add to all of this that we’ve been following the precautionary principle when it comes to marijuana for the past century with extremely poor and inequitable results, and the case against continuing to apply that principle becomes even more compelling. Before moving on from public health, I want to raise two other important considerations that have affected my thinking on the matter. The first has to do with the concept of cannabis “abuse,” “dependence,” or “disorder.” Much of the public health literature on marijuana invokes these concepts, which come from the Diagnostic and Statistical Manual of Mental Disorders.60 A few paragraphs back, for instance, I quoted the Vermont report’s conclusion that 2.6 percent of Americans would meet DSM-IV’s definition of cannabis abuse or dependence.61 For another example, a 2019 study published in the Journal of the American Medical Association (JAMA) concluded that young people in states that have legalized marijuana for recreational use have a 25 percent higher incidence of “cannabis use disorder” than kids in states without recreational marijuana62 (the fifth edition of the DSM, or DSM-5, replaced the fourth edition’s separate “cannabis abuse” and “cannabis dependence” diagnoses with a single “cannabis use disorder” diagnosis).63 Lots of other studies use the so-called cannabis use disorder or its predecessors as an important condition worth being concerned about and reach conclusions about the incidence of CUD in society as a whole, or about the relationship between legalization and development of CUD that might seem, at first glance, to be worrisome.64 After all, 2.6 percent of the adult population does seem like an awful lot of people to be dependent on cannabis. But this raises another question: What exactly does the DSM mean by “cannabis use disorder”? According to DSM-5, anyone who exhibits at least two of the following symptoms is considered to have cannabis use disorder (the presence of

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two or three symptoms is referred to as a “mild” version of the disorder, but for studies looking at the incidence of CUD, “mild” presumably counts):

1. Substance is often taken in larger amounts and/or over a longer period than the patient intended.



2. Persistent attempts or one or more unsuccessful efforts made to cut down or control substance use.



3. A great deal of time is spent in activities necessary to obtain the substance, use the substance, or recover from effects.



4. Craving or strong desire or urge to use the substance.



5. Recurrent substance use resulting in a failure to fulfill major role obligations at work, school, or home.



6. Continued substance use despite having persistent or recurrent social or interpersonal problem caused or exacerbated by the effects of the substance.



7. Important social, occupational, or recreational activities given up or reduced because of substance use.



8. Recurrent substance use in situations in which it is physically hazardous.



9. Substance use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the substance.

10. Tolerance, as defined by either of the following: (a) Markedly increased amounts of the substance in order to achieve intoxication or desired effect; (b) Markedly diminished effect with continued use of the same amount. 11. Withdrawal, as manifested by either of the following: (a) The characteristic withdrawal syndrome for the substance [irritability, anger, aggression, anxiety, depressed mood, sleep difficulty, and a couple of others]; (b) The same (or a closely related) substance is taken to relieve or avoid withdrawal symptoms.65

Now, I have no doubt that when used by a trained health care professional in the context of treating a specific patient, these guidelines can be useful. I also recognize that many people become dependent on marijuana and that this can make their lives difficult, even miserable (as with alcohol, an inordinate percentage of marijuana is used by a relatively small per-

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centage of extremely heavy users).66 But I have serious doubts about the utility of the DSM guidelines when they are used, as in the aforementioned JAMA study, simply to determine whether some individual completing a survey has a psychological condition worth serious concern (the study drew on the National Survey on Drug Use and Health, which consists of over fifty thousand surveys of how people at different ages use marijuana and other drugs).67 Take the survey for yourself and see if you meet the diagnostic criteria. I certainly do. How could anybody who uses marijuana more than sporadically not meet them? Of course, a few of the symptoms would be concerning, such as numbers 5 through 9; it would certainly be a problem if someone was missing work (no. 5) or putting themselves in hazardous situations (no. 8) because of their use of cannabis. But many of the other “symptoms” are practically just synonyms for “using a lot of marijuana.” Do I crave the substance? Of course I do, it’s awesome! If I stop using it, will I feel anxious and have trouble sleeping? Of course I will—in part, I use marijuana to help me sleep and feel less anxious! Do I spend a great deal of time using the substance? Only if “most nights” counts as a “great deal of time.” Will I use more over time to get the same effect? That happens sometimes, sure, and that gets me two more symptoms (nos. 1 and 10, which are overlapping). On the basis of these answers alone, I have a moderate case of cannabis use disorder, on the brink of being severe. But so what? Substitute “cheese” for “cannabis” and you’ll also find that I have a moderate case of cheese use disorder. Who cares? All that the DSM criteria have demonstrated is that I really like marijuana. The second and final point I want to raise before moving on from public health has to do with the real and potential public health benefits of legalizing marijuana. Any consideration of the public health effects of legalizing marijuana must pay attention not only to the potential public health harms of legalization but also to its possible public health benefits. And there are several types of public health benefits that will likely stem from legalization. For one thing, despite the federal government’s antiquated and inane position that marijuana has no generally accepted medical use, almost everyone agrees that cannabis can substantially help people with a wide range of physical and mental conditions. The same NASEM report that called attention to the potential psychological harms of increased marijuana use, for example, also concluded that substantial

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evidence has demonstrated the effectiveness of cannabis treatment for chronic pain, chemotherapy-induced nausea, and spasticity symptoms stemming from multiple sclerosis (and that moderate evidence has shown its effectiveness for improving sleep outcomes in a variety of circumstances).68 Other studies have shown benefits for all sorts of conditions and symptoms, from anxiety to PTSD to Crohn’s disease.69 Second, the illegal drug trade is itself dangerous,70 so legalization also promotes public safety to the extent that it makes a dent in the illicit market. Finally, controlling and testing marijuana products through a regulated market improves cannabis safety by ensuring the quality and purity of the drugs that people consume.71 Since it’s safe to assume that legalization will cause many users to switch from the illicit market (where who knows what might be in the cannabis sold by the guy next to the dumpster behind the grocery store) to the regulated market (where cannabis is tested to make sure it is free from pesticides, mycotoxins, and other contaminants), we should expect at least a modest improvement in public health among those who already use the drug. In sum, although it would probably be impossible to quantify with any precision the public health benefits of marijuana legalization, those benefits promise to be substantial. When weighed against the potential health harms of legalization, which are also impossible to quantify with any precision, it may turn out that legalizing marijuana results in very little net public health harm—or legalization may even, on balance, be net beneficial from a public health perspective.

equit y, l i b e rt y, r e v e n u e , a n d j o y At this point, I want to move on from public safety to consider some of the other key values that might drive marijuana policy and explain my preferences among them. The equal justice value is, to my mind, hugely important when it comes to designing a desirable marijuana regulatory system. As outlined in chapter 1, the history of marijuana prohibition and enforcement has been almost uniformly racist since day one. The initial war against marijuana in the 1930s was led by a racist, and that war was reupped by yet another racist in the 1960s and 1970s. And even when less nefarious people were running the country, as for example in the 1990s,

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when Bill Clinton was president, the federal government continued to adopt criminal law policies such as three-strikes that had wildly disproportionate effects on individuals and communities of color. Data show that during the years of total prohibition, Black individuals were almost four times as likely to be arrested for marijuana crimes as whites. Even in jurisdictions that have legalized marijuana for one or more purposes, and even though total arrest rates are down, the racial disparities of earlier years are still persistently present. The war on marijuana has destroyed countless lives of people of color and has decimated minority communities across the country. For me, this means that a commitment to equal justice—which, as I’ve already said, is the value I rank most highly in the abstract—is also incredibly relevant and, indeed, an absolute necessity when it comes to designing a marijuana regulatory program for our postlegalization nation. When it comes to liberty, I’m of two minds. On the one hand, I feel strongly that people should be free to use weed if they want to. On this score, I’ll admit that although, on most issues, I’m way on the left side of the political spectrum, I also have a libertarian streak when it comes to so-called vice activities. Maybe that’s just because most activities that I crave happen to fall into that category—there’s almost nothing I love more than drunkenly playing craps at a casino while smoking a cigar and waiting for a cannabis edible to kick in—but in any event, that’s my bias. I think people should have a right to put whatever they want into their bodies and that it’s not the government’s role to be paternalistic in these matters, particularly when the risk of use falls primarily on the user (I feel differently when the potential victims are largely third parties—so, for example, I don’t think that anyone should have the right to drive while inebriated). On the other hand, my libertarian streak does not carry over to economic actors seeking freedom from government regulation. I do think that the government should strictly regulate businesses to promote public health, economic equity, environmental protection, and other important public social values.72 Putting these two views of liberty together in the context of cannabis policy, I therefore lean toward active regulation of marijuana businesses to ensure that their products are safe and that the industry as a whole is equitable, but I do not favor regulations or policies (such as strong local autonomy over marijuana retail establishments or strict

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controls on cannabis marketing and advertising) that make it more difficult for consumers to know what products exist or to obtain the products they want. On the question of how important it is for the government to raise revenue to pay for public goods such as education, infrastructure, social welfare programs, and the like, I am again of two minds. I believe that the government needs to spend big on these types of items to care for its citizens, particularly the least well off among them, and as a result, I support high tax rates on businesses and well-off individuals, even if it results in my personally having less disposable income. As someone who leans libertarian on vice activities, however, I do not believe that the government should tax those activities any differently than it taxes other activities. Businesses that sell liquor or marijuana should not, in my view, have to bear a disproportionate amount of taxation simply because they are offering people a substance that may be unhealthy or that other people frown upon because they think it’s somehow wrong and bad. After all, I happen to hate hearing people talk about running, particularly running marathons, which I think are ludicrous, but that doesn’t mean I think the government should tax running shoes and marathon entry fees at a higher rate than my favored napping pillows or Padrón 1964 Anniversary cigars. In the context of marijuana policy, then, my preferences on this score lean toward relatively low taxes on marijuana sales, even though I am sympathetic to the idea that the government could use those taxes to fund important government functions. I would prefer that the government fund those functions through generally higher progressive taxes rather than by targeting those who want to buy or sell a product that helps people sleep, calms their nerves, alleviates their symptoms, and makes them feel happy to be alive. But hey, that’s just me. So, joy. As I’ve said a few times already, if it were up to me, our nation’s marijuana policy would reflect and promote the joy that marijuana gives to those who consume it. But what do I mean by that? I should say up front, I’m quite aware that there are whole subfields of philosophy, psychology, and theology (“hedonic theory” and “eudaimonistic ethics” come to mind) aimed at figuring out how, exactly, to define happiness (and various cognate terms) and what role such a value should play in our lives.73 I’m not going to talk about that work, however, because I can’t think of

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anything less joyful than talking about the academic literature on joy. Instead, my conception of joy is quite pedestrian and colloquial. By joy I simply mean a feeling of great pleasure or incredible happiness, something like elation, a feeling that makes you want to dance or laugh uncontrollably or hug someone you love and tell them they’ve got the best nose in the world. If you’ve ever had that feeling where, at least for a brief moment, everything makes sense and your insecurities and sadnesses melt away and the future seems unlimited and awesome, then you have some idea of what I mean by joy. I don’t feel like it would be useful to try and pin down the meaning of the word any further than that. I’m fairly confident that most people will have a sense of what I mean and will understand it in their own way—and if they don’t, well, nothing I say about the importance of recognizing joy as a policy goal of marijuana legalization will likely resonate with them anyway. Joy is not a criterion we often hear people talk about in serious public policy circles. Happiness comes up from time to time, I suppose, and of course most political representatives try to “satisfy” the “preferences” of their constituents, but I can’t remember ever hearing a politician or serious policy wonk argue that the government should do something or other because it will, for instance, “lead to a net increase in the amount of uncontrolled elation and hilarity among the people of Ohio.” But why not? Who doesn’t like joy? Surely the promotion of joy can be at least one goal, among many, of any given policy decision. After all, everything else being equal, wouldn’t a policy decision that leads to more joy be better than one that doesn’t? Would anyone really disagree with that proposition? And plenty of government policies have the potential to promote joy—everything from how the government spends its money (subsidized pleasure festivals, anyone?) to what it allows and prohibits to what it encourages through tax incentives, and so on. I value joy highly in my own life, and I believe that promotion of joy can and should be a valid goal of governmental policy. When it comes specifically to marijuana policy, I would have expected joy or something quite like it to play a conspicuous role in the discourse around legalization, but, at least in my own experience, I’ve found joy to be largely absent.74 I’ve watched countless debates about legalization, town meetings where citizens come together to decide whether to allow

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marijuana sales within their borders, and committee meetings about all sorts of issues having to do with marijuana policy. While public safety, private health, equity, economics, individual autonomy, and a host of other typical public policy criteria feature prominently in these public discussions, I don’t think I’ve ever heard anyone argue in favor of one or another policy option on the grounds that it would result in a significant increase in the community’s experience of joy. Obviously, lots of people choose not to use marijuana, and many who do consume it do so for reasons other than joy, but still, you’d think it would at least come up. And the public policy writing about marijuana is even worse on this score. The Vermont report from the RAND Corporation, cited above in the context of public health, is a great resource for understanding the existing data on marijuana safety, but reading it is about as fun as flipping through a technical manual for a refrigerator. It’s no wonder that Dr. Carl Hart of Columbia University, in his tremendous recent book Drug Use for GrownUps, has lamented that “the public discourse on cannabis too often omits the joy that people seek and experience from the marijuana high.” 75 Of course, among those who use and love weed and want it to be legal, joy (or something like it) is generally front and center. The problem is either that members of this group are underrepresented among the policy reform crowd or that, when they’re acting in the role of policymakers instead of advocates, they suppress the joy-talk and employ arguments that are more broadly appealing to those who don’t share their enthusiasm about the drug. Once in a while the two worlds collide, as in the biannual NORML Legal Committee Conference that takes place in Aspen in May and in Key West in December. I had the good fortune to attend one of these conferences a couple years back, and although this might not be saying much, given the rather modest fun level of your typical conference filled with lawyers, the Key West get-together was phenomenally enjoyable, and not only because of the foot-long joints that were circulated during the conference dinner. Beyond the policy circles, marijuana gettogethers tend to be filled with joy, laughter, music, and zonked-out bliss. If you’ve never checked out a 420 celebration, for instance, I urge you to at least watch some footage online. Or watch how happy everyone in line seems to be when the first recreational stores in a state open up. There’s a reason why, even when it was fully illegal, the marijuana market in the

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United States could be measured in the billions of dollars. Sure, many people use the drug for medical reasons, and some use it (at least in part) because they’re dependent on it, but most people just use it because it makes them feel great. Even those who use it for other reasons still get to experience that feeling, which has got to be worth something (and if someone is using marijuana because they’re dependent on it, that doesn’t mean they’re not still enjoying it, at least somewhat).

and s o, i n s u m .  .   . In this chapter, I’ve tried to do two separate things. First, I’ve presented a framework that can help guide anyone who wants to think about marijuana policy in a structured, thoughtful manner. I’ve suggested that before one considers the many, many details that go into crafting a marijuana regulatory system, it is extremely helpful to spend time thinking, somewhat in the abstract, about the values (equity, liberty, joy, money, public safety, etc.) one embraces and how those values rank when put up against each other (your own MLEPC). What criteria are more or less important to you when it comes to legalizing marijuana—is it the environment you care about most, or the freedom of businesses to sell their products in a largely unfettered market, or the safety of the general public? Do you think local control is important, and if so, how does that compare to the importance of achieving equity in the marketplace? What do you think about raising revenue, or ensuring wide access to products, or reducing the size of the illicit market? With these criteria in mind, you may find your overall approach fitting into one of a set of existing dominant paradigms, such as the Public Health or Market Freedom paradigm. Or you may find yourself mostly aligned with such a paradigm, but with some unique personal twist. The second thing I’ve tried to do is explain, and to some degree defend, my own preferences. In my view, the paramount goal of any marijuana policy should be to promote equity as a way of remedying past discrimination. In addition, I feel strongly that marijuana policy should, to the extent possible, and to the extent it does not significantly undermine equity objectives, normalize the use of weed and maximize joy among users. I think public health and safety are important, and that any sane regulatory

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system must account for them, but I do not believe that the risks of marijuana use are such that public health ought to be the paramount concern for policymakers. And neither the liberty of businesses nor the state’s interest in raising revenue ranks particularly high in my list of useful criteria. On the whole, I believe that states (or the feds, if they choose to get involved) should pursue a policy of “careful exuberance” when legalizing marijuana—careful because of the public health risks, but exuberant because, after nearly a century of discrimination and needless suppression of happiness, we can finally look forward to righting those wrongs and making the country a better, more equitable, less stressed-out, and increasingly joyful place to live. •

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In the next chapter, I will work through what I see as the most important and fundamental choices that policymakers have to make when it comes to designing a marijuana regulatory system. I will explain what the issues are and how the states that have legalized marijuana have gone about addressing them. Then I will evaluate those choices from a variety of perspectives, including the major concerns described in this chapter. For each set of issues, I’ll explain how I would address them, but I’ll also consider how those with different priorities might approach the issues. By the end of this part of the book, even readers who disagree with me and hate joy will have a solid understanding of what should come next as the nation moves toward full marijuana legalization.

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Making a Marketplace ten basic questions

Now that we’ve identified some criteria we can use to determine what a new marijuana policy ought to look like, we can go back to the proverbial drawing board and start outlining the basic features of that policy. Of course, there’s no room here to address all of the issues that would need to be resolved if this were the real world instead of a book, and so I’ve had to make some choices about which of those issues to discuss and which not to discuss. Clearly, some will disagree with my choices and wish I’d addressed different or additional issues, but luckily the same framework and criteria set out in the previous chapter can be employed to evaluate any issues that I’ve chosen not to talk about in depth here. But before getting into some of the key details that go into designing a marketplace for marijuana, I do want to say a few things about some of the issues I plan to skip over. First, as noted earlier in the book, one fundamental issue in thinking about marijuana policy is whether the government should grow and sell the weed itself, as opposed to facilitating the development of a free market made up of individual actors seeking maximum profits. Policy wonks tend to like the idea of a government-run production and distribution system in the context of marijuana, and that option would have some obvious advantages over the creation of a free market. If the government were to sell the 65

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marijuana itself, it could keep all the net revenue, rather than just the taxes, while also keeping tight control over messaging. The government could keep prices low, if it so chose, to undercut the illicit market, and it would not have to target heavy users to ensure that it could stay in business.1 As the brilliant wonk Beau Kilmer has observed, for example, given that those heavy users make up a disproportionate percentage of the consumers of marijuana, “most [private] firms will need to maintain and encourage heavy use which could have serious implications for rates of cannabis use disorder and other public health outcomes.”2 Keeping the control over marijuana sales exclusively within the power of the state could therefore help avoid some of the drug’s negative public health effects. As I explained earlier, since it would currently be illegal for states to get into the cannabis production and sales business themselves, I won’t analyze this option in any depth. Moreover, even though it’s at least theoretically possible for the federal government to legalize marijuana and either let the states enter the market or take over the market completely itself, thus closing down all existing private businesses, I think the probability of that ever happening is quite low.3 Finally, for what it’s worth, given my own preference for easy access to a wide range of high-quality products and skepticism about the public health dangers of the drug, I personally would still prefer the free market to a government-run system of marijuana production and distribution. Second, it’s worth noting that between the two extremes—a fully public-run system on the one hand, the creation of a fairly robust private market on the other—marijuana policy experts have identified several intermediate models that might also be attractive to some policymakers. For instance, Caulkins, Kilmer, and the coauthors of the Vermont report cited earlier have noted several of these options, including allowing only nonprofit organizations to sell cannabis, allowing a very small and closely monitored set of for-profit businesses to engage in sales, and limiting cannabis distribution to small collectives or co-ops that grow their own plants.4 Unlike the government monopoly model discussed above, these options would be legal, and each of them has its own advantages and disadvantages. Because the states have, thus far, predominantly adopted the robust private market model (subject to high taxes and some important regulatory limits), I will keep my analysis cabined within that model and

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point people who might be interested in more limited models to the Vermont report and similar discussions. Finally, creating a marijuana policy from scratch raises a whole set of government architecture questions that legislatures have to think about. Since legislatures can’t themselves enforce the law—and because, for a variety of reasons having to do with expertise, time, and other issues, they typically cannot specify all the detailed rules necessary to create and govern a complex system like a market in marijuana—they must delegate those tasks to one or more agencies. This, in turn, means that legislatures have to address issues such as whether to create a new agency to oversee marijuana or to task an existing agency with that responsibility. If there will be a new agency, will it be run by one person or several, and who will appoint those people? Will there be advisory committees to assist the main agency or agencies with their work? What substantive decisions will the legislature make and which decisions will it delegate to those agencies? And so on. The states that have legalized marijuana for adult use have made all sorts of choices on this score,5 but since these decisions would take us far afield from the core issues of the book, I’ve decided to mostly skip over them here. Leaving out those issues gets us down to what I see as ten of the most important basic choices that a state has to make, once it has decided to run a for-profit, free(ish) market: (1) What kinds of licenses should the state offer to would-be businesses? (2) Should the state cap the number of licenses that any one individual or entity can own or control? (3) Should the state allow individuals to grow their own cannabis at home? (4) Should the state insist on any limits on what kinds of products or potencies that retailers can sell to consumers? (5) What kinds of taxes or other fees should the state charge businesses, and how high should they be set? (6) Where should the tax revenue that comes in from marijuana businesses be spent? (7) What kinds of explicit equity provisions should the state include in its laws, if any? (8) What kinds of environmental and energy provisions should the state include in its laws? (9) Who, if anyone, should be excluded from working in the industry because of past criminal activity involving drugs? (10) Should (and can) states require that license holders and other participants in the industry be residents of the states where the business operates? In the next section, I discuss what the states

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have done on these key questions, and in the chapter’s final section I provide some brief thoughts about how states should proceed on these questions, given the criteria set out in chapter 2.

state s a n d t h e i r m a r k e t s Pretty much every state offers a small core group of licenses, and a few states have innovated to create novel types of licenses, often to allow smaller-scale businesses to partake in the new market for cannabis. Typically, states offer cultivation licenses, sometimes in different subgroups or classes depending on the size of the canopy that the applicant wants to cultivate; production licenses (sometimes called processing or manufacturing licenses) for those who want to turn plant material into edibles, topicals, tinctures, or other products; retail licenses; and testing licenses.6 In addition to these four core types of licenses, a number of states, including Colorado and Michigan, offer transportation licenses for businesses that simply want to move cannabis and cannabis products from one place to another,7 and Massachusetts has approved two different types of licenses for delivery of marijuana to customers.8 A couple of states offer what are known as co-op or craft co-op licenses to allow small groups of growers to band together to cultivate and share cannabis,9 and a few (Massachusetts, Michigan, and California) have created micro-business licenses for small growers.10 For instance, California offers a micro-business license for cultivators who want to grow less than ten thousand square feet of canopy,11 while Michigan offers a similar license for growers who apply to grow fewer than 150 plants.12 Both Colorado and Massachusetts have recently created a new license type for social or hospitality establishments, but since these types of licenses create all sorts of important and novel issues, I treat them separately in a subsequent chapter.13 One of the key justifications given by states for offering small-scale licenses for craft cooperatives or micro-businesses of various types is to open the doors of the cannabis industry to small entities that may not be able to raise sufficient capital (particularly given the current banking issues posed by federal illegality) to form a larger business.14 This, in turn, has been particularly attractive in states that are concerned with promot-

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ing social equity goals, since minority-owned businesses often face disproportionate difficulties on this score. In Massachusetts, for instance, equity advocates were the driving force behind the state’s new delivery licenses. As Chris Fevry, an African American entrepreneur and cofounder of the Massachusetts Cannabis Association for Delivery, put it, “Delivery has a chance to balance equity, where now people can really have a chance to create generational wealth, to create these businesses and go forward.” 15 The licenses were hardly uncontroversial, however, as larger companies immediately threatened to sue. “Despite the fact that we worked tirelessly for over five years, minority ownership is almost non-existent,” Shanel Lindsay, a member of the Massachusetts Cannabis Advisory Board, told a local Boston news station following approval of the delivery licenses. “So yes, we should be angry and offended when, as we’re starting to make small steps towards equity in these delivery licenses, that like clockwork the same corporate interests focused only on preserving their unearned monopoly come in to push back on equity and to crush us.” 16 Once a state determines what kinds of licenses to offer, it then has to consider a variety of questions involving caps. For instance, should the state cap the total number of retail licenses it offers in order to avoid oversaturating the state with weed storefronts? Alternatively, should the state cap either the total number of cultivation licenses it offers or the total amount of square feet that can be cultivated to avoid producing a surplus of cannabis that could (as it did in Oregon) threaten to drive prices way down and feed the illicit market? The question I want to focus on here, though, is whether the state should place a limit on how many licenses any one individual or entity can own or control. The impetus for such caps is the fear that so-called Big Marijuana will come to dominate the industry. Specifically, many cannabis supporters worry that legalization will result in the emergence of a small number of giant companies that will crowd out small operators, including those owned and run by minority individuals or groups, and offer only the most mediocre products.17 The comparison is often made to the beer industry, where the two largest conglomerates, Anheuser-Busch InBev and MillerCoors, have owned 60–80 percent of the market share in the United States over the past fifteen years or so.18 By limiting the number of licenses that any person or business can own or control, states might be able to slow or prevent the development of Big

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Weed and protect smaller companies, including those owned and run by minorities. Several states have adopted caps like these, including Illinois and Massachusetts.19 In Massachusetts, where the law prohibits anyone from owning or having control over more than three licenses,20 controversy has erupted over what counts as “control.” The state had hoped to create a thriving market of smaller, minority-run marijuana businesses, but several years after the drug was legalized for adult use, the state was still having trouble getting that market off the ground. Part of the problem, according to an investigation by the Boston Globe, was that large multi-state operators had entered into management contracts with smaller businesses, lending those fledgling operations necessary capital in return for decisionmaking authority and huge interest rates.21 Do those kinds of contracts constitute “control” for purposes of the state law? The state’s Cannabis Control Commission has promulgated guidelines to help address the problem,22 but whether they will end up being successful is still unclear. Whether to allow individuals and households to grow their own marijuana plants is a separate question that all states have had to wrestle with. Most states have allowed home grows, generally limiting the number of plants that any one individual or household may grow to four (Oregon) or six (Colorado) or twelve (Michigan).23 Typical is Massachusetts, which allows each individual to grow six plants per person, with a maximum of twelve plants per household, no matter how many individuals live in the house.24 Two states—Washington and Illinois—have, on the other hand, completely banned home growing of recreational marijuana,25 while Nevada allows only those who live more than twenty-five miles from any dispensary to grow their own.26 Why would states prohibit or strictly limit home grows? For one thing, someone who grows their own marijuana is unlikely to also frequent a local dispensary, which means that the state loses the opportunity to collect tax dollars. More important, probably, is the difficulty of tracking what happens to the homegrown weed. Although states allow individuals to grow only for their own use or for small gifts, enforcing those limitations is extremely difficult, and one would expect that some of the marijuana grown legally at home will end up in the illicit market.27 Finally, allowing people to grow at home makes it more difficult for the police to

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identify and root out illegal grows, since the only difference between a legal and an illegal grow is the number of plants that are being cultivated, which is not always going to be obvious absent a search of the property.28 Unsurprisingly, it’s often the industry itself, worried about losing profits, that opposes home-grow provisions in state cannabis laws. When New York governor Andrew Cuomo announced his proposal to legalize cannabis in early 2019, for example, reform advocates were surprised and concerned that the proposal would have banned individuals from growing marijuana plants at home.29 As it turned out, the governor was likely influenced in this regard by a report from the New York Medical Cannabis Industry Association, which advocated such a ban.30 The report, which did not expressly mention anything about the group’s likely true concern that home grows would undermine industry profits, instead concluded that “home grow in other states has resulted in run-away black market and oversupply, all while leaving law enforcement with little or no way to inspect or control home grows without accessing the search warrant mechanism of the criminal justice system.” 31 Critics were up in arms. “From our perspective,” said NORML executive director Erik Altieri, “it’s really hard to see any reason—other than individual and corporate greed—to be against home cultivation at this point.” 32 He bluntly stated that “to advocate against home cultivation given all we know about how it works in practice from the industry side really just is kind of despicable and illustrates their greed, that they’re willing to sacrifice individual freedoms for the slightest increase in their profits.” 33 Even the animated show South Park got into the act, with an episode taking aim at the cannabis mega-company MedMen, which helped influence the New York industry report.34 When Stan’s nincompoop father Randy Marsh learns that his weed company is losing money because of home grows, he joins forces with two MedMen representatives worried about the same problem. The alliance is too much for Randy’s business partner Towelie, a talking towel who struggles with addiction problems. Towelie takes Randy to task for selling out. “Jesus, I knew a guy once who thought weed should be for everybody—a guy who believed in integrity,” Towelie tells Randy. “I don’t understand who you even are anymore.” 35 A fourth issue is whether the state should limit either the types of products that retailers can sell or the amount of THC in the products they do

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sell. The public health community worries, with some justification, about the potential dangers of products with exceptionally high THC concentrations.36 As I noted above, marijuana flower these days typically contains 15–25 percent THC, which is quite high compared to the weed that people used to smoke, but concentrates such as wax or shatter take it to the next level and can contain as much as 80 percent THC or more. Very little is known about the long-term health effects of these high-concentration products, and so those who are concerned about the public health implications of legalization occasionally call for states to prohibit the sale of concentrates or, alternatively, of products with THC levels that exceed some relatively high amount.37 As Colorado cannabis expert Thomas Mitchell explained in a column from early 2020, “legalization opponents say that the potency of [high-THC products] can lead to higher addiction rates and psychosis, while medical marijuana advocates and industry representatives argue in favor of personal freedom, saying that more studies about THC addiction are needed and pointing out that highly concentrated products are used to treat certain medical conditions.” 38 Although some states have limited what kinds of products can be sold under their medical programs, at the time of this writing only Vermont and Connecticut have capped THC amounts for recreational cannabis, limiting the percentage in flower to 30 percent and in concentrates to 60 percent.39 The idea doesn’t sit well with most legalization proponents. One cannabis legalization skeptic told Mitchell: “We bring it up with legislatures . . . and they don’t really know about it. People who are pro-cannabis are freaked out by potency limits.” 40 Fifth, states have to decide how and to what extent they should tax cannabis. All states tax recreational marijuana fairly significantly, but there are also important differences both in the types of taxes they collect and the magnitude of the overall tax rate. The state of Washington has the highest tax rate, charging a 37 percent excise tax in addition to a 6.5 percent retail sales tax.41 Compare this to Michigan, for instance, which charges a sales tax of 6 percent but an excise tax of only 10 percent.42 Most states also allow localities or counties to impose additional taxes. Massachusetts, for instance, in addition to a 10.75 percent excise tax and 6.25 percent retail sales tax, also allows localities to charge up to 3 percent in taxes on sales within their borders.43 A couple of states have unique tax

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systems for cannabis. Alaska doesn’t have a state sales tax, for instance, and there growers pay a fixed $50 per every ounce of flower sold to retailers, although the rate is significantly lower for sales of stems and other less desirable parts of the cannabis plant.44 Only one state thus far has tied its tax rates to the amount of THC in the product sold.45 Many cannabis policy experts have called for states to consider linking the magnitude of the tax rate, at least in part, to the amount of THC in the relevant product, the idea being that the additional tax will be reflected in the price of the product, thus pushing consumers toward purchasing products with lower levels of THC, which in turn are considered safer.46 As Mark Kleiman told Brian Lehrer on WYNC in 2019, “People aren’t buying plant matter, they’re buying intoxication. So the appropriate tax base is the intoxicant. My view of the role of taxation is not to raise revenue. It’s to keep the price high enough so that legal cannabis doesn’t get to be a public health menace.” 47 Illinois has embraced a version of this THC-based taxation idea. In addition to typical state and local taxes, the state has also imposed a THC-based retail excise tax of 10 percent on products with less than 35 percent THC but a tax of 25 percent on products that contain more than 35 percent THC.48 Edibles and infused products get taxed at a rate between those two figures, at 20 percent.49 Not everyone in Illinois was happy with this approach. “Some argue this tax structure can discourage higher-potency consumption. But at the same time, it may incentivize black market consumption for the riskiest products,” wrote columnist Austin Berg in January 2020. “Springfield lawmakers have yet to learn the lesson that money walks. And it’s not just to other states. Sometimes, it walks past the legal dispensary with a 40% tax rate and into a dealer’s house.” 50 Once the state decides on the amount of tax, it then has to decide where to spend the tax money it collects. Clearly, states (and localities, when it comes to local taxes) have lots of options here. Should they spend the extra money on public education? Infrastructure? Addiction services? Helping communities disproportionately harmed by the drug war? Public golf clubs? Protecting the state bird? States that have legalized marijuana for adult use have tended to split the revenue between general funding reserves and specific funding purposes. For instance, Alaska state law provides that 50 percent of its collected tax goes to a Recidivism Reduction

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Fund, 25 percent goes to a Marijuana Treatment Fund, and the balance goes into the state’s general fund.51 Illinois, which prioritized equity as a value in its marijuana program, provides that 25 percent of its tax revenue will fund grants to disproportionately harmed communities, while 20 percent is earmarked for the state’s Substance Abuse Fund.52 New York is set to send 40 percent of its cannabis tax revenue to communities disproportionately harmed by the drug war.53 Massachusetts has experienced significant controversy over where its tax money has been spent. According to the law, the sales tax collected on marijuana transactions in the Commonwealth goes to the state’s general fund, where it’s used for building schools, supporting the state’s public transit system, and other typical purposes.54 The excise tax, however, is subject to appropriation by the legislature and has been used, in part, to fund the state’s Cannabis Control Commission.55 The balance of the money brought in by the excise tax may, by law, be directed to one of several purposes, including economic equity and restorative justice goals, municipal police training, behavioral health, and public safety.56 In practice, most of this balance has been designated for public health and safety purposes and not for equity or justice, despite the fact that the state legislature intended its adult-use law to help disproportionately harmed minority communities.57 In mid-2020, when the Massachusetts House passed its version of a police reform bill following the murder of George Floyd by police and the subsequent outrage over that killing, it proposed to send most of the excess marijuana excise tax into a police training fund.58 Equity applicants were incensed. Commissioner Shaleen Title of the CCC, for instance, one of the nation’s leading proponents of equity in the marijuana industry, asked rhetorically, “Where are the funds for communities of color promised in this law?” 59 And Massachusetts ACLU staffer Mark Sheridan observed in a tweet: “Wild how reparations are perceived as unworkable when cartoonishly regressive redistribution like this is just written in without fanfare.” 60 Interestingly, the state of Oregon, in its analogous police reform bill, specifically excluded marijuana tax revenue from being used to fund the police.61 The next issue concerns what kinds of explicit equity provisions, if any, the state should write into its laws creating the marijuana market. Should states, for instance, give some kind of priority to applicants from disadvan-

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taged communities when awarding licenses? Additionally or alternatively, should they provide special training or even funding to such applicants? In her list of ten equity “must-haves” that she presented to the Connecticut General Assembly as it was studying possible approaches to adult use legalization, Commissioner Title of Massachusetts recommended that any state seeking to legalize marijuana should “invest a specific percentage of tax revenue into technical assistance, hiring programs and interest-free loans for disproportionately affected communities with a funding mechanism for initial programming and outreach as soon as the law passes” and “require state regulators and localities to ensure diversity in the industry at ownership and employee levels,” with the caveat that those localities that fail to ensure such diversity should not receive any tax revenue from cannabis sales.62 The model social equity ordinance drafted by the Minority Cannabis Business Association recommends similar measures.63 When states first started legalizing weed for adult use in 2012, most were not thinking much about issues of equity, and so in those states either there are no real equity provisions or the equity concerns devolved upon localities. California is one state, for instance, where equity has largely fallen to cities such as Los Angeles or Oakland to implement and enforce,64 although the state has awarded significant grants to support such efforts.65 Massachusetts was the first state to seriously incorporate equity concerns into its initial legislation, and the Cannabis Control Commission, which implements the law, has been equally concerned with the issue. Among other measures, the CCC offered priority consideration in the licensing process to so-called “Economic Empowerment Applicants,” including businesses whose majority ownership is “made up of individuals from Black, African American, Hispanic or Latino descent,” and provided training and technical assistance to “Social Equity” licensees.66 When the Illinois legislature legalized marijuana for recreational use in 2019, it took similar steps as Massachusetts and then went a step further by creating a $30 million low-interest loan program for qualified equity applicants, although critics have argued that in practice the Illinois program has not lived up to expectations.67 Other states have at least considered creating analogous loan or grant programs to help minority businesses that would otherwise have difficulty obtaining the necessary capital to enter the industry in the first place.68

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Another critical aspect of cannabis equity involves expungement of prior convictions for marijuana-related activities that are no longer illegal under state law. It makes little sense for a state to say that small-scale marijuana possession or use is no longer illegal but that those who have been convicted of such offenses must continue to carry these offenses on their permanent records. States have been all over the place on expungement of prior records, with some making expungement automatic and others providing a process for those with past convictions to pursue expungement. Other states have provided for something less than expungement, such as sealing prior cannabis offense records, which makes it seem as though the conviction has been erased, though records can generally be unsealed by court order in certain circumstances. Sealing records or providing a process for pursuing expungement are both certainly better than nothing, but in the cannabis equity space, an automatic expungement process such as the one found in New York should be considered the gold standard.69 As for the environment, an entire book could be written (and several in fact have been) about the ecological and energy-based effects of the burgeoning cannabis industry and what to do about them.70 Growing marijuana outdoors is highly water intensive, which can lead to the draining of rivers and watersheds, which in turn can harm wildlife such as amphibians and steelhead trout.71 Indoor growing, however, is far worse for the environment. The main problem is the amount of energy needed to power sometimes massive indoor grows. As Bill McKibben wrote about cannabis in the New Yorker in early 2021, “right at the moment when we need to be desperately reducing the amount of energy we use, we’ve found a huge new electricity hog.” 72 The journal Nature paints the picture: “Keeping the plants alive in a windowless room requires intense light, so growers fit out facilities with the same high-pressure sodium lamps as those used in street lights. To counteract the heat that is generated by this inefficient illumination, plants are over-watered and growing rooms are furnished with heating, ventilation, and air-conditioning systems and dehumidifiers.” 73 The system has resulted in enormous carbon dioxide emissions; according to one source, for instance, indoor cannabis growing constitutes 1.3 percent of Colorado’s total annual emissions of greenhouse gases.74 Another estimate suggests that the amount of energy used by the cannabis

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industry in 2017 equaled the amount of energy produced in an average year by the Hoover Dam.75 Add to this the waste created by processing and manufacturing cannabis-based products like edibles and oils, as well as the mountains of new packaging material required by states, and it’s easy to understand why marijuana is giving environmentalists all over the country a giant headache. Despite all these environmental challenges, states have done very little to regulate the cannabis industry in ways that would reduce energy use and other environmental threats. As scientist Evan Mills wrote in Slate in March 2021, “Virginia—the latest state to approach full legalization—and the 46 others that have implemented some degree of liberalization all share the dubious honor of doing so with little or no consideration of environmental consequences. . . . Despite having decades to get organized since state-level legalization began back in 1999, policy makers have been ham-handed in addressing this threat to the climate.” 76 States (and some localities) regularly either encourage or require cannabis to be grown inside.77 Some states, Massachusetts and Illinois for example, have taken measures to require or encourage indoor growers to use best practices such as efficient lighting and renewable energy sources,78 but such provisions are not particularly common. Environmental challenges are made worse, of course, by the fact that states feel they cannot sell or purchase marijuana across state lines for fear of federal intervention; as a result, northern states cannot import outdoor-grown weed from warmer southern states and must rely on in-state cultivators, who may have far fewer opportunities to take their operations outside due to a cold or inhospitable climate. A ninth basic issue facing all states that legalize marijuana for either medical or adult use is whether to exclude those individuals with felony convictions, in particular convictions for prior drug offenses, from working in the industry or holding licenses. Massachusetts and several cities in California have decided that not only should most drug felons not be excluded from the industry, but they should also be considered equity applicants for having suffered as a result of the drug war.79 However, as Forbes reported in 2017, “many states have marijuana laws that bar drug offenders from entering the cannabis industry in an effort to legitimize the trade and help prevent out-of-state diversion.” 80 Examples include Alaska,

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which has long excluded those with felony convictions within the past five years or those on parole for felony convictions from owning marijuana businesses or working in the industry,81 and Washington, which prohibits those who have been convicted of felonies within the past ten years from owning a weed business within the state.82 These exclusions have been quite controversial at times. When the Cannabis Control Commission in Massachusetts was considering whom, if anyone, to exclude during deliberations on its original set of regulations, the issue of whether to exclude those convicted of marijuana trafficking split the five-member commission perhaps more than any other issue (the CCC decided 3–2 to exclude traffickers, over the dissent of Shaleen Title and chairman Steve Hoffman).83 Likewise, when Massachusetts considered removing a ban on felony drug convictions from its medical program, one major dispensary in the state caused a brouhaha by opposing the proposal. “Permitting those who have demonstrated the interest and willingness to ignore state and federal drug laws,” argued the CEO of Patriot Care in a letter to the state’s Public Health Council, “sends the wrong signals to those who would participate in the legal, regulated industry.” 84 The company subsequently took a virtual beating on social media, with one prominent tweeter declaring Patriot Care’s position to be #notcool.85 Finally, there is the issue of whether states should require participants in the industry, particularly license-holders, to be residents of the state. The impetus for these kinds of requirements—which have existed, in one way or another, in a number of states and localities—is intuitive: voters and legislators naturally have an incentive to prefer their own residents when distributing benefits and privileges created by a new state program. Washington is perhaps the most prominent state to still have such a residency requirement (Oregon, Michigan, and Maine, for instance, have gotten rid of theirs); only those with six months of residency in the state can procure adult use licenses.86 Oklahoma and Missouri, as well as Portland, Maine, have implemented similar types of residency requirements or have otherwise preferred residents in some way in the licensing process.87 As we’ll see in the next section, however, there is little in the way of legitimate policy rationale to recommend these requirements and, indeed, as several lawsuits have already demonstrated, the requirements are likely unconstitutional.

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putt i n g i t a l l t o g e t h e r These, then, are ten of the most important and challenging decisions that states legalizing marijuana must consider when designing their markets. Many other decisions are important as well, but taking these ten decisions and then asking how they fare under the ten criteria discussed in the previous chapter will give us enough to work with here, without getting too far into the wild plants, such as dandelions, that grow where they are not wanted—that is, the weeds. As my students would tell you, I am someone who thinks in charts. Sometimes after a class session is over, I’ll realize that I’ve somehow covered three entire chalkboards in a gigantic classroom with various charts and tables. So, when I started thinking about these important questions involving regulation and taxation of marijuana, I naturally made a chart. I don’t have a chalkboard in my apartment, however, so I used a piece of extra-large yellow construction paper from a pad that we bought for our son when he was six. So, as I’m writing these paragraphs, I’m working off of a grid that has the ten questions I’ve identified running across the top and the ten criteria running down the left side of a grid of a hundred boxes, with notes in each box about how each question fares under each criterion. If this kind of thing helps you think through complicated issues, I recommend trying it. I would have reproduced the chart here, but I don’t think anyone would be able to read my haphazard scrawl in such small type. When the book wins the Pulitzer Prize in Marijuana Policy, however, I promise to donate the original to the Smithsonian.88 So, to get started, what do our criteria say about the issue of the types of licenses that states should offer to potential businesses? From the perspective of equity, Massachusetts got it right when it determined that small licenses—ones, in other words, for businesses with smaller start-up costs—would at least have the potential to promote equity in the industry by allowing smaller companies entry into the market. States need to make these licenses attractive, however, which is something that Massachusetts also figured out, although perhaps not at first, as evidenced by its mid2020 decision to allow delivery licensees to engage in some retail sales rather than limiting them entirely to delivering other firms’ products.89 On the public health front, it is certainly true that states must engage in

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careful and rigorous licensing of testing facilities to ensure that products are safe and accurately labeled. Social use licenses might pose a public health problem, particularly if they lead to more inebriated driving, but I’ll put off consideration of that issue until later. From the perspective of market freedom, I suppose that the fewer licensing requirements the better—and perhaps, to some supporters of this criterion, having no licensing requirements would be ideal, although that seems to be a nonstarter in states that have legalized thus far. Smaller licenses such as those for delivery would also likely fare well under the ease of access criterion and might also contribute at least modestly to the reduction of the illicit market, if some actors in that market find that they are able to raise enough capital to make participating in the legal market worthwhile. On balance, equity and ease of access would argue in favor of states offering more rather than fewer types of licenses, particularly if that would entail licensing separate delivery companies. Whether to cap the number of licenses that any one individual or entity may possess turns out to be somewhat more complicated than the question about types of licenses. If it were to turn out that such limits can successfully restrain the growth and spread of large multi-state operators and ensure that a greater number of independent licensees are able to flourish in the legal market, then, from an equity perspective, those caps would certainly be worthwhile. Such caps may also be preferable from a public health angle if we expect, as many policy experts do, that Big Weed would focus its advertising efforts on the small number of extremely heavy users in order to remain highly lucrative. On the other hand, if, as seems likely, large marijuana companies would be better situated to provide a wide variety of products at low prices than smaller craft companies—after all, compare craft breweries to the Millers and Budweisers of the world—then from the perspective of the ease of access criterion, capping the number of licenses that any one entity can control may be somewhat problematic. Moreover, by definition, these kinds of caps would fare poorly from the perspective of market freedom. Whether and how such caps might affect both revenue maximization and the illicit market is somewhat less certain, but it appears to be plausible that the caps could lead to higher prices and therefore decreased demand, which would, in turn, result in both a more active illicit market and less

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tax revenue for the government to spend. On the whole, whether to support caps on ownership or control will depend on what criteria one values more strongly. For someone interested in either market freedom or government revenue, caps are probably not a good idea. But for those, like me, who favor equity over these competing concerns, they are absolutely necessary.90 Moreover, the caps should be accompanied by government messaging aimed at promoting equity and high product quality over unfettered capitalism and mediocre weed. When it comes to whether to allow people to grow their own Mary Jane plants at home, again the criteria push in different directions. Equity proponents often defend home growing as being a net positive from an equity perspective. Shaleen Title, for example, lists allowing home grows as the very first of her ten “must-haves” for any state seeking to promote equity in the cannabis space, pointing out that it “serves as a check on monopolies, delays, and more.” 91 I have no doubt that this is true to some extent, and I don’t disagree with Commissioner Title lightly, but I think that, at least in a state with a developed marijuana market with sufficient cultivation and retail outlets, the equity-based case for allowing home grows is somewhat weak. As long as marijuana is widely available, and the price is not prohibitively high, everyone will have a fair amount of access to the drug. On the other hand, allowing home grows makes it more difficult for the government to control the illicit market, which marijuana grown at home may be destined for, because it complicates law enforcement’s efforts to discover and stop illegal grows that clearly do feed the illicit market.92 With respect to the other relevant criteria, it is true that legal home grows will make it easier for some to access marijuana (though in places where delivery of medical weed is available, such access isn’t particularly difficult in the first place), but allowing home grows, at least without taxing them in some way, will also result in fewer taxable sales and therefore less government revenue. The question of whether allowing home grows promotes the normalization of the drug is one that I find both important and hard to evaluate. Most likely, prohibiting home grows does undermine the normalization of the drug, but it’s hard to know how much. If the police can arrest someone for growing a couple of plants in their backyard or basement, it seems unlikely the drug will be perceived as socially “normal.” On the whole, for me the question comes down to

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weighing the potential equity and normalization benefits against the illicit market problem, and although I think the issue is very close and my bottom line on it regularly changes, probably states should allow home grows (though ask me tomorrow if I still agree). Should the government limit the types of products that retailers can sell or how much THC those products can contain? From the perspective of ease of access and market freedom, such limits would clearly be problematic. Would the potential public health gains from restricting high-THC products nonetheless justify such measures? Here again, the question of the illicit market looms large. Concentrates are in high demand these days, particularly among heavy users, so prohibiting high-potency products like shatter and wax would likely lead those who favor them to seek them in the illicit market.93 One of the clearest lessons that we’ve learned from the long history of cannabis prohibition in the United States is that where there’s a demand, a supply will rise to meet it, and there’s little reason to think the same phenomenon would not happen with concentrates. If this commonsense scenario is correct, then prohibiting high-THC products would not even serve to promote the one interest that might potentially recommend it—namely, a reduction in the use of products that may be particularly dangerous. Indeed, such a prohibition might actually be deleterious to public health generally, since one of the main benefits of a regulated market is to ensure that products are tested for impurities and other potential dangers. Given that we don’t even know, for sure, whether highTHC products are in fact particularly dangerous, it would seem that states should focus on educating consumers about the potential risks of these products rather than limiting their sale or prohibiting them altogether. It is also worth noting that from the perspective of both the rationality and the normalization criteria, prohibiting a subset of cannabis products is deeply troubling. If society has decided, as it increasingly has, that consumers of cannabis can be trusted to use weed in a responsible fashion, why would we then decide that a small subset of cannabis products are simply too difficult for consumers to understand and use wisely? Instead of sending the message that marijuana is a product that people should be free to use to address their health problems, manage their stress, spark their creativity, and reach lofty plateaus of joy and pleasure, the government would be telling willing and eager users that they cannot be trusted

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to know how much THC is too much for them. Only if one subscribes to a deeply paternalistic understanding of the role of government in the lives of its citizens does such a message make any sense at all. The question of how best to tax marijuana is extremely complicated, and as a non–tax expert I can only offer general recommendations on the matter, but my bottom line is that the government should keep taxes on cannabis fairly low. Proponents of raising revenue and promoting public health may argue for taxing weed substantially, but neither of those criteria, in my estimation, is sufficient to justify raising prices to a level that might undermine equity efforts and drive businesses and consumers back to the illicit market. It is obviously true that greater taxes will result in higher revenues for states to direct to useful purposes, but only up to the point where the increased prices from high taxes start causing consumers to seek their pot from an illicit dealer instead of the regulated market. The same is true of public health. Policy wonks often argue in favor of high taxes in order to reduce the demand for a product they deem potentially harmful, but even if we concede that marijuana is seriously dangerous at high levels of use, increasing taxes should have only a modest effect on reducing use, because the illicit market will always be there to supply products at a lower price to consumers whose use is affected by relatively slight fluctuations in price.94 Given that states can raise revenue in myriad ways that don’t target the use of joyful substances, and that high taxes can decrease easy access to regulated legal products, may reduce the freedom of cannabis market participants (though perhaps only modestly), and could have marginal effects on whether people from disadvantaged communities and racial groups can enter the market and thrive there, keeping taxes low would seem to be a clear choice. Only if one were confident that the government could find the sweet spot where taxes are high enough to modestly decrease use and increase revenue but low enough to keep from sending people to the illicit market would it even be worth bringing high taxes into the conversation. Perhaps the policy wonks have greater confidence in the government’s ability to find and insist upon that sweet spot than I do. The idea of taxing THC levels instead of weight or price is certainly intriguing, but I’m unconvinced of its wisdom, for the same reasons that I worry about high taxes generally. There may be a set of people who prefer

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high-THC products, but not particularly strongly, and who would therefore choose lower-THC products if they are less expensive, but I’m inclined to think that the people in that category are relatively few and vastly outnumbered by consumers who either have a strong preference for high-THC products—and will thus go to the illicit market to get them if they are too expensive in the legal market—or who are willing to pay an increased tax premium for higher-potency legal products. In addition, as a Washington state report on the issue observes, the success of a THC-based taxation scheme requires uniformity and integrity in THC testing, which is not always the case.95 If studies were to show that I’m wrong about this, I would be happy to reevaluate my position, but until then, given the limited public health benefits and somewhat increased difficulty of administering a THC tax over a straightforward ad valorem tax system, I’m not inclined to support the practice. Where states should spend their marijuana tax revenue would seem to be a fairly straightforward question of priorities, less complex than some of the other policy issues faced by legalizing states. Of course, given that I don’t think that tax rates on marijuana should be particularly high, the question of where to spend the relatively modest amount of money that comes in from such taxes isn’t quite as important as it would be under a scheme of high taxation. Still, one issue worth considering is whether it makes sense to use taxes raised through marijuana sales to promote interests having something to do with cannabis and/or the war on drugs. I don’t think that this is necessary—we tax all sorts of things and use the revenue from those taxes to fund all sorts of other things—but it is an elegant way of ensuring that the extra cost of marijuana products funds projects that weed consumers will likely support, perhaps reducing the pain of paying extra for a product that one could feasibly grow at home. To that extent, I would prefer using marijuana taxes for cannabis equity-related initiatives such as funding training and other types of assistance for minority-owned businesses and perhaps for law enforcement efforts specifically aimed at eradicating the illicit market, rather than using the funds for public health programs, even those aimed at cannabis use disorders, or for purposes such as education or infrastructure that have little or nothing to do with marijuana. When it comes to explicit equity provisions, experiences in the states thus far have shown that more is better. Policies like those adopted in

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Massachusetts are a start—states should offer many types of licenses, including ones that allow smaller businesses to take part in the market; grant strong preferences in licenses for equity applicants, including perhaps making some classes of licenses exclusively available for such applicants; and create extensive training and assistance programs to help minorityowned businesses navigate the many legal, financial, and operational hurdles they regularly face when trying to get a foothold in the industry. As we’ve learned from Massachusetts’s difficulties in achieving anything approaching real equity with these programs, however, such policies are necessary but not sufficient. In addition, as I’ll discuss in a later chapter, states must limit the extent to which local governments can interfere with statewide legalization efforts—because, at least in Massachusetts, the local governments have held back legalization efforts generally, and equity efforts specifically, far more than the state itself. Beyond that, though, states should establish generous loan and (even better) grant programs to directly help equity applicants establish and maintain businesses. In crafting these kinds of equity-based programs, though, states need to be careful of the U.S. Constitution. The Supreme Court has long been hostile to affirmative action programs that target individuals and businesses for assistance on the basis of their race or the racial makeup of their ownership, invalidating a number of state and federal programs for violating the Equal Protection Clause of the Fourteenth Amendment.96 Lower courts have naturally followed suit. A trial court in Ohio, for instance, struck down the state’s quota program for licensing minority cannabis businesses as violating the Constitution in 2018. The case of PharmaCann, Ohio v. Ohio Department of Commerce involved a state law provision requiring that at least 15 percent of medical marijuana retail licenses be awarded to entities owned or controlled by racial minorities.97 Companies that were not awarded licenses sued to invalidate the provision. While noting that state affirmative action programs can be upheld if sufficient evidence demonstrates the existence of past discrimination against the specific groups targeted by the legislation in the specific context of the relevant industry, the court found that the evidence put forward by the state to justify its program was insufficient. Among other things, the evidence had not shown a history of discrimination in the legal medical marijuana industry (a near impossible requirement at the time, since the

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industry was brand-new in the state), nor had it shown past discrimination of any kind related to marijuana for some of the groups—including Native Americans—that were included in the quota.98 “Evidence of increased arrest rates for African Americans and Latinos for marijuana generally,” the judge wrote, “is not evidence supporting a finding of discrimination within the medical marijuana industry for Blacks or African Americans, Hispanics or Latinos, American Indians, and Asians.” 99 The result in this case should be viewed as a warning for policymakers, but by no means a message that equity-based grants, loans, and other programs will necessarily be unconstitutional. The judge in the case took a particularly strong view of the Fourteenth Amendment in the context of the cannabis industry, and the evidence provided by the state was admittedly rather weak. States should make sure that they develop thorough factual records to support their use of race-based techniques for promoting equity (pooling resources with other states and non-governmental organizations can help in this regard), employ race-neutral criteria (such as using residency in neighborhoods disproportionately harmed by the drug wars and other rough proxies for race) when they can, and make sure their lawyers know what they’re doing before attempting to implement equity-based programs to help those who have suffered the most during the past decades of discriminatory enforcement of our nation’s cannabis laws. Moving from equity to the environment, at the very least states and localities should not prohibit outdoor growing, and they should even consider incentivizing it, given the apparent ecological benefits of growing outdoors. As explained in one scientific report, entitled “Energy Use by the Indoor Cannabis Industry: Inconvenient Truths for Producers, Consumers, and Policymakers”: “Outdoor cultivation—which has sufficed for millennia and could meet all U.S. demand with only 0.01% of current farmland—is the most technologically elegant, sustainable, ethical, and economically viable approach for minimizing the rising energy and environmental burden of cannabis production.” 100 There is even a case to be made for requiring outdoor growing in areas where it’s viable, although given the market freedom criterion and the uncertain effects of such a requirement on equity concerns, the best path forward for states is most likely allowing or encouraging outdoor grows rather than requiring them.

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To the extent that growing indoors remains the most popular form of cannabis production in the United States, states and localities need to consider whether to implement regulations that essentially require best practices for indoor grows with respect to issues like energy efficiency, waste disposal, and pest control. There is a big difference between the “Walmart-sized, windowless, energy-intensive factory farms” where much indoor cannabis is now being grown and places, for instance, like Yerba Buena in Hillsboro, Oregon, where the owners took advantage of the state’s rebate policy for facilities that meet stringent energy requirements to create a cutting-edge, environmentally friendly facility.101 As reported by Nature in 2019, at Yerba Buena, “windowless rooms are mostly lit with rows of white LED lights rather than hot sodium lamps. Plants grow in soil that is enriched with worm castings and guano, and are protected from attack by predatory insects rather than pesticides. The facility relies on groundwater and uses electronic meters to continuously monitor humidity, water use and temperature.” 102 States should clearly incentivize the types of environmental protection measures used by projects like the one at Yerba Buena, but should they require them? Here the environmental protection criterion runs up against several criteria that seem to point the other way: market freedom, reducing the illicit market, and even perhaps ease of access. Clearly, requiring expensive energy mitigation practices like LED lights or the use of renewable energy will reduce the freedom of cultivators. When Massachusetts implemented its progressive lighting requirements in 2018 (the state requires that electricity use in cannabis cultivation facilities not exceed thirty-six watts per square foot of space), growers complained vociferously about the costs of complying with the requirements.103 Importantly, they also complained about the possible effect of requiring LED lighting on the quality of their weed.104 If it turned out that energy-efficient lighting resulted in lower-quality marijuana, that could undermine the ease of access criterion, in that less high-quality cannabis would be available for consumers to choose from. This, in turn, would also presumably make it more difficult to control the illicit market, particularly if the lower-quality legal product is accompanied by higher prices driven by the same environmental requirements. And most everyone agrees that the illicit market is worse for the environment than the legal one. As

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reported in Slate in 2021, “black-market indoor production tends to be far more carbon intensive, often powered by large, dirty diesel generators and heated at night with gas or oil furnaces.” 105 Ultimately, the question comes down, in large part, to the importance one puts on controlling the environmental impacts of cannabis growing, including its effects on greenhouse gas emissions and climate change. Do the benefits of requiring energy-efficient lighting and the use of at least a certain amount of renewable energy, for instance, outweigh the imposition of costly regulations on cultivators, along with the increased prices, possibly lower-quality product, and uncertain effects on the illicit market that might go along with those requirements? For my part, I value the environment quite highly and would therefore recommend a moderate set of requirements to reduce energy use and otherwise protect the environment. Also deeply concerned with the illicit market, though, I think that regulators need to be careful here, emphasizing incentives over requirements and keeping a close eye on the effects of any requirements on the continued vitality of the illicit market. With regard to whom, if anyone, states should exclude from participating in their cannabis markets on the basis of past criminal convictions, fewer is definitely better. I have to confess that I see very little reason to exclude those convicted of felonies from any activities (employment, voting, jury service, etc.) once they’ve completed their sentences. The sentence, presumably, is punishment enough. If it turns out that a felon gets a new job in the drug industry or anywhere else, and then commits another felony, then of course that offense should and hopefully will bring new consequences. But to prophylactically exclude felons from the industry as a screening device seems unnecessary and unjust. I don’t think that felonexclusion policies even pass the rationality criterion, much less have anything else going for them. And, to pile on a bit, policies that exclude past felons, particularly those convicted of drug offenses, are also problematic from the perspective of equity, the illicit market, and market freedom. Who are the people excluded by these policies? Given the vast racial inequities of the drug war, they are predominantly people of color—the exact people whom legalization is primarily intended to benefit. Moreover, those convicted of marijuana felonies, even trafficking, are often the very people who actually know how to grow marijuana well. As one consultant

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put it, excluding those with experience in the illicit market is “doing a disservice to some of the best knowledge base in the cannabis industry. These are the guys who paved the way.” 106 And where will those with experience and a past conviction end up if not in the legal market? Probably in the illicit market where they started. Finally, states should not exclude nonresidents from either owning licenses or working in the industry. Although it is understandable that states would want to grant their own residents preferences within these new markets, nonresident-exclusion policies violate both the letter and the spirit of the Constitution. Specifically, they violate its so-called Dormant Commerce Clause.107 The framers of the Constitution intended through the Commerce Clause (which provides that Congress has the power “to regulate . . . commerce among the several states”) to create one national commercial market rather than a bunch of separate state markets all competing against each other. Through the Commerce Clause, the framers sought to remedy one of the most debilitating problems of the Articles of Confederation that preceded the Constitution, under which states regularly competed with each other by protecting their own residents and businesses, making a national market impossible.108 The Supreme Court has interpreted the Commerce Clause as giving Congress broad powers to regulate interstate markets109 and has also used the clause in its (weirdly named) “dormant” capacity to prohibit states from interfering with the national market by granting protectionist privileges connected to commerce to their own citizens.110 It has been suggested by some, including lawyers defending these residency requirements in Maine, Oklahoma, and elsewhere, that since Congress has not legalized marijuana at the federal level, there is no national market for the drug, and therefore states should be able to exclude nonresidents from working in the industry or owning licenses.111 However, the courts that have considered this argument thus far have rejected it,112 for good reason, and even if a court were to accept the argument, it would still be bad policy to exclude nonresidents on the basis of market freedom and rationality criteria, particularly because exclusion promotes no good interest other than local protectionism. •

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In sum, then, in order to promote the criteria of equity, ease of access, market freedom, and undermining the illicit market, states should offer many types of licenses, including smaller ones; should tax marijuana at a relatively low level; should insist on capping the number of licenses held by any single entity; should allow home grows (I guess); and should forgo any sort of prohibition or limitation on the types of products that businesses can sell or that consumers can buy. Moreover, they should use the majority of taxes they collect to fund loan and grant programs to help equity applicants, and they should draw upon existing financial resources to make those programs as robust as possible. Adopting these steps will also help reinforce the message coming from the government that cannabis can and should be enjoyed by everyone who wants it and that everyone who wants to try and join the industry will at least have a legitimate opportunity to do so. States should also refuse to exclude nonresidents and past felons from either working in their cannabis industries or owning licenses. Finally, states should incentivize outdoor growing and energy-efficient methods of indoor growing and, most likely, require at least some minimum level of energy efficiency for indoor cultivation facilities. Even if a state were to adopt all these recommendations, however, wouldn’t it undermine all the relevant interests that justify the recommendations in the first place if the state were to nonetheless impose arbitrary restrictions that make it difficult for people to sell or use cannabis? What if, for instance, states did not allow marijuana businesses to tell people about their products? Or if people who need or like using marijuana on their own time could be fired from their jobs for using the drug? Or if states refused to authorize public spaces where users could enjoy lighting up or consuming an edible in a social setting without shame or stigma? Or if cities and other localities could just subvert the democratic process by banning marijuana shops or facilities within their borders? Or if the police were authorized to conduct searches of your house or car based on the smell of marijuana alone? The answer to all these questions is that yes, such policies would make it difficult for people to sell or use cannabis. Unfortunately, all of these problematic policies turn out to be core features of the “grudging toleration” approach that most states have adopted when legalizing weed. In the

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following five chapters, which make up the second part of the book, I will explain these features, describe why they are unjustified given the criteria set out in chapter 2, and argue in favor of a new approach to legalizing marijuana in the United States: not grudging tolerance, but careful exuberance.

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part ii

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From Grudging Tolerance to Careful Exuberance

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4

Sure You Can Sell Weed, Just Don’t Tell Anyone about It advertising, marketing, and promotion

One of the most distinctive characteristics of our public health–focused, “grudging toleration,” post-legalization nation is that even when states have fully legalized marijuana for adult use, they all still severely restrict how weed businesses can advertise and market their products. To take just one example, consider the twenty separate Prohibited Practices outlined in Massachusetts’s Marketing and Advertising regulations for cannabis.1 Not only does Massachusetts, like all states, prohibit false or misleading advertisements,2 require scores of warnings about weed’s purported dangers,3 and restrict the content of ads so that they do not appeal to minors,4 but it also prohibits stores from advertising the prices of their products,5 forbids businesses from taking out ads at events or in print or on television or radio unless 85 percent of the audience for the ads is “reasonably expected to be 21 years of age or older,” 6 and bizarrely bans “any advertising, including the use of Brand Names, of an improper or objectionable nature.” 7 Other states are more permissive in some ways and more restrictive in others. Although Massachusetts is unique in prohibiting price advertisements, a number of other adult-use states prohibit marijuana businesses from advertising within a thousand feet of a school,

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playground, or park, even if such a limitation means that the vast majority of some major cities is off-limits for weed ads.8 This state of affairs may be odd, but it is not particularly surprising. States want to ensure that marijuana companies aren’t spreading false information and to protect children from the risks of cannabis, and many of the restrictions that states have adopted are aimed at accomplishing these goals. Most people, myself included, can get behind the notion that marijuana companies should not be allowed to lie, or to target kids who are not legally allowed to use the product in the first place. To the extent that state advertising rules indeed have the objective of prohibiting falsehoods or protecting children, they are wise and uncontroversial. Unfortunately, not all of the advertising and marketing restrictions adopted by states can be fully explained by these interests. What, for example, does Massachusetts’s prohibition on price advertising or Washington state’s rule allowing cannabis businesses to post two (and only two) relatively small signs affixed to their locations9 have to do with restricting misleading and false marketing or protecting children? These restrictions, and others like them, seem to be motivated by something else—not often openly stated but surely in the background—namely, an interest in reducing consumption by adults, or preventing overconsumption by adults, or perhaps even a symbolic way of expressing a resistance to embracing marijuana as a beneficial and desirable product for consumers. Like many other features of current marijuana policy in the United States, these restrictions on advertising and promotion send a message that while states may be willing to grudgingly tolerate marijuana sales and use within their borders, they don’t believe that legalization is something to be particularly happy about. Weed may be okay to use and grow and sell and tax, these restrictions suggest, but let’s get this straight: We don’t really think that legal marijuana is worth celebrating. Restrictions on the advertising and promotion of cannabis products raise interesting and important questions. Like most of the issues discussed in this book, they present difficult policy choices, including how best to balance the interest in protecting children with the equally legitimate interest in providing adults with truthful and non-misleading information about legal cannabis products. But, because advertising is expressive activity, these regulations also raise constitutional questions under

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the First Amendment. Although the Supreme Court of the United States has recognized that ads—“commercial speech,” as the Court puts it—do not receive the same protection as, for example, political speech, the justices have placed a number of limits on what the government can do to suppress advertising.10 Although many of the restrictions that states have adopted are both constitutional and good policy, some of them are both unconstitutional and misguided. Still others raise difficult legal and policy questions. In the rest of this chapter, I will outline how various adult-use states have restricted cannabis businesses from promoting themselves and advertising their products, investigate the reasons behind these restrictions and why many in the industry oppose them, and then argue that advertising restrictions that are not tailored specifically to protecting children make for bad policy and are also likely unconstitutional under the First Amendment.

how s tat e s r e g u l at e w e e d a d v e rt i s i n g State marijuana advertising regulations generally focus on both the content of advertisements (e.g., what kinds of things must be in an advertisement, and what kinds of things are prohibited) and the placement of advertisements (e.g., where businesses can advertise, including limits on both the geographic location of ads and the kinds of media that businesses can use to advertise their products). Starting with probably the most uncontroversial and unproblematic content-based regulations, all states that have legalized marijuana for recreational use prohibit businesses from including false or misleading information in ads, and most require some kind of warnings about the potential dangers of marijuana use. For example, Massachusetts requires all advertising to include the statement “Please Consume Responsibly” and two of five specifically worded warnings, such as “There may be health risks associated with consumption of this product” and “This product may cause impairment and may be habit forming.” 11 Alaska requires every advertisement to include five different warnings in a font size “at least half the font size of an advertisement on a sign, and no smaller than size nine font when the advertisement is in printed

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form.” 12 Some states, such as Washington, Oregon, and Massachusetts, prohibit advertisements from making any kind of claim that marijuana has “curative or therapeutic effects.” 13 Colorado prohibits cannabis establishments from advertising that their products are safe because they are either regulated by the state or tested by licensed testing facilities.14 All states that have legalized cannabis for recreational use have enacted specific regulations aimed at prohibiting cannabis businesses from appealing directly to children. Regulations differ somewhat from state to state, but Oregon’s is fairly representative: “Marijuana advertising may not . . . contain any content that can reasonably be considered to target individuals under the age of 21, including but not limited to images of minors, cartoons, toys, or similar images and items typically marketed towards minors, or references to products that are commonly associated with minors or marketed by minors.” 15 Massachusetts’s regulations similarly prohibit the use of “mascots, cartoons, and celebrity endorsements that [are] deemed to appeal to a person younger than 21 years old.” 16 When I teach my marijuana law class, I like playing with this particular Massachusetts regulation by posing the question of which celebrities would appeal to someone under the age of twenty-one. When I posited U2’s Bono one year, I got a chorus of groans in return, but reactions were far more mixed when I suggested Christopher Walken. Even though Walken was born in 1943, apparently he still speaks to the youth of America and is therefore possibly illegal! Beyond these two types of prevalent regulations, states have adopted a sprinkling of other quirky and potentially problematic restrictions on what weed advertisements can contain. Massachusetts’s prohibition of “advertising or marketing of the price of marijuana products” 17 is, as we’ll see later in the chapter, very dicey from a constitutional perspective, as is the state’s weird regulation about ads of an “improper or objectionable nature.” 18 A number of states prohibit the depiction of various ways of using or overusing marijuana, which has always struck me as bizarre. Examples of this type of regulation can be found in Alaska, which prohibits ads that “promote excessive consumption,” 19 and Nevada, which prohibits the promotion of “overconsumption.”20 Oregon has the oddest set of restrictions of this type, providing that advertising may not “display consumption of marijuana items,” “contain material that encourages the use of marijuana because of its intoxicating effect,” or “contain material that encourages

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excessive or rapid consumption.”21 Both Illinois and Nevada law prohibit businesses from depicting “actual consumption” of marijuana,22 and some states, such as Illinois, prohibit ads that “include the image of a cannabis leaf or bud.”23 As I’ll talk about later in the chapter, most of these restrictions are both seriously dopey and probably unconstitutional. In addition to regulating the content of marijuana advertising, states also regulate the placement of ads—where and under what conditions marijuana businesses may advertise. For example, most states that have legalized cannabis for adult use limit when marijuana advertising may appear in print or on billboards, television, radio, or the internet. These regulations, when they exist, are modeled on voluntary codes adopted by the alcohol industry and typically require that for an advertisement to run in these media, the relevant audience that will likely see the ad must be overwhelmingly made up of adults. Oregon’s restriction is representative; it provides that “a licensee may not utilize television, radio, billboards, print media or internet advertising unless the licensee has reliable evidence that no more than 30 percent of the audience for the program, publication or internet web site in or on which the advertising is to air or appear is reasonably expected to be under the age of 21.”24 Nevada and Colorado also use the 30 percent figure,25 while Massachusetts is even stricter, limiting advertising “by means of television, radio, internet, mobile applications, social media, or other electronic communication, billboard or other outdoor advertising, or print publication, unless at least 85% of the audience is reasonably expected to be 21 years of age or older as determined by reliable and current audience composition data.”26 Not all states have such restrictions—notably, Washington, Illinois, and Alaska do not seem to restrict advertising in this way. On the other hand, Washington and Alaska (as well as Nevada) do have restrictions on outdoor print advertising such as billboards, prohibiting them from being placed within one thousand feet of an area where children typically congregate, usually defined as including schools, playgrounds, child-care facilities, libraries, and public parks.27 Interestingly, and importantly from a constitutional perspective, these regulations do not vary depending on whether the advertising is taking place in a country town or the middle of a huge metropolis, even though the restrictions will have a far greater impact on how businesses can advertise in a big city than in a less

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populated area. Colorado law is even stricter than that of these other states; the law there prohibits marijuana businesses from “engag[ing] in advertising that is visible to members of the public from any street, sidewalk, park or other public place,” although it makes an exception for fixed signs on the property of the business that “exist solely for the purpose of identifying the location” of the business.28 Colorado also, like a few other states, mostly prohibits the use of leaflets or flyers to advertise marijuana establishments.29 New Mexico’s statute prohibits advertisements “that are on billboards, posters, handbills, or other visual media that are located or can be viewed within three hundred feet of a school, daycare center, or church.” 30 Colorado is not the only state that limits the types of signs that businesses can use to identify themselves. Alaska, for example, limits each establishment to three signs that are visible to the public, each smaller than 4,800 square inches, further providing that two of those three signs must be attached to the premises.31 Washington allows businesses only two signs, each a maximum of 1,600 square inches, requiring that each sign be affixed to the relevant building.32 The state also regulates the content of these signs, providing that they can only include the trade name and location of the business and prohibiting the signs from depicting marijuana plants or products.33 Massachusetts prohibits businesses from using illuminated signs at night.34 Finally, most states restrict marijuana advertising in connection with sporting and entertainment events. Colorado and Alaska, for example, prohibit such advertising unless children are expected to make up less than 30 percent of the audience.35 Massachusetts allows advertising at events, but only if it is targeted to consumers over the age of twenty-one and “reasonable safeguards” are employed to ensure that the advertising does not reach those under the age of twenty-one (whatever that means).36 Nevada prohibits all marijuana advertising at sports and entertainment events if kids are even allowed to attend.37

why s tat e s r e g u l at e w e e d a d v e rt i s i n g By far the most oft-stated rationale for restricting marijuana advertisements is to protect children. The justification is clearly rational and reason-

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able. We know from numerous studies that viewing advertisements of alcohol and tobacco increases the use of those substances among young people,38 and studies are now starting to show the same thing for cannabis. For instance, a relatively recent RAND study showed that “the more medical cannabis ads an adolescent sees, the more likely he or she is to use or express an interest in consuming the substance and to view it in a positive light.” 39 Another study from researchers at Washington State University has suggested that “exposure to marijuana advertising . . . [is] associated with intention to use marijuana.” 40 Given these studies and the commonsense insight that advertisements increase demand for products, it both makes sense and is unsurprising that those who are concerned with the health of children would support restrictions on advertising targeted at kids. Examples of such support abound. For instance, Elizabeth D’Amico, the clinical psychologist who directed the above-mentioned RAND study, has argued for increased advertising restrictions in her home state of California. Noting that teens who view cannabis advertisements “tend to view it positively in comparison with alcohol—and that makes them more likely to use marijuana in the next six months,” D’Amico calls the need to “get moving” on improving advertising regulations “a big deal.” 41 California State Assemblymember Jacqui Irwin has echoed D’Amico’s call for stronger advertising restrictions, particularly on billboards. Writing in the Ventura County Star, for example, Irwin argues that “we cannot place cannabis advertisements above the collective interest of protecting our children. This is not unlike the fight to prevent tobacco companies from advertising to young people several decades ago. It’s simple. Advertising to children works. We have the opportunity right now to avoid making the same mistakes of the past that got entire generations hooked on habitforming substances.” 42 Those who call for increased advertising regulations do occasionally acknowledge the Constitution’s guarantee of free speech, but far more common is the approach of Republican state representative Jim Wilson in Colorado, who has said, “I don’t see it as a First Amendment issue. I see it as a protecting-the-kids issue.” 43 Many advocates for strict regulation of weed advertisements, however, go beyond the need to protect children and argue that such regulations are necessary to decrease demand for marijuana generally, including among

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adults. A widely publicized “Statement of Concern” issued by over forty doctors and researchers in Massachusetts in May 2019, for example, claimed that marijuana should not be treated as an “ordinary commodity” but rather must be treated using a “Public Health Framework”;44 citing public health risks to adults as well as to children, the statement listed a host of necessary advertising and marketing restrictions as central to its suggested public health framework.45 Similarly, Professor Leslie Gielow Jacobs, author of the most comprehensive academic article on the relationship between cannabis advertising restrictions and the First Amendment, has argued that because “the natural outcome of competitive forces producing and marketing marijuana products will adversely affect public health, if left unchecked,” it is critical to “limit potentially hazardous demand-stoking advertising and marketing practices to the extent permissible.” 46 Beyond the direct interest in protecting the health of both children and adults, others who engage in debates over advertising regulations for marijuana businesses have recognized that the issue is central to the normalization of the drug. Speaking about a recent battle over weed billboards in California, for example, cannabis company general counsel Pamela Epstein described the controversy as being “indicative of the normalization process,” noting that “cannabis is to those who work in the industry as normal as going and buying an apple at the store, but it is a reflection that as a larger society we are still moving through the educational process and there’s still a good amount of miseducation and fear of the unknown.” 47 She might have been talking directly to Kevin Sabet, a highly vocal critic of marijuana legalization, who told the Chicago Tribune in late 2020: “Simply put, the marijuana industry should not be able to advertise its highly potent and addictive products. The data is clear here that advertising further normalizes the industry, which normalizes the use of the drug, which leads to harmful consequences for health and safety.” 48 In sum, even the most permissive states when it comes to allowing adult use of marijuana have adopted extremely stringent restrictions on both the content and placement of cannabis advertising. The primary rationale for these restrictions is typically to protect children from the health risks of marijuana, but many also support restricting advertising and marketing of weed products as a way of reducing demand generally

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and resisting the normalization of cannabis use. Whether these regulations make any sense, though, and whether they are constitutional—well, that’s another story.

that p e s k y f i r s t a m e n d m e n t Before considering whether advertising restrictions on marijuana products constitute wise social policy, we have to pause first to consider their constitutionality. Even if the restrictions are net beneficial under the criteria for evaluating marijuana policies set out in chapter 2 (which they’re not, as we’ll see), policymakers should not adopt them if they violate the Constitution. In the pages that follow, I describe how the Supreme Court has analyzed restrictions on advertising in some depth, because a lot of what the Court has said about advertising is relevant not only to the constitutional issues involved but also to the underlying policy disputes as well. The First Amendment prohibits the government, at any level, from “abridging the freedom of speech.” The language may seem absolute, but the U.S. Supreme Court has wisely never interpreted it that way. Under the Court’s precedents, whether a restriction violates the First Amendment depends on a number of factors, including whether the activity being restricted is in fact speech, or at least expression of some kind, what kind of expression it is, where the expression occurs, what kind of restriction it is, and what government interests are put forward to justify the restriction. The First Amendment has played an important role in marijuana policy already. When the Ninth Circuit Court of Appeals decided in the 2002 case of Conant v. Walters that the First Amendment protects a doctor’s right to recommend marijuana to patients,49 it considerably strengthened the movement among the states to legalize cannabis for medical purposes. Without getting too far into the details,50 the Court’s basic approach to deciding whether the government has violated the First Amendment is to first ask whether the regulation in question is aimed at speech or expression, in which case the First Amendment applies; or whether it is aimed at conduct, in which case the amendment does not apply. Usually the answer to this question will be clear, but there are tricky cases, because conduct

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often has an expressive component. Burning a flag, for instance, is conduct, but it is also highly expressive, which is why the government cannot prohibit it. This speech-conduct inquiry usually will not be at issue when it comes to marijuana advertising, but it is worth pointing out that regulations limiting what products businesses can sell or how they can price those products are not aimed at expression and therefore are not affected by the First Amendment.51 Once it is clear that the restriction potentially falls under the First Amendment, the next question is whether that restriction is aimed at the content of the speech or not. Content-based regulations restrict either the subject matter or the viewpoint of certain speech. For example, a law making it illegal to discuss the Holocaust would be a subject matter restriction, while a law making it illegal to say that the Holocaust did not happen (some European countries have such laws) would be a viewpoint restriction. Both are content-based regulations—the type of restrictions the Court most frowns upon. The Court applies “strict scrutiny” to contentbased regulations, which means that the government can win only if it shows that the regulation is supported by a “compelling interest” and that the regulation is really the only possible way that the government can achieve that interest. Usually this means that the government loses.52 Content-neutral regulations, on the other hand, are those that are not aimed at the subject matter or viewpoint of the speech, but rather regulate the time, place, or manner of the speech without regard to its content. Examples of content-neutral regulations include laws that prohibit speech after midnight (time) or in a particular park (place) or with the use of a bullhorn (manner). The Court is concerned with these kinds of regulations, but not as concerned as it is with content-based restrictions, because although content-neutral regulations do limit speech, they don’t skew the public debate one way or the other, and thus don’t affect what the Court calls the “marketplace of ideas” in the same way that content-based regulations do. The Court applies what it calls “intermediate scrutiny” to content-neutral regulations, which means that the government will win if it can show that the regulation furthers an important interest and does not ban more speech than necessary to accomplish that interest. With intermediate scrutiny, the government sometimes wins and sometimes loses.53

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All marijuana advertising regulations are content-based, because they apply only to speech involving cannabis. However, the Court also asks a third question when it applies the First Amendment, which is whether the type of speech involved falls into some kind of special category such that it requires separate treatment. The Court has created a limited set of categories over the years, including obscene speech, libelous speech, and speech that incites others to illegal activity, and it has applied a different set of rules to each one of these categories.54 One of the Court’s special categories is known as commercial speech, and that’s where all the action is when it comes to regulations of marijuana advertising. Initially, the Court did not apply the First Amendment to advertising at all. It was not until the 1976 case of Virginia Board of Pharmacy v. Virginia Consumer Council that the Court explicitly recognized that commercial speech deserves constitutional protection.55 In that case, the Court struck down a state law prohibiting pharmacists from advertising their prices. In recognizing the value of advertising, the Court pointed to the interests not only of the sellers (who have the right to use advertising to help them earn money) but also of consumers and society as a whole: As to the particular consumer’s interest in the free flow of commercial information, that interest may be as keen, if not keener by far, than his interest in the day’s most urgent political debate. . . . Those whom the suppression of prescription drug price information hits the hardest are the poor, the sick, and particularly the aged. A disproportionate amount of their income tends to be spent on prescription drugs; yet they are the least able to learn, by shopping from pharmacist to pharmacist, where their scarce dollars are best spent. When drug prices vary as strikingly as they do, information as to who is charging what becomes more than a convenience. It could mean the alleviation of physical pain or the enjoyment of basic necessities.56

Furthermore, the Court recognized the importance of advertising to the proper functioning of economic markets, a central feature of American society. “Advertising, however tasteless and excessive it sometimes may seem,” the Court reasoned, “is nonetheless dissemination of information as to who is producing and selling what product, for what reason, and at what price. So long as we preserve a predominantly free-enterprise economy, the allocation of our resources will be made, in large measure, through numerous private economic decisions. It is a matter of public interest that those

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decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indispensable.” 57 Finally, the Court found that these general interests supporting free expression outweighed the state’s interest in protecting the professionalism of pharmacists. The state had argued that allowing pharmacists to advertise their prices would lead to patients seeking out only the lowestcost, lowest-quality drug options, thus turning the practice of pharmacy into nothing more than a race to provide the worst and cheapest products, but the Court was unconvinced. Concluding instead that information about drug prices “is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication, rather than to close them,” 58 the Court rejected the state’s interest as overly paternalistic and invalidated the statute under the First Amendment. A few years later, in the 1980 case of Central Hudson Gas & Electric Corporation v. Public Service Commission,59 the Supreme Court further clarified the approach that courts should take to reviewing regulations of commercial speech. In holding unconstitutional a state agency regulation that prohibited electric utility companies from promoting the use of electricity by means of advertising, the Court basically said that it would apply a version of the intermediate scrutiny standard. Specifically, the Court explained its approach as follows: “In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.” 60 As I mentioned before, with intermediate scrutiny, sometimes the government wins and sometimes it loses. Over the course of the past forty years, the Court has applied the Central Hudson intermediate scrutiny standard in a long line of cases involving restrictions on commercial speech that have further clarified the law in this area. A number of these cases have involved regulations of advertising prod-

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ucts and services that are related to what we might call “vice” activities— gambling, drinking, and smoking, to be specific. What we’ve learned from this line of cases is that the Court has become increasingly skeptical of advertising regulations that are intended to protect adults from making bad choices or to protect children but end up restricting too much speech that is aimed at adults.61 Both of these trends bode poorly for many state regulations of cannabis advertising. The Court was not always so skeptical of paternalistic advertising restrictions. In an early case decided under the Central Hudson framework, the Court upheld a Puerto Rico law prohibiting the advertisement of casinos within the territory, under the theory that if the government can prohibit an activity, then surely it can take the lesser step of allowing the activity but prohibiting the advertisement of that activity.62 The Court, however, soon abandoned this “greater power includes the lesser power” approach and began striking down advertising restrictions like the Puerto Rico gambling one in the mid-1990s. In a case called Rubin v. Coors in 1995, for instance, the Court invalidated a federal regulation prohibiting beer companies from putting a beer’s alcohol percentage on the label,63 and four years later, in Greater New Orleans Broadcasting Association v. United States, the Court held that the federal government could not prohibit private casino advertising in Louisiana, because such gambling was legal within the state.64 The two cases that are most relevant to evaluating current marijuana advertising regulations are 44 Liquormart, Inc. v. Rhode Island from 1996 and Lorillard Tobacco Co. v. Reilly from 2001.65 In 44 Liquormart, the Court struck down a Rhode Island law prohibiting the advertising of liquor prices anywhere other than at the point of sale. The state had justified its law as a way of decreasing demand for alcohol and thus improving public health (sound familiar?), but the Court found this interest illegitimate, holding that “the First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good. That teaching applies equally to state attempts to deprive consumers of accurate information about their chosen products.” 66 If the state truly wanted to reduce alcohol consumption, moreover, it had many alternatives for doing so that would not

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curtail free speech. This made the Rhode Island law overly restrictive of protected speech and thus unconstitutional. Justice Kennedy explained: It is perfectly obvious that alternative forms of regulation that would not involve any restriction on speech would be more likely to achieve the State’s goal of promoting temperance. As the State’s own expert conceded, higher prices can be maintained either by direct regulation or by increased taxation. Per capita purchases could be limited as is the case with prescription drugs. Even educational campaigns focused on the problems of excessive, or even moderate, drinking might prove to be more effective. As a result, even under the less than strict standard that generally applies in commercial speech cases, the State has failed to establish a “reasonable fit” between its abridgment of speech and its temperance goal.67

If 44 Liquormart stands for the idea that the government cannot generally regulate advertising to decrease demand for legal products or services, Lorillard Tobacco is the case that says the government cannot regulate advertising meant for adults using the rationale that such advertising is harmful for children. Lorillard Tobacco involved a challenge to a Massachusetts law that prohibited smokeless tobacco and cigar advertising within one thousand feet of a school or playground (sound familiar?). The Court agreed with the state that underage use of cigars and smokeless tobacco was a problem and that restricting advertising of such products would likely reduce that problematic use, but it also found that the state had failed the last prong of the Central Hudson test by banning way too much speech that was intended for adults.68 Key to the Court’s decision was evidence showing that the ban on advertising within one thousand feet of a school or playground would have made approximately 90 percent of the state’s largest cities, including Boston and Worcester, unavailable for advertisements. The Court concluded: “The State’s interest in preventing underage tobacco use is substantial, and even compelling, but it is no less true that the sale and use of tobacco products by adults is a legal activity. We must consider that tobacco retailers and manufacturers have an interest in conveying truthful information about their products to adults, and adults have a corresponding interest in receiving truthful information about tobacco products.” 69 The line of Supreme Court First Amendment decisions culminating in 44 Liquormart and Lorillard likely renders many state regulations of can-

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nabis advertising unconstitutional. The application of the two cases to price advertising restrictions like the one contained in Massachusetts’s cannabis regulations and the numerous state restrictions on advertising near schools, playgrounds, and churches would seem to be quite straightforward. But the cases also probably doom many other regulations as well, such as those that limit marketing efforts to situations where the overwhelming majority of viewers are adults. It seems highly unlikely that the Supreme Court, for instance, would say that it’s okay for a state to prohibit a marijuana business from advertising on a radio program or at a sporting event where 70 percent of the viewers are likely to be adults. Restrictions aimed directly at advertisements targeting children, such as those using cartoon characters or teen idols, are surely constitutional, but other limits on the content of ads that would undermine a business’s appeal to adults, such as those banning the depiction of a marijuana leaf or bud, are far more problematic. Regulations prohibiting the depiction of people actually using or enjoying marijuana should also be found unconstitutional; allowing a business to advertise its products but not show people using its products is so dumb that it may even run afoul of the general principle that all laws must pass a basic test for rationality to survive constitutional review. Of course, there is one important difference between the advertising laws that the Court has struck down over the years and those regulating cannabis advertising—unlike gambling or smoking tobacco or drinking alcohol, the use of marijuana is currently illegal under federal law. Might this make a difference? Should it? The Central Hudson test does specifically provide that the government may freely restrict advertisements of illegal products, and a straightforward application of that rule would render all state regulation of cannabis advertising constitutional, at least until the federal government legalizes the drug.70 That was how the Supreme Court of Montana viewed the issue in one of the very few cases involving a First Amendment challenge to marijuana advertising restrictions to have made it through the courts. “Because federal law governs the analysis of this issue, we conclude that an activity that is not permitted by federal law—even if permitted by state law—is not a ‘lawful activity’ within the meaning of Central Hudson’s first factor,” the Court wrote in its 2016 decision in Montana Cannabis Industry Association v. State of Montana.

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“As such . . . [t]here is no First Amendment violation and our analysis under Central Hudson therefore ends here.” 71 Okay, maybe. But this kind of mechanical application of Central Hudson is inconsistent with what I think the Court was getting at with the first part of its test, which is that a jurisdiction, whether it be the federal government or a state or some smaller municipal unit, should be able to prohibit the advertisement of something that it itself has made illegal. But if a jurisdiction has specifically made something legal, it makes no sense to allow that same jurisdiction to prohibit the advertisement of the thing it made legal just because some other jurisdiction made it illegal. Even Professor Jacobs, a strong supporter of marijuana advertising regulations, has observed that, given the Court’s jurisprudence on this issue, “it seems unlikely that it . . . would allow a state that has legalized the sale of marijuana to regulate by suppressing speech that, according to the Court, consumers very much need and value highly.” 72 As Jacobs points out, the Court’s decision in a 1975 case called Bigelow v. Virginia, which held that the state of Virginia could not prohibit a Virginia newspaper from running an advertisement for a New York abortion referral service because abortion was legal in New York,73 provides some support for this position. It is also worth pointing out, as Jacobs does, that many states, including some that have legalized marijuana for recreational purposes, have their own constitutional free speech provisions that would protect marijuana advertising even if the Central Hudson “illegality” doctrine would leave marijuana businesses out of luck under the federal Constitution.74

if you ca n s e l l i t, w h y ca n ’ t y o u a d v e rt i s e i t ? Even if all state laws restricting cannabis advertising were constitutional, many of them should still be repealed (and not copied by newly legalizing states), partially for the reasons that the Court has given for protecting advertising generally, and partially for reasons specific to the cannabis context. In the next few pages, I analyze these restrictions using the criteria for evaluating marijuana policy choices set out in chapter 2 and explain why, with the exception of laws truly aimed at protecting children (prohib-

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iting the use of cartoons and such), states should let cannabis businesses advertise freely. To begin with, it’s worth noting that public health is the only criterion that weed advertising restrictions have going for them, even potentially. It seems fair to assume, based on common sense and the studies linking advertising and use, that more advertisements for marijuana, particularly if they are less constrained and more freewheeling than those allowed under current law, will stimulate demand for weed products, increase the use of those products, and lead to more public health harms, including probably more psychological problems among young people and additional accidents from inebriated driving. Even assuming that all this is true, however, more weed advertising may also bring about several public health benefits that need to be considered when evaluating the net public health effects of liberalizing weed advertising. For one thing, if—as Elizabeth D’Amico, the clinical psychologist who authored the RAND study on marijuana advertising, observed—teenagers switch from alcohol to cannabis as a result of cannabis advertising, then we would need to count all the public health gains from decreased alcohol use as one of the key results of more marijuana advertising.75 Moreover, as I’ve mentioned before, marijuana itself provides health benefits for many people, everything from reduced stress and anxiety to better sleep and reduced pain, and so increased marijuana use resulting from more and better advertising may bring about notable public health gains in terms of a betterrested, less anxious, and more pain-free society. Finally, and critically, advertisements for legal marijuana products may very well lead users and potential users away from the illicit market with all of its dangers and toward the regulated market, which is far safer. As California Assemblymember Bill Quirk has explained when arguing in support of a bill that would authorize cannabis billboards on most parts of California’s highway system, “[allowing marijuana billboards] is not enticing children, it’s just giving a chance for the legal industry to outperform the illegal industry, which has lower prices and convenient delivery to middle schoolers. We’re much better off with the legal industry and if you want to hobble the industry some more that’s not fine with me.” 76 Quirk believes that the imposition of strict advertising restrictions on cannabis businesses, as journalist Ian Spiegelman puts it, “counteracts the purpose of

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Prop 64 [the California recreational weed law] by giving illicit dealers a further advantage over marketers [who] obey the law.” 77 Thus, liberalizing laws concerning cannabis advertising will likely not only strongly promote one of our key criteria—reducing the illicit market—but will also, by doing so, cut against any public health losses that might accrue from increasing use of weed generally. People may end up using more marijuana, but they will likely get that marijuana from stores where the products have been tested for impurities, labeled and packaged correctly, and sold by trained employees who can guide new users toward responsible consumption. Equity and marijuana advertising is admittedly a tricky issue, but on balance I think that it weighs out in favor of loosening advertising restrictions. It is certainly possible that allowing cannabis businesses greater freedom and flexibility to advertise will give Big Marijuana more power to dominate the market. It is not hard to imagine a Budweiser or McDonald’s version of a cannabis company flooding the internet and the airwaves with commercials for their products, thus possibly crowding out smaller, minority-owned businesses. But this assumes that states (or the feds, if they choose to get involved) allow large multi-state operators to get a foothold in the market in the first place; the best way to discourage Big Weed is to implement control and other restrictions that make it difficult for large corporations to develop market power to begin with, rather than allowing these businesses to develop but then restricting what they can say. In addition, advertising may turn out to be quite critical to the success of smaller cannabis concerns. What good will it do to work so hard to provide equity applicants with license priority, training, assistance, loans, and grants to get started if those businesses don’t then have the opportunity to tell potential customers about themselves and the products they have to offer? Moreover, even if large marijuana companies do end up occupying a significant portion of the market, it might be the case that advertising will become more important for smaller, minority-owned companies, which will have to distinguish themselves from the larger businesses to attract customers. Larger corporations with more resources will likely find ways to communicate with customers even if they can’t fully advertise, but smaller businesses may need to use traditional advertising methods to get anyone at all into their stores. Of course, the greatest and clearest benefits to allowing more weed advertising fall under the market freedom and ease of access criteria.

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Here is where the lessons of the Supreme Court’s First Amendment jurisprudence kick in. As the Court has argued, I think rightfully, in its commercial speech line of cases, the freedom to advertise is good for sellers, buyers, and the market as a whole. With regard to sellers, it makes little sense to allow them to produce or sell a product or service but then not allow them to spread the word about what they’re selling. Indeed, the approach is so counterintuitive and silly, I believe that many of the rules adopted by legalizing states fail the basic rationality criterion described in chapter 2. It’s hard even to imagine that someone could exert all of the effort and spend all of the money and take all of the risks necessary to start a business, much less a business in a highly regulated market with exaggerated tax rates and little access to capital, and then not be able to tell potential customers about their products. Frankly, it’s bananas. The problem is made even worse by the fact that many media companies and platforms—think Facebook’s and Twitter’s refusal to run weed ads, or CBS’s decision not to run a medical marijuana ad during the 2019 Super Bowl—are not exactly rolling out the red carpet for marijuana companies.78 From the perspective of potential customers, moreover, the government’s arbitrary restriction on marijuana advertising serves only to deprive people who either need or want cannabis products from important information regarding what products exist, where they can be obtained, what their benefits might be, and how much they cost. This information is particularly important, as the Supreme Court has recognized, for those with limited resources and great need for the relevant products. Recall the Court’s warning about price advertising restrictions from Virginia Board and think about how it might apply to individuals with limited income or mobility who need to use marijuana to treat their ailments: “Those whom the suppression of prescription drug price information hits the hardest are the poor, the sick, and particularly the aged. A disproportionate amount of their income tends to be spent on prescription drugs; yet they are the least able to learn, by shopping from pharmacist to pharmacist, where their scarce dollars are best spent . . . [and] information as to who is charging what . . . could mean the alleviation of physical pain or the enjoyment of basic necessities.” 79 Should an elderly consumer who needs marijuana to treat their glaucoma or pain be

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required to physically visit a half-dozen dispensaries, for instance, just to find out what strains they have available and how much they cost? Allowing free advertising also helps promote a competitive market, a hallmark of the American economy. In almost every industry imaginable, sellers can advertise their products and prices as a way of persuading customers to buy from them instead of from somewhere else, and then customers can make rational decisions about where to shop. Businesses that provide inadequate products or charge excessive prices will be forced to change their behavior or else go under if customers can easily search out alternatives they prefer. The result is better products, lower prices, and more satisfied customers. At a time when states are working so hard just to create marijuana markets where no legal markets existed before, it makes little sense for states to implement advertising restrictions that radically undermine those markets just as they’re getting started. Finally, as commentators on both sides of the issue have recognized, allowing weed companies to advertise their products (subject, of course, to reasonable restrictions intended specifically to protect children) will go a long way toward normalizing the industry and the act of consuming marijuana.80 Right now, advertisements for weed tend to be sober affairs—straightforward proclamations of the existence and location of stores without colors, images, or any other indicator of the joys and benefits of cannabis. Billboards for marijuana stores, more often than not, resemble advertisements for financial services or insurance companies (though conspicuously lacking any semblance of a gecko) rather than anything that might actually bring relief from an ailment or happiness on an otherwise dull or demanding day. If states start allowing weed businesses to run ads that show people using and even (gasp!) enjoying their products, for example, then perhaps people will get the message that marijuana is okay, that it’s not something to fear or worry about but rather something to be joyful about, to use openly if desired, and even to celebrate. •

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One critical step that states can take to demonstrate their careful exuberance for the marijuana markets they themselves are creating would be to

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allow companies far more freedom to advertise their products and services, complete with bright colors, marijuana buds and leaves, and portrayals of people enjoying the drug. Another critical step, as I will discuss in the following chapter, is to protect employees who use weed outside the workplace from being fired (or not hired in the first place) by employers who have not yet jumped on the bandwagon of freedom and joy.

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5

Sure You Can Smoke Weed, but You Might Get Fired for It marijuana use and employment law

Consider the following sad vignettes, if you dare: • In West Palm Beach, Florida, the city’s deputy chief of information

technology, Jason McCarty, lost his $120,000 per year job in February 2021, when he admitted to having smoked marijuana one night before work for insomnia and anxiety stemming from his elderly mother’s severe illness.1

• In Philadelphia, Donna Hudnell, an information technology employee

at Thomas Jefferson University, home to the Lambert Center for the Study of Medicinal Cannabis and Hemp, was fired in early 2021 for using marijuana to treat symptoms from chronic back pain and spinal surgery, because she had not gotten around to renewing her medical card at the time she returned to work from medical leave.2

• In late 2020, the chief deputy of the Maricopa County, Arizona,

Attorney’s Office sent an email to the office’s entire staff reminding them that unless they have a valid prescription, the office’s employee policy “prohibits employee use of any controlled substance, including marijuana, while at work or on your own personal time.” 3

• In April 2021, the Brevard County School Board in Florida fired Space

Coast Junior-Senior High School teacher Allison Enright for using marijuana to treat an injury sustained when she was pushed down by a

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student. Enright told the school board: “I want to make it clear. I do not do drugs. I don’t smoke pot. I don’t get high. I take two pills per day,” but to no avail.4 • In 2010, quadriplegic employee Brandon Coats was fired from his job at

Dish Network in Colorado for using cannabis to treat painful muscle spasms brought on by his condition. Coats sued, claiming that his dismissal violated a Colorado law that prohibits employers from firing employees for engaging in “lawful activities” off the employer’s premises, but the Colorado Supreme Court rejected Coats’s challenge on the grounds that since marijuana remained illegal under federal law, using it was not a “lawful activity.” 5

These stories are hardly isolated incidents. The news is filled with stories of people being fired, or not hired in the first place, just because they happened to have used weed outside of work at some point in the past. The databases of legal decisions too are jam-packed with such tales, and although employees have won a few court battles, for the most part employers have prevailed. And these stories reflect only the cases that are actually reported or challenged in court. No data exist, as far as I know, to tell us exactly how many people are fired by employers for marijuana use, much less how many people refrain from using weed because they fear being tested and fired, but the number is no doubt substantial. Employers typically (and rightfully) have significant discretion under the law when deciding whom to hire or fire. Clearly, an employer acts responsibly when taking negative employment action against someone who screws up at work because they are high. And I would also agree that an employer should be able to fire someone who shows up to work high, although if the employee can do the job perfectly well while under the influence of cannabis, it’s not at all clear to me why they should be fired. But should employers be able to fire or not hire someone, or demote someone or dock someone’s pay, simply because the employee used cannabis during nonworking hours or participates in a state’s medical program or tests positive for having used weed (which, as we will see, does not at all mean they were high at the time of the test)? It should be no surprise, by this point in the book, to learn that my answer to these latter questions is an emphatic (note the italics and exclamation point) no! Allowing employers to fire or not hire someone just

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because the person has used cannabis, even quite recently, is irrational, detrimental to public health, and contrary to the entire purpose of legalization in the first place. It is a core feature of our perverse regime of “grudging toleration” and should be rejected. In the rest of the chapter, I will first describe how employers and employees have clashed in court over whether employers can fire employees for the medical use of marijuana; the outcomes of these cases are mixed and typically depend on how courts have interpreted the specific language of state employment statutes. Next, I’ll turn to the recreational marijuana context and explain how, with the exception of a very few states and cities that have enacted policies to protect users, employees who use weed for nonmedical reasons are generally out of luck. Finally, I will use the criteria developed in chapter 2 to evaluate state laws that allow employers to fire employees for off-site cannabis use and argue that these laws represent terrible policy. States should follow the example of those few jurisdictions that get it right and pass laws to protect employees who use Satan’s spinach when they are not at work.

getti n g f i r e d f o r u s i n g t h e w r o n g medic i n e : t h at ’s r e a l n i c e ! Before getting into the cases that have pitted heartless employers against unlucky medical weed users, a preliminary observation is in order. It is critical to understand that unlike alcohol, which is water soluble and whose concentration in the bloodstream declines regularly and predictably over a relatively short period, THC is fat soluble and sticks around in the human body for weeks after it is consumed. As a result, testing for THC is notoriously difficult—a test can show whether a person has consumed THC at some point in the past few weeks, but it cannot, at least at the present level of technological development, reveal when someone has imbibed or whether they are currently under the influence of the drug’s psychoactive effects.6 As a result, a positive test for THC tells the employer nothing about whether an employee was high at the time of the test or while they were working. As we will see in the next chapter, this also poses huge problems for determining whether someone has been driving under the influence of marijuana.

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Employees who have been fired for using medical marijuana in states with medical programs (from here on in, assume that when I say “fired” I mean fired or not hired in the first place or demoted, or that they had some other negative employment action taken against them) have relied on a variety of theories to challenge their employers, and their success has depended on the type of statutory protection, if any, that the state provides for workers, as well as whether courts in the state have been sympathetic to their claims. Some states do protect medical marijuana users, either through their specific medical marijuana statutes or through their statutes protecting people with disabilities (i.e., state analogues to the Americans with Disabilities Act—which, of course, as a federal statute, is useless to employees who are fired for using weed). Most states with medical programs, however, still allow employers to fire employees for testing positive for marijuana. Employees have had the most success in states where the medical marijuana statute itself provides employment protection for patients. A dozen or so states have laws like this, including Connecticut, Delaware, and Minnesota.7 Rhode Island’s simple statute is a good example; it provides that “no school, employer, or landlord may refuse to enroll, employ, or lease to, or otherwise penalize, a person solely for his or her status as a [medical] cardholder.” 8 Although employers in states with statutes like this have tried to argue that federal law preempts them, courts have unanimously rejected these arguments on the basis that the federal Controlled Substances Act does not address employment issues at all. A federal district judge explained in a case from Connecticut, for instance: “Given that the CSA nowhere prohibits employers from hiring applicants who may be engaged in illegal drug use, defendant has not established the sort of ‘positive conflict’ between [the Connecticut Medical Marijuana statute] and the CSA that is required for preemption under the very terms of the CSA. . . . Nor does any tension between the [state statute] and the CSA rise to the level of the ‘sharp’ conflict required to establish obstacle preemption under the case law.” 9 A case from Arizona exemplifies how statutory protections like these work in practice. Carole Whitmire had worked at two different Walmarts in Arizona for eight years, first as a cashier in the town of Show Low and then, following a promotion, as a customer service supervisor in both

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Show Low and Taylor, Arizona. At some point during her employment, Whitmire started using marijuana at home just before bed to help her sleep and relieve chronic pain stemming from an earlier shoulder injury. One day while working in the Taylor store, a bag of ice fell on Whitmire’s wrist while she was leveling the bags in the ice machine. The next day, after she told a personnel director named Debra Vaughn that her wrist still hurt, Vaughn directed her, pursuant to corporate policy, to visit an urgent care clinic to get her wrist examined and to have her urine tested for drugs. Naturally, Whitmire’s drug test turned up positive, and after Vaughn stated in a signed declaration that “upon reasonable belief, Plaintiff ’s . . . positive test result for marijuana indicated that she was impaired by marijuana during her shift that same day,” 10 Whitmire was terminated. Whitmire challenged her termination as violating Arizona’s medical marijuana statute, which provides that “unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon . . . [a] registered qualifying patient’s positive drug test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.” 11 Given the language of the statute, Walmart’s entire case turned on Debra Vaughn’s declaration that Whitmire’s positive test demonstrated that she had been high while working. The federal district court that heard the case, however, did not buy the company’s claim. Testifying in federal court to the link between a positive test and actual inebriation requires someone to be an expert, and, as the court found, Vaughn was no such thing. “Defendant has not provided Ms. Vaughn’s curriculum vitae nor any indication that Ms. Vaughn has the requisite ‘knowledge, skill, experience, training, or education’ to render opinions regarding the results of Plaintiff ’s drug test,” 12 the court wrote. It continued: “The Court is not satisfied that such a human resource professional is qualified as an expert capable of interpreting Plaintiff ’s drug test results or at all qualified to render an opinion as to whether the level of metabolites present in Plaintiff ’s urine screen indicate she was impaired at work.” 13 With no

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other evidence to show that Whitmire was in fact high at work, the court issued a summary judgment order in her favor. Employees have had far less success in states where the medical marijuana statute fails to provide explicit protection to employees but instead contains language providing that patients may not be subject to penalties or sanctions or be deprived of any “right or privilege,” or some similar formulation. Some state medical marijuana statutes have language like this in them, but they’ve never been interpreted by courts to help patients who have been fired for using weed. For instance, in another case involving Walmart, this time in Michigan, an employee named Joseph Casias was fired after five years of employment when he tested positive for marijuana, which he was using, away from work premises and pursuant to Michigan’s medical marijuana program, to treat ongoing pain from sinus and brain cancer.14 Casias sued under Michigan’s medical statute, which provides that “a qualified patient [shall not be] denied any right or privilege, including but not limited to, civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marijuana in accordance with this act.” 15 The key language in the statute is the phrase “by a business or occupational or professional licensing board or bureau.” The problem is a classic one of statutory interpretation. Does the word business stand alone in the phrase, or does it, like the words occupational and professional, modify licensing board or bureau? Casias contended that business stands alone in the phrase—arguing that, since Walmart is a business, it was prohibited by the statute from taking disciplinary action against him—but the court agreed with Walmart that the word modified licensing board or bureau.16 Interpreted this way, the statute only prohibits business licensing bureaus, and not businesses themselves, from taking disciplinary action against medical marijuana patients, and so Casias could not avail himself of the statute’s protection. This is probably the correct interpretation of the statute; the problem for Casias was not really that the court read the statute in its natural manner, but rather that the statute was written as it was in the first place. Fired patients have also had no luck invoking so-called “lawful activities” statutes like the one at issue in Brandon Coats’s case in Colorado. The statute there provides that “it shall be a discriminatory or unfair employment

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practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours.” 17 Coats was a quadriplegic who had worked for Dish Network as a telephone customer service representative for three years before testing positive for marijuana, which he used to treat painful muscle spasms resulting from his condition.18 According to Coats, the drug “was like a miracle” for him.19 Coats was about as sympathetic a plaintiff as one can imagine. As Coats’s lawyer Michael Evans told a local news station, “I firmly believe that if Brandon can’t win, I’m not sure who can.”20 Coats, of course, lost. The Colorado Supreme Court, in its brief, dissent-free 2015 opinion in Coats v. Dish Network, Inc., dispatched Coats’s claim with little fanfare. The court’s reasoning was as straightforward as it was myopic and unforgiving. According to Justice Allison Eid’s opinion, the question came down simply to the “commonly accepted and understood meaning” of the word lawful.21 Coats and his lawyer had argued that lawful in the statute should be read to mean lawful under state law, but the court disagreed: “We do not read the term ‘lawful’ to be so restrictive. Nothing in the language of the statute limits the term ‘lawful’ to state law. Instead, the term is used in its general, unrestricted sense, indicating that a ‘lawful’ activity is that which complies with applicable ‘law,’ including state and federal law.”22 Amazingly, but not surprisingly, Dish Network celebrated the decision, putting out a statement saying, “We are pleased with the outcome of the decision today. As a national employer, DISH remains committed to a drug-free workplace and compliance with federal law.”23 Karen Harned, executive director of the National Federation of Independent Business’s Small Business Legal Center, ridiculously agreed: “Small-business owners rely on drug policies and use them as a crucial tool to protect themselves, their employees and customers, so we are extremely happy the Colorado Supreme Court ruled in Dish Network’s favor. Many employers who use these policies do it because of the safety sensitivity of the job.”24 Finally, in cases where employees have relied on states’ general disability protection statutes, rather than any language contained in a marijuana-specific statute, results have again been mixed, with both the Oregon and California supreme courts rejecting such claims and the Massachusetts Supreme Judicial Court upholding them. The Oregon case

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got tripped up on preemption issues and consequently went on for nearly fifty impenetrable pages,25 but the California case is far simpler to explain.26 Gary Ross used marijuana to treat back problems caused by injuries he received while serving in the U.S. Air Force because other medications were not working. When he got a job as a lead systems administrator at a telecom company called Raging-Wire Telecommunications, the company made him take a drug test pursuant to corporate policy. Ross told his supervisors that he would test positive for THC, and he did. He explained that he needed the drug and that he had worked for years in much the same type of position while using weed without any problem, but the CEO of the company decided to fire Ross anyway.27 Without any other plausible options, Ross sued his former employer under California’s general statute prohibiting discrimination in the workplace on the basis of disability. The statute, which is fairly typical of this type of law, provides that “[it] shall be an unlawful employment practice . . . (a) for an employer, because of the . . . physical disability [or] medical condition . . . of any person, to refuse to hire or employ the person . . . or to bar or to discharge the person from employment.”28 The California law works much the same way as the Americans with Disabilities Act and other states’ disability statutes. If an employee with a disability seeks an accommodation, the employer is typically required to work together with the employee to try and find a reasonable accommodation that would not be overly burdensome to the employer. Thus, for instance, if an employee is a diabetic and needs to take insulin shots during work, the employer is likely to be required to give the employee periodic short breaks so that the latter has time to perform the required injections.29 Ross essentially argued that his employer should have accommodated his use of marijuana at home to treat his disability by “waiving its policy requiring a negative drug test of new employees.” 30 The California Supreme Court, in a split opinion, rejected Ross’s argument by simply asserting that an employer cannot be required to accommodate an employee’s use of drugs that are illegal under federal law. Nearly the entire relevant analysis was contained in the following two sentences of the majority opinion: “The [California disability statute] does not require employers to accommodate the use of illegal drugs. The point is perhaps too obvious to have generated appellate litigation.” 31 It is true

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that no appellate (or other) court had previously addressed the issue, but obviousness is not the only possible reason for that omission. Another possibility might have been that there had never previously been a situation where a medicine necessary for an employee’s ability to work was legal under state law but illegal under federal law, and so nobody had ever raised the issue before. Calling the majority’s decision “conspicuously lacking in compassion,” 32 the dissent pointed out that “nothing in the text of [the statute] or California decisional law supports the proposition that a requested accommodation can never be deemed reasonable if it involves off-duty conduct by the employee away from the jobsite that is criminal under federal law, even though that same conduct is expressly protected from criminal sanction under state law.” 33 The dissent further explained the “cruel choice” that the majority’s decision now requires marijuana patients in the state to make: The majority’s decision leaves many Californians with serious illnesses just two options: continue receiving the benefits of marijuana use “in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or . . . other illness” . . . and become unemployed, giving up what may be their only source of income, or continue in their employment, discontinue marijuana treatment, and try to endure their chronic pain or other condition for which marijuana may provide the only relief. Surely this cruel choice is not what California voters intended when they enacted the state Compassionate Use [of marijuana] Act.34

Fortunately, Massachusetts marijuana patients need not confront any similar cruel choice. That’s because of the 2017 Massachusetts Supreme Judicial Court decision in Barbuto v. Advantage Sales and Marketing, LLC, a landmark opinion recognizing that cannabis use is a legitimate method for treating certain disabilities and must be accommodated under state law.35 Cristina Barbuto used marijuana in small amounts, a few times a week when at home in the evenings, to treat her debilitating Crohn’s disease. Prior to using weed, Barbuto had “little or no appetite” and could not maintain a healthy weight; using weed allowed her to put on fifteen pounds and stay healthy.36 When her new employer, Advantage Sales and Marketing, offered Barbuto an entry-level position and required her to take a drug test, Barbuto of course tested positive, as she told her

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employer she would. After one day of work, the company’s human resources representative told Barbuto that she was fired, adding that “we follow federal law, not state law.” 37 Barbuto sued under a Massachusetts law that was very similar to the California law that Ross used, but unlike Ross, Barbuto won her case. As in the Ross case, the employer that fired Barbuto argued that because marijuana is federally illegal, “an accommodation that would permit the plaintiff to continue to be treated with medical marijuana is per se unreasonable,” 38 but this time the court rejected the claim. “Where, in the opinion of the employee’s physician, medical marijuana is the most effective medication for the employee’s debilitating medical condition, and where any alternative medication whose use would be permitted by the employer’s drug policy would be less effective,” the court wrote, “an exception to an employer’s drug policy to permit its use is a facially reasonable accommodation.” 39 The employer also argued, and in fact spent nearly all its time during oral argument pursuing the point, that even if it was required to accommodate Barbuto’s disability, namely her Crohn’s disease, that did not mean that it was required to accommodate her treatment, whatever that might be. When the justices of the court realized what the employer was arguing, at least a couple looked deeply perplexed.40 Would this mean that the employer of a paraplegic employee in a wheelchair would have to somehow accommodate the employee’s lack of use of their legs but not the wheelchair itself? The court rejected the argument fairly swiftly.41 So, that’s the law as it currently stands regarding whether an employer can fire an employee for using medical marijuana under a state medical cannabis program. In sum, the default rule is that an employer can fire an employee for any reason whatsoever, including their drug use outside of work. If an employee is going to have any chance of winning a challenge to their employer’s decision to fire them, then the employee is going to have to invoke some state statute that they think protects them. There are four types of statutes that might potentially work for a fired employee (actually there are five, but I will talk about the fifth in the next section, for reasons that will become clear); any particular state might have one of those statutes on its books or some of them or none of them. The categories are (1) medical marijuana statutes that explicitly protect employees from being fired for using medical marijuana pursuant to state law; (2) medical

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marijuana statutes that simply protect medical marijuana patients from losing any sort of “right or privilege”; (3) “lawful activity” statutes that protect employees from being fired for partaking in a legal activity outside of work; and (4) general statutes that protect employees from being discriminated against because of a disability. As I’ve shown here, category 1 provides the clearest protection for weed-using employees. Categories 2 and 3 have not yet resulted in any wins for employees. And category 4 has resulted in split decisions, with at least one state finding employees protected by its disability protection statute and other states finding exactly the opposite. On the whole, then, unless a medical marijuana statute itself prohibits employers from firing employees for using medical marijuana, something that exists in about ten or so states, then for the most part it is unlikely that a fired employee will have any remedy against their employer.

and t h e s i t uat i o n i s w o r s e f o r recre at i o na l u s e r s ! If you think medical users of marijuana have it bad, wait until you hear about recreational users. Unlike with medical marijuana, most states have no laws that could even potentially protect recreational users from being fired for using weed outside of work. “Lawful activity” statutes like the one in Colorado could be applied in theory, but as we’ve seen, without any explicit reference to cannabis, those statutes haven’t been successful even in the medical context,42 much less the recreational one, where plaintiffs would presumably be far less sympathetic. It’s at least theoretically possible for someone who uses marijuana outside of the state’s medical program to try and claim they need the drug to treat a disability, but given that all states where weed is legal for recreational uses also have medical programs, it seems unlikely that any court would rule in favor of someone who wants an employer to accommodate their disability but refuses to participate in the state’s medical program. So unless a state has enacted a law specifically meant to protect recreational users, weed-hating employers will be able to fire their stoner employees whenever they want, even if those employees are only getting high on their own time and property. There are a couple of nuggets of

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good news, however. The first is that a few states and some scattered large cities have indeed passed laws to protect recreational users. At the moment I’m writing this, in early 2022, four states have enacted such statutes. Nevada was the first; its statute went into effect on January 1, 2020 (actually, Maine also had such a law that was set to go into effect until the legislature repealed it in 2017).43 The Nevada law bars employers from refusing to hire an employee because of a pre-employment positive marijuana test. Like all of these statutes, the law has a number of exceptions for specific positions that are closely related to public safety, such as firefighters, emergency personnel, and positions that require drug testing under federal law. The Nevada statute also provides that employees who test positive for marijuana during their first month of employment may obtain a second test, which they can then use to challenge the initial finding.44 Governor Steve Sisolak, who signed the bill, announced on Twitter: “As our legal cannabis industry continues to flourish, it’s important to ensure that the door of economic opportunity remains open for all Nevadans. That’s why I was proud to sign this bill into law, which contains commonsense exceptions for public safety and transportation professionals.” 45 The tweet received 112 “likes.” The other three states that have enacted protection for employees who use marijuana recreationally have all gone further than Nevada, though the statutes are all slightly different. Montana amended its preexisting “lawful activity” statute so that it covers the use of marijuana as one of the legal activities that are included in its protective scope. The law says that “an employer may not refuse to employ or license and may not discriminate against an individual with respect to compensation, promotion, or the terms, conditions, or privileges of employment because the individual legally uses a lawful product off the employer’s premises during nonworking hours.” 46 New York, on the other hand, amended its labor law to protect recreational users by prohibiting employers from firing employees for using cannabis outside of business hours, so long as the employee did not use any of the employer’s property or equipment while getting high.47 New Jersey’s law is much the same as New York’s, except that it goes one step beyond the latter by also prohibiting employers who suspect that an employee is high at work from dismissing that employee solely on the basis of a test; instead, the positive test must be accompanied by a finding

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of actual impairment made by a so-called Workplace Impairment Recognition Expert (or WIRE) following a physical examination of the employee.48 Several large cities have also gotten into the game by passing local ordinances to protect recreational users. New York City made headlines in early 2019 when it enacted a law banning employers from requiring prospective employees to pass a marijuana screening test as a condition of employment.49 Philadelphia’s law, which went into effect at the beginning of 2022, states that, subject to certain common exceptions, “it shall be an unlawful employment practice for an employer, labor organization, employment agency or agent thereof to require a prospective employee to submit to testing for the presence of marijuana in such prospective employee’s system as a condition of employment.” 50 Other cities, such as Washington, D.C., and Atlanta, have made it clear that passing a marijuana test will not be a prerequisite for city employment. As Atlanta mayor Keisha Lance Bottoms put it upon issuing her city’s executive order, such tests merely place “outdated and costly barriers to onboarding new talent in the city of Atlanta.” 51 The second nugget of good news for recreational users is that, given the increasingly common use of marijuana and the difficulty of finding qualified employees willing to work for crappy pay and lame benefits, some employers, even large ones, have decided to stop testing employees and potential employees for marijuana use.52 The trend started late in the 2010s and has continued to grow stronger since then. An early example is Excellence Health, Inc., a six-thousand-employee health care company in Nevada, which stopped testing employees for marijuana in 2016, explaining: “We don’t care what people do in their free time. We want to help these people, instead of saying ‘Hey, you can’t work for us because you used a substance.’ ” 53 A corporate employment lawyer who has counseled businesses on the issue put it like this: “We assume that a certain level of employees are going to be partaking on the weekends. We don’t care. We’re going to exclude a whole group of people, and we desperately need workers.” 54 The trend picked up steam in 2021 when Amazon announced a change to its testing policy. Dave Clark, CEO of Amazon Worldwide Consumer, explained: “In the past, like many employers, we’ve disqualified people from working at Amazon if they tested positive for marijuana

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use. However, given where state laws are moving across the U.S., we’ve changed course. We will no longer include marijuana in our comprehensive drug screening program for any positions not regulated by the Department of Transportation and will instead treat it the same as alcohol use.” 55 Amazon’s new policy was greeted warmly by weed activists, such as Paul Armentano, NORML’s deputy director, who called the shift “a reflection of today’s changing cultural landscape.” 56 Many other large companies, from Caesars Entertainment to Apple, have also mostly stopped testing their employees for cannabis.57 Of course, for most employers, and in most states, marijuana testing remains commonplace. Quest Diagnostics, one of the nation’s largest testing services, reported that in 2020 it analyzed the results of nine million employee drug tests (the positivity rate was about 4 percent among typical employees and about 2 percent among the “safety-sensitive workforce”).58 According to one source, 90 percent of Fortune 500 companies continued to test their employees for drugs as of 2020,59 and, as the New York Times reported in 2019, 99 percent of all drug tests in the United States include marijuana among the drugs that are tested for.60 Most companies, presumably, are on the same page as Fiat Chrysler Automobiles in Michigan, which told the Times that it tests all of its employees and that “a positive test for marijuana use will disqualify a candidate.” 61

enou g h a l r e a d y Why is it that businesses test their employees for marijuana in the first place? The main reason generally given is to protect the safety of employees and customers. For example, Jenny Burke, who serves as the senior director of impairment practice at the National Safety Council, has explained that “impairment, whether it be by drugs, alcohol, fatigue or stress, decreases the safety of the workforce. . . . [A]s states and the federal government consider changes to the legality of marijuana, we can’t take for granted that they also understand the impairing impact of THC. The safety of people who share the roadways and workplaces with impaired people needs to be a priority.” 62 A second reason would likely be to maximize revenue, the assumption being that people who use

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marijuana will be inefficient, make mistakes, and be otherwise less than ideally productive. Finally, for at least some business owners, it is likely that a “drug-free workplace” policy is based on a moral objection of some kind to the use of drugs and a desire to express that objection through company policy—a rationale that is at least akin to the concern that many marijuana legalization opponents have about normalizing the drug. Of course, the precise question at issue here is not just why businesses test employees for weed, but rather why states allow businesses to test their employees for weed. To start with, it is probably fair to say that the fundamental attitude of both the federal and state governments in the United States with respect to the economy is to allow a free market to flourish on its own; the default position for many, then, is to allow businesses to do what they want, unless there is some compelling reason to insist on government regulation. For some government officials, legislators, and voters, this might be all the reason they need not to want to interfere with private employment decisions. Indeed, it is easy to imagine that many government officials who value market freedom may be completely indifferent to marijuana use by employees, but may nonetheless think that the government has no good reason to intervene on behalf of workers who like to light up a doobie on the weekend. For other government officials, the motivation may be more substantive, paralleling the reasons why businesses themselves test for cannabis—to protect public health and safety, perhaps to promote economic growth in some sense through safer and more productive workplaces, and to discourage the normalization of marijuana in the economy and society. On this latter point, consider how one marijuana legalization proponent explained why Arizona’s Proposition 207, legalizing recreational weed use, did not contain employment protection for users: “I think there were a number of moderates that ended up voting for Prop 207 and were very concerned about the marijuana—how marijuana would become pervasive in their lives, employees coming to work high. It’s something they were okay with if it was more out of sight, out of mind.” 63 All of these rationales for letting employers fire employees who have used weed are extremely weak. First of all, it is crucial to remember that these rationales are being used to justify firing employees for off-premises use. Everyone agrees that employers should have the freedom to prohibit

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use of marijuana on work premises and to fire employees who are intoxicated on the job. So the real question is whether the public health and safety, market freedom, and anti-normalization rationales justify allowing employers to fire employees who are not high at work but who do get high on their own time. As I’ve already explained, I believe that normalization is a positive criterion rather than a negative one, so I won’t rehash those arguments here and will focus on public safety and market freedom. The public health and safety benefits of allowing employers to fire employees for marijuana use seem to me to be exceptionally modest. Most public safety risks posed by high employees can be addressed by firing those employees for being high on the job. As a result, the public safety rationale for letting employers fire employees for testing positive must be based on the notion that not all instances of on-premises intoxication will be detected, and so some prophylactic firing must be allowed as a way of decreasing the chances that someone who likes to use marijuana will come to work high, evade detection, and then do something dangerous. For some highly safety-sensitive positions this may be justified (even I would prefer that pilots and train conductors and nuclear reactor safety chiefs stay pretty far away from weed, and the exceptions that are built into all employment protection statutes reflect this concern), but it’s hard to imagine that a whole lot of public safety benefits are being achieved by making sure that the average data entry clerk, telemarketer, information technology officer, teacher, or customer service worker never touches marijuana in the evenings or on the weekends or on vacation. As NORML’s Paul Armentano puts it, marijuana testing, like so much about the drug wars, is rooted in irrational fears and prejudice rather than science or data: “Suspicionless marijuana testing in the workplace, such as preemployment drug screening, is not now, nor has it ever been, an evidencebased policy. Rather, this discriminatory practice is a holdover from the zeitgeist of the 1980s ‘war on drugs.’ ” 64 This leaves us with market freedom as the sole significant argument for letting employers do what they want with weed-using employees, although of course the application of that criterion here differs a bit from the market freedom criterion as described in chapter 2, since the businesses at issue are not themselves cannabis companies. The question becomes: Does the importance of market freedom outweigh the disadvantages of

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allowing businesses to fire employees who use weed off company time? I’ll get to those disadvantages in a moment, but the first thing worth recalling is that different people put different weight on the importance of market freedom. True economic libertarians will weigh this criterion quite highly, while those who believe that government regulation is often justified will give it much less weight. As I’ve discussed above, although I value individual freedom (such as the freedom to use weed without getting fired) quite highly and reject government efforts to regulate vice on paternalistic grounds, I don’t value market freedom particularly highly. Thus, it doesn’t take a whole lot of justification for me to favor government regulation of business activities, including regulation of whom those businesses can and cannot fire. As I’ll explain, though, the advantages to protecting employees who use cannabis when at home are so compelling that even those who deeply value market freedom should conclude that, in this instance, the freedom is not worth its costs. Employing the criteria set out in chapter 2 (or at least close cousins of those criteria), the argument for prohibiting businesses from firing employees who use marijuana or get high when they are not at work is overwhelming. At least five of those criteria cut in favor of protecting employees: public health, ease of access, rationality, equity, and normalization. Although public health and safety are typically put forward as a reason to allow employers to fire employees who use weed, in fact, given the medical benefits of marijuana, encouraging or forcing employees who need the drug to forgo using it so that they can keep their job actually undermines public health. This is true not only for the obvious cases, like those of Brandon Coats and Cristina Barbuto, but also for all those people who may not be in a medical program or even perceive their use as medical, but who use cannabis to help them sleep better or to ease their anxiety, stress, or depression. Prohibiting employees from using marijuana on their own time also critically undermines their ease of access, in the sense that they no longer have the freedom to purchase marijuana products of any kind if they would like to keep their jobs. The dissent in the Ross case from California got it exactly right—making an employee choose between keeping their job and exercising their freedom to purchase a drug that they need for medical reasons, even what some might call “soft” medical reasons, is truly a cruel choice.65 Testing employees for off-premises use of marijuana also

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borders on the irrational, given that companies can address the potential harms that marijuana might impose on their businesses by prohibiting on-premises use or intoxication. And while letting employers do irrational things in the name of market freedom is perhaps not itself irrational, it comes fairly close. On the equity front, while I’m not aware of any data showing that racial minorities are fired for marijuana use at a higher rate than whites, it would certainly surprise nobody if that turned out to be the case, and, in any event, given the incredible race-based wealth disparities that continue to exist in the United States, any policy that puts employees at risk of being fired will inevitably fall far more heavily on people of color than on anybody else. Last, but certainly not least, allowing employers to fire employees for using weed on their own time radically undermines the normalization of the drug. Indeed, that may ultimately be the whole point of firing weed users (and allowing the firing of weed users) in the first place. Employees can generally engage in nearly any other noncriminal activity outside of work premises and hours without worrying about being tested and fired for it. Want to drink a fifth of whisky every night? No problem! Watch some hardcore porn while you’re drinking? Have at it! Go out with your buddies to shoot bunny rabbits? Go for it! Just don’t smoke a joint, or you may not have a job come Monday. The situation is both ridiculous and deeply harmful. States should get on board the “careful exuberance” train, follow states like New York and New Jersey, and protect employees who simply want to use their drug of choice when they are away from the office. •

•

•

•

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Speaking of using marijuana away from the office, where should people who like weed actually use it? As we’ll soon see, this question is not nearly as easy to answer as you might think. In the next chapter, I’ll explain why states absolutely must start authorizing the creation of social consumption spaces for people to enjoy marijuana in the company of fellow imbibers if we ever hope to get out of the grudging toleration quagmire in which we currently find ourselves.

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Weed, Weed Everywhere, but Not a Place to Smoke the social consumption problem

Imagine you’re someone who lives in a state where marijuana is not yet legal for recreational use. Maybe you’ve never imbibed but are interested in, even excited about, trying weed. Or perhaps you occasionally smoke some illicit-market stuff but would like to give the legal stuff a whirl. Maybe you remember how you used to smoke in college and would like to revisit those days a bit, if only the stuff were legal in your state. You’ve thought about this a lot, and then one day you learn that your profession’s annual conference is being held in Seattle this year. You figure it’s your perfect opportunity to spark up a (mostly) legal j-bird! You get off the plane at Sea-Tac, head right for a retail store, and pick up two delicioussmelling pre-rolls. After a long day of boring panels, bad coffee, and small talk, you return to your hotel, looking forward to seeing what all the hype is about with legal cannabis. And that’s when you realize that although you’ve bought these two great joints, you don’t have anywhere to smoke them. The hotel doesn’t let people smoke in their rooms, obviously, and there’s nowhere else to go where smoking is legal. You could go light up in a park or an alley somewhere, but Washington, like most every other state where weed is legal, prohibits “public use” of the drug. Maybe you’re white, and so you figure that the cops aren’t likely to care much if you light up on 134

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a park bench, but then you think: Why should I have to break the law to do something that is supposed to be legal? The whole point was to smoke some cannabis legally! Why would a state make it legal to grow, sell, and buy marijuana, but then provide no legal place to smoke it? Now imagine that you live in a state where weed is legal and suffer from some awful ailment like cancer or Crohn’s disease. The only thing that makes it possible for you to eat is getting high. Eating a gummy or cookie infused with cannabis doesn’t work for you, but smoking does. Unfortunately, you live in subsidized housing, where using any kind of drug is always illegal. Or maybe you rent from a landlord who doesn’t allow smoking in your unit. Or you’re homeless and spend your nights, if you’re lucky, in a shelter. In other words, you absolutely need marijuana for your health and wellbeing, but again, there’s no place where you can smoke it. To the alley with you! I sure hope you’re not Black, and that it’s finally stopped sleeting. As these examples are meant to illustrate, a hallmark feature of the “grudging toleration” approach to legalizing weed is not providing any place for people to actually use the drug. Only if you have your own house (condos don’t count because many, like mine, have smoke-free policies) can you be sure to have a place to smoke cannabis, and even then, what if you have a house full of kids or a spouse who doesn’t like the smell of weed? Weed may be available everywhere in states that have made it legal, but often there’s nowhere to smoke it. The problem is frustrating and ridiculous at best, discriminatory and cruel at worst. The solution, of course, is for states to allow the creation of public spaces where people can come together in a social setting without stigma or having to hide in an alley to use their recreational drug of choice or the medicine that makes it possible to live their lives. “Social use establishments,” “cannabis consumption areas,” “cannabis cafés,” “cannabis consumption lounges,” “tasting rooms,” “marijuana hospitality establishments”—there are many names used to describe these mostly theoretical places, but unfortunately the number of different names they are known by probably exceeds the number of actual public consumption spaces that currently exist. Most states where weed is legal don’t authorize such spaces at all, and in those that do, all sorts of factors—including excessive local power to prohibit them, distance requirements that make it nearly impossible to find an appropriate space, and burdensome regulations about what these

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establishments can sell, allow, or provide (not to mention COVID-19)— have resulted in very few public consumption spaces being established. In this chapter, I will describe what’s been happening in the states with respect to the creation of social use establishments and explain the various factors that are holding them back. I’ll then argue, using the criteria developed in chapter 2, that the lack of social use establishments raises significant problems of access, equity, normalization, and even, to some extent, public health. Of course, one of the main objections to the creations of social use establishments is the concern that customers will drive home stoned, and so I will also discuss the DUI problem and suggest that although that problem is important and certainly poses some challenges, it should not be used as an excuse for not allowing the creation of social use spaces, which are essential to the continuing vitality of the legalization movement.

socia l u s e i n t h e s tat e s Before getting into exactly what the states have done thus far with regard to social consumption, it is worth observing that states have a variety of different models to choose from if they decide to authorize public spaces for using weed. At least four prominent models have been debated and discussed among policymakers and experts. We might label and describe these as (1) in-store use, where only dispensaries and existing marijuana retail outlets would be authorized to allow customers to try or use the products they’ve just purchased; (2) BYOC spaces, where customers bring their own cannabis to use in a public, comfortable setting; (3) Amsterdamstyle cafés, much like bars for alcohol, where customers could buy cannabis to smoke, vape, or eat on the premises from trained budtenders; and (4) add-ons to existing businesses, which might involve granting licenses to sell and allow the use of marijuana in places like movie theaters, yoga studios, and bookstores. Each of these models comes with its own advantages and challenges. Later in the chapter, I’ll recommend that states opt for broader, more ambitious licenses, including ones for Amsterdam-style cafés and add-ons to existing businesses.

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In addition to these basic models, states will also have to address a number of other important questions when determining exactly what kinds of licenses they want to offer. For example, should smoking be allowed, or should customers be limited to vaping or eating cannabis? Smoking is easily the most common, social, and sensual way to consume marijuana, but of course it’s unhealthy and raises the problem of how to protect employees and perhaps other customers from inhaling secondhand smoke. Another big issue is whether to allow cannabis social use establishments to also sell alcohol, food, and/or tobacco. Thus far, most discussions have assumed they would not be allowed to sell alcohol, on the theory that two intoxicants are more dangerous than one; the theory is almost certainly correct, but that doesn’t necessarily mean that both drugs shouldn’t be sold and used at the same place. Other questions include whether to allow customers to bring home cannabis they haven’t consumed (a “to go bag” for weed, in other words), how to dissuade customers from driving home stoned, and what kinds of limits, if any, to place on the quantity and potency of cannabis an establishment is allowed to sell to any one customer. Again, later in the chapter, after I discuss the advantages and possible disadvantages of authorizing social use establishments for marijuana, I’ll provide some thoughts about these issues. Despite the many possibilities available to states for creating public spaces for cannabis consumption, most states have not authorized any of them. Most notably, Washington and Oregon, two of the states where marijuana has been legal for recreational purposes longest, have refused to greenlight any social consumption establishments, with legislators in both states rejecting bills that would have allowed them.1 The biggest hurdle in these states appears to have been opposition to indoor smoking, as Representative Steve Kirby, a Democrat in Washington who sponsored social use legislation there, noted: “This is an idea that will not be without controversy. . . . It’s about the smoking ban as much as it is about the benefits of having some sort of cannabis lounge. . . . The anti-smoking folks are hellbent on stopping the inhaling of anything into your lungs.”2 Oregon state senator Laurie Monnes Anderson, a retired nurse, similarly opposed a social consumption bill in her state, arguing: “We worked so hard to get the [Indoor Clean Air Act] and it’s just really disheartening to think that

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we are going to backtrack.” 3 Other states where social consumption spaces are flatly disallowed include Arizona, Maine, and Vermont. Massachusetts theoretically offers licenses for social consumption establishments, but none has ever been awarded. The battle over these spaces in Massachusetts has a convoluted history. The state’s first set of draft regulations would have created the license type, but under pressure from the governor, the Cannabis Control Commission omitted any mention of them in their final regulations.4 Several years later, in 2019, the commission voted 3–2 to authorize a pilot program where up to twelve cities or towns could opt in to allow social consumption sites, with licenses being available nearly exclusively to equity applicants.5 Due to a linguistic quirk in the state law, however, no process has ever actually existed that would allow a locality to opt in. The legislature has taken some efforts to fix the relevant statute,6 but as I’m writing this in mid-2022, the state remains entirely cannabis café–free. The situation is problematic according to state senator Julian Cyr, who represents Cape Cod in the Massachusetts legislature. “I think of folks getting off the ferry, going to a dispensary and then really being faced with a conundrum that they’re not able to use the substance anyplace legally,” Cyr said. “So, you got a problem of people ducking into alleyways, going to the beach, really creating a nuisance.” 7 Alaska was the first state to authorize social use on a statewide level, in 2019, but the law there only allows already-existing stores and dispensaries to apply for what is known as a “special onsite use endorsement.” 8 According to regulations issued by the state’s Marijuana Control Board, consumption areas must be physically separate from any retail space and must provide sufficient security and ventilation.9 Localities are allowed to ban smoking if they want, and the regulations place rather strict limits on the amount of cannabis that can be sold to any one person in any given day.10 In 2020, two establishments, one in Ketchikan and one in Fairbanks, received special onsite use endorsements, and although the pandemic slowed things down a bit, they were both up and running by late 2021.11 Seemingly following in Alaska’s footsteps, New Jersey’s legalization measure also allows cannabis stores to create “cannabis consumption areas” where customers can consume their purchases, but the state has not, thus far, authorized independent spaces for public consumption.12

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A handful of states have authorized independent social use establishments, but only a few such places have managed to open. New York’s law has not gone into effect as of this writing, but it authorizes the establishment of stand-alone cannabis consumption lounges.13 Michigan has a license category for “Designated Consumption Establishments,” but none have opened yet.14 Illinois’s first social use establishment opened in mid2021 in the town of Sesser, three hundred miles southwest of Chicago (but only one thousand feet east of an ice cream store called The Custard Stand, which I recommend everybody buy stock in immediately), and a sprinkling of others are also opening around the state.15 After a few false starts, Nevada finally enacted a law in June 2021 to create two new license types for “retail lounges” and “independent lounges.” 16 One would expect that Las Vegas will see its share of these places open before too long, but as of mid-2022 the only social use establishment that has opened in the state is the tasting room of a dispensary that sits on Paiute tribal land a few miles north of the Vegas strip.17 Like Nevada, Colorado has flirted with social use establishments for a while, but only recently have a few begun sprouting up around the state. Proposition 64, which legalized recreational cannabis in Colorado, did not contain any authorization for such spaces, and two separate state referenda that would have authorized them were defeated in 2017.18 In the meantime, though, the residents of Denver passed a pilot program in 2016 that allowed neighborhood associations to approve cannabis consumption permits for existing businesses.19 Proposition 300, as it was known, passed with 53 percent of the vote, but because of strict restrictions on where these businesses can be located (not within a thousand feet of a school or several other types of facilities), what they can sell (not cannabis or alcohol, though customers can bring their own weed), and how consumers can use cannabis (not smoking unless outside in an area unviewable by the public), by 2019 only a couple of businesses had received such permits.20 The first licensed pot lounge in the city, The Coffee Joint, provides a space for customers to vape, eat, or drink their own cannabis in a comfortable setting alongside staff members who (according to its website) “share a passion to de-stigmatize cannabis consumption and are available to answer any questions!”21

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The Denver ordinance sunsetted in 2020, but by that time, the state legislature had finally come around and enacted legislation creating two new license types: marijuana tasting rooms, where retail customers can try products they’ve just purchased, and marijuana hospitality establishments, where customers of existing businesses like movie theaters or yoga studios will be able to use cannabis.22 The bill requires local cities and towns to opt in to the program, however, and allows them to prohibit smoking even if they do opt in.23 Thus far, Denver and Colorado Springs have opted in but prohibited smoking, while the enclave of Glendale has gone all in.24 The law became effective only a couple of months before COVID-19 hit, and though some licenses have been issued, it’s not yet clear whether the law will result in a new wave of social consumption sites opening throughout the state. Finally, the one state that can boast of a non-negligible number of social consumption spaces is California. State law allows localities to decide for themselves what they want to do with respect to marijuana cafés and similar types of places, and a few cities—San Francisco and West Hollywood, most notably—have authorized them.25 A few of the places, like San Francisco’s Moe Greens and SPARC, have proven to be quite popular. Those two establishments are quite different and represent at least part of the potential gamut of what social use spaces can look like. According to one writer, SPARC is “strongly focused on helping disadvantaged patients access quality medicines” and is “less like a brewery and more like a Starbucks,” while Moe Greens “feels . . . like a true lounge lounge” where “customers relax amidst a distinctively 1920s vibe.”26

why w e n e e d s o c i a l c o n s um p t i o n e s ta b l i s h m e n t s Perhaps more than any other aspect of the grudging toleration approach to legalizing marijuana, the failure of almost all states thus far to create conditions where social use establishments can flourish is deeply problematic. Lounges or cafés where people can come together and enjoy weed in a safe, social atmosphere are essential if we are going to have a society where marijuana use is considered broadly acceptable and normal. Could you imagine if alcohol were legal, but there were no bars, and alleyways

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were the only place where most people could drink it? Given that booze is nowhere near as important medically as cannabis is to countless people who need it just to live normal, happy lives, the notion that weed users still have to duck into corners to light up, while people drink freely and happily in bars without any social stigma, is unacceptable. Applying the criteria we’ve been developing throughout the book, the refusal of most states to aggressively authorize social use establishments fails the ease of access, equity, and normalization criteria and is even problematic under the illicit market, revenue maximization, rationality, and public health criteria. There are public health risks to the creation of these establishments—and if one doesn’t believe in the normalization of marijuana, then places to use weed socially will of course be problematic—but for those who believe the drug should be treated like alcohol and other recreational choices, the need for social use spaces is clear. The ease of access criterion is the most obvious factor weighing in favor of social consumption establishments. As I’ve already catalogued, several important categories of users face the problem of not having anywhere to use the weed they’ve legally purchased: tourists, the homeless, anyone in subsidized housing, renters or condo owners whose landlords or condo boards don’t allow marijuana use, and homeowners who, for whatever reason, are unable or unwilling to use the drug at home. As one cannabis lounge owner from Oakland put it, the situation “brings up a problem with most of the current cannabis legalization laws: There’s no place to smoke it but home. This means every consumer, including tourists, in a legal market is supposed to figure out how to get or give an invitation to someone’s private home. Awkward.”27 It is true that consumers can generally use cannabis edibles or even a vaping device in their hotel rooms or rental units without getting caught, but while this alleviates the ease of access concern to some degree, it hardly eliminates it. Some people can’t use edibles, and many people strongly prefer to smoke cannabis than to use it any other way. In any event, consumers should not have to break the law, or even a hotel policy or lease, just to enjoy a product that the state has made otherwise entirely legal. The equity criterion is a close second to ease of access when it comes to why states must encourage the creation of social consumption spaces. The two criteria are closely related in this context, because the harms

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stemming from a lack of access will inevitably fall more heavily on those with fewer resources, who are disproportionately likely to be people of color. Wealthy people who own their own large houses with sprawling lawns will nearly always have a place to use cannabis however they choose, but poorer folks who rent rather than own, who live in subsidized housing, or who have nowhere at all to live are unlikely to have any legal place to use their weed. I vividly remember the moment, during a community meeting I attended in Roxbury at the time the Massachusetts Cannabis Control Commission was finalizing its initial regulations, when a veteran stood up and implored the commission members who were present to allow social consumption. He told them that he lived in subsidized housing, had a bad leg, and didn’t feel comfortable standing outside in the frigid Boston winter to use the only drug that could provide him relief from his varied ailments. It was heartbreaking. States fail their most needy citizens by not giving them somewhere to smoke that is both safe and legal. Third, social use establishments are necessary if cannabis use is ever going to be considered normal in the United States. This theme is pervasive in any discussion of social use. Consider the following statements by those who support the development of cannabis lounges and other public spaces for using weed: • “Cannabis prohibition isn’t dead yet, but it’s safe to say it’s dying. And

nothing announces the funeral louder or more happily than the emergence of cannabis consumption lounges and social use venues.”28

• “Between all the excitement around sweeping legalization measures and

a focus on ensuring an equitable and reparative industry, many seem to have forgotten an important element that could lead towards further social acceptance of cannabis consumption: safe spaces to consume.”29

• “Licensed social consumption lounges with comfortable décor and a

friendly, pub-like ambience could catapult cannabis into the mainstream and attract new, canna-curious users who may visit on their own or with more experienced friends. . . . Widespread adult-use legalization allowing for the sale and private consumption of cannabis has been a great first step, but for the market and the acceptance of cannabis to be solidified, legal social consumption lounges need to be the new norm.” 30

• “There has been widespread excitement in some states due to the

proposals for new cannabis lounges. These lounges will allow people from all spheres of life to congregate in a space to talk and consume

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cannabis products—just like restaurants and bars. . . . Cannabis lounges may just be the best element to make cannabis socially acceptable by all age groups in the country. It will go a long way in ensuring an equitable industry that caters to all.” 31

Although access, equity, and normalization are the three criteria that weigh most heavily in favor of social use establishments, other criteria also support their creation. For one thing, the current situation is irrational. “What’s the point of allowing recreational cannabis,” asks Erik Knutson, a longtime cannabis entrepreneur, “if you don’t provide responsible adults with a safe, friendly venue where they may consume openly?” 32 Moreover, given that states can and surely will tax social use establishments, allowing them will further the revenue maximization goal that is so central to political support of the legal cannabis industry. And by giving people, particularly tourists, a safe and easy place to consume marijuana, social use establishments will also tend to undermine the attractiveness of the illicit market. As Knutson persuasively puts it with respect to the revenue maximization and illicit-market criteria: “Expanding access to regulated spaces for adults to consume cannabis encourages people to purchase products from licensed dispensaries for enjoyment in sanctioned venues, as opposed to buying from unlicensed dealers and consuming in clandestine places like parks or parking lots. . . . Social consumption lounges are poised to be another cannabis tourism attraction and, as a result, revenue stream for their respective municipalities.” 33 Finally, social use spaces can also promote public health and safety. This may seem counterintuitive, given the DUI concerns that are so prevalent with regard to these spaces, but the fact is that, at least in these early days of legalization, a lot of people who want to try cannabis don’t know what they’re doing. Social use establishments can provide new users a safe place to use weed under the tutelage and supervision of trained professionals. This should result in fewer instances of overconsumption, particularly of edibles. Everyone has heard stories, like the personal experience Maureen Dowd wrote about in 2014 in the New York Times, in which an inexperienced user consumes an edible, waits a while, and then, feeling no effects, decides to eat something like an entire 100 mg THC cookie.34 For Dowd, this mistake landed her “curled up in a hallucinatory state” in her Denver hotel room, convinced that she had died.35 Something like that is unlikely

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to happen in a licensed social use establishment with trained budtenders. Having a safe place to consume edibles outside the home will also make it less likely that an inexperienced user will bring home edibles and store them improperly, where children can get hold of them either inadvertently or intentionally, with fairly predictable bad results.

what a b o u t d r i v i n g w h i l e h i g h ? This brings us to the issue of driving while under the influence of cannabis, which is important and complex enough to justify a short detour from social use establishments (but we’ll come back to those before long). The possibility that legalization of weed will result in more accidents and deaths on the roads is understandably a major concern for many. Even supporters tend to recognize the problem. As one general manager of a company hoping to open a beach-themed cannabis lounge in Las Vegas put it, “You have to find a way to make sure people aren’t driving home roasted.” 36 Actually, some marijuana users claim that weed doesn’t affect their driving or even that it improves it, but given that cannabis tends to affect how well users can concentrate and how quickly they can react, it seems fair to stipulate that for most drivers, marijuana will be impairing to some extent. But this fact alone does not necessarily mean that legalization of marijuana will lead to more crashes. Indeed, studies are mixed on the question of whether cannabis consumption increases the likelihood of being involved in a car accident. A 2019 report on “Marijuana Use and Highway Safety” by the nonpartisan Congressional Research Service concluded: “That marijuana usage increases a driver’s risk of crashing is not clearly established. Some studies of actual crashes have estimated a small increase in the risk of crash involvement as a result of marijuana usage, while others have estimated little or no increase in the likelihood of a crash from using marijuana.” 37 However, even if we stipulate that marijuana causes impaired driving and increases the chance of a driver getting into an accident, many uncertainties and complexities remain. For one thing, as discussed in chapter 5, because THC remains in the human body for weeks after it is consumed, a positive test for THC does not demonstrate that someone is, or even

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quite recently was, under the influence of the drug. Moreover, even if there were a way to determine how much THC was in a driver’s bloodstream at the time they were driving, there is no consensus on what percentage of THC indicates problematic impairment. The development of the now pretty-much-universal 0.08 percent blood alcohol concentration (BAC) limit adopted by states to counter drunk driving has been a project long in the making and is supported by robust scientific findings.38 For weed, though, no such project has yet been undertaken, and indeed, it’s quite possible that no such percentage will ever be identified, because THC affects different people very differently and can even affect the same person differently depending on a variety of factors, such as what the person has eaten or how they have ingested the cannabis. As the 2019 Congressional Research Service report puts it, “The lack of correlation between both marijuana consumption and the level of THC in a person’s system and THC levels and driver impairment reduces the usefulness of rule-of-thumb guides of impairment.” 39 Finally, unlike in the alcohol context, where scientific studies have shown a strong correlation between failing certain roadside sobriety tests, like standing on one leg or walking in a straight line, and a BAC higher than 0.08 percent (which itself is correlated with problematic impairment), no such studies exist for cannabis.40 Failing a roadside test might, in other words, reveal nothing about whether someone is currently impaired by THC. Thus, while driving under the influence of cannabis is probably somewhat dangerous, unfortunately no reliable test currently exists to determine whether someone has, in fact, been driving while impaired by weed. This puts states in the difficult position of trying to figure out a rational and reasonable way of minimizing the amount of cannabis-impaired driving that takes place on their roads. States have generally taken one of two approaches. A substantial minority of states (eighteen at last count) have looked to the alcohol context and adopted some kind of “per se” limit on how much THC a driver can have in their bloodstream and still drive legally.41 Many of these states have settled on a zero-tolerance approach and make it illegal for anyone to drive with even a trace of THC in their bloodstream.42 Other states have chosen various arbitrary nonzero THC limits, ranging from one to five nanograms per milliliter of blood.43 As should be apparent from the preceding paragraph, these “per se” limits are

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irrational. They represent an understandable effort to analogize THC to alcohol, but since the two substances are fundamentally different in how they are stored in and affect the human body, these arbitrary limits make no sense whatsoever. Recognizing this mismatch, other states have required an actual showing of impairment before someone can be convicted of driving under the influence of cannabis. The problem in these states is how to show in a court that the defendant was impaired by weed while driving. A 2017 case in the Massachusetts Supreme Judicial Court called Commonwealth v. Gerhardt illustrates the difficulties.44 Thomas Gerhardt was driving his Suzuki Grand Vitara south on Route 146 in Millbury, one of Massachusetts’s 351 cities and towns, when a police officer, Trooper French, pulled him over for driving without his rear lights on. When French approached the car, he smelled burnt weed and asked whether Gerhardt had been smoking. Gerhardt admitted to smoking about a gram of marijuana three hours earlier. French asked Gerhardt to get out of the car and perform a series of field sobriety tests (FSTs), including a nine-step walk-and-turn (WAT) test and a one-leg standing (OLS) test. These tests are not just made up willynilly on the spot; rather, they have very specific instructions, and the officer administering them is looking for specific types of mistakes that have been shown to demonstrate inebriation in the alcohol context.45 Gerhardt did not do very well on the WAT and OLS tests. Instead of standing heel to toe during the WAT test, for instance, he put his feet side by side. During the OLS test, Gerhardt swayed and had to put his foot down several times to keep his balance. Noting these mistakes, French concluded that Gerhardt was impaired by marijuana. On the basis of this finding (and a search of the car, which revealed several mostly burnt joints), Gerhardt was charged with driving under the influence of cannabis.46 As the trial approached, Gerhardt and his lawyer filed a motion to bar Trooper French from testifying about Gerhardt’s performance on the two FSTs. The question of what the police can and cannot testify about when it comes to FSTs and suspected marijuana inebriation made it to the state’s highest court, which ruled mostly in Gerhardt’s favor. Specifically, the court ruled that police officers may not testify that a defendant “failed” an FST in the context of marijuana. “It is clear,” the court reasoned, “that the scientific community has yet to reach a consensus on the reliability of

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FSTs to assess whether a driver is under the influence of marijuana. . . . A police officer may not suggest . . . that an individual’s performance on an FST established that the individual was under the influence of marijuana. Likewise an officer may not testify that a defendant ‘passed’ or ‘failed’ any FST, as this language improperly implies that the FST is a definitive test of marijuana use or impairment.” 47 Indeed, the court even held that witnesses should refer to FSTs not as “tests” but as “roadside assessments,” in order “not to suggest that they function as scientific validation of a defendant’s sobriety or intoxication.” 48 Moreover, the court further held that while officers may testify as “lay” witnesses regarding their observations of the defendant’s behavior, including their performance on FSTs (e.g., “the defendant seemed to lack balance and coordination”), they may not testify that the behavior demonstrated that the defendant was intoxicated by marijuana.49 This is very different from the alcohol context, where officers may testify that a defendant’s behavior showed that the defendant was intoxicated by alcohol at the time.50 The difference? Everybody knows what a drunk person acts like, but not what a high person acts like, particularly since marijuana affects people very differently. The court explained: “In the alcohol context, a lay officer may offer his opinion regarding a defendant’s level of sobriety or intoxication. . . . Such lay opinion testimony is proper because it is not based on scientific, technical, or other specialized knowledge that would require expert testimony, but, rather, lies within the realm of common experience. We long have observed that ‘the effects of liquor upon the minds and actions of men are well known to everybody’. . . . No such general knowledge exists, however, as to the physical or mental effects of marijuana consumption, which vary greatly amongst individuals.” 51 Thus, in a state like Massachusetts, prosecutors will have some difficulty persuading a judge or jury that a defendant had indeed been driving while under the influence of marijuana. The state can still call officers to testify that the defendant, for instance, was having trouble following instructions or concentrating, but those officers cannot testify that the defendant “failed” a roadside “test” or that they believe the defendant was high at the time because of how he or she was acting. As a result, some states have turned to a new(ish) strategy for dealing with drug-impaired driving, which involves training some number of their police officers as

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so-called “drug recognition experts,” or DREs. These officers typically spend a week of intensive training to supposedly learn how to spot drivers who are intoxicated by a range of different substances, including cannabis.52 The training involves teaching officers a standardized protocol for examining and testing subjects to determine if they are intoxicated; following the protocol, officers take the subject’s blood pressure several times, measure their pupils, and put them through various psychophysical tests and examinations.53 The idea is that once officers have gone through this training, they can be certified as experts who can testify in court on the ultimate issue of whether a driver was, in fact, under the influence of a drug like marijuana. It is still too soon to know for sure how well DREs will be able to accurately identify drivers who are intoxicated, but most defense lawyers are unsurprisingly skeptical, referring to the training as “bogus,” 54 “nonsense,” 55 and “junk science.” 56

back t o s o c i a l u s e e s ta b l i s h m e n t s Okay, so what does this all mean for social use establishments? As with legalization generally, I don’t think that advocates get anywhere by denying or ignoring that certain pro-pot policies will result in some public health harms and problems. If social use establishments for weed were to become commonplace, I would expect there to be some increase in inebriated driving, which would result in some additional accidents and even deaths. Given the difficulties that I’ve just described in apprehending, charging, and convicting people who drive while high, some drivers might rationally conclude that they can drive home from a social use establishment without much risk of being caught and will therefore engage in dangerous behavior. The question is whether this increased risk outweighs the benefits of cannabis lounges, such that they should not be authorized or encouraged. I think the answer to that question is no. For one thing, the benefits of social use establishments that I’ve already reviewed—access, equity, normalization, rationality, revenue maximization, keeping people away from illicit markets, and even some public safety gains—are enormous. Moreover, the ubiquity and ease of rideshare options like Uber and Lyft make it far less likely that stoned consumers will get in their cars and drive home.

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Finally, states that authorize social use can (and should) take steps to limit the risks posed by high driving in a number of ways, such as sponsoring public safety campaigns (e.g., Don’t Smoke and Drive), requiring that budtenders be trained to recognize overconsumption and encourage safe behavior, incentivizing the use of public transportation and ride shares, or even imposing liability on establishments that let wasted customers drive home. These steps won’t eliminate the problem of increased stoned driving, but they should alleviate it, and that probability—together with the massive advantages of social use establishments—argues strongly in favor of more, more, more places to use weed in a public, social setting. Not only should states authorize and encourage social use establishments, but—getting back to some of the ancillary questions I raised earlier about the types of establishments they should authorize—I recommend they go big and support social use models that will be more, rather than less, lucrative for owners. If states want social use establishments to proliferate, they must allow them to be worthwhile. Particularly given the difficulties that license holders already must overcome to run a lucrative business in the cannabis space (access to capital, high tax rates, etc.), we shouldn’t expect a lot of entrepreneurs to jump at the chance to open a facility where they can’t sell anything and their clientele can’t do what they want. For that reason, states should go beyond authorizing BYOC clubs and allow cannabis lounges to sell weed to their customers. They should also allow social use establishments to sell food (what kind of stoner doesn’t want food?) and perhaps even consider letting them sell alcohol, at least lower-alcohol options like beer or wine. Despite the public health concerns, customers should be allowed to smoke, even if that means that the state will need to amend its existing laws on indoor smoking. Geographic restrictions on where cannabis cafés can be located should largely be lifted; we may not want a weed smoking lounge directly next to an elementary school, but putting one near a park or church isn’t likely to pose significant problems. •

•

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Of course, these state-level steps won’t help much at all if states continue to give cities, towns, and other local governmental units substantial

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authority to regulate, limit, or ban social use establishments. As we’ve seen in states like Massachusetts and Colorado, local control typically means far fewer cannabis lounges ever seeing the light of day. Indeed, local control is a major problem for legalization generally. In the next chapter, I explore this issue in some depth and argue that for “careful exuberance” to become the dominant paradigm for marijuana legalization in the United States, it’s the states, and not the cities and towns within those states, that should be driving our cannabis policy.

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7

Marijuana Should Absolutely Be Legal—Just Not in Our Town! the local control problem

On a frigid Tuesday night in January 2018, over twenty-five hundred concerned citizens of North Andover, Massachusetts, a suburb about half an hour outside of Boston, packed together in the town’s high school field house to debate and vote on a question of great local importance. The issue? Whether to ban marijuana establishments from operating in the town. The question had become urgent because of a potential deal that would have allowed a consortium of business interests known as Massachusetts Innovation Works (MIW) to convert a largely vacant former factory known as the Lucent Technologies Plant into a 1.1 million square-foot indoor cannabis growing facility. The project was spearheaded by a radiation oncologist named Jeffrey Goldstein, who had become turned on to the medical possibilities of marijuana during an extended stay in Israel. According to the proposed plan, MIW promised to pay $5 million per year to the town for twenty years and to create fifteen hundred jobs.1 The town installed professional audiovisual equipment for the evening and even provided shuttle service to anyone who wanted to attend but didn’t feel like competing for one of the four hundred parking spaces at the school. A group of town residents calling themselves “Citizens for a Drug-Free North Andover” mobilized to oppose the proposal and showed up in force for the town meeting.2 151

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For two hours, citizens stood at microphones and voiced their opinions.3 Supporters of the massive project spoke about the town’s need for additional revenue, the potential benefits of medical marijuana, and the prospect of becoming a regional innovation hub. For every person who spoke in favor of the project, though, at least one more spoke out against it. Some of the most commonly voiced themes included skepticism about MIW’s financial projections, the prospect of falling real estate values, worry about the facility’s odor, public health risks, particularly to children, and a concern that marijuana growing would be inconsistent with the character of the city. Charles Salisbury, a staunch opponent of the project as well as a longtime former selectman and town moderator, set the tone for the meeting in his initial remarks when he announced that “this evening’s town meeting is perhaps the most important debate for this town about who we are and what we value.” 4 The following are some highlights of the night’s 1980s-style anti-weed rhetoric: • Early in the meeting, a doctor named Michael Connolly warned of the

“grave consequences of hosting commercial pot production,” cited the long-discredited “gateway theory” that marijuana use leads to use of other drugs, worried about the possible effect on the grades of children in the town, and concluded, to much applause: “If we host commercial pot production, the evidence predicts more of our kids will smoke pot and evidence predicts tragic consequences. There are times we’re defined by saying no to temptations and distractions in order to say yes to the one thing that matters more.” 5

• A North Andover resident for over fifty years, Leslie Kulpinski, said that

a middle school police officer had told her that “you can smell it,” referring to a cultivation facility in Lowell that was much smaller than the one proposed for North Andover. “So the concern about a smell is valid,” Kulpinski explained. “It is real. They can smell it in Lowell.” 6

• A real estate agent named Susan Papalia testified not only that housing

values would “go down dramatically” if the project were approved, but also that “we’re just not that kind of town. . . . [I]t just doesn’t fit in with the character of the town.” 7

• A gentleman whose “passion is health care” shared some “compelling,

well-supported scientific evidence” showing “that even casual marijuana use is linked to brain abnormalities. This research shows effects of small-time use, meaning one or more joints, can cause brain damage.

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People think a little recreational use shouldn’t cause a problem . . . [but] the data from Mass General Hospital shows this is not the case.” The speaker concluded by saying that “no amount of money is worth the suffering of one child compromised by marijuana.” Massive applause followed.8 • Rosemary Connolly Smedile, the one member of the Board of Selectmen

who voted against the project, gave an impassioned speech about “who we are as North Andoverites”: “We are a community that protects our open space, we’re a community that builds ball fields and parks. . . . [W]e have hiking trails, Little League parades, we are sheep-shearing, Fourth of July on the Common holiday parades. We run road races to raise money for our seniors. We teach our kids to swim at Stevie’s Pond, we love apple picking, hayrides. . . . We teach our children not to use drugs. . . . This is our brand. We should not be changing our brand to the home of one of the largest marijuana growing facilities around.” 9

Following the comment period, attendees voted. After a great deal of counting and recounting, the final tally was in: 1,155 for and 1,430 against.10 The project would not move forward, and no marijuana establishments would be allowed anywhere in North Andover. In case you’re wondering, the population of North Andover is 85 percent white; about 3 percent of the town’s citizens identify as African American.11 What happened in North Andover is hardly an isolated event. Indeed, although the North Andover controversy may have been more visible than most local debates over marijuana, given the size of the proposed project, cities and towns all over the country routinely vote to ban weed establishments from their borders. As explained in more detail below, every state that has legalized cannabis for recreational use authorizes localities to prohibit marijuana establishments, although the process required for cities and towns to enact a ban differs a bit from state to state. And total bans are not the only option for localities that want to regulate or restrict marijuana. Most states authorize cities and towns to limit the number of marijuana establishments that can receive a license rather than ban them entirely, and all states give localities the power to issue zoning regulations imposing reasonable time, place, or manner restrictions on where and how weed businesses can operate. Localities are sometimes authorized to impose taxes in addition to those required by state law, and in some states, marijuana establishments must procure a local license or permit in

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addition to the one they receive from the state. These local license requirements, as we’ll see, have at times created an atmosphere ripe for corruption as local governments and officials have occasionally attempted to extort as much money and other goods as possible from applicants in exchange for granting their coveted permit. Conferring these powers upon cities and towns admittedly has some advantages. For one thing, guaranteeing that localities can exercise significant control over marijuana businesses in their communities makes it easier for states to pass legalization measures in the first place. Voters with mixed feelings about weed are surely more likely to support legalization on the state level if they know that they can ban or otherwise regulate cannabis businesses in their towns. Local control also serves important purposes beyond political expediency, such as ensuring that individuals have the power to determine the nature and future of their communities as well as promoting policy experimentation that can lead to better overall results for everyone. I identified local control, in chapter 2, as one of the possible criteria by which we can evaluate aspects of marijuana policy, but I purposely put off a more in-depth analysis of the benefits and drawbacks of such control until this chapter. As I will argue, although local control has some advantages, it also has several important drawbacks in the cannabis context. Specifically, excessive local control fares quite poorly under several of the other criteria identified in chapter 2, including the ease of access, market freedom, normalization, revenue maximization, and equity criteria. Some local control makes sense, but too much threatens to substantially undermine the goals of legalization. Indeed, although many have understandably worried about the federal government’s treatment of marijuana, in some places it’s the local governments that have been the biggest problem. In Massachusetts, for instance, a main focus of this chapter, local control has significantly undermined the legalization project. Perhaps, in other words, it’s towns like Wakefield and Woburn and Wellesley, rather than Washington, D.C., that stand as the most substantial obstacle to further development of the cannabis industry in the United States. In the pages that follow, I will first lay out some basic principles of local government law, pointing out how the relationship between localities and states differs substantially and importantly from that between states and the federal government. Next, I will describe the specific major types of

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local control that states tend to grant cities and towns in their legalization measures. Finally, I’ll analyze the benefits and disadvantages of these local control measures and argue that in order to ensure wide access to cannabis products, guarantee opportunities for minority-owned businesses, and promote the normalization of marijuana use, local control over decisions impacting the marijuana industry should be sharply curtailed.

a wo r d a b o u t t h e c o n s t i t u t i o na l relat i o n s h i p b e t w e e n s tat e s a n d c i t i e s Before getting into what kinds of local control states have conferred upon their cities and towns in the marijuana space, a short explanation is in order concerning the relationship between states and cities and how it differs from that between states and the federal government. Under our constitutional structure, states are independent entities that predate the creation of the federal government by the Constitution. In other words, the Constitution grants the federal government its powers against the backdrop of the states’ preexisting powers, granted by their own constitutions. Because federal power is supreme to state power under Article VI of the Constitution, the federal government can preempt state powers (subject to the anti-commandeering limits of the Tenth Amendment). But if the federal government does not preempt a particular power, the state can do as it chooses (subject to certain limits in the Constitution, like the Dormant Commerce Clause or the First Amendment) and does not need to ground its actions in any power described in the U.S. Constitution. By contrast, cities and other localities do not exist independently of the states in which they are located. Rather, cities owe their very existence to their states and, consequently, states can basically (if they choose) control everything their cities do. As Professor Robert Mikos explains in “Marijuana Localism,” his comprehensive article about local control in the marijuana context, “Local governments are creatures of the state and derive all of their regulatory authority from the state. In other words, states decide what powers local governments shall exercise.” 12 There is one key important legal wrinkle here, concerning what powers cities have, in the absence of either express authorization or prohibition

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under state law, to take some particular action. For instance, imagine that a state law said nothing about whether cities and towns in the state could regulate marijuana—would a city be able to regulate marijuana or not? As it happens, states take roughly two different approaches to this question. Most states follow a “home rule” approach that allows cities to act in the absence of state authorization so long as the state hasn’t prohibited what they want to do, while eight or so states follow “Dillon’s Rule” (named after the Iowa Supreme Court justice who created the doctrine in the late nineteenth century), which requires cities to have express authorization from the state before they act.13 The key point, however, is that these two approaches simply concern default rules—home rule states can still, if they want, prohibit cities from regulating marijuana, and Dillon’s Rule states can, if they want, authorize cities to regulate marijuana. In other words, the states have full power to determine what their cities and towns can and cannot do with regard to regulating or not regulating marijuana within their borders.

local c o n t r o l o v e r m a r ij ua na bu s i n e ss e s So, what kinds of local control over weed do legalization measures in the states authorize? While states that allow the use and home growing of marijuana typically don’t allow localities to prohibit these activities, they typically do give cities and towns substantial authority to regulate marijuana businesses or establishments. As I’ve mentioned, every state allows localities to ban recreational marijuana establishments completely from their borders (some medical programs prohibit cities from banning medical dispensaries, but since recreational weed dominates in states that allow it, I’ll keep my focus there). Maine, for example, actually requires cities to opt in to marijuana legalization.14 More commonly, however, states allow municipalities to opt out of legalization, generally by using whatever representative procedures they typically use to implement restrictions (a city council vote, for example). In Massachusetts, towns that voted yes on the original legalization measure were able to use typical procedures, while those that voted no had to employ a popular vote to ban marijuana businesses.15 Generally, localities are given a deadline before

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which they must act to implement total bans. New York’s law, for instance, gave cities and towns until the end of 2021 to make such a determination.16 Some states allow localities to implement a temporary moratorium while they consider whether to implement a permanent ban on weed businesses.17 Cities and towns have not been reluctant to pass such bans. A quick look at the data from a few states will suffice to demonstrate the point. In Michigan, for instance, over five hundred cities and towns have opted out.18 In Oregon, at least eighty cities and seventeen counties have passed bans.19 In California, only about one-third of the localities in the state allow marijuana establishments.20 In Massachusetts, more than 110 of the state’s 351 cities and towns have prohibited marijuana businesses.21 Each town or county obviously has its own reasons for banning weed businesses, but the rationales likely resemble those voiced at the meeting in North Andover. News reports are filled with citizens and representatives basically relitigating the arguments for and against legalization. “I’m ready to vote to ban the dispensaries,” said one councilman from Kent, New York, near the Connecticut border. “I’m having a hard time comprehending that our state made this legal. I don’t think it was a good idea by the state, and I’m not going to do anything to help support it in any way[,] shape or form.”22 The “Not in My Backyard,” or NIMBY, phenomenon is pervasive. As a lawyer who practices cannabis law in Detroit put it, describing voters who supported legalization, “those same people may not necessarily want cannabis businesses next to the coffee shop they frequent or on the same street as the school their children or grandchildren attend. I think that there is also a large degree of NIMBYism involved.”23 Do a quick Google search for “marijuana and NIMBY” and you’ll find hundreds of articles on the topic, some with headlines like “Local Control, NIMBYism, and Cannabis, Oh My!”24 “In Chicago Suburbs, Legal Marijuana Meets NIMBYs,”25 and “How the NIMBYs Stole Cannabis.”26 Although total bans represent the “nuclear option” for municipalities that frown on weed, many other options short of a total ban are available to localities that are skeptical or that want to implement controls over how marijuana establishments may operate. Laws governing local control in the states that have legalized cannabis vary somewhat, but typically states authorize localities to cap the number of retail or cultivation licenses they

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will allow and to implement reasonable zoning regulations governing when, where, and how marijuana establishments may operate.27 Some states that authorize local caps place limits on that power. Massachusetts, for instance, does not allow localities that voted yes on the state’s original recreational marijuana ballot question to implement a cap on retail marijuana licenses lower than 20 percent of the number of liquor licenses issued by the locality without following special procedures (so, if a town has one hundred liquor licenses, it cannot cap the number of weed licenses it issues at any less than twenty, without going through the required procedures for a total ban).28 Similarly, states sometimes restrict the types of zoning regulations localities can implement. New York, for example, allows its cities to implement so-called “time, place, or manner” zoning regulations for marijuana establishments, so long as those regulations do not make operation “unreasonably impracticable.”29 Some of the more important types of regulations that localities have implemented deal with hours of operation, signage, security, odor control, and buffer zones. Buffer zone regulations—restrictions on how close a marijuana facility can be to schools, playgrounds, churches, other licensees, and the like—are important because they can be manipulated non-transparently to restrict how many facilities can actually exist within cities and towns, particularly in dense urban areas.30 Sometimes, states will set a large default buffer zone and allow localities to reduce the size of the zone (Washington’s state law, for example, sets the buffer zone at one thousand feet but allows localities to make it smaller),31 but the reverse situation is more common. New York is illustrative. There, the state has set a buffer of five hundred feet from schools and two hundred feet from churches, but localities may increase those distances through ordinary zoning processes.32 States differ regarding how much power they give local governments over individual licensing decisions. In some states, the decision to grant licenses is vested entirely in the relevant state agency, with local power being limited to providing input or filing objections. In the state of Washington, for instance, localities can submit an objection to a license application filed by a marijuana business with the State Cannabis and Liquor Control Board, but the board retains the ultimate decision-making power to grant or deny the license.33 New York’s law is similar.34 In other states, like Maine and California, obtaining a local permit or license, at

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least if such a license is required by the relevant locality, is a precondition to obtaining a state license.35 In still other states, the amount of local power is somewhere in the middle of these extremes. Oregon, for example, requires that licensees obtain a “land use compatibility statement” from the relevant municipality before they can obtain a license at the state level, but not much more than that.36 Of all the states that have legalized marijuana for adult use thus far, Massachusetts has probably conferred upon localities the greatest amount of power over licensing, with highly problematic results. To obtain a state license in Massachusetts, applicants are required to hold a community outreach meeting to give members of the community the opportunity to learn about the proposed business, to ask questions, and to lodge objections to the potential license.37 More importantly, applicants must execute a Host Community Agreement (HCA) with the municipality where they seek to locate. The relevant provision in Massachusetts law provides as follows: A [Marijuana Establishment, or “ME”] seeking to operate or continue to operate in a municipality which permits such operation shall execute an agreement with the host community setting forth the conditions to have an ME located within the host community which shall include, but not be limited to, all stipulations of responsibilities between the host community and the ME. An agreement between an ME and a host community may include a community impact fee for the host community; provided, however, that the community impact fee shall be reasonably related to the costs imposed upon the municipality by the operation of the ME and shall not amount to more than 3 percent of the gross sales of the ME or be effective for longer than 5 years.38

Although the original intent behind this provision was almost certainly to give localities a modest measure of additional control over licensees setting up shop within their borders, the provision is sufficiently ambiguous that it has imposed enormous obstacles to the development of the marijuana industry within the state. According to a guidance document issued by the state’s Cannabis Control Commission, the “stipulations of responsibilities” that are contemplated by the HCA requirement concern obligations like providing police details for “traffic and crowd control” at peak hours of operation, participating in community educational efforts regarding weed, and giving some amount of preference to city residents when

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hiring employees.39 The actual language of the provision, however, does not provide any explicit limits on what kinds of stipulations a locality can require from an applicant, and so, in practice, these HCAs have often included pages and pages of onerous requirements on licensees concerning everything from employee education to energy usage, to aesthetic guidelines for facilities, to the installation of bicycle racks.40 The most controversial aspect of the HCA provision, however, concerns the amount of fees the locality can extract from the applicant. The provision says that HCAs “may include a community impact fee for the host community” so long as that fee is “reasonably related to the costs imposed upon the municipality by the operation” of the licensee and “shall not amount to more than 3 percent” of the licensee’s gross sales.41 But the statute does not explicitly preclude host communities from insisting on the payment of fees other than the community impact fee, and indeed by using the dreaded legalistic phrase “which shall include, but not be limited to,” the provision strongly suggests that the conditions it describes are not exclusive. On the basis of this ambiguous language, localities have required licensees to agree to all sorts of payments above and beyond the 3 percent maximum authorized for the community impact fee, including various gifts, grants, donations to charities, and other payments. As just one example of this phenomenon, one large cannabis company seeking a permit to operate in the town of Wareham near Cape Cod agreed to pay the town $1,200 so that it could hire an art conservation company to restore a city-owned painting and $1,000 to sponsor a local oyster festival.42 Applicants have asked the Cannabis Control Commission to review HCAs and reject those that insist on such payments, but the commission has taken the position that it lacks legal authority under state law to review the agreements.43 These local obstacles would be a bummer for entrepreneurs in any industry, but in the cannabis world—where federal illegality already makes it extraordinarily difficult to start a business, particularly for members of historically marginalized groups—they are distinctly awful. According to numerous media reports, most HCAs in the state have required higher payments than the 3 percent community impact fee. According to a study carried out by WGBH, a public radio station in Boston, 314 out of 500 HCAs examined suffered from this flaw,44 and a report issued by the Massachusetts Grower Advocacy Council concluded

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that 79 percent of HCAs “require marijuana establishments to pay annual contributions to the town that either plainly violate the statutory terms or may result in unlawful community impact fees.” 45 Clearly, these burdens have fallen more heavily on minority-owned businesses than on others. Former commissioner Shaleen Title told Politico in March 2020: “I think the HCA process has turned into a barrier and a tool of inequality that it was never meant to be. Some amount of local control is completely appropriate, and certainly every state has some degree of local control. But I do think in Massachusetts, the control that municipalities have has gone way beyond what’s appropriate.” 46 In addition to imposing needless additional barriers on fledgling small businesses, excessive local control has also contributed to serious corruption. Allowing localities to control whether a business gets a license has unsurprisingly encouraged some unscrupulous local officials to essentially hold licenses hostage as a way of extracting additional payments and fees from license applicants, not only in Massachusetts but in other states as well. Perhaps the most conspicuous example of corruption comes from the southeastern Massachusetts city of Fall River, where the twenty-something mayor, Jasiel Correia, was convicted in early 2021 on several counts of extortion, extortion conspiracy, and tax fraud in connection with his attempts to bilk cannabis companies of $600,000 (including a $12,000 “Batman” Rolex watch) in exchange for licenses.47 As U.S. Attorney Andrew Lelling put it when he announced the charges against Correia in 2019, “Mayor Correia has engaged in an outrageous brazen campaign of corruption, which turned his job into a personal ATM.” 48 Although the HCA requirement makes Massachusetts particularly susceptible to instances of corruption, all local control authority raises risks of corruption, and examples have occurred in other states as well, most notably in California. As an extensive Politico investigation into corruption in the cannabis space explains, local control levers “effectively put million-dollar decisions in the hands of relatively small-time political figures—the mayors and councilors of small towns and cities, along with the friends and supporters of politicians who appoint them to boards. . . . They have also created a culture in which would-be cannabis entrepreneurs feel obligated to make large campaign contributions or hire politically connected lobbyists.” 49 Douglas Berman, professor of law at Ohio

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State University and one of the nation’s leading marijuana law scholars, concurs: “There’s a lot of deal-making between businesses and localities that creates the environment of everyone working their way towards getting a piece of the action. . . . [Local control] is just another opportunity for another set of hands to be outstretched.” 50

how m u c h l o ca l c o n t r o l i s too m u c h l o ca l c o n t r o l ? What, then, are the benefits and drawbacks of local control over marijuana, and how much local control is too much? Initially, it is important to concede that granting localities independent authority to ban or regulate marijuana establishments may be politically important or even necessary to getting a legalization measure passed in any given state. Citizens or representatives who may be on the fence regarding the proposed benefits of legalizing weed may feel reassured by guarantees of local control. For instance, someone who understands the equity benefits of legalization and thinks that nobody should be punished for using a mostly harmless drug, but who also doesn’t want their town to smell like weed and be descended upon by a bunch of stoners, may choose to vote for legalization only if they know that their city or town will at least have an opportunity to exclude marijuana businesses. Even though I’m personally not a fan of granting a lot of control over weed to municipalities, I am quite willing to compromise on the issue— legalizing at the state level with local control is a lot better than not legalizing at all. On the other hand, I don’t see political expediency as a substantive criterion by which to measure the benefits or disadvantages of any given policy, and so I don’t count “helping the bill get passed in the first place” as an advantage in the same way that I do ease of access or environmental protection. In any event, it is unclear just how much local control is necessary to grease the wheels of legalization. Plenty of states have successfully legalized, for example, without going so far as Massachusetts has with its controversial HCA requirement, and indeed several states, including Washington, have legalized the drug without even giving cities the authority to grant or deny individual license applications. As such, even

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accepting the political expediency rationale, I believe that states should err on the side of less rather than more local control, given its many drawbacks. As to the ten criteria that I have been applying throughout the book, only three even potentially weigh in favor of granting substantial control over cannabis policy to municipalities. I will have a good deal to say about the local control criterion shortly, but in addition to that criterion, there’s a fair argument that since local control in the context I’ve been discussing predominantly serves as a one-way ratchet (localities can reduce the amount of weed activity compared to state levels but not generally increase it), more local control may have both public health and environmental benefits. As a straightforward matter, if there is a correlation between the number of towns that allow marijuana activity and the overall amount of marijuana grown, sold, and used, then we should expect that the public health and environmental harms of marijuana will decrease as local control increases. The relationship may not be that straightforward, though. For one thing, the existence of the illicit market complicates things greatly, both because that market will likely serve as a substitute for many users who would rather just remain with the source they have already been using instead of traveling to another city to buy weed and because the negative public health and environmental harms of cannabis are inherently greater in the illicit market than in the regulated one. Moreover, there are, as I’ve mentioned several times already, some public health benefits to marijuana that will be lost if, indeed, marijuana use decreases as a result of local control. Finally, if users do decide to travel to other cities and towns to buy their weed, local control might actually result in harm to the environment if people are driving cars or are otherwise consuming energy on their way, not to mention the possible increased risk that consumers will drive while high. In sum, I think that increasing local control may at best result in very slight public health and environmental benefits, and even those benefits are fairly uncertain. This brings us to local control itself. I discussed this criterion briefly in chapter 2, but at this point we need to unpack it a little more, in order to understand how much weight to give local control in relation to the other criteria that, as we’ll see, largely cut against giving substantial control over

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weed to localities. Local control has two primary sets of potential benefits— experimentation and what I’ll refer to as self-determination. Experimentation refers to the idea that if localities are given room to choose their preferred regulatory approaches, then we should end up seeing a wider variety of those approaches actually being implemented, and we will therefore learn more quickly and accurately what works and what doesn’t. Take the issue of buffer zones, for instance. If a state mandates a 1,000-foot buffer zone between marijuana stores and schools, then every locality will follow that rule, and we will learn only how well the 1,000-foot buffer zone works. If states allow localities to set their own buffer zone distances, though, we should expect that some cities will go with a 500-foot buffer while others will adopt a 250foot buffer, and yet others a 750-foot buffer or a 1,200-foot buffer, and on and on. Over time, policymakers will be able to study how successful and necessary these different distances turned out to be, and ten years from now we’ll know a lot more about what works and what doesn’t when it comes to buffer zones. This is certainly an advantage to local control in the cannabis context. I don’t think it is a particularly large advantage, however, given that there are only so many significant variables a city or town can manipulate in the cannabis space (zoning, signage, hours of operation, etc.) and that we already have a lot of experimentation going on, since it is the states rather than the federal government that have been determining marijuana policy for the past couple of decades. Self-determination is the other primary benefit of allowing important policy decisions to be made at the local level. The idea is that as decisionmaking becomes increasingly local, individual citizens get more and more power to determine what happens in their own communities. Local control allows individuals to tailor policy decisions to their own local circumstances and to feel like they are participating in shaping their own environment and destinies. In this sense, local control enhances democracy (the North Andover meeting discussed at the beginning of the chapter is a good example). I consider self-determination a significant benefit of local control, and therefore I think that giving cities and towns authority to prohibit and regulate marijuana businesses within their borders has a substantial upside. This upside has its limits, though. As Professor Mikos explains in “Marijuana Localism,” because municipalities are close to each other, and

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their borders are porous, and both people and marijuana can move (or be moved) around easily, attempts by local governments to control what happens in their towns regarding marijuana will likely meet with only limited success.51 After all, usually, even if a town bans retail sales of marijuana, its residents can easily go to the next town (or the next to the next town, or wherever) to obtain marijuana, which they may then use in that town (though probably in an alley) or bring back home. Either way, residents of the town will be able to use weed, and if they bring it back home, they will end up using it within the town that would prefer to be marijuana-free. Mikos concludes that “the appeal of localism may prove illusory. The mobility of marijuana and of its users undermines the efficacy of any local controls. In other words, localism will not necessarily give people what they really want—like a reduction in marijuana consumption. . . . It is thus not safe to assume that local majorities have something to gain from localism.” 52 Thus, the benefits to local control include an increase in democratic self-determination (though with limits), some useful policy experimentation, and perhaps some modest public health and environmental gains. The question is whether these benefits outweigh the costs and disadvantages of local control. I don’t think they do. At least six of the ten criteria for evaluating cannabis policy lean strongly in favor of limiting local control. To begin with, granting substantial discretion to localities to ban or regulate cannabis businesses clearly fares poorly under both the ease of access and market freedom criteria. Businesses that cannot locate in the city or town they prefer because the municipality has decided they are not the “right” kind of business lack one of the more important aspects of economic freedom—the freedom to set up shop where they want. Indeed, it is difficult to imagine a policy that would undermine market freedom rights any more than that. The effect on competition in the industry is also clear, particularly because cities that ban recreational weed have often already welcomed one or more medical dispensaries, which then benefit from the exclusion of new businesses. As one Arizona entrepreneur put it, the local officials who implement bans on cannabis “have their head up their ass because they don’t understand the macro-level economics of the reality of the situation. The worst part about it is that there are some dispensaries who are lobbying behind the scenes,

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taking advantage of old-school prohibitionists, old-school perceptions of marijuana, to eliminate competition.” 53 Users of cannabis who want truly easy access to their preferred recreational drug also suffer from local control, since they may need to travel to another city or town to obtain cannabis. For some, such as those who have no trouble getting around and who live in a relatively densely populated state, where it is likely that at least some town nearby will allow marijuana sales, the limits on access posed by local control may not be particularly troublesome. For others, however, including people with mobility issues or who lack their own transportation or live in a sparsely populated state where towns may be located far away from each other, the problem will be far more serious. Of course, as I’ve discussed several times already in various contexts, limits on access also make it more difficult to stamp out the illicit market, and so local control fares poorly on that important criterion as well. Additionally, local control undermines state efforts to raise revenue. A locality that bans cannabis, for instance, will lose not only whatever local tax revenue it might be entitled to, but also the chance to collect state tax revenues. Although the loss of local taxes may not be a big deal, since presumably the town decision-makers considered that loss when deciding to ban cannabis in the first place, the loss of state tax revenue is more problematic. As we have seen, states that have legalized cannabis typically use tax revenues to promote various public purposes, from improving the state’s educational system to funding addiction services to building roads to promoting equity in various ways. These state funds are generally used to benefit all state residents, at least to some extent, and so localities that ban or substantially limit cannabis establishments take money away not only from themselves but from residents of other parts of the state. This also raises a fairness issue with respect to the distribution of state benefits among localities. Why should cities and towns that refuse to allow marijuana to be grown or sold within their borders (because it’s so horrible and terrible) be able to benefit from the tax revenues brought in by other cities and towns that are willing to host cannabis operations despite their potential for negative consequences? At the very least, then, if a state grants municipalities significant powers over cannabis, it should also seriously consider distributing its tax revenues or whatever benefits flow from those

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revenues only to localities where marijuana businesses are allowed to operate. Local control undermines equity in a variety of ways. When cities and towns ban or significantly limit marijuana businesses, they make it harder for those in need to obtain marijuana, and more difficult for those with limited resources to start a marijuana business. Who are the people who will suffer most from not having a retail store or medical dispensary in their town? Clearly, people with disabilities and those with limited resources (who lack their own vehicles, for instance) will suffer far more than well-off individuals without disabilities if they have to travel long distances to obtain cannabis. For those of modest means seeking to enter the industry by opening a retail store or some other small cannabis business, the road is already long and difficult (remember the tax problem, and the banking problem, and all the other issues posed by federal illegality), so allowing localities to make the road longer and rockier only exacerbates the inequality of opportunity that currently exists in the world of cannabis. As one Boston marijuana lawyer explained, municipalities that opt out “have often killed the opportunity of local entrepreneurs to reap the benefits of this specific [retail] license class, one which is designed for newer and smaller market entrants.” 54 Gary Smith, director of the Arizona Cannabis Bar Association, made a similar point with regard to Arizona’s opt-out laws when he said, “They will push these social equity licenses further and further away from population centers, which seems to undermine the very purpose for those licenses.” 55 Finally, local control poses a major threat to the normalization of marijuana. So long as cities and towns are routinely given the authority to carve out prohibitionist enclaves within states that have legalized cannabis through democratic means, it is hard to see how weed will ever become understood as just one more recreational choice among many. As the debate in North Andover illustrates, giving towns the power to prohibit marijuana establishment invites the continuous, widespread, and public rehashing of prohibitionist misinformation, flawed arguments, and scare tactics. How can marijuana be understood as normal if these absurd debates continue to be held in town after town after town all over America? What, then, should states actually do when it comes to local control? Balancing the slight benefits of local control, particularly in terms of

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self-determination, against its many drawbacks, my view is that states should grant some authority to local governments to regulate or control marijuana businesses, but not much. Allowing localities to implement reasonable time, place, or manner zoning requirements makes sense, as that is a classic and commonplace function of cities and towns. At the other end of the spectrum, requiring businesses to enter into anything like a host community agreement with a municipality as a precondition to getting a license should not be part of any future legalization measure. I also think that giving localities the power to completely ban marijuana establishments confers far too much authority on municipalities. If a state votes to allow weed, then the towns and cities within the state should be required to allow weed. On the other hand, giving municipalities the power to cap marijuana businesses at some low(ish) number seems like a fair compromise that would allow citizens to tailor the marijuana market to their local needs, at least somewhat. But if a state does allow such local caps, it should also make sure that the state itself has the final say on whether to grant licenses, and not the municipalities within the state. Such an arrangement would both limit local control and reduce opportunities for corruption. •

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Have you ever wondered whether a police officer who smells marijuana, in a state where some uses of the drug are legal and others are not, can use that odor as the basis for searching someone’s person, car, or home? The question sounds like it’s right out of a Law & Order episode, and probably it is, but it is also one of the most interesting and important constitutional questions to arise from the legalization of weed. As we’ll see in the next chapter, most states have thus far gotten the answer to the question wrong. To complete the transition from grudging tolerance to careful exuberance, states must specify that unless police have reason to believe that someone is not just using or growing or selling marijuana, but is actually breaking the law by using or growing or selling marijuana, they cannot use the smell of the drug as a pretext for invading a user’s private space.

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8

If Cannabis Is Legal, Why Can the Cops Search You If They Smell It? the fourth amendment and the sweet scent of weed

In November 2018, somewhere in the mighty mitten-shaped state of Michigan, a guy named Thomas Moorman was driving over the speed limit when he was stopped by state trooper Alan Park. When Park approached Moorman’s car, he was hit by a smell of weed strong enough to make him believe that Moorman’s car contained a “good quantity” of cannabis.1 At the time, Michigan had not yet legalized marijuana for adult use, but it had legalized the drug for medical purposes, and Moorman was a certified caregiver for several patients who were in the state’s medical program. Park asked Moorman if he had any weed in the car, and although Moorman first denied having any, he soon changed his tune and admitted that he was, in fact, in possession of some weed that was destined for his patients. Even as a caregiver, though, Moorman was entitled to be in possession of only two and a half ounces of weed, and Park, on the basis (as he testified at trial) of “just the odor of marijuana,”2 decided to search the car to see if Moorman possessed more than the authorized amount. As a result of the search, Park found both an unlicensed gun and some pills for which Moorman lacked a prescription.3 At trial, Moorman moved to suppress the gun and the pills as products of an illegal search. He argued that since marijuana possession was legal 169

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for medical caregivers in Michigan, Park therefore lacked the required probable cause to search his vehicle (as we’ll see, although the Constitution usually requires officers to have a warrant, the Supreme Court has recognized an exception the size of Jupiter for automobile searches). The trial court denied the motion to suppress, so Moorman appealed to the Michigan Court of Appeals, which rejected his arguments in early 2020.4 The appeals court cited one of its cases from twenty years earlier, called People v. Kazmierczak,5 for the legal proposition that “the smell of marijuana alone by a person qualified to know the odor may establish probable cause to search a motor vehicle. . . . Therefore, Park, who was experienced in marijuana arrests, had probable cause solely on the basis of the strong odor of fresh marijuana.” 6 While acknowledging that the state’s medical marijuana statute may have complicated the issue somewhat, the court found against Moorman, in part because the defendant had initially lied to Park about whether there was any weed in the car.7 It is important to remember that even in states where marijuana is legal for medical and recreational use, all sorts of activities involving weed remain illegal.8 All states have limits on the amount of marijuana that individuals can possess. Driving while intoxicated by marijuana is illegal. Buying weed from the illicit market is illegal. Using weed in public spaces is usually illegal. Selling weed without a license is illegal. Possessing weed in certain places, such as federal property or schools, is illegal. Selling cannabis to kids is illegal. Minors are not allowed to possess marijuana at all. And growing marijuana in excess of amounts specifically authorized by state law (which in some states is zero) is illegal. Moreover, at least some of these offenses, particularly the ones involving the illicit market, are extremely important to root out and stop if the legal, regulated market is going to thrive. The police, therefore, have a critical role to play in ensuring that the burgeoning marijuana industry can flourish without unfair competition from illegal businesses and in protecting the health and safety of users and nonusers alike, including children and adolescents. Given this situation, it is perhaps not surprising that in most states, the smell of marijuana, whether burnt or unburnt, continues to constitute probable cause for the police to search someone’s person or car or home. Under the Fourth Amendment (and state equivalents), the police are typically not allowed either to search a car or get a warrant to search a home

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without probable cause that some sort of crime has been committed,9 and the odor of marijuana has long been used by officers as an easy and convenient way of demonstrating that such probable cause exists. But with the arrival of legalization, the smell of weed no longer necessarily demonstrates that anything illegal is happening. Some state courts and a couple of state legislatures have recognized that despite how helpful the odor of weed used to be for the police, it can no longer rationally be used to support an otherwise unlawful search, unless it somehow suggests that an actual crime is being committed, such as possession by someone under twenty-one. The rule adopted by these enlightened states may have some costs, but it is the correct rule and it serves several of our criteria, including equity, rationality, ease of access, and normalization, not to mention individual privacy. In this chapter, I will first lay out the basics of Fourth Amendment search and seizure law that are necessary to understand the issues presented by cannabis legalization, including the automobile exception to the warrant requirement and the constitutional status of drug-sniffing dogs. Following this brief overview, I will look in some depth at three key questions that courts have had to address in the wake of marijuana legalization: whether a dog sniffing a car for cannabis constitutes a search under the Fourth Amendment; whether the smell of weed can constitute probable cause for a warrantless search of a car; and whether the smell of weed can be used as probable cause for a warrant to search a house. In each context, at least one state has come to the correct conclusion, but far more states have either stuck with their original flawed rules or have yet to address the issue. In the chapter’s final section, I will analyze the approaches that states have taken to the questions under the criteria I’ve been employing throughout the book and argue that states should follow the lead of New York and Virginia, two states that in their relatively new legalization statutes have specifically provided that the smell of weed cannot, by itself, serve as probable cause for searching someone’s person, home, or car.

some f o u rt h a m e n d m e n t b a s i c s The Fourth Amendment to the U.S. Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects,

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against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized.” 10 Entire law school courses are devoted to examining the rules and cases that have shaped the contours of the Fourth Amendment, so the summary I’m providing here is extremely simplified, focusing only on what you need to know to understand the precise issues that have arisen because of cannabis legalization. The basic rule is this: If the police want to conduct a search of someone’s person or property, they either need a court-issued warrant supported by probable cause or they have to identify an applicable exception to the warrant requirement that supports a warrantless search under the circumstances.11 If an officer conducts a search that does not meet these requirements, the evidence collected during that search is typically (though not automatically) inadmissible in court under the so-called exclusionary rule.12 Thus, we might helpfully divide the basic rule into three inquiries: (1) Is the officer going to be conducting a “search”? (2) If so, does the officer need to get a warrant to conduct the search or, instead, might some exception to the warrant requirement apply? (3) If the officer needs a warrant, or the probable cause standard otherwise applies, does probable cause exist under the circumstances? A few words about each of these inquiries is in order. First, whether some police activity constitutes a “search” depends on whether it invades someone’s “reasonable expectation of privacy.” 13 The Supreme Court has decided tons of cases on this question, finding that some things are searches and others are not. For instance, if an officer goes into your house and starts moving stuff around looking for things, that’s a search. On the other hand, if you give the officer permission to come into your house and they happen to see something that’s in plain sight, that’s not a search.14 If the police fly a helicopter over your yard in public navigable airspace and see that you’re growing weed illegally, that’s not a search,15 but if the police instead use a thermal imaging device to “see” into your home and discover an illegal stash of marijuana plants, that’s a search.16 The difference in each pair of cases turns on whether the Court thinks you have a reasonable expectation of privacy.17 When you let an officer into your house, you know that they will be able to see things in

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plain sight, and when you grow weed in your open back yard, you know that someone might fly over and see it. Thus, the plain-sight and overflight examples are not searches. On the other hand, if an officer were to enter your house without permission and move stuff around or aim a thermal device at your house to see what is inside, you would most definitely feel like the police had invaded your privacy (and the Court has deemed that such a view is itself reasonable), and so the activities count as searches that need to be supported by a warrant or some exception to the warrant requirement. One important type of non-search worth mentioning is a quick “stop-and-frisk” of a suspect, for which the Court requires only a showing of “reasonable suspicion,” a standard far easier to meet than “probable cause.” 18 The second question is what counts as an exception to the warrant requirement. The Court has recognized several such exceptions, including when the person being searched gives their consent and when there are so-called “exigent circumstances.” 19 This latter exception allows the police, for example, to search a house without a warrant if they have good reason to believe that someone inside is in immediate danger or that critical evidence might be destroyed in the time it would take to obtain a warrant. As I’ve already mentioned and will explain in more detail shortly, the Court’s “automobile exception” to the warrant requirement is extraordinarily broad and extremely relevant to issues involving cannabis and the Fourth Amendment. For many exceptions, the police still need probable cause to search (for instance, the exigent circumstances exception applies only when there is probable cause to believe that exigent circumstances actually exist), but they do not need to get a warrant based on that probable cause before they conduct the search. Finally, if a warrant is required or the probable cause requirement otherwise applies, the third question is whether probable cause exists for the court to issue the warrant or for the police to conduct the search. Here the inquiry turns on whether there’s a “fair probability” that evidence of a crime will be discovered during the search.20 Usually, courts will review this question using all the relevant circumstances and simply make a judgment about whether the circumstances are such that the fair probability standard is met. Thus, in a case where the police receive a tip that someone is growing too many marijuana plants in their basement, and the

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house is using a lot more electricity than a normal household does (perhaps indicating the use of lots of high-intensity lights), and the homeowner seems nervous when the police ask whether anything illegal is going on inside, then a court might very well find probable cause to issue a warrant for a search of the house. On the other hand, if all the police have is the tip, and it also happens to be clear that the person who provided the police with the tip is in some unrelated dispute with the homeowner, then perhaps the court will find that probable cause is lacking. With probable cause, there is no clear rule about when it exists and when it doesn’t—it is what we call in the law game a “standard” rather than a “rule,” and thus it can be hard to predict whether a court will find that it exists in any given set of circumstances. Turning now to a few of the key Supreme Court cases that are relevant to the cannabis context, the first is the 1925 case of Carroll et al. v. United States,21 which is the decision that first announced the automobile exception to the warrant requirement. In this Prohibition-era case, two federal agents stopped two men driving their “Oldsmobile roadster” from Detroit to Grand Rapids because the agents had good reason to believe the car contained illegal alcohol.22 The agents searched the car without getting a warrant and found sixty-eight bottles of gin and whiskey hidden in a seat from which the upholstery had been removed. The defendants moved to suppress the evidence as being discovered through an illegal search, but the Supreme Court, in a decision written by Chief Justice William Howard Taft (the only person ever to be both president and a member of the Supreme Court), rejected their motion. The Court held that because automobiles may “be quickly moved out of the locality or jurisdiction in which the warrant must be sought,” no warrant is necessary to search the car if probable cause exists to believe that it contains either evidence of a crime or, importantly, “contraband.”23 As we’ll see, several state courts have held that police officers may search automobiles for weed even if the state has legalized cannabis for some purposes, because the weed still constitutes “contraband.” Two other important cases worth knowing involve the constitutional status of dog sniffs. Police officers often use trained dogs to find concealed drugs, so the question has arisen whether an officer with a drug-sniffing dog conducts a Fourth Amendment search when they have their dog sniff

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someone’s property looking for illegal substances. In the 1983 case of United States v. Place,24 the Supreme Court held that a dog sniff of someone’s luggage at an airport is not a search. The Court reasoned that because the only information disclosed by a dog’s alert in such a situation is whether the luggage contains an illegal substance, and because nobody has a reasonable expectation of privacy in keeping secret their possession of illegal substances, the dog sniff is not a search and need not be supported by probable cause.25 In the 2005 case of Illinois v. Caballes,26 the Court extended this reasoning to the automobile context, finding that an officer does not even need “reasonable suspicion” (the standard for quick stop-and-frisks) before having a dog sniff a stopped vehicle.27 “We have held that any interest in possessing contraband cannot be deemed legitimate, and thus, governmental conduct that only reveals the possession of contraband compromises no legitimate privacy interest,”28 the Court wrote. “Accordingly, the use of a well-trained narcotics-detection dog— one that does not expose noncontraband items that otherwise would remain hidden from public view—during a lawful traffic stop, generally does not implicate legitimate privacy interests.”29 In case you’re curious, the Court has since decided that bringing a drug-detecting dog to a house, including the yard, is a search, but that case (Florida v. Jardines) isn’t one that’s been implicated in any state court decisions involving cannabis legalization.30

dog s n i f f s i n t h e p o s t - l e g a l i z at i o n e ra In early 2015, in Moffat County, a sparsely populated area of northwest Colorado, police officer Bryan Gonzales noticed a pickup truck parked the wrong way in a one-way alley. When the truck started moving, Gonzales followed it to a residence a couple of blocks away. Gonzales recognized the residence as a place where drugs had been found not long ago, and so he became even more curious. When the truck started driving again and failed to signal a turn, Gonzales pulled the vehicle over. In the driver’s seat was a man named Kevin McKnight, and in the passenger’s seat was someone whom Gonzales recognized as having used methamphetamine “at some point in the past.” 31 Now suspicious, Gonzales put in a call to the

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Moffat County Sheriff ’s Office and asked a Sergeant Folks to bring his drug-sniffing dog Kilo to the scene. Kilo was trained to detect marijuana, methamphetamine, cocaine, heroin, and ecstasy, but like that of most (if not all) drug-detecting dogs, Kilo’s alert did not vary depending on which drug he detected. When Folks walked Kilo around McKnight’s truck, the dog quickly alerted on the driver’s side of the car. Based on the alert, Officer Gonzales ordered McKnight and his passenger out of the truck and searched the vehicle, finding a pipe that contained methamphetamine residue. At trial for possession of the pipe, McKnight moved to suppress the evidence, arguing that Kilo’s sniff of his truck was a search that had required probable cause to believe that McKnight had committed a crime. The defendant’s theory was that unlike in cases like Place or Caballes, the fact that marijuana was legal in Colorado meant that Kilo’s sniffing had the potential to reveal the presence of a legal substance. Importantly, McKnight based his argument not only on the Fourth Amendment of the U.S. Constitution, but also on the analogous provision of the Colorado Constitution.32 Although the trial court refused to suppress the pipe, the Colorado Supreme Court, in a split decision, reversed. 33 The majority essentially adopted McKnight’s position, finding that under the Colorado Constitution, a dog sniff that could potentially reveal legal activity counts as a search that must be supported by probable cause. “Because persons twenty-one or older may lawfully possess marijuana in small amounts, a drug-detection dog that alerts to even the slightest amount of marijuana can no longer be said to detect ‘only’ contraband,” the court explained. “Thus, an exploratory sniff of a car from a dog trained to alert to a substance that may be lawfully possessed violates a person’s reasonable expectation of privacy in lawfully possessing that item.” 34 The majority went on to conclude that Gonzales did not have probable cause at the time he called for the dog sniff. Three justices on the court dissented, relying on, among other things, the Colorado Supreme Court’s decision in Coats v. Dish Network, the case involving quadriplegic Brandon Coats.35 As you’ll recall from chapter 5, in that nightmare of a case (imagine doubling down on that decision), the court rejected Coats’s claim that he was fired for a “lawful” activity (using medical marijuana) because that activity was still illegal under federal law. According to the dissenters, the same principle

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precluded finding that McKnight had a reasonable expectation of privacy in keeping his marijuana possession private. The majority made its ruling under the Colorado Constitution and not the U.S. Constitution, so this Colorado Supreme Court decision became the final word on the matter, because the U.S. Supreme Court has no jurisdiction to review state court interpretations of state constitutional provisions. People v. McKnight is a landmark decision. It is the first and currently the only decision of any court that has found a dog sniff to be a search if the dog is trained to alert on cannabis and if cannabis is legal in the state. No court in any other jurisdiction has criticized the decision, but none has followed it either. The issue simply hasn’t made it to any appellate court where it could become the subject of a written, precedential opinion. Given that the Supreme Court decisions most relevant to the issue (Place, Caballes) support the police in this context, however, it is probably fair to say that in most states the rule continues to be that a dog sniff is not a search that needs to be supported by probable cause, even when cannabis is legal and the dog alerts to it. Still, many police departments in states where weed is now legal for adult use have begun reevaluating their use of dogs trained to alert when they find marijuana. The change is due more to the fact that in states where weed is legal, a dog alert may no longer itself be sufficient to constitute probable cause to search anything, than to a fear that more courts will follow McKnight and find that a dog sniff itself is a search. You do have to feel a little bad for those pups who went through extensive and expensive training and whose jobs are now obsolete. It is very difficult to retrain a dog not to alert to a substance once it has learned to alert to it,36 so dogs already trained to alert for weed may be more trouble to police departments than they’re worth. In Virginia, for instance, which legalized marijuana in July 2021, fifteen weed-sniffing dogs have been given their pink slips and forced into early retirement.37 Some critics of drug-sniffing dogs, however, are shedding no tears about this development. One writer, who has argued that drug-sniffing dogs are a mere “vestige of the drug war” and are actually quite terrible at their jobs, wishes all of these soon-to-be-jobless mutts “a happy and healthy retirement,” noting that they’re all being adopted or “going home with their police handlers—where, if so desired, they will alert to the presence of drugs every day, for the rest of their days.” 38

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searc h i n g ca r s t h at s m e l l l i k e w e e d Leaving dogs behind now, the most critical issue involving police searches in our post-legalization nation is whether an officer can use the smell of weed, whether burnt or unburnt, as probable cause for searching a car without a warrant pursuant to the Supreme Court’s automobile exception. This is a critical issue not only because police often do smell weed when they stop cars on the road, but also because, at least according to some lawyers and judges, officers routinely claim they’ve smelled weed coming from stopped cars even when such claims seem fanciful. In a remarkable opinion issued in 2019, Bronx County Judge April Newbauer found the testimony of an officer regarding the smell of cannabis (which led to a search that discovered an illegal gun and ammunition) completely unbelievable. “This case illustrates why the time has come to reject the canard of marijuana emanating from nearly every vehicle subject to a traffic stop,” 39 Newbauer wrote. Courts in a number of states have issued decisions on the question of whether the smell of marijuana can serve as probable cause for searching a car—and, although the trend may be tipping somewhat in favor of defendants, most courts that have considered the issue have ruled for the police. Courts that have ruled against defendants have used two theories to support their decisions. Some, such as courts in Oregon, California, and Maryland, have argued that at least during periods when weed has been decriminalized but has not yet been made entirely legal, the drug still counts as “contraband” even though possessing it may be punishable only by a small civil fine.40 In a 2010 case called Smalley that involved events preceding the state’s full legalization of the drug, an Oregon appeals court put it this way: “By using the phrase, ‘contraband or crime evidence,’ the [Oregon Supreme Court, following the U.S. Supreme Court] signaled its understanding that the two things were not identical and that probable cause to believe in the presence of either could justify an automobile search. . . . Indeed, both the legal and common definitions of ‘contraband’ indicate that the term encompasses anything that the law prohibits possessing.” 41 Courts in other states, like Colorado, have argued that since many activities involving weed remain illegal even when possession of small amounts has been legalized, it therefore follows that at least when

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combined with other facts, the smell of weed can serve as probable cause to search a car for evidence of a cannabis-related crime.42 The Moorman case from Michigan that kicked off this chapter is an example of such reasoning. Courts in other states, however, have rejected these lines of argument. As in the DUI and employment contexts, the Massachusetts Supreme Judicial Court (SJC) has led the way on this issue. In the 2011 case of Commonwealth v. Cruz,43 officers who smelled the odor of burnt marijuana ordered a driver and a passenger to step out of their car so that the officers could perform a search. The search turned up a small rock of crack cocaine, and the officers placed the defendant, Benjamin Cruz, under arrest for possession. Before trial, Cruz moved to suppress the evidence turned up by the search on the grounds that the smell of weed, even when combined with a couple of other factors (the defendant was nervous and smoking a small cigar known to mask the smell of marijuana), could not be used as probable cause for the search. The SJC agreed. Specifically rejecting the Oregon court’s reasoning in Smalley, the SJC concluded that to justify a search, the smell of weed must give the police “probable cause to believe that a criminal amount of contraband was present in the car.” 44 Since the smell of weed alone does not show that anyone is breaking any criminal law, the court found that the officers lacked probable cause to search the car, and it excluded the rock of crack from being introduced as evidence. Even more fascinating is the SJC’s follow-up case involving the smell of unburnt weed. Unlike the smell of burnt weed, which can’t possibly indicate anything about the amount of cannabis involved, the smell of unburnt weed might potentially tell officers something about the amount of weed involved, since a bigger stash of weed will presumably smell stronger than a smaller stash. In Commonwealth v. Overmyer,45 on the SJC’s docket in 2014, officers searched a car on the basis of what they described as a “strong” or “very strong” smell of unburnt marijuana.46 The state argued that such a strong smell gave the officers probable cause to believe that the car contained more than one ounce of weed, which at the time was the dividing line between a civil fine and a criminal violation. The SJC, though, was having none of it. The court noted that “characterizations of odors as strong or weak are inherently subjective; what one person believes to be a powerful scent may fail to register as potently for another.” Thus, “we are

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not confident, at least on this record, that a human nose can discern reliably the presence of a criminal amount of marijuana, as distinct from an amount subject only to a civil fine.” 47 In reaching its decision, the SJC relied on an academic paper written by scientists at the University of Pennsylvania Medical School’s Smell and Taste Center, entitled “Marijuana Odor Perception: Studies Modeled from Probable Cause Cases.” 48 For that paper, the authors mimicked a real-life case by testing whether nine test subjects could discern the smell of a bag of marijuana placed in the trunk of a 1983 two-door Chevrolet just by sniffing inside the car. The authors put either a bag of marijuana or an empty bag in the trunk for thirty minutes and then asked the subjects (who, of course, were not told what was in the trunk) to “sniff in the front seat area, and in the back seat area, and [report] if you smell the odor of marijuana.” 49 The results showed that the subjects were awful at determining what was in the trunk, with the number of false positives basically equaling the number of correct positives. Although conceding that the sample size was small, the authors nonetheless concluded from these results (and the results of a couple of other analogous experiments) that “a blanket acceptance of testimony based upon reported detection of odors for probable cause is questionable.” 50 In Overmyer, the SJC cited the paper twice to support its conclusion that “as a subjective and variable measure, the strength of smell is thus at best a dubious means for reliably detecting the presence of a criminal amount of marijuana.” 51 More recently, the high court of Maryland (known as the Maryland Court of Appeals) issued a decision more consistent with the Massachusetts court than with its own earlier decisions finding for the police. In the 2019 case of Pacheco v. State,52 officers who smelled marijuana coming from the car of Michael Pacheco ordered him out of the car and then searched both the car and Pacheco’s person. The search of the car turned up basically nothing, but the officers did find a bag of cocaine in Pacheco’s left pocket. Pacheco moved to suppress the cocaine on the grounds that even if the officers had probable cause to search his car, under the automobile exception that talks about “contraband,” they did not have probable cause based on the odor of cannabis to search him. The Court of Appeals agreed. Chief Judge Mary Ellen Barbera began her opinion by quoting Bob Dylan’s “The Times They Are A-Changin’,” 53 and then held that offic-

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ers could not use the smell of marijuana as probable cause to search the defendant’s person when, under Maryland law, possession of less than ten grams of weed did not constitute a crime.54

what a b o u t h o m e s ? What happens if a police officer smells weed and the odor seems to be emanating from someone’s house, apartment, or other real property? Can they use the odor, either alone or in combination with other circumstances, to get a warrant to search the home? Again, the cases are split, with most courts deciding in favor of the police. The issue has arisen most often in the context of states that have legalized weed for medical but not recreational purposes. If the owner of the property has a medical card, does that mean that the smell of cannabis is insufficient to get a warrant to search the premises, or does the owner’s participation in the medical program simply allow them to raise a defense to prosecution if the government insists on putting them on trial? Both the Washington and Arizona supreme courts have found for the police in such circumstances. In the 2016 Arizona case State v. Sisco,55 officers smelled an “overpowering odor of fresh marijuana” at a storage facility and got a warrant to search two units on that basis.56 The search revealed that one of the units was being used as both a residence and a marijuana cultivation operation. The defendant moved to suppress the evidence found during the search, on the grounds that Arizona had legalized cannabis for medical use and so its smell “no longer suffices to establish probable cause.” 57 A lower court agreed with him, but the Arizona Supreme Court reversed. According to that court, even with the passage of Arizona’s medical marijuana law (known as the AMMA), “the odor of marijuana in most circumstances will warrant a reasonable person believing there is a fair probability that contraband or evidence of a crime is present.” 58 The court continued: “This conclusion reflects that AMMA did not decriminalize the possession or use of marijuana generally. . . . Instead, AMMA makes marijuana legal in only limited circumstances. . . . Thus, when an officer detects marijuana by sight or smell, the degree of suspicion that attaches remains high, notwithstanding AMMA.” 59

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The case from the state of Washington, State v. Fry, decided in 2010 (when weed was legal in the state for medical but not for recreational purposes),60 applied a similar analysis in the context of a house. There, two officers, acting on information that Jason and Tina Fry were growing marijuana in their home, walked up to the Frys’ front porch where the officers smelled burning weed. When Jason opened the door, the officers smelled an even stronger odor of cannabis. Jason told the officers that he had a legal prescription for marijuana and refused to let them inside. Tina then gave the officers some documentation that purported to give Jason authorization to use marijuana for medical purposes (there’s a separate issue in the case about whether this authorization was legitimate, but for purposes of our question it doesn’t really matter, because the police had no reason to doubt its legitimacy at the time they acted). The officers ignored the medical authorization, obtained a warrant over the telephone from the relevant court, and searched the house, finding, among other things, more than two pounds of weed.61 Fry moved to suppress the evidence found in the search, and the case went all the way to the state’s highest court, which held in favor of the police. The state argued that its medical marijuana law simply provided defendants with an affirmative defense that they could raise at trial and did not make possession of marijuana for medical purposes legal in the first instance. The court curiously agreed. It reasoned as follows: Possession of marijuana, even in small amounts, is still a crime in the state of Washington. A police officer would have probable cause to believe Fry committed a crime when the officer smelled marijuana emanating from the Frys’ residence. Fry presented the officer with documentation purporting to authorize the use of marijuana. Nevertheless, the authorization only created a potential affirmative defense that would excuse the criminal act. The authorization does not, however, result in making the act of possessing and using marijuana noncriminal or negate any elements of the charged offense. Therefore . . . a reasonable inference was established that criminal activity was taking place in the Frys’ residence. Therefore, the officers had probable cause.62

Only one of the nine justices on the court dissented from the ruling. Justice Richard Sanders thought that the majority’s opinion was lacking in compassion. Sanders pointed out that under the majority’s approach,

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someone “with a terminal or debilitating illness who benefits from marijuana use” has no privacy right to keep the police from searching their house and placing them under arrest for something that is not illegal.63 The fact that the defendant could then prevail in trial by putting forward an affirmative defense based on their medical authorization is nice and all, but it doesn’t make up for the fact that the police have just ransacked his house and taken him off to jail. Sanders concluded: “Upon release he can return home once again, exhausted and in pain, and use marijuana again to alleviate his pain. However, following another knock on his door from an officer smelling burnt marijuana, the individual is again subject to interrogation, home search, and arrest. I do not find the mercy of the people of Washington for individuals with terminal or debilitating illnesses to be so fickle.” 64 Luckily, not all states have followed the merciless approach taken by the Washington and Arizona courts. Another decision, once again from the Massachusetts SJC, came out diametrically opposed to the Washington court’s opinion in Fry. In the 2015 case of Commonwealth v. Canning,65 the court held that to demonstrate probable cause to get a warrant to search a house for weed, officers must show that the owner “is not or probably not registered to cultivate the marijuana at issue” under the state’s medical program (this was before Massachusetts legalized for recreational use).66 In another case from Alaska called State v. Crocker,67 the state appeals court issued an opinion similar in analysis and tone to Justice Sanders’s opinion in Fry. Alaska is unique because its Supreme Court in 1975 held, in a case called Ravin v. State, that as a matter of state constitutional law, all adults have the right to possess up to four ounces of marijuana in their homes for personal use.68 When officers executed a search warrant at Crocker’s home, based on their belief that they smelled an amount greater than four ounces emanating from the house, Crocker challenged the search as violating his privacy rights. The court agreed, holding that “a judicial officer should not issue a warrant to search a person’s home for evidence of marijuana possession unless the State’s warrant application establishes probable cause to believe that the person’s possession of marijuana exceeds the scope of the possession that is constitutionally protected under Ravin.” 69 The court further found that the officers failed to make any convincing claim in their warrant application that the

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strength of the smell of weed they noticed at the house made it likely that Crocker possessed more than the allowed four ounces. The court wrote: “There may or may not be a correlation between the strength of the odor of growing marijuana and the amount of marijuana being grown. But the search warrant application . . . makes no assertion concerning such a potential correlation, and we will not assume such a correlation in the absence of evidence.” 70

what s h o u l d c o u rt s a n d s tat e s d o ? In summary, then, although some enlightened state courts have gone the other way, the current law in most states holds that even when marijuana is legal for one or more purposes within the state, (1) police officers may use a drug-sniffing dog, trained to alert to the presence of marijuana, to sniff a car without having probable cause to believe a crime has occurred; (2) officers may search a car without a warrant if they smell marijuana coming from the car; and (3) officers may obtain a warrant to search a home if they smell marijuana coming from inside the premises. The two normative questions that remain are first, whether these decisions are legally justified, and second, in states where at least one of these three positions is the rule, whether the state legislature should enact a statute expressly limiting the power of police officers to search for what is basically a legal substance. For reasons I’ll explain, my view is that court decisions favoring the police on these issues are wrongly decided as a matter of constitutional law and that legislatures in all states should proactively enact statutes making clear that police officers cannot search (or have a dog sniff ) a car or home without probable cause to believe that an actual crime involving marijuana (and not just legal possession of the drug) has occurred. Because I’m more concerned, in this book, with explaining what I think state legislatures and administrative agencies should do about marijuana policy than with evaluating judicial decisions on marijuana law, I’ll be quick with my comments on constitutional law. Decisions like the Colorado Supreme Court’s majority opinion in McKnight, the Massachusetts SJC’s opinions in Cruz and Overmyer, and the Alaska Supreme Court’s opinion in Crocker all, in my opinion, appropriately rec-

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ognize that search and seizure law must change to accommodate the new marijuana legalization paradigm. The warrant and probable cause requirements exist to limit the power of the police and to protect the privacy and freedom of individuals. If there is no good reason to believe that someone has committed an actual crime involving marijuana, there is no good reason to allow the police to invade that person’s privacy. The rules that existed in all states prior to legalization rightly favored the police because any evidence of marijuana possession was evidence of a crime, but that is no longer the case. The dissent in McKnight, the Michigan Supreme Court’s decision in Moorman, and the Arizona Supreme Court’s decision in Sisco all represent thinking that is stuck in the past, holding on to the erroneous notion that evidence of even the slightest amount of marijuana is sufficient to allow police to substantially invade the privacy of individuals on the grounds that something vaguely bad might be going on. Legislatures in states that have legalized marijuana for one or more purposes, however, have made it clear that possession of some weed for some purposes is completely fine. Not sort of fine or a little fine or even mostly fine, but completely fine—as fine as possessing a painkiller pursuant to a prescription or, for that matter, an apple or a radio. We don’t let the police search a car or a house when they happen to notice that the car contains a prescription bottle of Percocet or that the house has a nice radio in it on the grounds that the car owner might also have some nonprescription painkillers hanging around or that the homeowner might have stolen the radio and thus might be hiding other stolen goods. There’s no greater justification for letting police search for more marijuana, on the basis of their knowledge that someone has some marijuana, than there is in either the Percocet or the radio scenario. Beyond constitutional law, though, the more pertinent question is whether state legislatures (or even local governments) should simply enact statutes limiting what the police can do when they suspect that a marijuana crime may be occurring. State legislatures can proactively provide more privacy protection than their constitutions require, and so no legal reason exists why state legislatures could not make it clear that dog sniffs for weed are searches and that officers cannot, for instance, base their search of a car or home on the smell of marijuana. To evaluate this question, though, requires us to go back to the criteria I’ve been applying

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to policy decisions involving marijuana throughout the book, with one or two new criteria or variations on existing criteria thrown in for good measure. Giving police more powers to investigate crimes involving marijuana would probably score high on the “reduce the illicit market” criterion, since it would allow officers more leeway to search property for evidence of illegal grows. In addition, in some ways, making it easier for officers to search cars and homes will serve the public health and safety criterion, to the extent that such searches allow the police to find more evidence of crime in general and thus result in more dangerous criminals being caught and incarcerated. This is certainly one of the primary justifications given by police and prosecutors for being able to use the odor of weed as the basis for searching automobiles. For example, Mary Tanner-Richter, the vehicular crimes bureau chief in the Albany County DA’s office, told the Washington Post in response to Judge Newbauer’s opinion criticizing the Bronx County police department: “It’s going to, without a doubt, lead to less searches of vehicles, which would then lead to less guns being recovered and significant drugs being recovered. I mean, I think it’s hard to argue against that being the reality we’re going to face. That’s how they found Ted Bundy. That’s how the Oklahoma City bomber got caught. And quite often that’s how they’re getting guns and drugs off the street. They are now losing a huge tool in their investigation of drugs and guns.” 71 In some ways, however, taking power away from the police to search for marijuana will in fact promote public health and safety. As we’ve seen all too often lately, police stops and searches of vehicles can end in violence, typically involving people of color, and curtailing police authority would likely reduce these dangerous encounters (more on this when I discuss the equity criterion in a moment). Moreover, freeing up officers from investigating weed gives them more time and resources to investigate more important and dangerous crimes. William Neafsey, the head of the Narcotics Task Force at the Essex County DA’s office in New Jersey, for instance, told the same Washington Post reporter who quoted TannerRichter that going after cocaine and heroin instead of weed is “what we should be doing.” 72 “This is the stuff that matters,” he said. “If you’re not worried about investigating marijuana, it frees up manpower to go after the serious stuff.” 73

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Against these gains in reducing the illicit market and increasing (to some extent, anyway) public health and safety, promoting police power to search for weed fares poorly under several of our criteria, including ease of access (and freedom generally, as I’ll explain), equity in at least two different senses, personal privacy (not a criterion we’ve already identified but an important one here), rationality, and normalization. For me, these disadvantages of giving police more power to search for weed far outweigh its benefits. Construed broadly, the ease of access criterion should be understood as including not only the ability to obtain the products of one’s choice but also the freedom to enjoy those products without having to worry about being stopped or searched by the police. Knowing that the police can search your car or home if they so much as smell the odor of a burnt joint or a bag of unburnt cannabis places a substantial buzzkill on the freedom to enjoy what is, after all, now a legal substance. Moreover, when cops do conduct a search based on that odor, or on some other evidence that marijuana is present, the harm to individual freedom will be compounded by a significant invasion of personal privacy. Why should the police be able to order you out of your car and search its entire interior—or, even more invasively, search your entire house, where you likely keep your most personal possessions—simply because they came across a smell that proves nothing other than that you were enjoying a substance that the state has deemed harmless enough to be fully legal? Imagine if the smell of incense (what’s that hiding?) or a halfempty glass of liquor (illegal moonshine?) sufficed to allow the police to ransack your entire house? We wouldn’t stand for that, and our attitudes should hardly be different when it comes to marijuana. In addition to undermining ease of access and personal privacy, giving the police power to conduct searches based on the smell of weed is both irrational and harmful to normalization in ways that are straightforward. All the constitutional arguments about what should count as a search and what constitutes probable cause can also be used to demonstrate the irrationality of a rule that allows police to search private property because of the smell of a legal substance. Moreover, by treating marijuana differently than all other legal substances and activities that people enjoy recreationally, such police power sends a powerful message that marijuana is in fact not normal but must be treated as so highly problematic that the police

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can invade someone’s house or car on the basis of its odor, even without any evidence that a crime is taking place. The most powerful argument in favor of curtailing the police’s power to search for weed, though, is likely equity. There are two senses in which police searches for marijuana implicate equity concerns. First of all, for reasons I already touched on when talking about freedom and privacy, these potential searches are unfair to anyone who just wants to enjoy a mostly harmless and totally legal intoxicating substance. But more important are the race-based equity impacts of police searches. With what we know about police activity generally and police enforcement of marijuana laws specifically (remember, Black people are 3.7 times more likely to be arrested for marijuana offenses than whites),74 conferring power on police to conduct searches based on the smell of weed will inevitably have profoundly unequal effects on people of different races. As the Washington Post reported in mid-2021: “Civil rights advocates say anything that hinders motor vehicle searches is cause for celebration, as they were used disproportionately on Black and Brown motorists. Black residents, for instance, make up about 50 percent of Newark’s population but in 2019 were involved in almost 80 percent of the police department’s searches, according to the most recent data on its website.” 75 According to one criminal defense lawyer who wrote an entire article on the subject, “Police believe that if they stop more Black people, they’re going to pick up more drugs, because that’s what they’ve been taught. But it is statistically evident that Black and White people use marijuana at the same rate.” 76 Given all these downsides to allowing police (and police dogs) to search cars and homes on the basis of minimal evidence, states should not wait around for the courts, which tend to be rather conservative institutions on issues of social and criminal justice, to come around to the correct application of the Fourth Amendment in weed-related search and seizure cases. Rather, states should be proactive about protecting marijuana users in our post-legalization nation by specifically providing through statute that the smell of marijuana cannot be used by the police to support searches of cars and homes and that dog sniffs for weed are, in fact, searches that must be supported by probable cause for believing that an actual crime has occurred. A couple of states have already started down this road. New York’s legalization statute, for example, specifically provides that “no finding or

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determination of reasonable cause to believe a crime has been committed shall be based solely on evidence of the following facts and circumstances, either individually or in combination with each other: (a) the odor of cannabis; (b) the odor of burnt cannabis.” 77 The law contains an exception for DUI investigations, but even there the law provides that “the odor of burnt cannabis shall not provide probable cause to search any area of a vehicle that is not readily accessible to the driver and reasonably likely to contain evidence relevant to the driver’s condition.” 78 Virginia has taken similar action, providing by statute that “no law-enforcement officer may lawfully stop, search, or seize any person, place, or thing solely on the basis of the odor of marijuana, and no evidence discovered or obtained as a result of such unlawful search or seizure shall be admissible in any trial, hearing, or other proceeding.” 79 States that have legalized weed or are considering legalization should follow suit and issue their own statutes making clear that the smell of weed cannot in itself justify an invasive police search of someone’s car, house, or person.

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Conclusion a quick look back and a brief look forward

So, then—what was this book about, anyway? I’ve tried to make a lot of points throughout these pages, but four of them stand out to me as most important and worth reiterating. First, I’ve argued that how we legalize marijuana is at least as important and complex a question as whether we should legalize marijuana, and that because of the importance and complexity of the “how” question, it is critical to think systematically about the criteria that we want to maximize through legalization. Marijuana policy can serve a variety of goals, but many of these goals are potentially inconsistent. When we try to maximize one of these goals, our actions could have the effect of undermining other goals. And so, in order to think rationally about any given specific issue or problem within the realm of cannabis policy, we need to have already identified and ranked the various criteria that our marijuana policy could serve. I have suggested a list of ten criteria, which I don’t put forward as being either an exclusive or a necessarily perfect list. Those criteria are equity, public health, ease of access, revenue maximization, environmental protection, rationality, market freedom, reduction of the illicit market, local control, and normalization. Different people will rank these criteria differently. Some will value public health over everything else, while 191

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others will be more interested in market freedom or revenue maximization. A common set of criteria that we can discuss and debate, however, will likely lead to more productive and thoughtful conversations about what, precisely, we should do when it comes to legalizing weed. Second, I’ve put forward, and defended to some extent, my own preferred ranking of criteria, both as an example of how one might go about this task and as a way of guiding my subsequent discussion of specific policy issues and questions. For me, the top tier of criteria consists of equity, ease of access, and normalization. I prefer a post-legalization nation where people of color, whose communities were decimated by our disastrous drug wars of the past five decades or more, have ample opportunities to participate in the cannabis industry both as owners and as employees. I would also like to see a policy landscape where those who enjoy weed can easily access and use their drug of choice without stigma, without being fired, and without having their cars or homes searched at the whim of the police. I hope that before long, we will reach the point that using cannabis is as normal and widely accepted as any other recreational choice, from listening to classical music to whitewater rafting to drinking shots of Fireball whiskey at a strip club on the outskirts of Reno. My second tier of criteria consists of public health, protecting the environment, reducing the illicit market, and rationality, while local control, market freedom, and revenue maximization bring up the rear of my preferred criteria. These latter criteria are certainly worth promoting to some extent, but only so far as they are consistent with maximizing more important ones, such as equity or normalization. Third, I’ve applied my preferred set of criteria to a variety of specific questions of marijuana policy and argued at length that our current legalization efforts have been largely marked by a flawed “grudging toleration” approach. The key aspects of this grudging tolerance are fivefold: strict limits on advertising and marketing of cannabis stores and products; a lack of social use establishments where people can safely and legally consume cannabis among like-minded individuals; a failure to protect users from being fired or not hired in the first place for off-premises use of marijuana; the granting of excessive control to cities, towns, and other localities to regulate, control, and even ban the marijuana industry within their borders; and a refusal to prohibit police officers from searching cars,

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homes, and persons simply on the basis of odor or other indications of the presence of a non-illegal amount of the drug. Through these policies and others, states that have legalized marijuana have, more often than not, taken the attitude and sent the message that although marijuana may be legal, it is still a second-class (at best) recreational choice for second-class citizens, not nearly as legitimate as other recreational choices such as drinking alcohol, playing golf, or eating pie. Fourth, and finally, I have argued that states should begin replacing their grudging toleration approach to marijuana legalization with an approach that I’ve termed “careful exuberance.” Both parts of the phrase are important. Our approach to marijuana legalization should be careful because, as I’ve described throughout the book, cannabis use does pose some important risks to public health and safety (and growing the plant poses risks to the environment). However, we should be exuberant about legalization because it means that after more than a hundred years of government-backed racism, lies, and scientific ignorance, as a society we are finally coming to the realization that marijuana is a relatively low-risk substance that brings countless people relief from serious medical conditions, as well as happiness, relaxation, and joy. States should begin to replace grudging tolerance with careful exuberance by reversing the policies at the core of the grudging toleration regime—specifically by allowing more cannabis advertising and marketing, facilitating the creation of cannabis cafés and other social use establishments, prohibiting employers from taking negative employment action against workers for using marijuana off site, curtailing the authority of localities to ban or overly regulate marijuana establishments, and prohibiting, either through court decision or by statute, police searches of cars and houses triggered by the odor of marijuana.

look i n g f o rwa r d t o f e d e ra l l e g a l i z at i o n Writing a book about cannabis law and policy in the early 2020s is a perilous endeavor, sort of like writing an article about a baseball game in the middle of the fifth inning. Anything could happen between the time you start writing the book and the time it’s finally ready to be published.

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Indeed, several states legalized cannabis for adult use while I was working on the first draft of the book. By the time you’re reading this, who knows what will have happened? Maybe marijuana has already been federally legalized and completely normalized in the United States! Nothing would make me happier, even if it means that nobody will buy this book that I’ve been working on for what seems like half my adult life. As I’m writing this, though, cannabis continues to be illegal at the federal level and a long, long way from being normalized. Members of Congress have proposed all sorts of bills to address the problems caused by marijuana’s federal illegality, and while some have drawn a good deal of support from members of Congress on both sides of the aisle (though mostly from Democrats), none have really made it even close to being passed into law.1 Still, most experts (including me) think that federal legalization is inevitable and will probably come about sooner rather than later. As such, it seems appropriate to end this book by adding a few comments about how legalization might proceed at the federal level. Congress has a whole range of possible models to choose from when it comes to legalization. One choice it has to make is whether to tackle the illegality of marijuana head-on or whether, instead, to start with something smaller, perhaps addressing one or more of the negative consequences of the drug being illegal, rather than its illegality per se. The socalled SAFE Banking Act (officially the Secure and Fair Enforcement Act), is one example of this type of statute.2 The SAFE Banking Act wouldn’t touch marijuana’s illegality under the Controlled Substances Act, but it would make clear that federally chartered banks could service cannabis companies without fear of breaking federal law. Other possibilities might include a statute amending the tax code to provide that section 280E won’t apply to marijuana businesses, or a law requiring the U.S. Patent and Trademark Office to grant trademark protection to marijuana businesses that would otherwise qualify if it weren’t for the drug’s illegal status. The advantage of such limited bills is that they may be easier to enact, given that the change they would effect would be relatively limited, compared to a more comprehensive legalization effort. On the other hand, those who support full legalization reasonably worry that passing a more limited statute will take the steam out of the legalization movement and delay full legalization for years or even decades.3

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If Congress does decide to address weed’s illegality head-on, all sorts of questions remain about how it should proceed. One key issue is whether Congress should keep marijuana categorized under Schedule I of the Controlled Substances Act and simply exempt states with established medical or adult-use programs from the CSA’s prohibitions on the one hand, or to de-schedule marijuana altogether on the other hand. In a 2015 article, entitled “Cooperative Federalism and Marijuana Regulation,” Erwin Chemerinsky and coauthors argued in favor of a “cooperative federalism model” under which states that have legalized weed could request the attorney general to certify them as a “CSA Marijuana Control Opt-Out State.” 4 States whose programs meet certain criteria would then be granted a short-term exemption from the CSA, which could be renewed every couple of years.5 The so-called STATES Act, or Strengthening the Tenth Amendment Through Entrusting States Act, which received a lot of attention a few years back, was built basically on this model, although that statute would have made CSA exemptions more or less automatic for states with established medical or adult-use programs.6 As momentum for federal legalization has picked up steam, most reformers have moved away from minimalist federal efforts like those represented by the STATES Act and begun embracing more comprehensive reform proposals that would remove marijuana from the CSA entirely. Notably, these proposals typically leave the decision whether to legalize marijuana to the sole discretion of the states, so that if Idaho wants to keep its citizens from experiencing weed-induced joy and euphoria, it is free to do so. Full de-scheduling has several advantages over the cooperative federalism approach of the STATES Act. For one thing, from a normalization perspective, making it clear that marijuana does not belong anywhere in the CSA will send a much stronger signal about the normalcy of using weed than more limited efforts. From the point of view of ease of access, moreover, full de-scheduling is also a superior option because it would make clear, as something like the STATES Act would not, that no negative ancillary consequences will come to users or sellers of cannabis. For instance, it’s far from certain that the STATES Act would solve either the banking or the immigration problems posed by the current federal system. As one prominent immigration rights organization has explained, “The STATES ACT will not protect immigrants who work in

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the legitimate marijuana industry from the current severe immigration penalties. . . . In contrast, bills that remove marijuana as a Schedule I controlled substance . . . will remove severe immigration penalties from employees of the legitimate marijuana industry and their families. They will remove those penalties from people who use marijuana in accord with, or in violation of, state law.” 7 Many supporters of federal legalization have gone even further than simply advocating the removal of marijuana from the CSA by additionally proposing (1) a series of measures to promote equity in the industry and remedial funding for communities of color that were disproportionately harmed by the drug wars; and/or (2) a series of provisions giving various agencies of the federal government control over some aspects of the marijuana industry itself. My own view is that the first option’s provisions aimed at promoting equity are absolutely essential, while the latter options—more federal control over the marijuana industry—are more difficult to evaluate. Several prominent proposed statutes, including the Marijuana Justice Act, the MORE Act (or Marijuana Opportunity Reinvestment and Expungement Act),8 and the 2021 Cannabis Administration and Opportunity Act (CAOA),9 all have extensive provisions aimed at promoting equity. The CAOA, for instance, which runs to over 160 pages, would result in expungement of all arrests for nonviolent marijuana crimes, authorize defendants serving a criminal sentence for a marijuana crime to get a resentencing hearing, and provide several categories of grants to individuals, businesses, and state and local governments to help those negatively affected by the war on drugs and to make it easier for people of color to participate effectively in the marijuana industry.10 All of these provisions are excellent, and cause for celebration. With its enormous reach and resources, the federal government is superbly positioned to lead the effort for equity in the cannabis space. Whether and to what extent the federal government should actually be involved in the substantive, day-to-day regulation of the marijuana industry are more difficult questions. The federal government, if it so chooses, can provide uniform standards for everything from labeling and packaging, to advertising and marketing, to health and safety standards for workplaces, and much more. Whether it should do some or all of these

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things is beyond the scope of this book, but of course, a lot will depend on how one views the importance of state experimentation and autonomy when it comes to setting cannabis policy. My own view is that state autonomy is more important than local autonomy when it comes to marijuana policy and that states should be given a good deal of leeway to regulate weed as they see fit. At the same time, though, the federal government should take at least some steps to ensure that the legalization regime it ushers in represents an approach more of careful exuberance than of grudging tolerance. As such, I would recommend that if the federal government ever does get around to legalizing weed, it should consider making uniform rules allowing marijuana companies to freely and openly advertise their products to adults, prohibiting employers from firing employees for using marijuana off site, and prohibiting the police from conducting searches of private property based on the smell of weed. Finally, if the federal government does decide to legalize, it must seriously consider the implications of legalization for states’ existing efforts to protect their own budding cannabis industries and to promote equity within their borders. As scholars and other observers have pointed out, once there is a truly national market for cannabis, growers in states where cultivation is more difficult and expensive will likely find their businesses undercut substantially by cultivators in states where growing is easier and cheaper.11 It is going to be hard, for example, for growers in Massachusetts or Michigan to compete with growers in California. Moreover, to the extent that states have sought to promote equity within their borders by giving license preferences and other benefits to minority-owned businesses or placing caps on how many licenses any one person or entity can control within the state, federal legalization may pose a significant threat to equity in the industry. This is because of the aforementioned Dormant Commerce Clause, which places substantial limits on states’ efforts to protect or promote their own businesses and citizens when those entities are operating in interstate commerce.12 As such, when it finally legalizes cannabis, Congress should take steps to ease the transition by phasing in legalization incrementally and—given Supreme Court precedent stating that Congress can authorize states to take actions that would otherwise violate the Dormant Commerce Clause—by specifically authorizing states

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to protect their own citizens and businesses for some reasonable period such as five or even ten years.13 •

•

•

•

•

Okay, well—that’s it. I hope I’ve helped you think more systematically about how cannabis should be legalized, and perhaps even convinced you of the wisdom of careful exuberance as a guiding principle of marijuana legalization in the United States. If you’ll now excuse me, I’m going to go load the bowl.14

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Acknowledgments

First and foremost, I thank my terrific editor, Maura Roessner, without whom this book would not exist. The book would also not exist without the efforts of Jeff Anderson, Teresa Iafolla, Katryce Lassle, Sam Warren, Madison Wetzell, and the rest of the staff at UC Press, and I am grateful to you all. Many thanks also to Richard Earles for terrific copyediting and to Thérèse Shere for preparing the index. Special thanks go to Fred Tung, who, when he was associate dean for academic affairs at BU Law, jokingly suggested that I call my course “Weed Rules.” This book is not the first time I’ve started a writing project so that I could publish something with a specific funny or catchy title, but it is certainly the longest thing I’ve ever written for that reason. Additionally, I’d like to thank the following people whose help, of various kinds, was invaluable as I started learning, researching, and writing about cannabis law and policy: Doug Berman, Norman Birenbaum, Elise Brown, Connor Burns, Michael Cutler, Kay Doyle, Adam Fine, Rick Garza, Dr. Peter Grinspoon, Sam Kamin, Conner Kingsley, Rob Mikos, Shannon O’Fallon, Maureen O’Rourke, Angela Onwuachi-Willig, and Shaleen Title. You all rule.

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introduction 1. Will Yakowicz, “Where Is Cannabis Legal? A Guide to All 50 States,” Forbes, January 10, 2022, www​.forbes​.com​/sites​/willyakowicz​/2022​/01​/10​/where​-is​ -cannabis​-legal​-a​-guide​-to​-all​-50​-states. It is challenging to write a book about cannabis policy and legalization these days, because the laws governing cannabis are always changing—and quickly. I have attempted at all points to provide the most up-to-date and accurate information possible, but it is inevitable that by the time the book is published, some facts will have changed. 2. Not that there’s anything wrong with that. 3. For Washington’s tax rate, see Washington State Department of Revenue, “Recreational and Medical Marijuana Taxes,” https://dor.wa.gov/about/statisticsreports/recreational-and-medical-marijuana-taxes (accessed February 14, 2022). For Oregon’s tax rate, see Oregon Department of Revenue, “Marijuana Tax Program,” www​. oregon​. gov​/dor​/programs​/ businesses​/ Pages​/marijuana​. aspx (accessed February 14, 2022). 4. These differences among states are described in detail in chapters 4–8. 5. The book is Robert A. Mikos, Marijuana Law, Policy, and Authority (New York: Wolters Kluwer, 2017). 6. A word about terminology. Throughout the book, I use the words cannabis, marijuana, and weed interchangeably. The word marijuana has rightly been criticized by many as having racist roots (Harry Anslinger, the first head of the 201

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Department of Narcotics, purposefully began referring to cannabis as “marijuana” because it sounded foreign), but the word is so widely used today without such connotations that while I fully understand and appreciate those who refuse to use it, I’ve chosen to use it here. Likewise, although cannabis is arguably a broader term than marijuana, in that cannabis refers not only to the psychoactive components of the plant (often referred to as “marijuana”) but to the nonpsychoactive components as well, I make no distinction between the terms here. I use weed a lot because it’s a funny word. 7. American Civil Liberties Union, Report: The War on Marijuana in Black and White (New York: ACLU Foundation, 2013), 4. 8. For details on the health risks (and benefits) of weed, see chapter 2. 9. Two of the more prominent works produced by the wonks are Jonathan P. Caulkins, Beau Kilmer, and Mark A. R. Kleiman, Marijuana Legalization: What Everyone Needs to Know, 2nd ed. (New York: Oxford, 2016); Jonathan P. Caulkins, Beau Kilmer, Mark A. R. Kleiman, Robert J. MacCoun, Gregory Midgette, Pat Oglesby, Rosalie Liccardo Pacula, and Peter H. Reuter, Considering Marijuana Legalization: Insights for Vermont and Other Jurisdictions (Santa Monica, CA: RAND Corporation, 2015), www​.rand​.org​/pubs​/research​_reports​ /RR864​.html. 10. Jonathan P. Caulkins, “The Real Dangers of Marijuana,” National Affairs, Winter 2016, www​.nationalaffairs​.com​/publications​/detail​/the​-real​-dangers​-of​ -marijuana. 11. Ibid. (discussing Kleiman’s “grudging toleration” approach); Mark A. R. Kleiman, Against Excess: Drug Policy for Results (New York: Basic Books, 1993). 12. Kleiman, Against Excess, 102–03, 253–85. 13. To be sure, these are not the only features of the grudging toleration approach to legalizing and regulating marijuana. Other features, for instance, include strict labeling and packaging regulations, prohibitions on public use, purchase quantity limitations, and high taxes. I’ve decided to focus on the five features listed here because I see them as the most pernicious and widespread applications of the grudging toleration approach that undermine the normalization of cannabis use in America.

chapter 1. a (brief) history of marijuana prohibition 1. For excellent accounts of the history of marijuana prohibition and regulation in the United States, I recommend the following works, which are the sources for much of the content of this chapter: Martin Booth, Cannabis: A History (New York: Picador Press, 2003); Emily Dufton, Grass Roots: The Rise and Fall and Rise of Marijuana in America (New York: Basic Books, 2017); John

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Hudak, Marijuana: A Short History (Washington, DC: Brookings Institution Press, 2016); Mark K. Osbeck and Howard Bromberg, Marijuana Law in a Nutshell (St. Paul, MN: West Academic, 2017); Martin A. Lee, Smoke Signals: A Social History of Marijuana: Medical, Recreational, and Scientific (New York: Scribner, 2012); Richard J. Bonnie and Charles H. Whitebread, “The Forbidden Fruit and the Tree of Knowledge: An Inquiry into the Legal History of American Marijuana Prohibition,” Virginia Law Review 56, no. 6 (October 1970). 2. Marijuana was described in the United States Pharmacopeia as early as 1850. Mary Barna Bridgeman and Daniel T. Abazia, “Medical Cannabis: History, Pharmacology, and Implications for the Acute Care Setting,” Pharmacy and Therapeutics 42, no. 3 (2017), 180–88. 3. C. E. Terry, “The Harrison Anti-Narcotic Act,” American Journal of Public Health 5, no. 6 (1915): 518, www​.ncbi​.nlm​.nih​.gov​/pmc​/articles​/PMC1286619​ /?page​=1; Bonnie and Whitebread, Forbidden Fruit, 981–82. 4. Jeremy Lesser, “Today Is the 100th Anniversary of the Harrison Narcotics Tax Act,” Drug Policy Alliance Blog, December 16, 2014, https://drugpolicy.org​ /blog​/today​-100th​-anniversary​-harrison​-narcotics​-tax​-act. 5. Drug Enforcement Administration, “History: The Early Years,” www​.dea​ .gov​/sites​/default​/files​/2018​- 05​/Early%20Years%20p%2012​-29​.pdf (accessed February 19, 2022). 6. Lee, Smoke Signals, 39–40. 7. Booth, Cannabis, 158–60. 8. Bonnie and Whitebread, Forbidden Fruit, 1011. 9. Ibid., 1010. 10. Ibid., 1012. 11. Lee, Smoke Signals, 51–54. 12. Ibid., 51. 13. Osbeck and Bromberg, Marijuana Law, 42. 14. Lee, Smoke Signals, 42. 15. Laura Smith, “How a Racist Hate-Monger Masterminded America’s War on Drugs,” https://timeline.com/harry-anslinger-racist-war-on-drugs-prisonindustrial-complex-fb5cbc281189 (accessed February 19, 2022). 16. Lee, Smoke Signals, 48. 17. Harry Anslinger, “Marijuana: Assassin of Youth,” Reader’s Digest (February 1938), www​.druglibrary​.org​/mags​/assassinofyouth​.htm (accessed February 19, 2022). 18. Lee, Smoke Signals, 52. 19. Ibid., 54–58. 20. Bonnie and Whitebread, Forbidden Fruit, 1043–44. 21. Ibid., 1026–34. 22. Ibid., 1034. 23. Hudak, Marijuana, 37.

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24. Osbeck and Bromberg, Marijuana Law, 44–46. 25. Booth, Cannabis, 187. 26. Leary v. United States, 395 U.S. 6 (1969). 27. Mayor’s Committee on Marihuana, “The Marihuana Problem in the City of New York,” 1944, https://rodneybarnett.net/PDF/Laguardia%20Report%20 1944.pdf. 28. Ibid. 29. Hudak, Marijuana, 36. 30. Nancy E. Marion, A History of Federal Crime Control Initiatives: 1960– 1993 (Westport, CT: Praeger, 1994), 41. 31. Benjamin Smith, “New Documents Reveal the Bloody Origins of America’s Long War on Drugs,” Time, August 24, 2021, https://time.com/6090016​/us​ -war​-on​-drugs​-origins/. 32. Hudak, Marijuana, 50. 33. Smith, “New Documents.” 34. 21 U.S.C. § 812, et seq. 35. 21 U.S.C. § 812(b)(1). 36. 21 U.S.C. § 823 (a)–(c). 37. Hudak, Marijuana, 60. 38. National Commission on Marihuana and Drug Abuse, “Marihuana: A Signal of Misunderstanding” (1972), www​.druglibrary​.org​/schaffer​/ library​ /studies​/nc​/ncmenu​.htm. 39. Ibid. 40. Hudak, Marijuana, 61–63. 41. Booth, Cannabis, 305. 42. Dufton, Grass Roots, 109–22. 43. Ibid., 108–09. 44. “Just Say No,” History.Com, last modified August 21, 2018, www​.history .com​/topics​/1980s​/just​-say​-no. 45. Lauren-Brooke Eisen, “The 1994 Crime Bill and Beyond: How Federal Funding Shapes the Criminal Justice System,” Brennan Center for Justice, September 9, 2019, www​.brennancenter​.org​/our​-work​/analysis​- opinion​/1994​ -crime​-bill​-and​-beyond​-how​-federal​-funding​-shapes​-criminal​-justice. 46. American Civil Liberties Union, “Marijuana Arrests by the Numbers,” www​. aclu​.org​/gallery​/marijuana​- arrests​-numbers (accessed February 19, 2022). 47. National Organization for the Reform of Marijuana Laws (NORML), “Nearly One in Eight US Drug Prisoners Are Behind Bars for Pot—Taxpayers Spending over $1 Billion Annually to Incarcerate Pot Offenders,” October 12, 2006, https://norml​. org​/news​/2006​/10​/12​/nearly​- one​- in​- eight​- us​- drug​ -prisoners​-are​-behind​-bars​-for​-pot​-taxpayers​-spending​-over​-1​-billion​-annually -to​-incarcerate​-pot​-offenders/.

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48. Ibid. 49. American Civil Liberties Union, “The War on Marijuana in Black and White” (2013), www​.aclu​.org​/report​/report​-war​-marijuana​-black​-and​-white. 50. U.S. Department of Justice, Drug Enforcement Administration, In the Matter of Marijuana Rescheduling Petition, Docket No. 86-22 (September 6, 1988) (opinion of Administrative Law Judge Francis L. Young), 1–6. 51. Ibid., 27–29. 52. Ibid., 57–58. 53. Drug Enforcement Administration, “Marijuana Scheduling Petition; Denial of Petition,” 54 Federal Register 53767 (December 29, 1989), 53703. 54. Alliance for Cannabis Therapeutics v. Drug Enforcement Administration, 930 F.2d 936 (D.C. Cir. 1991). 55. National Organization for the Reform of Marijuana Laws (NORML), “25 Years Ago: DEA’s Own Administrative Law Judge Ruled Cannabis Should Be Reclassified under Federal Law,” September 5, 2013, https://norml.org​/news​ /2013​/09​/05​/25​-years​-ago​-dea​-s​-own​-administrative​-law​-judge​-ruled​-cannabis​ -should​-be​-reclassified​-under​-federal​-law/. 56. Hudak, Marijuana, 120–22. 57. On Rathbun in particular, see Dufton, Grass Roots, 207–24. 58. Hudak, Marijuana, 138–40; Dufton, Grass Roots, 218. 59. National Conference of State Legislatures, State Medical Cannabis Laws, www​.ncsl​.org​/research​/ health​/state​-medical​-marijuana​-laws​. aspx (accessed February 22, 2022). 60. Ibid. 61. Hudak, Marijuana, 140–44. 62. United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483 (2001). 63. Conant v. Walter, 309 F.3d 629 (9th Cir. 2002). 64. Gonzales v. Raich, 545 U.S. 1 (2005). 65. Erwin Chemerinsky, Constitutional Law: Principles and Policies, 6th ed. (New York: Wolters Kluwer, 2019), 275–76. 66. United States v. Lopez, 514 U.S. 549 (1995). 67. United States v. Morrison, 529 U.S. 598 (2000). 68. Gonzales, 19. 69. The appropriations rider is discussed in United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016). 70. Ibid. Other courts have reached similar solutions, some even reading the limits placed on the Justice Department by the appropriations rider more strictly than the Ninth Circuit. Congressional Research Service, “Funding Limits on Federal Prosecutions of State-Legal Medical Marijuana” (February 4, 2022), https://crsreports.congress.gov/product/pdf/LSB/LSB10694 (discussing cases).

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71. Marijuana Policy Project, “State Policy,” www​.mpp​.org​/states​/ (accessed February 21, 2022). 72. James M. Cole, “Memorandum for All United States Attorneys: Guidance Regarding Marijuana Enforcement,” U.S. Department of Justice, Office of the Deputy Attorney General, August 29, 2013, www​.justice​.gov​/iso​/opa​/resources​ /3052013829132756857467​.pdf. 73. Jefferson B. Sessions III, “Memorandum for All United States Attorneys: Marijuana Enforcement,” U.S. Department of Justice, Office of the Attorney General, January 4, 2018, www​.justice​.gov​/opa​/press​-release​/file​/1022196​/download. 74. U.S. Const., Article VI. 75. Chemerinsky, Constitutional Law, 430–59. 76. 21 U.S.C. § 903. 77. U.S. Const., Amendment X. 78. Chemerinsky, Constitutional Law, 335–52. 79. Printz v. United States, 521 U.S. 898 (1997). 80. New York v. United States, 505 U.S. 144 (1992). 81. Chemerinsky, Constitutional Law, 336–38. 82. Murphy v. NCAA, 138 S.Ct. 1461 (2018). 83. Ibid., 1478. 84. Robert A. Mikos, “On the Limits of Federal Supremacy: When States Relax (or Abandon) Marijuana Bans,” Policy Analysis, No. 714 (December 12, 2012): 15. 85. Erwin Chemerinsky, Jolene Forman, Allen Hopper, and Sam Kamin, “Cooperative Federalism and Marijuana Regulation,” UCLA Law Review 62, no. 1 (2015): 74–121, 112. 86. Mikos, “On the Limits of Federal Supremacy,” 15–16. 87. Jonathan P. Caulkins, Beau Kilmer, and Mark A. R. Kleiman, Marijuana Legalization: What Everyone Needs to Know, 2nd ed. (New York: Oxford University Press, 2016), 181–82. 88. Ibid. 89. Actually, as Robert Mikos has pointed out, federal illegality does not itself preclude interstate commerce in cannabis any more than it precludes intrastate commerce in cannabis, but states have acted as though it does. Robert A. Mikos, “Interstate Commerce in Cannabis,” Boston University Law Review 101, no. 4 (2021): 860. 90. Financial Crimes Enforcement Network, “Marijuana Banking Update: First Quarter FY2021,” www​.fincen​.gov​/sites​/default​/files​/shared​/508​_299423​ _MJ%20Banking%20Update%201st%20QTR%20FY2021​_Public​_Final​.pdf (accessed February 21, 2022) (reporting that only 515 banks and credit unions in the United States provided banking services to marijuana companies during the first quarter of fiscal year 2021). 91. James M. Cole, “Memorandum for All United States Attorneys: Guidance Regarding Marijuana Related Financial Crimes,” U.S. Department of Justice,

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Office of the Deputy Attorney General, February 14, 2014, www​.justice​.gov​/sites​ /default​/files​/usao​-wdwa​/legacy​/2014​/02​/14​/DAG​%20Memo%20​-%20Guidance​ %20Regarding​%20Marijuana​%20Related​%20Financial​%20Crimes%202%20 14%2014%20%282%29​.pdf; Department of the Treasury, Financial Crimes Enforcement Network, “BSA Expectations Regarding Marijuana-Related Businesses,” February 14, 2014, www​.fincen​.gov​/sites​/default​/files​/shared​/FIN​-2014​ -G001​.pdf. 92. Yuki Noguchi, “Bags of Cash, Armed Guards, and Wary Banks: The Edgy Life of a Cannabis CFO,” National Public Radio, April 10, 2019, www​.npr​.org​ /2019​/04​/10​/710076855​/bags​-of​-cash​-armed​-guards​-and​-wary​-banks​-the​-edgy​ -life​-of​-a​-cannabis​-company​-cfo. 93. Makada Henry-Nickie, John Hudak, and Aaron Klein, “The Cannabis Banking Bill Isn’t Just about Banks: It’s Also about Repairing the ‘War on Drugs,’ ” Politico, September 25, 2019, www​.politico​.com​/agenda​/story​/2019​/09​ /25​/cannabis​-banking​-bill​-000987/. 94. Lewis Koski, “The SAFE Banking Act: What Is It and Where Does It Stand?,” Forbes, December 3, 2021, www​.forbes​.com​/sites​/lewiskoski​/2021​/12​/03​ /the​-safe​-banking​-act​-what​-is​-it​-and​-where​-does​-it​-stand​/?sh​=28b364502baf. 95. Ibid.; Neil Haggerty, “Crapo Delivers Crushing Blow to Pot Banking,” American Banker, December 18, 2019, www​.americanbanker​.com​/news​/crapo​ -delivers​-crushing​-blow​-to​-pot​-banking. 96. 26 U.S.C. § 280E. 97. Edmonson v. Commissioner, 42 T.C.M. 1533 (1981). 98. 26 U.S.C. § 280E. 99. Adam Levine, “Tax Challenges for Cannabis Businesses,” NAFCU Services Blog, www​.nafcu​.org​/nafcuservicesnafcu​- services​- blog​/tax​- challenges​ -cannabis​-businesses (accessed February 19, 2022). 100. Jonathan Gass, “What Cannabis Entrepreneurs Should Know about Tax Section 280E,” Forbes, July 24, 2018, www​.forbes​.com​/sites​/theyec​/2018​ /07​/24​/what​-cannabis​-entrepreneurs​-should​-know​-about​-tax​-section​-280e​/?sh​= 769dc0b57377. 101. Alicia Wallace, “Patent no. 6,630,507: Why the U.S. Government Holds a Patent on Cannabis Plant Compounds,” Denver Post, August 18, 2016, www​ .denverpost​.com​/2016​/08​/28​/what​-is​-marijuana​-patent​-6630507/. 102. Sam Kamin and Viva R. Moffat, “Trademark Laundering, Useless Patents, and Other IP Challenges for the Marijuana Industry,” Washington and Lee Law Review 73, no. 1 (2016): 217–83, at 245–46. 103. John Mixon, “Commercializing Cannabis: Confronting the Challenges and Uncertainty of Trademark and Trade Secret Protection for CannabisRelated Businesses,” Washington Journal of Law, Technology, and the Arts 16, no. 1 (2020): 1–28, at 11–16. 104. Kamin and Moffat, “Trademark Laundering,” 256–59.

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105. Natalie Fertig, “VA Rejects Cannabis Research as Veterans Plead for Medical Pot,” Politico, November 8, 2021, www​.politico​.com​/news​/2021​/11​/08​ /va​-reject​-medical​-marijuana​-veterans​-519757. 106. Kyle Jaeger, “Congresswoman Urges HUD Secretary to Protect Marijuana Consumers from Losing Public Housing,” Marijuana Moment, May 26, 2021, www​.marijuanamoment​.net​/congresswoman​-urges​-hud​- secretary​-to​ -protect​-marijuana​-consumers​-from​-losing​-public​-housing/. 107. Nate Seltenrich, “Into the Weeds: Regulating Pesticides in Cannabis,” Environmental Health Perspectives 127, no. 4 (April 25, 2019), https://ehp​.niehs​ .nih​.gov​/doi​/full​/10​.1289​/EHP5265. 108. Kyle Jaeger, “Marijuana Offenses Would No Longer Get Immigrants Deported under New Congressional Bill,” Marijuana Moment, September 18, 2019, www​.marijuanamoment​.net​/marijuana​- offenses​-would​-no​-longer​-get​ -immigrants​-deported​-under​-new​-congressional​-bill/. 109. Daniel Gill, “Cannabis Businesses, Once in Trouble, Find No Good Way to Escape,” Bloomberg Law, February 11, 2021, https://news​.bloomberglaw​ .com​/bankruptcy​-law​/cannabis​-businesses​-once​-in​-trouble​-find​-no​-good​-way​-to​ -escape. 110. Reggie Ugwu, “Veterans Groups Push for Medical Marijuana to Treat PTSD,” New York Times, November 3, 2017, www​.nytimes​.com​/2017​/11​/03​/us​ /medical​-marijuana​-veterans.html.

chapter 2. getting meta 1. For examples of this position, see the website of the Minority Cannabis Business Association, https://minoritycannabis.org/ (accessed February 23, 2022); Ben Adlin, “Legalization Isn’t Enough: 10 Things Every New Cannabis Law Must Have,” Leafly, April 2, 2019, www​.leafly​.com​/news​/politics​/10​-things​ -new​- cannabis​-legalization​-law​-shaleen​-title (reprinting former Massachusetts Commissioner Shaleen Title’s list of ten things every new cannabis law must have to ensure diversity and equity in the industry). 2. Jonathan P. Caulkins, Beau Kilmer, Mark A. R. Kleiman, Robert J. MacCoun, Gregory Midgette, Pat Oglesby, Rosalie Liccardo Pacula, and Peter H. Reuter, Considering Marijuana Legalization: Insights for Vermont and Other Jurisdictions (Santa Monica, CA: RAND Corporation, 2015), 33. 3. Ibid., 34. 4. Ibid., 37. 5. For a comprehensive account of the issues posed by marijuana edibles, including an argument that the dangers of overconsumption and inadvertent consumption, while certainly worthy of attention, are nonetheless not significant enough to justify over-regulation, see Connor Burns and Jay Wexler, “Amer-

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ican Edibles: How Cannabis Regulatory Policy Rehashes Prohibitionist Fears and What to Do about It,” Seattle University Law Review 44, no. 4 (2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id = 3811846. 6. Jonathan A. Galli, Ronald Andari Sawaya, and Frank K. Fridenberg, “Cannabanoid Hyperemesis Syndrome,” Current Drug Abuse Review 4, no. 4 (December 2011): 241–49. 7. Laura M. Dryburgh, Nanthi S. Bolan, Christopher P. L. Grof, Peter Galettis, Jennifer Schneider, Catherine J. Lucas, and Jennifer H. Martin, “Cannabis Contaminants: Sources, Distribution, Human Toxicity and Pharmacological Effects,” British Journal of Clinical Pharmacology 84 (November 2018): 2468–76. 8. This is essentially the position of the “grudging toleration” wonks described in the previous chapter. 9. Iris Dorbian, “Legal Cannabis Market Projected to Rack Up $43 Billion by 2025,” Forbes, June 28, 2021, www​.forbes​.com​/sites​/irisdorbian​/2021​/06​/18​ /legal​-cannabis​-market​-projected​-to​-rack​-up​-​43​-billion​-by​-2025​-says​-new​-study​ /?sh​=​2165e59c36b4. 10. The conference is known as MJBizCon. Its website is https://mjbizconference​ .com/ (accessed February 23, 2022). 11. On the amount of public revenue brought in by the marijuana industry, see Kyle Jaeger, “States Have Collected More Than $10 Billion in Adult-Use Marijuana Tax Revenue, Report Finds,” Marijuana Moment, Januar y 6, 2022, www​.marijuanamoment​.net​/states​-have​-collected​-more​-than​-10​-billion​-in​-adult​ -use​-marijuana​-tax​-revenue​-report​-finds/. 12. Tom Philpott, “A Single Pot Plant Uses HOW Much Water?,” Mother Jones, April 16, 2014, www​.motherjones​.com​/food​/2014​/04​/your​-pot​-habit​- sucks​ -salmon/. 13. Bill McKibben, “Can Green Energy Power the Cannabis Boom?,” The New Yorker, January 27, 2021, www​.newyorker​.com​/news​/annals​- of​- a​-warming​ -planet​/can​-green​-energy​-power​-the​-cannabis​-boom. 14. Massachusetts Cannabis Control Commission, “Guidance on Cannabis Waste Management Requirements,” https://mass-cannabis-control.com/wpcontent/uploads/2019/04/FINAL-Guidance-on-Cannabis-Waste-ManagementRequirements.pdf (accessed February 23, 2022). 15. Jason Plautz, “As Legal Pot Farms Expand, So Do Air Pollution Worries,” Science, January 24, 2019, www​. science​.org​/content​/article​/ legal​-pot​-farms​ -expand​-so​-do​-air​-pollution​-worries. 16. Colorado Department of Public Health and the Environment, “Greening the Cannabis Industry,” https://cdphe.colorado.gov/greening-the-cannabisindustry (accessed February 23, 2022). 17. For an introduction to this complex set of issues, I recommend Philip P. Frickey and Daniel A. Farber, Law and Public Choice: A Critical Introduction (Chicago: University of Chicago Press, 1991).

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18. National Cannabis Industry Association, “Current Issues and Laws,” https://thecannabisindustry.org/government-affairs/current-issues/ (accessed February 23, 2022); Lewis Koski, “America’s Cannabis Industry: Balancing Strong Regulation with Business’ Desire for Accountability,” Forbes, September 3, 2019, www​.forbes​.com​/sites​/ lewiskoski​/2019​/09​/03​/americas​- cannabis​ -industry​-balancing​-strong​-regulation​-with​-businesses​-desire​-for​-accountability​ /?sh​=​7d2047e93ed2. 19. Kevin Murphy, “Cannabis’ Black Market Problem,” Forbes, April 4, 2019, www​.forbes​.com​/sites​/kevinmurphy​/2019​/04​/04​/cannabis​-black​-market​-problem​ /?sh​=​7524276a134f. 20. Andrew Kline, “The Illicit Cannabis Market Puts Consumers At-Risk and Is an Existential Threat to the State-Legal Cannabis Industry,” National Cannabis Industry Association, March 9, 2020, https://thecannabisindustry​.org​/the​ -illicit​-cannabis​-market​-puts​-consumers​-at​-risk​-and​-is​-an​-existential​-threat​-to​ -the​-state​-legal​-cannabis​-industry. 21. Jonathan P. Caulkins and Beau Kilmer, “Considering Marijuana Legalization Carefully: Insights for Other Jurisdictions from Analysis for Vermont,” Addiction 111, no. 12 (2016): 2082–89, 2084. 22. For a detailed discussion of the local control issue, with relevant citations, see chapter 7. 23. On the concern about large companies monopolizing the cannabis industry to the detriment of equity and diversity, see Shaleen Title, “Bigger Is Not Better: Preventing Monopolies in the National Cannabis Market,” website of the Ohio State University Drug Enforcement and Policy Center, January 22, 2022, https://papers.ssrn.com/sol3/papers.cfm?abstract_id = 4018493. 24. Dee Gill, “Setting the Tax Rate on Legal Marijuana: Consumption, State Revenue, and the Black Market,” UCLA Anderson Review, November 14, 2018, https://anderson-review.ucla.edu/weed/. 25. Caulkins et al., Considering Marijuana Legalization, 29. 26. Ricardo Cortés, It’s Just a Plant (self-published children’s book, 2005). 27. Alex Berenson, Tell Your Children: The Truth about Marijuana, Mental Illness, and Violence (New York: Free Press, 2019). 28. Caulkins et al., Considering Marijuana Legalization. 29. National Academies of Sciences, Engineering, and Medicine, The Health Effects of Cannabis and Cannabinoids: The Current State of Evidence and Recommendations for Research (Washington, DC: National Academies Press, 2017). 30. Caulkins et al., Considering Marijuana Legalization, 167–96. 31. National Academies of Sciences, Engineering, and Medicine, “Report Highlights: The Health Effects of Cannabis and Cannabinoids,” www​.nap​.edu​ /resource​/24625​/Cannabis​_ report​_ highlights​.pdf (accessed February 25, 2022).

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32. National Academies, Health Effects, 7–8. 33. Ibid., 378 (suggesting that the “lack of evidence-based information on the health effects of cannabis and cannabinoids poses a public health risk”). 34. Ibid., 230. 35. Ibid., 295. 36. Ibid., 275. 37. Ibid., 337. 38. Ibid., 335. 39. Caulkins et al., Considering Marijuana Legalization, xii. 40. Ibid., 33. 41. Ibid., 234. 42. Ibid. 43. Ibid., 35–36. 44. Ibid., 37. 45. Ibid. 46. Ibid. 47. Ibid. 48. Ibid., 38. 49. Jonathan P. Caulkins, “The Real Dangers of Marijuana,” National Affairs, Winter 2016, 31–32. 50. Ibid., 32. 51. The literature on this question is substantial. For just a sampling, see Christopher Ingraham, “After Legalization, Teen Marijuana Use Drops Sharply in Colorado,” Washington Post, December 21, 2016, www​.washingtonpost​.com​ /news​/wonk​/wp​/2016​/12​/21​/one​-of​-the​-greatest​-fears​-about​-legalizing​-marijuana​ -has​- so​-far​-failed​-to​-happen/; Jacqueline Howard, “Recreational Marijuana Legalization Tied to Decline in Teens Using Pot, Study Says,” CNN, July 8, 2019, www​.cnn​.com​/2019​/07​/08​/ health​/recreational​-marijuana​-laws​-teens​ -study​/index​.html; Jennifer A. Bailey, Marina Epstein, Joseph N. Roscoe, Sabrina Oesterle, Rick Kosterman, and Karl G. Hill, “Marijuana Legalization and Youth Marijuana, Alcohol, and Cigarette Use and Norms,” American Journal of Preventive Medicine 59 (2020): 309–16, 309 (finding an increase in use after legalization). 52. Caulkins et al., Considering Marijuana Legalization, 43–47. 53. Ibid., 43. 54. Ibid. 44. 55. Ibid., 161. 56. Massachusetts Cannabis Control Commission, “High Tetrahydrocannabinol (THC) Cannabis and Effects on the Human Body: More Research Needed: A Legislative Report and Considerations for Research and Policy,” October 2021, https://masscannabiscontrol​.com​/wp​-content​/uploads​/2021​/10​/202110​_Report​ _THC​_Potency​.pdf.

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57. Tristan Hardy, “Fear of Strong Cannabis Potency Looms as Plant Becomes Legal,” WAND, November 21, 2019, www​.wandtv​.com​/news​/fear​- of​- strong​ -cannabis​-potency​-looms​-as​-plant​-becomes​-legal​/article​_f5de09b4​-0cd9​-11ea​ -b08f​-6f6e5fcd64ea.html. 58. “Uncertainty and Decision Making: Lessons from Other Public Health Contexts,” in National Academies of Sciences, Engineering, and Medicine, Environmental Decisions in the Face of Uncertainty (Washington, DC: National Academies Press, 2013). 59. For a good discussion of the precautionary principle generally in environmental law, see Robert V. Percival, “Who’s Afraid of the Precautionary Principle?,” Pace Environmental Law Review 23, no. 1 (Winter 2005–2006). 60. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5th ed. (DSM-5) (Washington, DC: American Psychiatric Publishing, 2013). 61. Caulkins et al., Considering Marijuana Legalization, 34. 62. Magdalena Cerdá, Christine Mauro, and Ava Hamilton, “Association between Recreational Marijuana Legalization in the United States and Changes in Marijuana Use and Cannabis Use Disorder from 2008–2016,” JAMA Psychiatry 77, no. 2 (2020): 165–71. 63. Chang-Chih Tsou and San-Yuan Huang, “The DSM-5 Changes and Challenges in Diagnosing Substance Use Disorders,” Taiwanese Journal of Psychology 30, no. 1 (2016): 6. 64. A quick Google search for “cannabis studies that use CUD criteria” will make this clear. 65. Contra Costa Behavioral Health, “Diagnosis Reference Guide,” https:// cchealth.org/aod/pdf/DSM-5%20Diagnosis%20Reference%20Guide.pdf (accessed February 23, 2022). 66. Rachel M. Burns, Jonathan P. Caulkins, Susan S. Everingham, and Beau Kilmer, “Statistics on Cannabis Users Skew Perceptions of Cannabis Use,” Frontiers in Psychiatry, November 6, 2013, www​.frontiersin​.org​/articles​/10​.3389​ /fpsyt​.2013​.00138​/full. 67. National Survey on Drug Use and Health, “About the Survey,” https:// nsduhweb.rti.org/respweb/about_nsduh.html (accessed February 23, 2022). 68. National Academies, Health Effects, 13. 69. Paul Armentano, “Emerging Clinical Applications for Cannabis and Cannabinoids: A Review of the Recent Scientific Literature, Expanded and Revised Eighth Edition,” https://norml​.org​/wp​- content​/uploads​/pdf​_ files​/ NORML​_ Clinical​_ Applications​_for​_Cannabis​_and​_Cannabinoids​.pdf (accessed February 25, 2022). 70. Jamie Doward, “Legal Marijuana Cuts Violence Says US Study, as MedicalUse Laws See Crime Fall,” The Guardian, January 13, 2018, www​.theguardian​

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.com​/world​/2018​/jan​/14​/legal​-marijuana​-medical​-use​-crime​-rate​-plummets​-​us​ -study. 71. Angela Eykelbosh, “Contaminants in Black Market Cannabis: Consumers Need Answers,” National Collaborating Centre for Environmental Health, February 19, 2020, https://ncceh​.ca​/content​/ blog​/contaminants​-black​-market​ -cannabis​-consumers​-need​-answers. 72. I won’t attempt to defend this position here at any length, but in short, I don’t think the free market will produce optimal environmental, health, safety, or equity outcomes. Compare the state of the environment in 1970, before the decade that saw the enactment of the main federal environmental statutes, with the state of the environment today if you want to see what I mean. In any event, it’s clear that without regulation the marijuana industry will not produce anything close to acceptable equity results. Shaleen Title, “Bigger Is Not Better: Preventing Monopolies in the National Cannabis Market,” The Ohio State University Drug Enforcement and Policy Center, January 2022, https://ssrn​.com​/abstract​=​4018493. 73. Cynthia Vinney, “What’s the Difference between Eudaimonic and Hedonistic Happiness?,” ThoughtCo, February 13, 2020, www​.thoughtco​.com​ /eudaimonic​-and​-hedonic​-happiness​-4783750. 74. For one prominent exception, see Katie Galioto, “Kamala Harris Calls for Marijuana Legalization: ‘I Think It Gives a Lot of People Joy,’ ” Politico, February 11, 2019, www​.politico​.com​/story​/2019​/02​/11​/ kamala​-harris​-2020​-marijuana​ -legalization​-1163795. 75. Carl L. Hart, Drug Use for Grown-Ups: Chasing Liberty in the Land of Fear (New York: Penguin Press, 2021), 175.

chapter 3. making a marketplace 1. Jonathan P. Caulkins, Beau Kilmer, Mark A. R. Kleiman, Robert J. MacCoun, Gregory Midgette, Pat Oglesby, Rosalie Liccardo Pacula, and Peter H. Reuter, Considering Marijuana Legalization: Insights for Vermont and Other Jurisdictions (Santa Monica, CA: RAND Corporation, 2015), 60–63. 2. Beau Kilmer, “How Will Cannabis Legalization Affect Health, Safety, and Social Equity Outcomes? It Largely Depends on the 14 Ps,” American Journal of Drug and Alcohol Abuse (July 2, 2019): 2. 3. New Hampshire has considered implementing a state-run system, and there is support for such a system among New Hampshire citizens, but not as much support as there is for a typical free-market model. Kyle Jaeger, “Three in Four New Hampshire Residents Support Legalizing Marijuana, with Bipartisan Majorities Supporting State-Run Model,” Marijuana Moment, February 28, 2022, www​ .marijuanamoment​.net​/three​-in​-four​-new​-hampshire​-residents​-support​-legalizing​ -marijuana​-with​-bipartisan​-majorities​-backing​-state​-run​-model/.

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4. Caulkins et al., Considering Marijuana Legalization, 57–67. 5. Jennifer Cabrera and Jen Flanagan, “Cannabis State Regulatory Agencies,” Vicente Sederberg LLP, January 29, 2022, https://vicentesederberg.com​ /insights/cannabis-state-regulatory-agencies/. 6. A terrific resource for comparing the various aspects of state cannabis regulatory policy (including which license types each state offers) is Barry Weisz and Michael Rosenblum, Cannabis State-by-State Regulations, August 2021, www.thompsoncoburn.com/docs/default-source/blog-documents/ranking-ofstate-cannabis-regulations.pdf. Another great resource is National Organization for the Reform of Marijuana Laws (NORML), Marijuana Policies in Legal States: A Comprehensive Review of Adult-Use Marijuana Rules and Regulations (Washington DC: NORML, 2022), https://norml.org/wp-content/uploads/pdf​ _files/NORML-Marijuana-Policies-in-Legal-States.pdf. 7. Ibid., 5, 7. 8. Ibid., 6. 9. Ibid., 6 (Massachusetts and Illinois). At the time of this writing, the Illinois Supreme Court has ordered the state to stop awarding craft cooperative licenses. MJBizDaily Staff, “Illinois Must Quit Awarding Adult-Use Craft Marijuana Licenses, Court Rules,” MJBizDaily, January 31, 2022, https://mjbizdaily​.com​ /illinois​-must​-quit​-awarding​-adult​-use​-craft​-marijuana​-licenses​-court-rules/. 10. Weiss and Rosenblum, Cannabis State-by-State Regulations, 2, 6, 7. 11. California Department of Cannabis Control, “License Types,” 2022, https://cannabis.ca.gov/applicants/license-types/#microbusiness-licenses (accessed February 26). 12. Cannabis Legal Group, “Michigan Microbusiness and Licenses: All You Need to Know,” https://michigan-marijuana-lawyer.com/microbusiness-license​ -michigan/ (accessed February 26). 13. As you may already have noticed, and as will become even more clear as the chapter progresses, a disproportionate number of my examples come from Massachusetts. It’s not that Massachusetts is any better or worse than other states when it comes to cannabis, but I live and teach here, so I naturally know more about Massachusetts than about other states. 14. Jason Kikel, “Opportunities and Limitations for Microbusiness Licenses,” February 25, 2021, www​.cannabiz​.media​/ blog​/opportunities​-and​-limitations​ -for​-microbusiness​-licensing. 15. Colin A. Young, “Equity Advocates Tired of Waiting on Marijuana Delivery Framework,” Taunton Daily Gazette, November 9, 2020, www.tauntongazette​ .com​/story​/news​/2020​/11​/09​/equity​-advocates​-tired​- of​-waiting​- on​-marijuana​ -delivery​-framework​/114797214/. 16. Ibid. 17. Shaleen Title, “Bigger Is Not Better: Preventing Monopolies in the National Cannabis Market,” Ohio State University Drug Enforcement and Policy Center,

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January 22, 2022, https://papers​. ssrn​. com​/sol3​/papers​. cfm?abstract​_ id​ =​4018493. 18. Mike Adams, “Here’s the One Thing the Marijuana Industry Should Fear Most,” Out, May 19, 2017, www​.out​.com​/news​- opinion​/2017​/5​/19​/ heres​- one​ -thing​-marijuana​-industry​-should​-fear​-most. 19. Matthew Swinburne and Kathleen Hoke, “State Efforts to Create an Inclusive Marijuana Industry in the Shadow of the Unjust War on Drugs,” Journal of Business and Technology Law 15, no. 2/3 (2020): 258–60, https://​digitalcommons​ .law​.umaryland​.edu​/jbtl​/vol15​/iss2​/3. 20. Cannabis Control Commission Adult Use of Marijuana Regulations, 935 CMR § 500.050(1)(b) (2021). 21. Beth Healy, “You Can’t Own More Than Three Pot Shops, but These Companies Test the Limits—and Brag about It,” Boston Globe, March 21, 2019, www​ .bostonglobe​.com​/news​/special​-reports​/2019​/03​/21​/seahunter​/okkkbXkh38kTk​ H9​HD​ii​FXL​/story.html. 22. Commonwealth of Massachusetts, Cannabis Control Commission, “Guidance for Business,” https://mass​- cannabis​- control​.com​/wp​- content​/uploads​ /2018​/07​/Guidance​-for​-Business​.pdf (accessed February 26, 2022). 23. Susan Gunelius, “Which States Allow You to Grow Your Own Recreational or Medical Cannabis?,” Cannabiz Media, September 8, 2020, www​ .cannabiz​.media​/ blog​/which​-states​-allow​-you​-to​-grow​-your​- own​-recreational​ -or​-medical​-cannabis. 24. Ibid. 25. Ibid. 26. Ibid. 27. Washington State Liquor and Cannabis Board, “Home Grow Study,” https://lcb.wa.gov/sites/default/files/publications/WSLCB%20Home%20Grows% 20Study%20Report%20FINAL.PDF (accessed February 27, 2022) (analyzing potential regulatory options to allow home grows within the state in a manner designed to limit diversion and optimize enforcement). 28. Ibid. 29. Kyle Jaeger, “Marijuana Companies Urged Governor to Ban Cannabis Home Cultivation, Document Shows,” Marijuana Moment, February 21, 2019, www​.marijuanamoment​.net​/marijuana​- companies​-urged​-governor​-to​ -ban-cannabis​-home​-cultivation​-document​-shows/. 30. Ibid. 31. Victory Patch, “Stay Vigilant: Many in ‘Big Weed’ against Home Grow,” https://www​.victorypatch​.com​/dispatch​/stay​-vigilant​-many​-in​-big​-weed​-against​ -home​-grow (accessed August 5, 2022) (linking to New York Medical Cannabis Industry Association, “Policy Statement,” November 18, 2018, 13 [see “The Fallacy of Home Grow”]). 32. Jaeger, “Marijuana Companies Urged Governor.”

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33. Ibid. 34. Ibid. 35. Kyle Jaeger, “South Park Slams MedMen in Episode about Banning Marijuana Home Cultivation,” Marijuana Moment, September 26, 2019, www.marijuanamoment​.net​/south​-park​-slams​-medmen​-in​-episode​-about​-banning​ -marijuana​-home​-cultivation/. 36. Rhitu Chatterjee, “Highly Potent Weed Has Swept the Market, Raising Concerns about Health Risks,” National Public Radio, May 15, 2019, www​.npr​.org​ /sections​/ health​-shots​/2019​/05​/15​/723656629​/ highly​-potent​-weed​-has​-swept​ -the​-market​-raising​-concerns​-about​-health​-risks. 37. John Schroyer, “Marijuana Foes Seek to Impose THC Potency Caps to Curb Industr y’s Grow th,” MJBizDaily, December 17, 2021, https://mjbizdaily.com/marijuana-foes-seek-to-impose-thc-potency-caps-to-curbindustrys-growth/. 38. Thomas Mitchell, “Effort to Limit Marijuana Potency Coming to Colorado?,” Westword, February 27, 2020, www.westword.com/marijuana​/effort​-to​ -limit​-marijuana​-potency​-could​-be​-coming​-to​-colorado​-11643193. 39. MJBizDaily Staff, “Vermont Doctors Push to Lower Cannabis Potency Cap,” MJBizDaily, December 17, 2021, https://mjbizdaily​.com​/vermont​-doctors​ -push​-to​-lower​-cannabis​-potency​-cap/. 40. Mitchell, “Effort to Limit Marijuana Potency.” 41. Federation of Tax Administrators, “Summary of State Marijuana​/Cannabis Taxes,” https://taxadmin​.memberclicks​.net​/assets​/docs​/Research​/Rates​/marijuana​ .pdf (accessed February 27, 2022). 42. Ibid. 43. Ibid. 44. Ibid. 45. Illinois is that state. Marijuana Policy Project, “Overview of the Illinois Cannabis Regulation and Tax Act,” www​.mpp​.org​/states​/illinois​/overview​- of​ -the​-illinois​-cannabis​-regulation​-​and-​tax-​act/ (accessed March 3, 2022). 46. Caulkins et al., Considering Marijuana Regulation, 80–83. 47. The Brian Lehrer Show, “Reefer, Managed: Putting Cannabis Taxes to Work,” WNYC, April 15, 2019, audio, at 7:50–9:05, www​.wnyc​.org​/series​/reefer​ -managed. 48. Federation of Tax Administrators, “Summary”; Marijuana Policy Project, “Overview.” 49. Ibid. 50. Austin Berg, “Illinois Cannabis Taxes among Nation’s Highest, Could Keep Black Market Thriving,” Illinois Policy, January 9, 2020, www​.illinoispolicy​ .org​/illinois​- cannabis​-taxes​-among​-nations​-highest​- could​-keep​-black​-market​ -thriving/.

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51. Alaska Department of Revenue—Tax Division, “Marijuana Tax 2020 Annual Report,” https://tax​. alaska​.gov​/programs​/programs​/reports​/Annual​ .aspx?60000&Year​=​2020 (accessed March 3, 2022). 52. Marijuana Policy Project, “Cannabis Tax Revenue in States That Regulate Cannabis for Adult Use,” www​.mpp​.org​/issues​/legalization​/cannabis​-tax​-revenue​ -states​-regulate​-cannabis​-adult​-use/ (accessed March 3, 2022). This website is a terrific resource for understanding where states send their marijuana tax revenue. 53. Ibid. 54. Jessica Bartlett, “Here’s Where Marijuana Tax Revenue Has Gone in Massachusetts,” Boston Business Journal, August 19, 2020, www​.bizjournals​ .com​/ boston​/news​/2020​/08​/19​/ here​-s​-where​-marijuana​-tax​-revenue​-has​-gone​ .html. 55. Ibid. 56. Ibid. 57. Jessica Bartlett, “Bill That Would Use Cannabis Revenue for Police, Not Equity, Comes Under Fire,” Boston Business Journal, July 23, 2020, www​ .bizjournals​.com​/ boston​/news​/2020​/07​/23​/ bill​-that​-would​-use​-state​- cannabis​ -revenue​-for​-pol​.html. 58. Ibid. 59. Kyle Jaeger, “Massachusetts Bill to Use Marijuana Tax Revenue for Police Training Draws Criticism,” Marijuana Moment, July 20, 2020, www​ .marijuanamoment​.net​/massachusetts​-bill​-to​-use​-marijuana​-tax​-revenue​-for​ -police​-training​-draws​-criticism/. 60. Ibid. 61. Kyle Jaeger, “Portland Lawmakers Vote to Take Marijuana Tax Money Away from Police Department,” Marijuana Moment, June 12, 2020, www​.marijuanamoment​.net​/portland​-lawmakers​-vote​-to​-take​-marijuana​-tax​ -money​-away​-from​-police​-department/. 62. Ben Adlin, “Legalization Isn’t Enough: 10 Things Every New Cannabis Law Must Have,” Leafly, April 2, 2019, www​.leafly​.com​/news​/politics​/10​-things​ -new​- cannabis​-legalization​-law​-shaleen-title (reprinting former Massachusetts commissioner Shaleen Title’s list of ten things every new cannabis law must have to ensure diversity and equity in the industry). 63. Minority Cannabis Business Association, https://minoritycannabis​.org​/ (accessed March 3, 2022). 64. Matt Krupnick, “ ‘A Farce of Social Equity’: California Is Failing Its Black Cannabis Businesses,” The Guardian, November 4, 2021, www​.theguardian​ .com​/us​-news​/2021​/nov​/04​/cannabis​-california​-black​-businesses. 65. Kyle Jaeger, “California Offering Millions of Dollars to Support Local Marijuana Business Development and Social Equity Programs,” Marijuana Moment, October 4, 2021, www​.marijuanamoment​.net​/california​- offering​

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-millions​-of​-dollars​-to​-support​-local​-marijuana​-business​-development​-​and-​social​ -equity​-programs/. 66. Massachusetts Cannabis Control Commission, “Equity Programs,” https://masscannabiscontrol.com/equity-programs/ (accessed March 4, 2022). 67. Illinois Department of Commerce and Economic Opportunity, “Illinois Adult-Use Cannabis Social Equity Program,” www2.illinois.gov/dceo /CannabisEquity/Pages/default.aspx (accessed March 4, 2022); Cannabis Creative, “Theory vs. Practice: The Trouble with Illinois’ Cannabis Social Equity Program,” Cannabis Creative, https://cannabiscreative.com/blog/theory-vspractice-the-trouble-with-illinois-cannabis-social-equity-program/ (accessed April 29, 2022). 68. Kyle Jaeger, “New York Governor Announces $200 Marijuana Fund to Promote Industry Equity,” Marijuana Moment, January 5, 2022, www .marijuanamoment.net/new-york-governor-announces-200-million-marijuanafund-to-promote-industry-equity/. 69. On expungement generally, see National Organization for the Reform of Marijuana Laws (NOR ML), “Expungement,” https://norml.org/laws /expungement/ (accessed April 29, 2022) (listing states that have provided for some sort of expungement or sealing of records); Dan Adams, “ ‘An Utter Failure’: Law Meant to Clear Old Convictions, Including for Marijuana Possession, Helps Few,” Boston Globe, November 28, 2021, www.bostonglobe.com/2021/11/28 /marijuana/an-utter-failure-law-meant-clear-old-convictions-including-marijuanapossession-helps-few/. 70. Ryan Stoa, Craft Weed: Family Farming and the Future of the Marijuana Industry (Cambridge, MA: MIT Press, 2018); Char Miller, ed., Where There’s Smoke: The Environmental Science, Public Policy, and Politics of Marijuana (Lawrence: University of Kansas Press, 2018); Nick Johnson, Grass Roots: A History of Cannabis in the American West (Corvallis: Oregon State University Press, 2017). 71. Trout Unlimited Staff, “The Cannabis Conundrum,” Trout Unlimited, July 3, 2019, www.tu.org/magazine/conservation/the-cannabis-conundrum/. 72. Bill McKibben, “Can Green Energy Power the Cannabis Boom?,” The New Yorker, January 27, 2021, www.newyorker.com/news/annals-of-a-warming -planet/can-green-energy-power-the-cannabis-boom. 73. Jyoti Madhusoodanan, “Can Cannabis Go Green?,” Nature, August 28, 2019, www.nature.com/articles/d41586-019-02526-3. 74. Sam Brasch, “Growing Cannabis Indoors Has a Big Climate Impact. So Why Doesn’t the Industry Go Outside?,” CPR News, April 6, 2021, www.cpr​ .org/2021/04/06/colorado-marijuana-industry-environmental-impact/. 75. Breanna Goth and Tripp Baltz, “States Want Pot to Grow Greener as Legal Cannabis Expands,” Bloomberg Law, July 19, 2019, https://news.bloomberglaw​ .com/environment-and-energy/states​-want​-pot​-to​-grow​-greener​-as​-legal​-cannabis​ -expands.

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76. Evan Mills, “To Make Cannabis Green, We Need to Grow It Outdoors,” Slate, March 10, 2021, https://slate.com/technology/2021/03/cannabisenvironment-energy-indoor-outdoor-growth-climate-change.html. 77. Ibid. 78. David Thill, “Illinois Marijuana Growers Will Face Energy Efficiency and Reporting Rules,” Energy News Network, September 16, 2019, https:// energynews​.us​/2019​/09​/16​/illinois​-marijuana​-growers​-will​-face​-energy​-efficiency​ -and​-reporting​-rules/. 79. Josh Wood, “Second Chances: How Ex-convicts Are Lighting Up the Cannabis Industry,” The Guardian, July 19, 2018, www.theguardian.com/society /2018/jul/19/massachusetts-marijuana-social-equity-program-ex-convicts. 80. Mona Zhang, “Cannabis Industry Struggles with Hiring People with Past Pot Convictions,” Forbes, October 4, 2017, www.forbes.com/sites/monazhang /2017/10/04/cannabis-industry-hiring-people-past-pot-convictions. 81. Allie Howell, Criminal Conviction Restrictions for Marijuana Licensing, Reason Foundation, September 2018, 8, https://reason.org/wp-content/uploads /criminal-conviction-restrictions-for-marijuana-licensing.pdf. 82. Ibid., 11. 83. Michael Klazema, “Massachusetts Marijuana Industry to Prohibit Employment of Convicted Drug Traffickers,” BackgroundChecks.com, March 15, 2018, www.backgroundchecks.com/blog/massachusetts-marijuana-industry-to-prohibit-employment-of-convicted-drug-traffickers. I watched the CCC meeting where this issue was discussed and can personally testify that it was quite emotional. 84. Jay Lassiter, “Patriot Care Panned for Felony Stand,” Leafly, January 24, 2017, www.leafly.com/news/politics/patriot-care-panned-felony-stand. 85. Ibid. (reprinting tweet of Bill Piper). 86. Jeff Smith, “Washington State Marijuana Industry Robust, but Challenges Remain Ten Years after Legalization,” MJBizDaily, January 24, 2022, https:// mjbizdaily​.com​/washington​-state​-marijuana​-industry​-robust​-faces​- challenges​ -10​-years​-after​-legalization. 87. Robert A. Mikos, “Three Federal Courts (So Far) Have Held That State Residency Requirements for Cannabis Licenses (Probably) Violate the Dormant Commerce Clause,” Marijuana Law, Policy, and Authority, June 22, 2021, https://my​ .vanderbilt​.edu​/marijuanalaw​/2021​/06​/three​-federal​-courts​-so​-far​-have​-held​-that​ -state​-residency​-requirements​-for​-cannabis​-licenses​-probably​-violate​-the​-dormant​ -commerce​-clause/. 88. There is, in fact, no Pulitzer Prize in Marijuana Policy. 89. Nik DeCosta-Kilpa, “Massachusetts Approves New Marijuana Delivery Rules, as Dispensaries Threaten Lawsuit,” Boston.com, November 30, 2020, www​.boston​.com​/news​/ local​-news​/2020​/11​/30​/marijuana​- delivery​ -rules​-massachusetts​-dispensary​-lawsuit/.

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90. As former Massachusetts commissioner and equity champion Shaleen Title puts it, “A properly enforced legal limit on how much of a state and national market a single actor can control is a straightforward way to help ensure that the market does not unfairly favor existing operators or allow them to dominate the market before equity programs are developed or implemented (as has been the case in multiple state markets). It is more difficult to undo monopolization of a market than to prevent it from happening in the first place.” Title, “Bigger Is Not Better,” 8. 91. Adlin, “Legalization Isn’t Enough.” 92. The extent to which these effects occur is, of course, in dispute. Mike Davis, “NJ Legal Weed: Home Grow Is a No-Go, but Advocates Push to Change That,” Asbury Park Press, January 18, 2022, www​. app​.com​/story​ /news​/local​/new​-jersey​/marijuana​/2022​/01​/18​/nj​-legal​-weed​-home​-grow​-no​-go​ -but​-advocates​-push​-change​/6528890001/. 93. Schroyer, “Marijuana Foes.” 94. Many studies have looked at the price elasticity of demand for marijuana products, and it’s clear that this is another area with a good deal of complexity and uncertainty. Rosalie Liccardo Pacula and Russell Lundberg, “Why Changes in Price Matter When Thinking about Marijuana Policy: A Review of the Literature on the Elasticity of Demand,” Public Health Review 35, no. 2 (2014): 1–18. 95. Washington State Liquor and Cannabis Board, Taxing Cannabis by Potency: A Feasibility Study, 11, https://lcb.wa.gov/sites/default/files/publications​ /Marijuana​/Potency​_Tax​_Study​/Cannabis​-Potency​-Tax​-Workgroup​_Report​_FINAL​ .PDF (accessed March 4, 2022). 96. Erwin Chemerinsky, Constitutional Law: Principles and Policies, 6th ed. (New York: Wolters Kluwer, 2019), 793–813. 97. PharmaCann Ohio, LLC v. Ohio Department of Commerce, No. 17 CV10962 (Court of Common Pleas, Franklin County Ohio, Civil Division, November 15, 2015). 98. Ibid., 6–12. 99. Ibid., 9. 100. Evan Mills and Scott Zeramby, “Energy Use by the Indoor Cannabis Industry: Inconvenient Truths for Producers, Consumers, and Policymakers,” in The Routledge Handbook of Post-prohibition Cannabis Research, edited by Dominic Corva and Joshua Meisel (New York: Routledge, 2021), 3. 101. Madhusoodanan, “Can Cannabis Go Green?” 102. Ibid. 103. Dan Adams, “Growing Concern: Marijuana Rules Could Mean Lower Quality Product,” Boston Globe, March 8, 2018, www​.bostonglobe​.com​/metro​ /2018​/03​/08​/skeptical​-led​-lights​-marijuana​-growers​- decry​-lighting​- efficiency​ -rule​/AC9qm18nmfM9rgaUrl26QK​/story.html. 104. Ibid.

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105. Mills, “To Make Cannabis Green.” 106. Zhang, “Cannabis Industry Struggles with Hiring.” 107. Chemerinsky, Constitutional Law, 462–97. 108. Ibid., 464. 109. Ibid., 258–90. 110. Ibid., 462–97. 111. Robert A. Mikos, “Interstate Commerce in Cannabis,” Boston University Law Review 101, no. 3 (2021): 876–82. 112. Mikos, “Three Federal Courts (So Far).”

chapter 4. sure you can sell weed, just don’ t tell anyone about it 1. 935 Code of Massachusetts Regulations (CMR) § 500.105(4)(b)(1)–(20) (2021). 2. Ibid. § 500.105(4)(b)(1). 3. Ibid. § 500.105(4)(a)(7). 4. Ibid. § 500.105(4)(b)(3)–(5). 5. Ibid. § 500.105(4)(b)(18). 6. Ibid. § 500.105(4)(b)(2), (12). 7. Ibid. § 500.105(4)(b)(14). 8. Washington Administrative Code (WAC) § 314-55-155(1)(b)(i) (2022); Nevada Cannabis Compliance Regulations (NCCR) § 6.120(1)(c)(1) (2021). 9. WAC § 314-55-155(2)(a) (“Except for the use of billboards as authorized under RCW 69.50.369 and as provided in this section, licensed marijuana retailers may not display any outdoor signage other than two separate signs identifying the retail outlet by the licensee’s business name or trade name, stating the location of the business, and identifying the nature of the business. Both signs must be affixed to a building or permanent structure and each sign is limited to sixteen hundred square inches.”). 10. Erwin Chemerinsky, Constitutional Law: Principles and Policies, 6th ed. (New York: Wolters Kluwer, 2019), 1186–1212. 11. 935 CMR § 500.105(4)(a)(7). 12. 3 Alaska Administrative Code (AAC) § 306.770(g) (2022). 13. WAC § 314-55-155(1)(a)(iii); CMR § 500.105(4)(b)(7); Oregon Administrative Regulations (Or. Admin. Reg.) § 845-025-8040(1)(e) (2021). 14. Rule 1 Code of Colorado Regulations (CCR) 212-2 § R1109, 1110 (2022). 15. Or. Admin. Reg. § 845-025-8040(1)(b). 16. 935 CMR § 500.105(4)(b)(4). 17. Ibid. § 500.105(4)(b)(18). 18. Ibid. § 500.105(4)(b)(14).

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19. 3 AAC § 306.770(e)(2). 20. NCCR § 6.120(1)(a)(2). 21. Or. Admin Reg. § 845-025-8040(1)(f)–(h). 22. NCCR § 6.120(1)(a)(3); 410 Illinois Compiled Statutes (ILCS) § 705/5520(a)(3)(2019). 23. 410 ILCS § 705/55-20(a)(6). 24. Or. Admin. Reg. § 845-025-8060(2). 25. Rule 1 CCR 212-2 § R1105–1107; NCCR § 6.120(1)(b). 26. 935 CMR § 500.105(4)(b)(2). 27. WAC § 314-55-155(1)(b)(i) (2022); NCCR § 6.120(1)(c)(1) (2021); 3 AAC § 306.770(f)(1). 28. Rule 1 CCR 212-2 § R1111(B). 29. Ibid. (prohibiting “any handbill, leaflet or flier directly handed to any person in a public place, left upon a motor vehicle, or posted upon any public or private property without the consent of the property owner”). 30. New Mexico Annotated Code § 16.8.3.8(B)(4) (2022). 31. 3 AAC § 306.770(b). 32. WAC § 314-55-155(2)(a). 33. Ibid. § 314-55-155(2)(a)(i)–(ii). 34. 935 CMR § 500.105(4)(b)(9). 35. Rule 1 CCR 212-2 § R1115; 3 AAC § 306.770(j). 36. 935 CMR § 500.105(4)(a)(3) (prohibiting “Any Advertising at or in connection with such an event . . . unless such Advertising is targeted to entrants or participants reasonably expected to be 21 years of age or older, as determined by reliable, current audience composition data, and reasonable safeguards have been employed to prohibit Advertising from targeting or otherwise reaching entrants or participants reasonably expected to be younger than 21 years old, as determined by reliable, current audience composition data.”). 37. NCCR § 6.120(1)(c)(3). 38. Michael Weitzman and Lily Lee, “Similarities between Alcohol and Tobacco Advertising Exposure and Adolescent Use of Each of These Substances,” Journal of Studies on Alcohol and Drugs (Supplement 19, 2020): 97–105. 39. Michael Roberts, “Marijuana Ads Make Kids More Likely to Use and See Pot Positives, Study Says,” Westword, May 17, 2018, www.westword.com/news​ /marijuana-advertising-makes-kids-more-likely-to-use-study-says-10320080 (describing study). The study itself is Elizabeth J. D’Amico, Anthony Rodriguez, Joan S. Tucker, Eric R. Pedersen, and Regina A. Shih, “Planting the Seed for Marijuana Use: Changes in Exposure to Medical Marijuana Advertising and Subsequent Marijuana Use, Cognitions, and Consequences over Seven Years,” Drug and Alcohol Dependence 188 (July 2018): 385–91.

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40. Stacey J. T. Hust, Jessica Fitts Willoughby, Jiayu Li, and Leticia Couto, “Youth’s Proximity to Marijuana Retailers and Advertisements: Factors Associated with Washington State Adolescents’ Intentions to Use Marijuana,” Journal Health Communication 25, no. 7 (July 2020): 594–603. 41. Roberts, “Marijuana Ads Make Kids.” 42. Jacqui Irwin, “Broken Promises Call for Reforms to Marijuana Advertising,” VC Star, April 25, 2021, www​.vcstar​.com​/story​/opinion​/editorials​/2021​/04​ /25​/irwin​-broken​-promises​-call​-reforms​-marijuana​-advertising​/7328039002/. 43. Jeff Roberts, “Lawmakers OK Restrictions on Medical Pot Advertising despite First Amendment Concerns,” Colorado Independent, April 14, 2016, www​.coloradoindependent​.com​/2016​/04​/14​/lawmakers​-ok​-restrictions​-on​ -medical​-pot​-advertising​-despite​-first​-amendment​-concerns/. 44. Massachusetts Prevention Alliance, Statement of Concern: Marijuana Policy in Massachusetts (May 2019), 1, w w w.mapreventionalliance.org​ /wp​-content/uploads/2019/05/MA-MJ-Policy_Statement-of-Concern-5-9-19_ FINAL​.pdf. 45. Ibid., 3. 46. Leslie Gielow Jacobs, “Regulating Marijuana Advertising and Marketing to Promote Public Health: Navigating the Constitutional Minefield,” Lewis & Clark Law Review 21, no. 3 (2017): 1081, 1084. 47. Ian Spiegelman, “California Lawmakers Are Battling over the Fate of Cannabis Billboards,” Los Angeles Magazine, April 1, 2021, www.lamag.com​ /citythinkblog​/cannabis​-billboards/. 48. Robert McCoppin, “Marijuana Ads Are Here and Largely Unregulated, as the Industry Acts to Set Its Own Guidelines,” Chicago Tribune, October 7, 2020, www.chicagotribune.com/marijuana/illinois/ct-illinois-marijuana-advertising20201007-axrenrsbnbg6tjf64rxmi6v4z4-story.html. 49. Conant v. Walters, 309 F.3d 629 (9th Cir. 2002). 50. I bet you thought I was going to say “weeds” there, didn’t you? 51. On the speech vs. conduct distinction, see Chemerinsky, Constitutional Law, 1159–65. 52. Ibid., 1012–25. 53. Ibid., 1013. 54. Ibid., 1076–77. 55. Virginia Board of Pharmacy v. Virginia Consumer Council, 425 U.S. 748 (1976). 56. Ibid., 763–64. 57. Ibid., 765. 58. Ibid., 770. 59. Central Hudson Gas & Electric Corporation v. Public Service Commission, 447 U.S. 557 (1980).

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60. Ibid., 566. 61. Chemerinsky, Constitutional Law, 1204–08. 62. Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986). 63. Rubin v. Coors Brewing Corp., 514 U.S. 476 (1995). 64. Greater New Orleans Broadcasting Association v. United States, 527 U.S. 173 (1999). 65. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001). 66. 44 Liquormart, 503–04. 67. Ibid., 507. 68. Lorillard Tobacco, 561–66. 69. Ibid., 564. 70. Central Hudson, 563–64. 71. Montana Cannabis Industry Association v. State of Montana, 368 P.3d 1131, 1150 (Mont. 2016). 72. Jacobs, “Regulating Marijuana Advertising,” 1097. 73. Bigelow v. Virginia, 421 U.S. 809 (1975). 74. Jacobs, “Regulating Marijuana Advertising,” 1097. 75. D’Amico et al., “Planting the Seed.” 76. Spiegelman, “California Lawmakers.” 77. Ibid. 78. Phoebe Bain, “Cannabis Marketers’ Other Biggest Issue: Advertising Platforms,” Marketing Brew, October 9, 2020, www.morningbrew.com/marketing /stories/2020/10/09/cannabis-marketers-biggest-issue-advertising-platforms; Matt Ferner, “Marijuana Ads Banned on Google, Facebook, and Twitter,” Huffington Post, January 24, 2014, www.huffpost.com/entry/google-facebook-banmarijuana​_n​_4646916; Kim Lyons, “The Super Bowl Won’t Be Lit: No Cannabis Ads Allowed,” The Verge, February 8, 2022, www​.theverge​.com​/2022​/2​/8​ /22911200​/super-bowl-ads-cannabis-weed. 79. Virginia Board, 763–64. 80. Spiegelman, “California Lawmakers”; McCoppin, “Marijuana Ads Are Here.”

chapter 5. sure you can smoke weed, but you might get fired for it 1. Tony Doris, “West Palm Employee Learns the Hard Way: You Can Still Get Fired for Smoking Pot Even If You Have a Medical Marijuana Card,” Palm Beach Post, March 25, 2021, www​.palmbeachpost​.com​/story​/news​/ local​ /westpb​/2021​/03​/25​/medical​-marijuana​-user​-fired​-west​-palm​-beach​- city​-hall​ -job/​4754584001/.

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2. Juliana Feliciano Reyes, “Her Doc Recommended Medical Marijuana for Chronic Pain. Then She Failed Her Drug Test and Jefferson Fired Her,” Philadelphia Inquirer, April 29, 2021, www.msn.com/en-us/health/medical/her-doc​ -recommended-medical-marijuana-for-chronic-pain-then-she-failed-her-drug​ -test-and-jefferson-fired-her/ar-BB1gb6SO. 3. Josh Kelety, “Even with Weed Legalized in Arizona, You Can Still Be Fired for G etting High,” Phoenix New Times, December 16, 2020, www​.phoenixnewtimes​.com​/marijuana​/arizona​-marijuana​-cannabis​-employers​ -employees​-rights​-fired​-personal​-11520396. 4. “Central Florida Teacher Fired for Prescribed Medical Marijuana Use,” WESH, March 25, 2021, www​.wesh​.com​/article​/florida​-teacher​-fired​-medical​ -marijuana​-use​/35928058#. 5. Mark Berman, “Colorado Supreme Court Says Companies Can Fire Workers for Using Medical Marijuana in Their Off-Hours,” Washington Post, June 15, 2015, www​.washingtonpost​.com​/news​/post​-nation​/wp​/2015​/06​/15​ /colorado​-supreme​- court​-says​- companies​- can​-fire​-workers​-for​-using​-medical​ -marijuana​-in​-their​-off-hours/. 6. Kyle Jaeger, “Testing People for Marijuana Impairment Based on THC Levels Is ‘Unreliable,’ Federally Funded Study Finds,” Marijuana Moment, June 4, 2021, www​.marijuanamoment​.net​/testing​-people​-for​-marijuana​-impairment​ -based​-on​-thc​-levels​-is​-not​-reliable​-federally​-funded​-study​-finds/. 7. National Conference of State Legislatures, Cannabis & Employment: Medical and Recreational Policies in the States, November 1, 2021, www​.ncsl​.org​ /research​/labor​-and​-employment​/cannabis​-employment​-laws​.aspx. 8. Rhode Island General Laws § 21-28.6-4(d) (2018). 9. Noffsinger v. SSC Niantic Operating Co., LLC, 273 F.Supp.3d 326, 336 (D. Conn. 2017). 10. Whitmire v. Wal-Mart Stores, Inc., 359 F.Supp.3d 761, 771 (D. Ariz. 2019). 11. Arizona Revised Statutes § 36-2813(B) (2018). 12. Whitmire, 785. 13. Ibid. 14. Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir. 2012). 15. Michigan Compiled Laws § 333.26424(4)(a) (2022). 16. Casias, 436. 17. Colorado Revised Statutes, § 24-34-402.5 (2016). 18. Coats v. Dish Network, LLC, 350 P.3d 849, 850 (Colorado 2015). 19. Denver7—The Denver Channel, “Colorado Supreme Court Upholds Firing of Medical Marijuana User,” YouTube, June 15, 2015, video, at 0:34–0:36, www .youtube.com/watch?v=jbp5e8lhpQ8. 20. Ibid., at 1:03–1:06. 21. Coats, 852.

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22. Ibid. 23. Denver7, “Colorado Supreme Court,” at 1:45–2:00. 24. Michael Roberts, “Brandon Coats MMJ Ruling: Business Group Cheers, NORML Boos,” Westword, June 16, 2015, www.westword.com/news​/ brandon​ -coats​-mmj​-court​-ruling​-business​-group​-cheers​-norml​-boos​-6807326. 25. Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 230 P.3d 518 (Oregon 2010). 26. Ross v. Ragingwire Telecommunications, Inc., 174 P.3d 200 (California 2008). 27. Ibid., 203. 28. California Government Code § 12940 (2022). 29. Ross, 204. 30. Ibid. 31. Ibid. 32. Ibid., 209 (Kennard, J., concurring in part and dissenting in part). 33. Ibid., 212. 34. Ibid., 211. 35. Barbuto v. Advantage Sales and Marketing, LLC, 78 N.E.3d 37 (Massachusetts 2017). 36. Ibid., 458. 37. Ibid. 38. Ibid., 464. 39. Ibid. 40. Massachusetts Supreme Judicial Court, “Barbuto v. Advantage Sales and Marketing, LLC, SJC-12226,” YouTube, June 29, 2021, video of oral argument, 41:10, www.youtube.com/watch?v=bX6KVzfH6pU&t=1809s. The look on Justice Lenk’s face at the 23:56 mark of the oral argument is priceless. 41. Barbuto, 466–67. 42. Coats, 852. 43. National Conference of State Legislatures, Cannabis & Employment. 44. Nevada Revised Statutes § 613.132 (2020). 45. Bill Hutchinson, “Nevada Becomes 1st State to Ban Most Pre-employment Pot Tests,” ABCNews, June 12, 2019, https://abcnews​.go​.com​/US​/nevada​ -1st​-state​-ban​-pre​-employment​-pot​-tests​/story?id = 63656557. 46. Montana Code Annotated, § 39-2-313 (2021). 47. New York State, Department of Labor, “Adult-Use Cannabis in the Workplace: New York Labor Law 201-D,” https://dol​.ny​.gov​/system​/files​/documents​ /2021​/10​/p420​-cannabisfaq​-10​-08​-21​.pdf (accessed March 14, 2022). 48. Jennifer L. Mora, Adam R. Young, and Robert T. Szyba, “New Jersey Recreational Marijuana Law Provides Significant Employment Protections to Marijuana Users,” Seyfarth, March 8, 2021, www​.seyfarth​.com​/news​-insights​/new​-jersey​

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-recreational​-marijuana​-law​-provides​-significant​- employment​-protections​-to​ -marijuana​-users​.html. 49. Kyle Jaeger, “New York City Ban on Pre-Employment Marijuana Testing Takes Effect, but Not for All Workers,” Marijuana Moment, May 11, 2020, www .marijuanamoment.net/new-york-city-ban-on-pre-employment-marijuana-testingtakes-effect-but-not-for-all-workers/. 50. Sean Collins Walsh, “Many Philly Employers Won’t Be Able to Test New Hires for Marijuana under a New Bill,” Philadelphia Inquirer, April 22, 2021, www.inquirer.com/politics/pennsylvania/philadelphia-employment-marijuana -testing-city-council-bill-20210422.html. 51. J. D. Capelouto, “Bottoms Removes Physical Exams, Drug Testing Mandates for Some City Job Applicants,” Atlanta Journal-Constitution, January 22, 2021, www.ajc.com/news/atlanta-news/bottoms-removes-physical-exams-drug-testingmandates-for-some-city-job-applicants/T7VLWF2SPJG6LMRZH3PD2TVOV4/. 52. Stephen Joyce and Joyce E. Cutler, “Legal Weed, Tight Labor Market Has Companies Dropping Drug Tests,” Bloomberg Law, October 21, 2021, https:// news.bloomberglaw.com/daily-labor-report/legal-weed-tight-labor-market-hascompanies-dropping-drug-tests. 53. Dana Gentry, “Are Job Drug Tests for Weed on Their Way Out?,” Nevada Current, June 18, 2018, www.nevadacurrent.com/2018/06/28/are-job-drugtests-for-weed-on-the-way-out/. 54. Rebecca Greenfield and Jennifer Kaplan, “How Legalized Pot Is Affecting Employee Job Tests,” Morning Call, March 9, 2018, www.mcall.com/business /mc-biz-employment-drug-tests-20180305-story.html. 55. Dave Clark, “Update on Our Vision to Be the Earth’s Best Employer and Earth’s Safest Place to Work,” About Amazon, June 1, 2021, www.aboutamazon .com/news/operations/update-on-our-vision-to-be-earths-best-employer-and​ -earths-safest-place-to-work. 56. Trace William Cowen, “Amazon to No Longer Screen Many Job Applicants for Marijuana Use,” Complex, June 2, 2021, www.complex.com/life /amazon-to-no-longer-screen-many-job-applicants-for-marijuana-use. 57. Dan Hyman, “When the Law Says Using Marijuana is O.K., but the Boss Disagrees,” New York Times, July 19, 2019, www.nytimes.com/2019/07/19 /business/marijuana-employer-drug-tests.html. 58. Quest Diagnostics, “Marijuana Workforce Drug Test Positivity Continues Double-Digit Increases,” May 26, 2021, https://newsroom.questdiagnostics .com/2021-05-26-Marijuana-Workforce-Drug-Test-Positivity-Continues-Double -Digit-Increases-to-Keep-Overall-Drug-Positivity-Rates-at-Historically-High -Levels,-Finds-Latest-Quest-Diagnostics-Drug-Testing-Index-TM-Analysis. 59. Uritox, “Fortune 500 Companies That Drug Test,” August 7, 2020, www .drugtestpanels.com/blogs/articles/fortune-500-companies-that-drug-test.

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60. Hyman, “When the Law Says.” 61. Ibid. 62. Roy Mauer, “More Workers Are Testing Positive for Marijuana,” SHRM, June 23, 2021, www.shrm.org/resourcesandtools/hr-topics/risk-management /pages/more-workers-are-testing-positive-for-marijuana.aspx. 63. Kelety, “Even with Weed Legalized in Arizona.” 64. Cowen, “Amazon to No Longer Screen.” 65. Ross, 211.

chapter 6. weed, weed everywhere, but not a place to smoke 1. Pete Danko, “Stymied by Lawmakers, Activists Want to Put Cannabis Cafes on Oregon’s Ballot,” Portland Business Journal, March 20, 2019, www .bizjournals.com/portland/news/2019/03/19/stymied-by-lawmakers-activistswant-to-put.html; Taryn Mickelson, “No Lounging Allowed: WA Ban on Cannabis Clubs Continues,” Spokesman-Review, May 9, 2019, www.spokesman.com /stories/2019/may/09/no-cannabis-lounging-allowed/. 2. Lester Black, “Legalizing Pot Lounges Could Make Washington’s Weed Industry More Equitable,” The Stranger, January 31, 2020, www.thestranger .com/slog/2020/01/31/42726911/legalizing-pot-lounges-could-make-washingtonsweed-industry-more-equitable. 3. Kristian Foden-Vencil, “Cannabis Cafes Could Be Coming to Oregon,” The Astorian, March 11, 2019, www.dailyastorian.com/news/cannabis-cafes-couldbe-coming-to-oregon/article_506713a8-4453-11e9-8ef0-7b7fd52d2289.html. 4. Hayley Glatter, “Massachusetts Cannabis Commission Agrees to Delay Some Aspects of Recreational Pot Launch,” Boston Magazine, February 27, 2018, www.bostonmagazine.com/news/2018/02/27/recreational-marijuana -launch-delay/. 5. Dan Adams, “Massachusetts Marijuana Cafes Get Preliminary OK,” Boston Globe, May 16, 2019, www.bostonglobe.com/news/marijuana/2019/05/16 /massachusetts-marijuana-cafes-get-preliminary/wqSoxh5klMmw34uAap7vMJ /story.html. 6. Colin A. Young, “State Senate Passes Bill to Grow, Diversify Mass. Cannabis Sector,” WBUR, April 8, 2022, www.wbur.org/news/2022/04/08/senatepasses-bill-cannabis-sector-massachusetts. 7. Drew Karedes, “Bill Would Authorize Legal Cannabis Lounges in Massachusetts,” Boston 25 News, March 8, 2021, www.boston25news.com /news/bill-would-authorize-legal-cannabis-lounges-massachusetts/IE2XP4Q2 UBD2DJBRR35KGGEIB4/.

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8. 3 Alaska Administrative Code § 306.370 (2022). 9. Ibid., § 306.370(e)(1) (separate); (e)(3) (ventilation); (f)(1)(a) (security). 10. Ibid. § 306.370(a) (local control); (b) (sales amount limits). 11. Associated Press, “Ketchikan Marijuana Retailer Again Offering Onsite Smoking,” US News & World Report, August 19, 2021, www.usnews.com/news /best-states/alaska/articles/2021-08-19/ketchikan-marijuana-retailer-againoffering-onsite-smoking. 12. William J. Beneduce, “Marijuana Social Lounges Are Coming to a New Jersey Town Near You,” National Review, April 5, 2021, www.natlawreview .com/article/marijuana-social-lounges-are-coming-to-new-jersey-town-near -you. 13. Tom Precious, “Now That Marijuana Is Legal in New York State, Here’s What You Need to Know,” Buffalo News, March 31, 2021, https://buffalonews.com /news/state-and-regional/now-that-marijuana-is-legal-in-new-york-state-hereswhat-you-need-to-know/article_8a9c81ba-923b-11eb-a6ea-cb12dd52723d.html. 14. It was reported in 2021 that the state’s first cannabis lounge was going to open in Ann Arbor, but I’ve been unable to confirm whether it has actually opened its doors. Kimberly Craig, “Michigan’s First Cannabis Consumption Lounge Set to Open in Ann Arbor,” WXYZ News, May 6, 2021, www.wxyz.com/news /michigans-first-cannabis-consumption-lounge-set-to-open-in-ann-arbor. Obviously, by the time you’re reading this, such lounges might exist. 15. Robert McCoppin, “Cannabis Smoking Lounges Off to Successful Start in Illinois,” Chicago Tribune, August 31, 2021, www.chicagotribune.com /marijuana/illinois/ct-ilinois-marijuana-consumption-lounges-update-20210831 -hnkgbc7ahzgsfaeqmdf3pvjc6e-story.html. 16. Sean Golonka, “With Approval of Consumption Lounges, State Ushers in Next Expansion of Cannabis Industry,” Nevada Independent, July 4, 2021, https://thenevadaindependent.com/article/with-approval-of-consumption-loungesstate-ushers-in-next-expansion-of-cannabis-industry. 17. Susan Stapleton, “New Cannabis Consumption Lounges Expected to Open in Nevada in 2022,” Eater Las Vegas, October 4, 2021, https://vegas.eater .com/2021/10/4/22708293/cannabis-consumption-lounges-open-nevada-2022. 18. Colorado Health Institute, “Marijuana Legislation in 2017: Business as Usual,” April 15, 2017, www.coloradohealthinstitute.org/blog/marijuanalegislation-2017-business-usual (discussing SB184 and SB63). This piece was written before SB184 was eventually defeated. For the history of SB184, see https://leg.colorado.gov/bills/sb17-184. 19. Michael Roberts, “Social Pot Use Coming to Denver as Yes on 300 Campaign Finally Claims Victory,” Westword, November 15, 2016, www.westword .com/news/social-pot-use-coming-to-denver-as-yes-on-300-campaign-finallyclaims-victory-8124589.

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20. DJ Reetz, “A Tale of Two Cannabis Cafes: What We Can Learn from Denver’s Failed Public Consumption Program,” MJ Brand Insights, November 9, 2021, https://mjbrandinsights.com/a-tale-of-two-cannabis-cafes-whatwe-can-learn-from-denvers-failed-public-consumption-program/. 21. The website for The Coffee Joint is https://thecoffeejointco.com/. 22. Thomas Mitchell, “Marijuana Consumption and Hospitality Businesses Passes Legislature,” Westword, May 2, 2019, www.westword.com/marijuana /colorado-legislature-approves-marijuana-cafes-lounges-and-social-use-areas11331200. 23. Ibid. 24. Thomas Mitchell, “Glendale Wants to Open State’s First Licensed Marijuana Tasting Room,” Westword, February 5, 2020, www.westword.com /marijuana/glendale-dispensary-wants-to-open-states-first-licensed-marijuanatasting-room-11631101; Margaret Jackson, “Coronavirus Pandemic Deals Setback to Marijuana Consumption Lounges, but Some Owners Stick with Plans,” MJBizDaily, December 17, 2021, https://mjbizdaily.com/coronavirus-pandemicdeals-setback-to-marijuana-consumption-lounges-but-some-owners-stick-withplans/. 25. Bethany Moore, “Committee Blog: California Social Consumption Leads the Way,” National Cannabis Industry Association, March 10, 2020, https:// thecannabisindustry.org/committee-blog-california-social-consumption-leadsthe-way/. 26. Faii Steuer, “7 Cannabis Consumption Lounges to Inspire Your Next Retail Venture,” COVA, March 7, 2022, www.covasoftware.com/blog/5-cannabisconsumption-lounges-to-inspire-your-next-venture. 27. Debbie Goldsberry, “Cannabis Goes Social with On-Site Consumption Spaces in U.S. Markets,” Cannabis Business Times, September 24, 2019, www.cannabisbusinesstimes.com/article/cannabis-social-on-site-consumptionlounges/. 28. Steuer, “7 Cannabis Consumption Lounges.” 29. “Embracing Cannabis Consumption Lounges,” CannaCon, May 4, 2021, https://cannacon.org/consumption-lounge-updates/. 30. Erik Knutson, “Why Legal Social Consumption Lounges Need to Be the New Norm,” MG Retailer, November 12, 2019, https://mgretailer.com/business /retail-merchandise/why-legal-social-consumption-lounges-need-to-be-the-newnorm/. 31. Laurel Leaf, “Let’s Hit the Weed Bar—Are Cannabis Consumption Lounges the New Legalization Trend?,” Cannabis.net, June 10, 2021, https:// cannabis.net/blog/opinion/lets-hit-the-weed-bar-are-cannabis-consumption-loungesthe-new-legalization-trend. 32. Knutson, “Why Legal Social Consumption Lounges.” 33. Ibid.

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34. Maureen Dowd, “Don’t Harsh Our Mellow, Dude,” New York Times, June 3, 2014, www.nytimes.com/2014/06/04/opinion/dowd-dont-harsh-our-mellowdude.html. 35. Ibid. 36. Chris Kudialis, “Vegas Braces for Cannabis Lounges,” Cannabis Business Times, May 3, 2021, w w w.cannabisbusinesstimes.com/article/on-siteconsumption-lounges-las-vegas-soon/. 37. David Randall Peterman, “Marijuana Use and Highway Safety,” Congressional Research Service, March 14, 2019, 1, https://crsreports.congress.gov /product/pdf/R/R45719#:. 38. Andrea Roth, “The Uneasy Case for Marijuana as Chemical Impairment under a Science-Based Jurisprudence of Dangerousness,” California Law Review 103, no. 3 (2015): 846–73. 39. Peterman, “Marijuana Use and Highway Safety,” 4. 40. “Field Sobriety Tests and THC Levels Unreliable Indicators of Marijuana Intoxication,” National Institute of Justice, April 5, 2021, https://nij.ojp.gov /topics/articles/field-sobriety-tests-and-thc-levels-unreliable-indicators-marijuanaintoxication. 41. Governors Highway Safety Association, “Drug Impaired Driving,” 2022, w w w.ghsa.org/state-laws/issues/drug%20impaired%20driving (accessed March 15). 42. Ibid. 43. Ibid. 44. Commonwealth v. Gerhardt, 81 N.E.3d 751 (Mass. 2017). 45. Ibid., 754–57. 46. Ibid., 756. 47. Ibid., 758–60. 48. Ibid., 760. 49. Ibid. 50. Ibid., 760–61. 51. Ibid., 761. 52. Samantha DiMascio, “Training Underway for Additional Drug Recognition Experts Following Marijuana Legalization,” News10.com, April 2, 2021, www.news10.com/news/training-underway-for-additional-drug-recognition-expertsfollowing-marijuana-legalization/. 53. Brittany Solensten and Dale W. Willits, Perceptions of Drug Recognition Experts (DREs) and DRE Evidence: A Qualitative Analysis of the Police, Prosecution, and Defense, WTSC Report No. 2021-AG-4186 (January 2021), 3–4. 54. Jacob Sullum, “Bogus Stoned Driving Arrests Highlight Dubious Methods of ‘Drug Recognition Experts,’ ” Reason, September 28, 2017, https:// reason.com/2017/09/28/bogus-stoned-driving-arrests-highlight-t/ .

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55. Stephen Bitsoli, “Drug Recognition Experts Are Accurate, but Maybe Not Accurate Enough,” Legal Reader, June 11, 2018, w w w.legalreader.com /drug-recognition-experts/. 56. Joe Hernandez, “N.J. Supreme Court to Weigh Reliability of Experts on Drugged Driving,” WHY Y, November 21, 2019, https://whyy.org/articles /n-j-supreme-court-to-weigh-reliability-of-experts-on-drugged-driving/.

chapter 7. marijuana should absolutely be legal—just not in our town! 1. Zoe Matthews, “Pot Farm Would Pay North Andover $5m Per Year for 20 Years,” Eagle Tribune, January 25, 2018, www.eagletribune.com/news /merrimack_valley/pot-farm-would-pay-north-andover-5m-per-year-for-20-years /article_fb2eba49-cf62-5e50-b9df-0d8635ea0345.html; Dan Adams, “Proposal for Massive Marijuana Facility Divides North Andover,” Boston.com, January 30, 2018,www.boston.com/news/business/2018/01/30/proposal-for-massive-marijuanafacility-divides-north-andover/. 2. Zoe Matthews, “Large Turnout Expected at Special Town Meeting for Marijuana Vote,” Eagle Tribune, January 29, 2018, www.eagletribune.com /news/merrimack_valley/large-turnout-expected-at-special-town-meeting-formarijuana-vote/article_d4cb2d83-1724-5d53-b67e-c41ebd58896b.html. 3. The entire meeting can be viewed online. NorthAndoverCAM, “North Andover Special Town Meeting—Tuesday, January 30, 2018,” YouTube, video, 2:43:12, www.youtube.com/watch?v=p_0sJbzcwqQ. 4. Ibid., at 23:38. 5. Ibid., at 32:07. 6. Ibid., at 1:00:35. 7. Ibid., at 1:17:42. 8. Ibid., at 1:11:30. 9. Ibid., at 1:33:54. 10. Ibid., at 2:14:43. 11. U.S. Census Bureau, “Quick Facts: North Andover Town, Essex County, Massachusetts,” www.census.gov/quickfacts/northandovertownessex countymassachusetts (accessed March 20, 2022). 12. Robert A. Mikos, “Marijuana Localism,” Case Western Reserve University Law Review 65, no. 3 (2015): 760–61. 13. Ibid., 762. 14. David Marino Jr., “More Than 90 Percent of Maine Towns Still Don’t Allow Recreational Marijuana Sales,” Bangor Daily News, September 20, 2021, https:// bangordailynews.com/2021/09/20/business/more-than-90-percent-of-mainetowns-still-dont-allow-recreational-marijuana-sales/.

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15. Massachusetts General Laws c. 94g §3(a)(2), (e) (2017). 16. New York State, Office of Cannabis Management, “Local Government,” https://cannabis.ny.gov/local-government (accessed March 21, 2022). 17. Washington is an example. See Municipal Research and Services Center of Washington, “Marijuana Regulation in Washington State,” https://mrsc.org /home/explore-topics/legal/regulation/marijuana-regulation-in-washington-state .aspx (accessed March 21, 2022). 18. Payne Lubbers, “More Than 500 Communities Opt Out of Recreational Marijuana Sales in Michigan,” Detroit News, July 25, 2019, www.detroitnews .com/story/news/local/michigan/2019/07/24/more-than-500-communities-optout-recreational-marijuana-sales-michigan/1755325001/. 19. Russell Hausfeld, “Oregon’s Counties Still Living under Cannabis Prohibition, Mapped,” Willamette Week, July 26, 2016, www.wweek.com/cannabis/2016 /07/26/oregons-dry-counties-still-living-under-cannabis-prohibition-mapped/#. 20. Brooke Staggs, “Marijuana Laws for Every City and County? Our Database Shows California Slow to Accept Prop. 64,” Orange County Register, April 9, 2018, www.ocregister.com/2018/04/09/database-of-marijuana-rules-from-every -city-and-county-in-california-shows-slow-acceptance-of-prop-64/. 21. Massachusetts Cannabis Control Commission, “Municipal Zoning Tracker,” October 7, 2021, https://masscannabiscontrol.com/municipal-zoningtracker/. 22. A. J. Herrington, “New York Towns and Cities Considering Opting Out of Legal Cannabis Dispensaries,” High Times, June 8, 2021, https://hightimes .com/news/new-york-opting-out-legal-cannabis/. 23. Andrew Ward, “Why Are So Many Municipalities Opting Out of Their State’s Adult-Use Cannabis Marketplace?,” Markets Insider, May 24, 2021, https://markets.businessinsider.com/news/stocks/why-are-so-many-municipalitiesopting-out-of-their-state-s-adult-use-cannabis-marketplace-1030459111. 24. Andrew DeAngelo, “Local Control, NIMBYism, and Cannabis, Oh My!,” Forbes, September 10, 2021, www.forbes.com/sites/andrewdeangelo/2021/09/10 /local-control-nimbyism-and-cannabis-oh-my/?sh = 72ecb949259a. 25. Steve Chapman, “In Chicago Suburbs, Legal Marijuana Meets NIMBYs,” Chicago Tribune, November 20, 2019, www.chicagotribune.com/columns /steve-chapman/ct-column-recreational-marijuana-suburbs-naperville-chapman20191120-hffrosezfrgxpalfvouobfq2ai-story.html. 26. The Shredder, “How the NIMBYs Stole Cannabis,” New Times, October 17, 2019, www.newtimesslo.com/sanluisobispo/how-the-nimbys-stole-cannabis /Content?oid = 8905305. 27. Illinois’s law is typical. 410 Illinois Compiled Statutes § 705/55-25(1)-(5) (2019). 28. Massachusetts General Laws c. 94g §3(a)(2)(ii) (2017). 29. New York State, Office of Cannabis Management, “Local Government.”

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30. Seth Daniel, “How Buffer Zone Rules Are Impacting Cannabis Dispensaries in Some Boston Neighborhoods,” WBUR.org, October 4, 2021, www.wbur .org/news/2021/10/04/blue-hill-avenue-marijuana-shops-buffer-zone; Aaron Frank, “Locally Sourced Cannabis Laws: The Importance of Zoning in Cannabis Operations,” JDSupra, September 13, 2021, www.jdsupra.com/legalnews /locally-sourced-cannabis-laws-the-7120813/. 31. Municipal Research and Services Center of Washington, “Marijuana Regulation in Washington State.” 32. Nelson Pope Voorhis, “Land Use and Planning Considerations for the New York State Marijuana Regulation and Taxation Act,” May 2021, 5, https:// nelsonpopevoorhis.com/wp-content/uploads/2021/05/MRTAWhitePaper_210510 .pdf. 33. Washington State Liquor and Cannabis Board, “Renew Your License,” https://lcb.wa.gov/licensing/renew-your-license (accessed March 23, 2022). 34. Consolidated Laws of New York, Chapter 7-A, Article 4, Section 76 (2021). 35. California Department of Cannabis Control, “How to Apply for or Renew a License,” https://cannabis.ca.gov/applicants/how-to-apply-renew/ (accessed March 23, 2022); State of Maine Office of Marijuana Policy, “Application Process,” 2022, www.maine.gov/dafs/omp/adult-use/application-process (accessed March 23, 2022). 36. Oregon Local Control Commission, “Land Use Compatibility Statement,” www.oregon.gov/olcc/marijuana/Documents/RecreationalMarijuana_LandUse CompatibilityStatement_OLCC.pdf (accessed March 23, 2022). 37. Massachusetts Cannabis Control Commission, “Community Outreach Meeting,” https://masscannabiscontrol.com/community-outreach-meeting/ (accessed March 23, 2022). 38. Massachusetts General Laws c. 94g §3(d) (2017). 39. Massachusetts Cannabis Control Commission, “Guidance for Municipalities on Equity and Host Community Agreements,” November 2021, 11–13, https://masscannabiscontrol.com/wp-content/uploads/2022/01/Guidance-forMunicipalities-on-Equity-and-Host-Community-Agreements.pdf. 40. For a collection of representative HCAs, see Massachusetts Cannabis Control Commission, Report on Host Community Agreements and Marijuana Establishments (March 2019). 41. Massachusetts General Laws c. 94g §3(d) (2017). 42. Mona Zhang, “How State Marijuana Legalization Became a Boon for Corruption,” Politico, December 27, 2020, www.politico.com/news/2020/12/27 /marijuana-legalization-corruption-450529. 43. Massachusetts Cannabis Control Commission, Report on Host Community Agreements, 3–9. 44. Tori Bedford and Amanda Beland, “Mass Cities and Towns Demand Large Payouts from Marijuana Companies,” WGBH.org, February 27, 2020,

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www.wgbh.org/news/local-news/2020/02/27/mass-cities-and-towns-demandlarge-payouts-from-marijuana-companies. 45. Colin A. Young, “Massachusetts Marijuana Growers Turning Up Legal Pressure on Cannabis Control Commission,” Boston Business Journal, January 22, 2019, www.bizjournals.com/boston/news/2019/01/22/massachusettsmarijuana-growers-turning-up-legal.html. 46. Natalie Fertig, “Local Rule Is Undermining Massachusetts’ Attempt to Create Equity in the Cannabis Industry,” Politico, March 6, 2020, www.politico .com/news/2020/03/06/local-rule-is-undermining-massachusetts-attempt-tocreate-equity-in-the-cannabis-industry-122655. 47. Ibid. 48. Ibid. 49. Ibid. 50. Ibid. 51. Mikos, “Marijuana Localism,” 736–50. 52. Ibid., 750. 53. Josh Kelety, “Arizona Cities Are Banning Recreational Marijuana, but the Fix Is Already In,” Phoenix New Times, December 22, 2020, www.phoenixnewtimes .com/marijuana/arizona-cities-restrict-recreational-weed-creating-monopolies11520949. 54. Ward, “Why Are So Many Municipalities Opting Out.” 55. Kelety, “Arizona Cities.”

chapter 8. if cannabis is legal, why can the cops search you if they smell it ? 1. People v. Moorman, 952 N.W.2d 597, 598 (Mich.App. 2020). 2. Ibid., 599. 3. Ibid. 4. Ibid., 599, 602. 5. People v. Kazmierczak, 605 N.W.2d 667 (Michigan 2000). 6. Moorman, 602. 7. Ibid., 601–02. 8. For a really good guide to what is legal and what is not legal when it comes to marijuana in Massachusetts, see Daniel Bennett, Secretary, Executive Office of Public Safety and Security, Commonwealth of Massachusetts, Letter to Colonel Richard D. McKeon, Massachusetts State Police, “Re: Passage of Question 4,” December 14, 2016, www.umass.edu/ccc/sites/default/files/Ltr.%20Sec.%20 Exec.%20Office%20Pub.%20Safety.pdf. 9. Jerold H. Israel and Wayne R. Lafave, Criminal Procedure: Constitutional Limitations in a Nutshell, 9th ed. (St. Paul, MN: West Academic, 2020), 63–64.

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10. U.S. Constitution, Amendment 4. 11. Israel and LaFave, Criminal Procedure, 90–125. 12. Ibid., 274–93. 13. Ibid., 49–58. 14. Ibid., 48–52. 15. Florida v. Riley, 488 U.S. 445 (1989). 16. Kyllo v. United States, 533 U.S. 27 (2001). 17. Israel and LaFave, Criminal Procedure, 49–58. 18. Ibid., 125–39. 19. Ibid., 106–08. 20. Ibid., 78–79. 21. Carroll et al. v. United States, 267 U.S. 132 (1925). 22. Ibid., 135–36. 23. Ibid., 153. 24. United States v. Place, 462 U.S. 696 (1983). 25. Ibid., 706–07. 26. Illinois v. Caballes, 543 U.S. 438 (2005). 27. Ibid., 408–09. 28. Ibid., 408 (emphasis in original). 29. Ibid., 409. 30. Florida v. Jardines, 569 U.S. 1 (2013). 31. People v. McKnight, 446 P.3d 397, 400 (Colorado 2019). 32. Ibid., 400. 33. Ibid., 414. 34. Ibid., 408. 35. Ibid., 414, 415 (Coats, J., dissenting), citing Coats v. Dish Network, LLC, 350 P.3d 849 (Colorado 2015). 36. Jacob Sullum, “What Good Is a Pot-Sniffing Dog When Pot Is Legal?,” Forbes, January 15, 2015, www.forbes.com/sites/jacobsullum/2015/01/15 /what-good-is-a-pot-sniffing-dog-when-pot-is-legal/?sh = 31e7a5462198. 37. Chris Roberts, “Marijuana Legalization Is Retiring Police Dogs. Why That’s Good—and Why All Drug K9 Units Should Go,” Forbes, May 30, 2021, www.forbes.com/sites/chrisroberts/2021/05/30/marijuana-legalization-is-retiringpolice-dogs-why-thats-good-and-why-all-drug-k9-units-should-go/?sh = 774877e33695. 38. Ibid. 39. Caren Chesler, “A Whiff of Pot Alone No Longer Airtight Probable Cause for Police to Search Cars in Several States,” Washington Post, June 26, 2021, www.washingtonpost.com/national-security/marijuana-police-probable-cause /2021/06/26/9d984f8e-d36c-11eb-a53a-3b5450fdca7a_story.html. 40. State v. Smalley, 225 P.3d 844 (Oregon App. 2010); People v. Waxler, 224 Cal.App.4th 712 (2014); Robinson v. State, 152 A.3d 661 (Maryland 2017).

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41. Smalley, 848. 42. People v. Cox, 401 P.3d 509 (Colorado 2017). 43. Commonwealth v. Cruz, 945 N.E.2d 899 (Massachusetts 2011). 44. Ibid., 913. 45. Commonwealth v. Overmyer, 11 N.E.3d 1054 (Massachusetts 2014). 46. Ibid., 1059. 47. Ibid. 48. Richard L. Doty, Thomas Wudarski, David A. Marshall, and Lloyd Hastings, “Marijuana Odor Perception: Studies Modeled from Probable Cause Cases,” Law and Human Behavior 28, no. 2 (April 2004): 223–33, 223. 49. Ibid., 226. 50. Ibid., 232. 51. Overmyer, 1059. 52. Pacheco v. State, 214 A.3d 505 (Maryland 2019). 53. Ibid., 508. 54. Ibid., 517–18. 55. State v. Sisco, 373 P.3d 549 (Arizona 2016). 56. Ibid., 551. 57. Ibid. 58. Ibid., 553. 59. Ibid. 60. State v. Fry, 228 P.3d 1 (Washington 2010). 61. Ibid., 3. 62. Ibid., 5. 63. Ibid., 12 (Sanders, J., dissenting). 64. Ibid. 65. Commonwealth v. Canning, 28 N.E.3d 1156 (Massachusetts 2015). 66. Ibid., 1165. 67. State v. Crocker, 97 P.3d 93 (Alaska App. 2004). 68. Ravin v. State, 537 P.2d 494 (Alaska 1975). 69. Crocker, 94. 70. Ibid., 97. 71. Chesler, “Whiff of Pot Alone.” 72. Ibid. 73. Ibid. 74. American Civil Liberties Union, Report: The War on Marijuana in Black and White (New York: ACLU Foundation, 2013), 4. 75. Chesler, “Whiff of Pot Alone.” 76. Ibid. 77. New York Penal Law § 222.05(3)(a)–(b) (2021). 78. Ibid., § 222.05(4). 79. Virginia Code Annotated, § 4.11302 (2022).

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conclusion 1. At the time of this writing, the House of Representatives has passed the SAFE Banking Act five times and the MORE Act twice, but the bills have not gone anywhere in the Senate. 2. H.R. 1996, Secure and Fair Enforcement (SAFE) Banking Act of 2021, www.congress.gov/bill/117th-congress/house-bill/1996/text (accessed April 5, 2021). 3. Jacob Sullum, “If Chuck Schumer Supports Marijuana Legalization, Why Did He Nix a Bill That Would Have Helped Pot Businesses Use Banks?,” Reason, December 30, 2021, https://reason.com/2021/12/30/if-chuck-schumersupports-marijuana-legalization-why-did-he-nix-a-bill-that-would-have-helpedpot-businesses-use-banks/. 4. Erwin Chemerinsky, Jolene Forman, Allen Hopper, and Sam Kamin, “Cooperative Federalism and Marijuana Regulation,” UCLA Law Review 62, no. 1 (2015): 74–121, 120. 5. Ibid., 120–22. 6. H.R. 2093, Strengthening the Tenth Amendment Through Entrusting States (STATES) Act, www.congress.gov/bill/116th-congress/house-bill/2093 /text (accessed April 5, 2021). 7. Kyle Jaeger, “The Debate over How, Not Whether, Congress Should Legalize Marijuana Is Heating Up,” Marijuana Moment, July 9, 2019, www .marijuanamoment.net/the-debate-over-how-not-whether-congress-should-legalizemarijuana-is-heating-up/. 8. H.R. 3617, Marijuana Opportunity Reinvestment and Expungement (MORE) Act, www.congress.gov/bill/117th-congress/house-bill/3617/text (accessed April 5, 2021). 9. Cory Booker, Ron Wyden, and Chuck Schumer, “Cannabis Administration and Opportunity Act: Discussion Draft,” www.democrats.senate.gov/imo /media/doc/CAOA%20Detailed%20Summary%20-.pdf (accessed April 5, 2021). 10. John Hudak and Sherese Bonner, “The Senate’s New Cannabis Reform Bill Can Do More for Drug War–Targeted Communities,” Brookings, September 2, 2021, w w w.brookings.edu/blog/f ixgov/2021/09/02/the-senates-newcannabis-reform-bill-can-do-more-for-drug-war-targeted-communities/. 11. Robert A. Mikos, “Interstate Commerce in Cannabis,” Boston University Law Review 101, no. 4 (2021): 891–93. 12. Tommy Tobin and Andrew Kline, “A Sleeping Giant: How the Dormant Commerce Clause Looms over the Cannabis Marketplace,” Yale Law & Policy Review Inter Alia, January 3, 2022, https://ylpr.yale.edu/inter_alia/sleepinggiant-how-dormant-commerce-clause-looms-over-cannabis-marketplace.

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13. Scott Bloomberg and Robert A. Mikos, “Legalization without Disruption: Why Congress Should Let States Restrict Interstate Commerce in Marijuana,” Pepperdine Law Review (forthcoming), https://papers.ssrn.com/sol3/papers .cfm?abstract_id = 3909972 (accessed April 5, 2022). 14. Did you think that was a weird way to end a book? Would you have thought the same thing if I’d said, “I’m going to pour myself a glass of Champagne”? (See what I did there?)

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Bibliography

cases and other legal materials 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996). Alliance for Cannabis Therapeutics v. Drug Enforcement Administration, 930 F.2d 936 (D.C. Cir. 1991). Barbuto v. Advantage Sales and Marketing, LLC, 78 N.E.3d 37 (Massachusetts 2017). Bigelow v. Virginia, 421 U.S. 809 (1975). Carroll et al. v. United States, 267 U.S. 132 (1925). Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir. 2012). Central Hudson Gas & Electric Corporation v. Public Service Commission, 447 U.S. 557 (1980). Coats v. Dish Network, LLC, 350 P.3d 849 (Colorado 2015). Commonwealth v. Canning, 28 N.E.3d 1156 (Massachusetts 2015). Commonwealth v. Cruz, 945 N.E.2d 899 (Massachusetts 2011). Commonwealth v. Gerhardt, 81 N.E.3d 751 (Massachusetts 2017). Commonwealth v. Overmyer, 11 N.E.3d 1054 (Massachusetts 2014). Conant v. Walters, 309 F.3d 629 (9th Cir. 2002). Drug Enforcement Administration, “Marijuana Scheduling Petition; Denial of Petition,” 54 Federal Register 53767 (December 29, 1989). Edmonson v. Commissioner, 42 T.C.M. 1533 (1981). Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 230 P.3d 518 (Oregon 2010). 241

Wexler-Weed Rule.indd 241

22/10/22 2:45 PM

242

bibliography

Florida v. Jardines, 569 U.S. 1 (2013). Florida v. Riley, 488 U.S. 445 (1989). Gonzales v. Raich, 545 U.S. 1 (2005). Greater New Orleans Broadcasting Association v. United States, 527 U.S. 173 (1999). H.R. 1996. Secure and Fair Enforcement (SAFE) Banking Act of 2021. Accessed April 5, 2021. www.congress.gov/bill/117th-congress/house-bill/1996/text. H.R. 2093. Strengthening the Tenth Amendment Through Entrusting States (STATES) Act. Accessed April 5, 2021. www.congress.gov/bill/116thcongress/house-bill/2093/text. H.R. 3617. Marijuana Opportunity Reinvestment Expungement (MORE) Act. Accessed April 5, 2022. www.congress.gov/bill/117th-congress/house-bill /3617/text. Illinois v. Caballes, 543 U.S. 438 (2005). Kyllo v. United States, 533 U.S. 27 (2001). Leary v. United States, 395 U.S. 6 (1969). Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001). Montana Cannabis Industry Association v. State of Montana, 368 P.3d 1131, 1150 (Montana 2016). Murphy v. NCAA, 138 S.Ct. 1461 (2018). New York v. United States, 505 U.S. 144 (1992). Noffsinger v. SSC Niantic Operating Co., LLC, 273 F.Supp.3d 326, 336 (D. Conn. 2017). Pacheco v. State, 214 A.3d 505 (Maryland 2019). People v. Cox, 401 P.3d 509 (Colorado 2017). People v. Kazmierczak, 605 N.W.2d 667 (Michigan 2000). People v. McKnight, 446 P.3d 397, 400 (Colorado 2019). People v. Moorman, 952 N.W.2d 597, 598 (Mich.App. 2020). People v. Waxler, 224 Cal.App.4th 712 (2014). PharmaCann Ohio, LLC v. Ohio Department of Commerce, No. 17 CV10962 (Court of Common Pleas, Franklin County Ohio, Civil Division, November 15, 2015). Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986). Printz v. United States, 521 U.S. 898 (1997). Ravin v. State, 537 P.2d 494 (Alaska 1975). Robinson v. State, 152 A.3d 661 (Maryland 2017). Ross v. Ragingwire Telecommunications, Inc., 174 P.3d 200 (California 2008). Rubin v. Coors Brewing Corp., 514 U.S. 476 (1995). State v. Crocker, 97 P.3d 93 (Alaska App. 2004). State v. Fry, 228 P.3d 1 (Washington 2010). State v. Sisco, 373 P.3d 549 (Arizona 2016).

Wexler-Weed Rule.indd 242

22/10/22 2:45 PM



bibliography

243

State v. Smalley, 225 P.3d 844 (Oregon App. 2010). United States Department of Justice, Drug Enforcement Administration, In the Matter of Marijuana Rescheduling Petition, Docket No. 86-22 (September 6, 1988) (opinion of Administrative Law Judge Francis L. Young). United States v. Lopez, 514 U.S. 549 (1995). United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016). United States v. Morrison, 529 U.S. 598 (2000). United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483 (2001). United States v. Place, 462 U.S. 696 (1983). Virginia Board of Pharmacy v. Virginia Consumer Council, 425 U.S. 748 (1976). Whitmire v. Wal-Mart Stores, Inc., 359 F.Supp.3d 761, 771 (D. Ariz. 2019).

secondary sources Adams, Dan. “Growing Concern: Marijuana Rules Could Mean Lower Quality Product.” Boston Globe. March 8, 2018. www.bostonglobe.com​/metro​/2018​ /03​/08​/skeptical​-led​-lights​-marijuana​-growers-decry-lighting-efficiency​ -rule​/AC9qm18nmfM9rgaUrl26QK/story.html. . “Massachusetts Marijuana Cafes Get Preliminary OK.” Boston Globe. May 16, 2019. www​.bostonglobe​.com​/news​/marijuana​/2019​/05​/16​ /massachusetts​-marijuana​-cafes​-get​-preliminary​/wqSoxh5klMmw34uAap 7vMJ​/story.html. . “Proposal for Massive Marijuana Facility Divides North Andover.” Boston.com. January 30, 2018. www.boston.com/news/business/2018/01/30 /proposal​-for​-massive​-marijuana​-facility-divides-north-andover/. . “ ‘An Utter Failure’: Law Meant to Clear Old Convictions, Including for Marijuana Possession, Helps Few.” Boston Globe. November 28, 2021. www​ .bostonglobe​.com​/2021​/11​/28​/marijuana​/an​-utter​-failure​-law​-meant​-clear​ -old​-convictions​-including​-marijuana​-possession​-helps​-few/. Adams, Mike. “Here’s the One Thing the Marijuana Industry Should Fear Most.” Out. May 19, 2017. www​.out​.com​/news​-opinion​/2017​/5​/19​/heres​-one​ -thing​-marijuana​-industry​-should​-fear​-most. Adlin, Ben. “Legalization Isn’t Enough: 10 Things Every New Cannabis Law Must Have.” Leafly. April 2, 2019. www​.leafly​.com​/news​/politics​/10​-things​ -new​-cannabis​-legalization​-law​-shaleen​-title. Alaska Department of Revenue—Tax Division. “Marijuana Tax 2020 Annual Report.” Accessed March 3, 2022. https://tax​.alaska​.gov​/programs​/programs​ /reports​/Annual​.aspx​?60000&Year=2020. American Civil Liberties Union. “Marijuana Arrests by the Numbers.” Accessed February 19, 2022. www.aclu.org/gallery/marijuana-arrests-numbers.

Wexler-Weed Rule.indd 243

22/10/22 2:45 PM

244

bibliography

. Report: The War on Marijuana in Black and White. New York: ACLU Foundation, 2013. American Psychiatric Association. Diagnostic and Statistical Manual of Mental Disorders, 5th ed. (DSM-5). Washington, DC: American Psychiatric Publishing, 2013. Anslinger, Harry. “Marijuana: Assassin of Youth.” Reader’s Digest. February 1938. Accessed February 19, 2022. www.druglibrary.org/mags/assassinofyouth .htm. Armentano, Paul. “Emerging Clinical Applications for Cannabis and Cannabinoids: A Review of the Recent Scientific Literature, Expanded and Revised Eighth Edition.” Accessed February 25, 2022. https://norml.org/wp -content/uploads/pdf_files/NORML_Clinical_Applications_for_Cannabis _and_Cannabinoids.pdf. Associated Press. “Ketchikan Marijuana Retailer Again Offering Onsite Smoking.” US News & World Report. August 19, 2021. www.usnews.com /news/best-states/alaska/articles/2021-08-19/ketchikan-marijuana -retailer-again-offering-onsite-smoking. Bailey, Jennifer A., Marina Epstein, Joseph N. Roscoe, Sabrina Oesterle, Rick Kosterman, and Karl G. Hill. “Marijuana Legalization and Youth Marijuana, Alcohol, and Cigarette Use and Norms.” American Journal of Preventive Medicine 59, no. 3 (2020): 309–16. Bain, Phoebe. “Cannabis Marketers’ Other Biggest Issue: Advertising Platforms.” Marketing Brew. October 9, 2020. www.morningbrew.com/marketing /stories/2020/10/09/cannabis-marketers-biggest-issue-advertising -platforms. Bartlett, Jessica. “Bill That Would Use Cannabis Revenue for Police, Not Equity, Comes Under Fire.” Boston Business Journal. July 23, 2020. www .bizjournals.com/boston/news/2020/07/23/bill-that-would-use-state -cannabis-revenue-for-pol.html. . “Here’s Where Marijuana Tax Revenue Has Gone in Massachusetts.” Boston Business Journal. August 19, 2020. www.bizjournals.com/boston /news/2020/08/19/here-s-where-marijuana-tax-revenue-has-gone.html. Bedford, Tori, and Amanda Beland. “Mass Cities and Towns Demand Large Payouts from Marijuana Companies.” WGBH.org. February 27, 2020. www .wgbh.org/news/local-news/2020/02/27/mass-cities-and-towns-demand -large-payouts-from-marijuana-companies. Beneduce, William J. “Marijuana Social Lounges Are Coming to a New Jersey Town Near You.” National Review. April 5, 2021. www.natlawreview.com /article/marijuana-social-lounges-are-coming-to-new-jersey-town-near-you. Bennett, Daniel, Secretary, Executive Office of Public Safety and Security, Commonwealth of Massachusetts. Letter to Colonel Richard D. McKeon, Massachusetts State Police. “Re: Passage of Question 4.” December 14, 2016.

Wexler-Weed Rule.indd 244

22/10/22 2:45 PM

bibliography

245

www.umass.edu/ccc/sites/default/files/Ltr.%20Sec.%20Exec.%20Office%20 Pub.%20Safety.pdf. Berenson, Alex. Tell Your Children: The Truth about Marijuana, Mental Illness, and Violence. New York: Free Press, 2019. Berg, Austin. “Illinois Cannabis Taxes among Nation’s Highest, Could Keep Black Market Thriving.” Illinois Policy. January 9, 2020. www​.illinoispolicy​ .org​/illinois​-cannabis​-taxes​-among​-nations​-highest​-could​-keep​-black​ -market​-thriving/. Berman, Mark. “Colorado Supreme Court Says Companies Can Fire Workers for Using Medical Marijuana in Their Off-Hours.” Washington Post. June 15, 2015. www​.washingtonpost​.com​/news​/post​-nation​/wp​/2015​/06​/15​/colorado​ -supreme​-court​-says​-companies​-can​-fire​-workers​-for​-using​-medical -marijuana​-in​-their​-off​-hours/. Bitsoli, Stephen. “Drug Recognition Experts Are Accurate, but Maybe Not Accurate Enough.” Legal Reader. June 11, 2018. www​.legalreader​.com​/drug​ -recognition​-experts/. Black, Lester. “Legalizing Pot Lounges Could Make Washington’s Weed Industry More Equitable.” The Stranger. January 31, 2020. www​.thestranger​ .com​/slog​/2020​/01​/31​/42726911​/legalizing​-pot​-lounges​-could​-make​ -washingtons​-weed​-industry-more-equitable. Bloomberg, Scott, and Robert A. Mikos. “Legalization without Disruption: Why Congress Should Let States Restrict Interstate Commerce in Marijuana.” Pepperdine Law Review. Forthcoming. Accessed April 5, 2022. https:// papers​.ssrn​.com​/sol3​/papers​.cfm​?abstract_id​=3909972. Bonnie, Richard J., and Charles H. Whitebread. “The Forbidden Fruit and the Tree of Knowledge: An Inquiry into the Legal History of American Marijuana Prohibition.” Virginia Law Review 56, no. 6 (October 1970): 971–1203. Booker, Cory, Ron Wyden, and Chuck Schumer. “Cannabis Administration and Opportunity Act: Discussion Draft.” Accessed April 5, 2022. www​.democrats​ .senate​.gov​/imo​/media​/doc​/CAOA​%20Detailed​%20Summary​%20-​.pdf. Booth, Martin. Cannabis: A History. New York: Picador Press, 2003. Brasch, Sam. “Growing Cannabis Indoors Has a Big Climate Impact. So Why Doesn’t the Industry Go Outside?” CPR News. April 6, 2021. www​.cpr​.org​ /2021​/04​/06​/colorado​-marijuana​-industry​-environmental​-impact/. The Brian Lehrer Show. “Reefer, Managed: Putting Cannabis Taxes to Work.” WNYC. April 15, 2019. Video. www​.wnyc​.org​/series​/reefer​-managed. Bridgeman, Mary Barna, and Daniel T. Abazia. “Medical Cannabis: History, Pharmacology, and Implications for the Acute Care Setting.” Pharmacy and Therapeutics 42, no. 3 (2017): 180–88. www​.ncbi​.nlm​.nih​.gov​/pmc​/articles​ /PMC5312634/. Burns, Connor, and Jay Wexler. “American Edibles: How Cannabis Regulatory Policy Rehashes Prohibitionist Fears and What to Do about It.” Seattle

Wexler-Weed Rule.indd 245

22/10/22 2:45 PM

246

bibliography

University Law Review 44, no.4 (2022). https://papers​.ssrn​.com​/sol3​/papers​ .cfm?abstract​_id​=3811846. Burns, Rachel M., Jonathan P. Caulkins, Susan S. Everingham, and Beau Kilmer. “Statistics on Cannabis Users Skew Perceptions of Cannabis Use.” Frontiers in Psychiatry. November 6, 2013. www​.frontiersin​.org​/articles​/10​ .3389​/fpsyt​.2013​.00138​/full. Cabrera, Jennifer, and Jen Flanagan. “Cannabis State Regulatory Agencies.” Vicente Sederberg LLP. January 29, 2022. https://vicentesederberg​.com​ /insights​/cannabis​-state​-regulatory​-agencies/. California Department of Cannabis Control. “How to Apply for or Renew a License.” Accessed March 23, 2022. https://cannabis​.ca​.gov​/applicants​/how​ -to​-apply​-renew/. . “License Types.” Accessed February 26, 2022. https://cannabis.​ca.​gov​ /applicants​/license​-types​/#microbusiness​-licenses. Cannabis Legal Group. “Michigan Microbusiness and Licenses: All You Need to Know.” Accessed February 26, 2022. https://michigan​-marijuana​-lawyer​ .com​/microbusiness​-license​-michigan/. Capelouto, J. D. “Bottoms Removes Physical Exams, Drug Testing Mandates for Some City Job Applicants.” Atlanta Journal-Constitution. January 22, 2021. www​.ajc​.com​/news​/atlanta​-news​/ bottoms​-removes​-physical​ -exams​-drug​-testing​-mandates​-for​-some​-city​-job​-applicants​ /T7VLWF2SPJG6LMRZH3PD2TVOV4​/. Caulkins, Jonathan P. “The Real Dangers of Marijuana.” National Affairs. Winter 2016. www​.nationalaffairs​.com​/publications​/detail​/the​-real​-dangers​ -of​-marijuana. Caulkins, Jonathan P., and Beau Kilmer. “Considering Marijuana Legalization Carefully: Insights for Other Jurisdictions from Analysis for Vermont.” Addiction 111, no. 12 (2016): 2082–89. Caulkins, Jonathan P., Beau Kilmer, and Mark A. R. Kleiman. Marijuana Legalization: What Everyone Needs to Know, 2nd ed. New York: Oxford, 2016. Caulkins, Jonathan P., Beau Kilmer, Mark A. R. Kleiman, Robert J. MacCoun, Gregory Midgette, Pat Oglesby, Rosalie Liccardo Pacula, and Peter H. Reuter. Considering Marijuana Legalization: Insights for Vermont and Other Jurisdictions. Santa Monica, CA: RAND Corporation, 2015. www .rand.org/pubs/research_reports/RR864.html. Cerdá, Magdalena, Christine Mauro, and Ava Hamilton. “Association between Recreational Marijuana Legalization in the United States and Changes in Marijuana Use and Cannabis Use Disorder from 2008–2016.” JAMA Psychiatry 77, no. 2 (2020): 165–71. Chapman, Steve. “In Chicago Suburbs, Legal Marijuana Meets NIMBYs.” Chicago Tribune. November 20, 2019. www​.chicagotribune​.com​/columns​

Wexler-Weed Rule.indd 246

22/10/22 2:45 PM



bibliography

247

/steve​-chapman​/ct​-column​-recreational​-marijuana​-suburbs​-naperville​ -chapman​-20191120​-hffrosezfrgxpalfvouobfq2ai​-story​.html. Chatterjee, Rhitu. “Highly Potent Weed Has Swept the Market, Raising Concerns about Health Risks.” National Public Radio. May 15, 2019. www​ .npr​.org​/sections​/health​-shots​/2019​/05​/15​/723656629​/highly​-potent​-weed​ -has​-swept​-the​-market​-raising​-concerns​-about-health-risks. Chemerinsky, Erwin. Constitutional Law: Principles and Policies, 6th ed. New York: Wolters Kluwer, 2019. Chemerinsky, Erwin, Jolene Forman, Allen Hopper, and Sam Kamin. “Cooperative Federalism and Marijuana Regulation.” UCLA Law Review 62, no. 1 (2015): 74–121. Chesler, Caren. “A Whiff of Pot Alone No Longer Airtight Probable Cause for Police to Search Cars in Several States.” Washington Post. June 26, 2021. www​.washingtonpost​.com​/national​-security​/marijuana​-police​-probable​ -cause​/2021​/06​/​26/9d984f8e-d36c-11eb-a53a-3b5450fdca7a_story.html. Clark, Dave. “Update on Our Vision to Be the Earth’s Best Employer and Earth’s Safest Place to Work.” About Amazon. June 1, 2021. www​.aboutamazon​.com​ /news​/operations​/update​-on​-our​-vision​-to​-be​-earths​-best​-employer​-and​ -earths​-safest​-place​-to​-work. Cole, James M. “Memorandum for All United States Attorneys: Guidance Regarding Marijuana Enforcement.” U.S. Department of Justice, Office of the Deputy Attorney General. August 29, 2013. www​.justice​.gov​/iso​/opa​ /resources​/3052013829132756857467​.pdf. . “Memorandum for All United States Attorneys: Guidance Regarding Marijuana Related Financial Crimes.” U.S. Department of Justice, Office of the Deputy Attorney General. February 14, 2014. www​.justice​.gov​/sites​ /default​/files​/usao​-wdwa​/legacy​/2014​/02​/14​/DAG​%20Memo​%20​-%20 Guidance​%20Regarding​%20Marijuana​%20Related​%20Financial​ %20Crimes​%202​%2014​%2014​%20​%282​%29.pdf/. Colorado Department of Public Health and the Environment. “Greening the Cannabis Industry.” Accessed February 23, 2022. https://cdphe​.colorado​.gov​ /greening​-the​-cannabis​-industry. Colorado Health Institute. “Marijuana Legislation in 2017: Business as Usual.” April 15, 2017. www​.coloradohealthinstitute​.org​/ blog​/marijuana​-legislation​ -2017​-business​-usual. Congressional Research Service. “Funding Limits on Federal Prosecutions of State-Legal Medical Marijuana.” February 4, 2022. https://crsreports​ .congress​.gov​/product​/pdf​/LSB​/LSB10694. Contra Costa Behavioral Health. “Diagnosis Reference Guide.” Accessed February 23, 2022. https://cchealth​.org​/aod​/pdf​/DSM​-5​%20Diagnosis​ %20Reference​%20Guide​.pdf. Cortés, Ricardo. It’s Just a Plant. Self-published, 2005.

Wexler-Weed Rule.indd 247

22/10/22 2:45 PM

248

bibliography

Cowen, Trace W. “Amazon to No Longer Screen Many Job Applicants for Marijuana Use.” Complex. June 2, 2021. www​.complex​.com​/life​/amazon​-to​ -no​-longer​-screen​-many​-job​-​applicants-for-marijuana-use. Craig, Kimberly. “Michigan’s First Cannabis Consumption Lounge Set to Open in Ann Arbor.” WXYZ News. May 6, 2021. www​.wxyz​.com​/news​/michigans​ -first-cannabis-consumption-lounge-set-to-open-in-ann-arbor. D’Amico, Elizabeth J., Anthony Rodriguez, Joan S. Tucker, Eric R. Pedersen, and Regina A. Shih. “Planting the Seed for Marijuana Use: Changes in Exposure to Medical Marijuana Advertising and Subsequent Marijuana Use, Cognitions, and Consequences over Seven Years.” Drug and Alcohol Dependence 188 (July 2018): 385–91. www​.rand​.org​/pubs​/external_publications​ /EP67625.html. Daniel, Seth. “How Buffer Zone Rules Are Impacting Cannabis Dispensaries in Some Boston Neighborhoods.” WBUR.org. October 4, 2021. www​.wbur​.org​ /news​/2021​/10​/04​/ blue-hill-avenue-marijuana-shops-buffer-zone. Danko, Pete. “Stymied by Lawmakers, Activists Want to Put Cannabis Cafes on Oregon’s Ballot.” Portland Business Journal. March 20, 2019. www​ .bizjournals​.com/portland/news/2019/03/19/stymied-by-lawmakers​ -activists-want-to-put.html. Davis, Mike. “NJ Legal Weed: Home Grow Is a No-Go, but Advocates Push to Change That.” Asbury Park Press. January 18, 2022. www​.app​.com​/story​ /news​/local​/new​-jersey​/marijuana​/2022​/01​/18​/nj​-legal​-weed​-home​-grow​ -no​-go​-but-advocates-push-change/6528890001/. DeAngelo, Andrew. “Local Control, NIMBYism, and Cannabis, Oh My!” Forbes. September 10, 2021. www​.forbes​.com​/sites​/andrewdeangelo​/2021​/09​/10​ /local​-control​-nimbyism​-and​-cannabis​-oh​-my/?sh=72ecb949259a. DeCosta-Kilpa, Nik. “Massachusetts Approves New Marijuana Delivery Rules, as Dispensaries Threaten Lawsuit.” Boston.com. November 30, 2020. www​ .boston​.com​/news​/local​-news​/2020​/11​/30​/marijuana​-delivery​-rules​ -massachusetts​-dispensary​-lawsuit/. Denver7—The Denver Channel. Video. “Colorado Supreme Court Upholds Firing of Medical Marijuana User.” Viewed March 10, 2022. www​.youtube​ .com​/watch​?v​=jbp5e8lhpQ8. Department of the Treasury, Financial Crimes Enforcement Network. “BSA Expectations Regarding Marijuana-Related Businesses.” February 14, 2014. www​.fincen​.gov​/sites​/default​/files​/shared​/FIN​-2014​- G001​.pdf. DiMascio, Samantha. “Training Underway for Additional Drug Recognition Experts Following Marijuana Legalization.” News10.com. April 2, 2021. www​.news10​.com​/news​/training​-underway​-for​-additional​-drug​-recognition​ -experts​-following​-marijuana​-legalization/. Dorbian, Iris. “Legal Cannabis Market Projected to Rack Up $43 Billion by 2025.” Forbes. June 28, 2021. www​.forbes​.com​/sites​/irisdorbian​/2021​/06​/18​

Wexler-Weed Rule.indd 248

22/10/22 2:45 PM



bibliography

249

/legal​-cannabis​-market​-projected​-to​-rack​-up​-43​-billion​-by​-2025​-says​-new​ -study​/?sh​=2165e59c36b4. Doris, Tony. “West Palm Employee Learns the Hard Way: You Can Still Get Fired for Smoking Pot Even If You Have a Medical Marijuana Card.” Palm Beach Post. March 25, 2021. www​.palmbeachpost​.com​/story​/news​/local​ /westpb​/2021​/03​/25​/medical​-marijuana​-user​-fired​-west​-palm​-beach​-city​ -hall​-job​/4754584001/. Doty, Richard L., Thomas Wudarski, David A. Marshall, and Lloyd Hastings. “Marijuana Odor Perception: Studies Modeled from Probable Cause Cases.” Law and Human Behavior 28, no. 2 (April 2004): 223–33. Doward, Jamie. “Legal Marijuana Cuts Violence Says US Study, as Medical-Use Laws See Crime Fall.” The Guardian. January 13, 2018. www​.theguardian​ .com​/world​/2018​/jan​/14​/legal​-marijuana​-medical​-use​-crime​-rate​ -plummets​-us​-study. Dowd, Maureen. “Don’t Harsh Our Mellow, Dude.” New York Times. June 3, 2014. www​.nytimes​.com​/2014​/06​/04​/opinion​/dowd​-dont​-harsh​-our​-mellow​ -dude​.html. Drug Enforcement Administration. “History: The Early Years.” Accessed February 19, 2022. www​.dea​.gov​/sites​/default​/files​/2018​-05​/Early​%20Years​ %20p​%2012​-29​.pdf. Dryburgh, Laura M., Nanthi S. Bolan, Christopher P. L. Grof, Peter Galettis, Jennifer Schneider, Catherine J. Lucas, and Jennifer H. Martin. “Cannabis Contaminants: Sources, Distribution, Human Toxicity and Pharmacological Effects.” British Journal of Clinical Pharmacology 84 (November 2018): 2468–76. Dufton, Emily. Grass Roots: The Rise and Fall and Rise of Marijuana in America. New York: Basic Books, 2017. Eisen, Lauren-Brooke. “The 1994 Crime Bill and Beyond: How Federal Funding Shapes the Criminal Justice System.” Brennan Center for Justice. September 9, 2019. www​.brennancenter​.org​/our​-work​/analysis​ -opinion​/1994​-crime​-bill​-and​-beyond​-how​-federal​-funding​-shapes​ -criminal​-justice. Eykelbosh, Angela. “Contaminants in Black Market Cannabis: Consumers Need Answers.” National Collaborating Centre for Environmental Health, February 19, 2020. https://ncceh​.ca​/content​/ blog​/contaminants​-black​ -market​-cannabis​-consumers​-need-answers. Federation of Tax Administrators. “Summary of State Marijuana/Cannabis Taxes.” Accessed February 27, 2022. https://taxadmin​.memberclicks​.net​ /assets​/docs​/Research​/Rates​/marijuana.pdf. Ferner, Matt. “Marijuana Ads Banned on Google, Facebook, and Twitter.” Huffington Post. January 24, 2014. www​.huffpost​.com​/entry​/google​ -facebook​-ban​-marijuana​_n​_4646916​.

Wexler-Weed Rule.indd 249

22/10/22 2:45 PM

250

bibliography

Fertig, Natalie. “Local Rule Is Undermining Massachusetts’ Attempt to Create Equity in the Cannabis Industry.” Politico. March 6, 2020. www​.politico​.com​ /news​/2020​/03​/06​/local​-rule​-is​-undermining​-massachusetts​-attempt​-to​ -create​-equity​-in​-the​-cannabis​-industry​-122655. . “VA Rejects Cannabis Research as Veterans Plead for Medical Pot.” Politico. November 8, 2021. www​.politico​.com​/news​/2021​/11​/08​/va​-reject​ -medical​-marijuana​-veterans​-519757. Financial Crimes Enforcement Network. “Marijuana Banking Update: First Quarter FY2021.” Accessed February 21, 2022. www​.fincen​.gov​/sites​/default​ /files​/shared​/508_299423_MJ%20Banking%20Update%201st%20QTR​ %20FY2021_Public_Final.pdf. Foden-Vencil, Kristian. “Cannabis Cafes Could Be Coming to Oregon.” The Astorian. March 11, 2019. www​.dailyastorian​.com​/news​/cannabis​-cafes​ -could​-be​-coming​-to-oregon/article_506713a8-4453-11e9-8ef0​ -7b7fd52d2289.html. Frank, Aaron. “Locally Sourced Cannabis Laws: The Importance of Zoning in Cannabis Operations.” JDSupra. September 13, 2021. www​.jdsupra​.com​ /legalnews​/locally​-sourced​-cannabis​-laws​-the​-7120813/. Frickey, Philip P., and Daniel A. Farber. Law and Public Choice: A Critical Introduction. Chicago: University of Chicago Press, 1991. Galioto, Katie. “Kamala Harris Calls for Marijuana Legalization: ‘I Think It Gives a Lot of People Joy.” Politico. February 11, 2019. www​.politico​.com​ /story​/2019​/02​/11​/kamala​-harris​-2020​-marijuana​-legalization​-1163795. Galli, Jonathan A., Ronald Andari Sawaya, and Frank K. Fridenberg. “Cannabanoid Hyperemesis Syndrome.” Current Drug Abuse Review 4, no. 4 (December 2011): 241–49. Gass, Jonathan. “What Cannabis Entrepreneurs Should Know about Tax Section 280E.” Forbes. July 24, 2018. www​.forbes​.com​/sites​/theyec​/2018​/07​ /24​/what​-cannabis​-entrepreneurs​-should​-know​-about​-tax​-section​-280e​/?sh​ =769dc0b57377. Gentry, Dana. “Are Job Drug Tests for Weed on Their Way Out?” Nevada Current. June 18, 2018. www​.nevadacurrent​.com​/2018​/06​/28​/are​-job​-drug​ -tests​-​for​-weed-on-the-way-out/. Gill, Daniel. “Cannabis Businesses, Once in Trouble, Find No Good Way to Escape.” Bloomberg Law. February 11, 2021. https://news​.bloomberglaw​ .com​/ bankruptcy​-law​/cannabis​-businesses​-once​-in​-trouble​-find​-no​-good​ -way​-to​-escape. Gill, Dee. “Setting the Tax Rate on Legal Marijuana: Consumption, State Revenue, and the Black Market.” UCLA Anderson Review. November 14, 2018. https://anderson-review.ucla.edu/weed/. Glatter, Hayley. “Massachusetts Cannabis Commission Agrees to Delay Some Aspects of Recreational Pot Launch.” Boston Magazine. February 27, 2018.

Wexler-Weed Rule.indd 250

22/10/22 2:45 PM



bibliography

251

www​.bostonmagazine​.com​/news​/2018​/02​/27​/recreational​-marijuana​ -launch​-delay/. Goldsberry, Debbie. “Cannabis Goes Social with On-Site Consumption Spaces in U.S. Markets.” Cannabis Business Times. September 24, 2019. www​ .cannabisbusinesstimes​.com​/article​/cannabis​-social​-on​-site​-consumption​ -lounges/. Golonka, Sean. “With Approval of Consumption Lounges, State Ushers in Next Expansion of Cannabis Industry.” Nevada Independent. July 4, 2021. https:// thenevadaindependent​.com​/article​/with​-approval​-of​-consumption​-lounges​ -state​-ushers​-in​-next​-expansion​-of​-cannabis​-industry. Goth, Breanna, and Tripp Baltz. “States Want Pot to Grow Greener as Legal Cannabis Expands.” Bloomberg Law. July 19, 2019. https://news​.bloomberglaw​ .com​/environment​-and​-energy​/states​-want​-pot​-to​-grow​-greener​-as​-legal​ -cannabis​-expands. Governors Highway Safety Association. “Drug Impaired Driving.” Accessed March 15, 2022. www​.ghsa​.org​/state​-laws​/issues​/drug​%20impaired​%20driving. Greenfield, Rebecca, and Jennifer Kaplan. “How Legalized Pot Is Affecting Employee Job Tests.” Morning Call. March 9, 2018. www​.mcall​.com​ /business​/mc​-biz​-employment​-drug​-tests​-20180305​-story​.html. Gunelius, Susan. “Which States Allow You to Grow Your Own Recreational or Medical Cannabis?” Cannabiz Media. September 8, 2020. www.cannabiz​ .media​/ blog​/which​-states​-allow​-you​-to​-grow​-your​-own​-recreational​-or​ -medical​-cannabis. Haggerty, Neil. “Crapo Delivers Crushing Blow to Pot Banking.” American Banker. December 18, 2019. www​.americanbanker​.com​/news​/crapo​ -delivers​-crushing​-blow​-to​-pot​-banking. Hardy, Tristan. “Fear of Strong Cannabis Potency Looms as Plant Becomes Legal.” WAND. November 21, 2019. www​.wandtv​.com​/news​/fear​-of​-strong​ -cannabis​-potency​-looms​-as​-plant​-becomes​-legal​/article_f5de09b4​-0cd9​ -11ea​-b08f​-6f6e5fcd64ea​.html. Hart, Carl L. Drug Use for Grown-Ups: Chasing Liberty in the Land of Fear. New York: Penguin Press, 2021. Hausfeld, Russell. “Oregon’s Counties Still Living under Cannabis Prohibition, Mapped.” Willamette Week. July 26, 2016. www​.wweek​.com​/cannabis​/2016​ /07​/26​/oregons​-dry​-counties​-still​-living​-under​-cannabis​-prohibition​ -mapped/#. Healy, Beth. “You Can’t Own More Than Three Pot Shops, but These Companies Test the Limits—and Brag about It.” Boston Globe. March 21, 2019. www​.bostonglobe​.com​/news​/special​-reports​/2019​/03​/21​/seahunter​ /okkkbXkh38kTkH9HDiiFXL​/story.html. Henry-Nickie, Makada, John Hudak, and Aaron Klein. “The Cannabis Banking Bill Isn’t Just About Banks: It’s Also about Repairing the ‘War on Drugs.’ ”

Wexler-Weed Rule.indd 251

22/10/22 2:45 PM

252

bibliography

Politico. September 25, 2019. www​.politico​.com​/agenda​/story​/2019​/09​/25​ /cannabis​-banking​-bill​-000987/. Hernandez, Joe. “N.J. Supreme Court to Weigh Reliability of Experts on Drugged Driving.” WHYY. November 21, 2019. https://whyy​.org​/articles​/n​-j​ -supreme​-court​-to​-weigh-reliability-of-experts-on-drugged-driving/. Herrington, A. J. “New York Towns and Cities Considering Opting Out of Legal Cannabis Dispensaries.” High Times. June 8, 2021. https://hightimes​.com​ /news/new-york-opting-out-legal-cannabis/. History.com. “Just Say No.” Last modified August 21, 2018. www​.history​.com​ /topics/1980s/just-say-no. Howard, Jacqueline. “Recreational Marijuana Legalization Tied to Decline in Teens Using Pot, Study Says.” CNN. July 8, 2019. www.cnn.com/2019/07/08​ /health/recreational-marijuana-laws-teens-study/index.html. Howell, Allie. Criminal Conviction Restrictions for Marijuana Licensing. Reason Foundation. September 2018. https://reason.org/wp-content​ /uploads/criminal-conviction-restrictions-for-marijuana-licensing.pdf. Hudak, John. Marijuana: A Short History. Washington, DC: Brookings Institution Press, 2016. Hudak, John, and Sherese Bonner. “The Senate’s New Cannabis Reform Bill Can Do More for Drug War–Targeted Communities.” Brookings. September 2, 2021. www.brookings.edu/blog/fixgov/2021/09/02​/the​-senates​-new​ -cannabis​-reform​-bill​-can​-do​-more-for-drug-war-targeted-communities/. Hust, Stacey J. T., Jessica Fitts Willoughby, Jiayu Li, and Leticia Couto. “Youth’s Proximity to Marijuana Retailers and Advertisements: Factors Associated with Washington State Adolescents’ Intentions to Use Marijuana.” Journal Health Communication 25, no. 7 (July 2020): 594–603. https://pubmed​ .ncbi.nlm.nih.gov/33030100/. Hutchinson, Bill. “Nevada Becomes 1st State to Ban Most Pre-employment Pot Tests.” ABCNews. June 12, 2019. https://abcnews.go.com/US/nevada-1st​ -state-ban-pre-employment-pot-tests/story?id=63656557. Hyman, Dan. “When the Law Says Using Marijuana Is O.K., but the Boss Disagrees.” New York Times. July 19, 2019. www.nytimes.com/2019/07/19​ /business/marijuana-employer-drug-tests.html. Illinois Department of Commerce and Economic Opportunity. “Illinois AdultUse Cannabis Social Equity Program.” Accessed March 4, 2022. www2​ .illinois.gov/dceo/CannabisEquity/Pages/default.aspx. Ingraham, Christopher. “After Legalization, Teen Marijuana Use Drops Sharply in Colorado.” Washington Post. December 21, 2016. www.washingtonpost​ .com/news/wonk/wp/2016/12/21​/one​-of​-the​-greatest​-fears​-about​-legalizing​ -marijuana​-has-so-far-failed-to-happen/. Irwin, Jacqui. “Broken Promises Call for Reforms to Marijuana Advertising.” VC Star. April 25, 2021. www​.vcstar​.com​/story​/opinion​/editorials​/2021​

Wexler-Weed Rule.indd 252

22/10/22 2:45 PM



bibliography

253

/04​/25​/irwin​-broken​-promises​-call​-reforms​-marijuana​-advertising​ /7328039002/. Israel, Jerold H., and Wayne R. Lafave. Criminal Procedure: Constitutional Limitations in a Nutshell, 9th ed. St. Paul, MN: West Academic, 2020. Jackson, Margaret. “Coronavirus Pandemic Deals Setback to Marijuana Consumption Lounges, but Some Owners Stick with Plans.” MJBizDaily. December 17, 2021. https://mjbizdaily.com​/coronavirus​-pandemic​-deals​ -setback​-to​-marijuana​-consumption​-lounges​-but​-some​-owners​-stick​-with​ -plans/. Jacobs, Leslie Gielow. “Regulating Marijuana Advertising and Marketing to Promote Public Health: Navigating the Constitutional Minefield.” Lewis & Clark Law Review 21, no. 3 (2017): 1081–1140. Jaeger, Kyle. “California Offering Millions of Dollars to Support Local Marijuana Business Development and Social Equity Programs.” Marijuana Moment. October 4, 2021. www.marijuanamoment.net​/california​-offering​ -millions-of-dollars-to-support-local-marijuana-business-development-and​ -social-equity-programs/. . “Congresswoman Urges HUD Secretary to Protect Marijuana Consumers from Losing Public Housing.” Marijuana Moment. May 26, 2021. www​ .marijuanamoment.net​/congresswoman​-urges​-hud​-secretary​-to​-protect​ -marijuana​-consumers-from-losing-public-housing/. . “The Debate Over How, Not Whether, Congress Should Legalize Marijuana Is Heating Up.” Marijuana Moment. July 9, 2019. www​ .marijuanamoment​.net​/the​-debate​-over​-how​-not​-whether​-congress​-should​ -legalize​-marijuana-is-heating-up/. . “Marijuana Companies Urged Governor to Ban Cannabis Home Cultivation, Document Shows.” Marijuana Moment. February 21, 2019. www.marijuanamoment.net​/marijuana​-companies​-urged​-governor​-to​-ban​ -cannabis-home-cultivation-document-shows/. . “Marijuana Offenses Would No Longer Get Immigrants Deported under New Congressional Bill.” Marijuana Moment. September 18, 2019. www​ .marijuanamoment.net​/marijuana​-offenses​-would​-no​-longer​-get​-immigrants​ -deported​-under​-new​-congressional-bill/. . “Massachusetts Bill to Use Marijuana Tax Revenue for Police Training Draws Criticism.” Marijuana Moment. July 20, 2020. www​.marijuanamoment​ .net​/massachusetts​-bill​-to​-use​-marijuana​-tax​-revenue​-for​-police​-training​ -draws​-criticism/. . “New York City Ban on Pre-employment Marijuana Testing Takes Effect, but Not for All Workers.” Marijuana Moment. May 11, 2020. www​ .marijuanamoment​.net​/new​-york​-city​-ban​-on​-pre​-employment​-marijuana​ -testing​-takes​-effect​-but​-not-for-all-workers/.

Wexler-Weed Rule.indd 253

22/10/22 2:45 PM

254

bibliography

. “New York Governor Announces $200 Marijuana Fund to Promote Industry Equity.” Marijuana Moment. January 5, 2022. www​ .marijuanamoment​.net​/new​-york​-governor​-announces​-200​-million​ -marijuana​-fund​-to​-promote-industry-equity/. . “Portland Lawmakers Vote to Take Marijuana Tax Money Away from Police Department.” Marijuana Moment. June 12, 2020. www​ .marijuanamoment​.net​/portland​-lawmakers​-vote​-to​-take​-marijuana​-tax​ -money​-away​-from​-police​-department/. . “South Park Slams MedMen in Episode about Banning Marijuana Home Cultivation.” Marijuana Moment. September 26, 2019. www​ .marijuanamoment​.net​/south-park-slams-medmen-in-episode-about -banning-marijuana-home-cultivation/. . “States Have Collected More Than $10 Billion in Adult-Use Marijuana Tax Revenue, Report Finds.” Marijuana Moment. January 6, 2022. www .marijuanamoment.net/states-have-collected-more-than-10-billion-in-adult-usemarijuana-tax-revenue-report-finds/. . “Testing People for Marijuana Impairment Based on THC Levels Is ‘Unreliable,’ Federally Funded Study Finds.” Marijuana Moment. June 4, 2021. www.marijuanamoment.net/testing-people-for-marijuana-impairment -based-on-thc-levels-is-not-reliable-federally-funded-study-finds/. . “Three in Four New Hampshire Residents Support Legalizing Marijuana, with Bipartisan Majorities Supporting State-Run Model.” Marijuana Moment. February 28, 2022. www.marijuanamoment.net/three-in-four -new-hampshire-residents-support-legalizing-marijuana-with-bipartisanmajorities-backing-state-run-model/. Johnson, Nick. Grass Roots: A History of Cannabis in the American West. Corvallis: Oregon State University Press, 2017. Joyce, Stephen, and Joyce E. Cutler. “Legal Weed, Tight Labor Market Has Companies Dropping Drug Tests.” Bloomberg Law. October 21, 2021. https://news.bloomberglaw.com/daily-labor-report/legal-weed-tight-labormarket-has-companies-dropping-drug-tests. Kamin, Sam, and Viva R. Moffat. “Trademark Laundering, Useless Patents, and Other IP Challenges for the Marijuana Industry.” Washington and Lee Law Review 73, no. 1 (2016): 217–83. Karedes, Drew. “Bill Would Authorize Legal Cannabis Lounges in Massachusetts.” Boston 25 News. March 8, 2021. www.boston25news.com/news /bill-would-authorize-legal-cannabis-lounges-massachusetts /IE2XP4Q2UBD2DJBRR35KGGEIB4/. Kelety, Josh. “Arizona Cities Are Banning Recreational Marijuana, but the Fix Is Already In.” Phoenix New Times. December 22, 2020. www.phoenixnewtimes.com/marijuana/arizona-cities-restrict-recreational-weed-creating -monopolies-11520949.

Wexler-Weed Rule.indd 254

22/10/22 2:45 PM



bibliography

255

. “Even with Weed Legalized in Arizona, You Can Still Be Fired for Getting High.” Phoenix New Times. December 16, 2020. www.phoenixnewtimes.com /marijuana/arizona-marijuana-cannabis-employers-employees-rights-fired -personal-11520396. Kikel, Jason. “Opportunities and Limitations for Microbusiness Licenses.” February 25, 2021. www.cannabiz.media/blog/opportunities-and -limitations-for-microbusiness-licensing. Kilmer, Beau. “How Will Cannabis Legalization Affect Health, Safety, and Social Equity Outcomes? It Largely Depends on the 14 Ps.” American Journal of Drug and Alcohol Abuse (July 2, 2019): 1–9. https://doi.org/10.10 80/00952990.2019.1611841. Klazema, Michael. “Massachusetts Marijuana Industry to Prohibit Employment of Convicted Drug Traffickers.” BackgroundChecks.com. March 15, 2018. www.backgroundchecks.com/blog/massachusetts-marijuana-industryto-prohibit-employment-of-convicted-drug-traffickers. Kleiman, Mark A. R. Against Excess: Drug Policy for Results. New York: Basic Books 1993. Kline, Andrew. “The Illicit Cannabis Market Puts Consumers At-Risk and Is an Existential Threat to the State-Legal Cannabis Industry.” National Cannabis Industry Association website. March 9, 2020. https://thecannabisindustry .org/the-illicit-cannabis-market-puts-consumers-at-risk-and-is-anexistential-threat-to-the-state-legal-cannabis-industry. Knutson, Erik. “Why Legal Social Consumption Lounges Need to Be the New Norm.” MG Retailer. November 12, 2019. https://mgretailer.com/business /retail-merchandise/why-legal-social-consumption-lounges-need-to-be-thenew-norm/. Koski, Lewis. “America’s Cannabis Industry: Balancing Strong Regulation with Business’ Desire for Accountability.” Forbes. September 3, 2019. www.forbes .com/sites/lewiskoski/2019/09/03/americas-cannabis-industry-balancingstrong-regulation-with-businesses-desire-for-accountability/?sh=7d2047e9 3ed2. . “The SAFE Banking Act: What Is It and Where Does It Stand?” Forbes. December 3, 2021. www.forbes.com/sites/lewiskoski/2021/12/03/the-safebanking-act-what-is-it-and-where-does-it-stand/?sh=28b364502baf. Krupnick, Matt. “ ‘A Farce of Social Equity’: California Is Failing Its Black Cannabis Businesses.” The Guardian. November 4, 2021. www.theguardian .com/us-news/2021/nov/04/cannabis-california-black-businesses. Kudialis, Chris. “Vegas Braces for Cannabis Lounges.” Cannabis Business Times. May 3, 2021. www.cannabisbusinesstimes.com/article/on-site-consumptionlounges-las-vegas-soon/. Lassiter, Jay. “Patriot Care Panned for Felony Stand.” Leafly. January 24, 2017. www.leafly.com/news/politics/patriot-care-panned-felony-stand.

Wexler-Weed Rule.indd 255

22/10/22 2:45 PM

256

bibliography

Leaf, Laurel. “Let’s Hit the Weed Bar—Are Cannabis Consumption Lounges the New Legalization Trend?” Cannabis.net. June 10, 2021. https://cannabis .net/blog/opinion/lets-hit-the-weed-bar-are-cannabis-consumption-lounges -the-new-legalization-trend. Lee, Martin A. Smoke Signals: A Social History of Marijuana: Medical, Recreational, and Scientific. New York: Scribner, 2012. Lesser, Jeremy. “Today Is the 100th Anniversary of the Harrison Narcotics Tax Act.” Drug Policy Alliance Blog. December 16, 2014. https://drugpolicy.org /blog/today-100th-anniversary-harrison-narcotics-tax-act. Levine, Adam. “Tax Challenges for Cannabis Businesses.” NAFCU Services Blog. Accessed February 19, 2022. www.nafcu.org/nafcuservicesnafcu-services -blog/tax-challenges-cannabis-businesses. Lubbers, Payne. “More Than 500 Communities Opt Out of Recreational Marijuana Sales in Michigan.” Detroit News. July 25, 2019. www.detroitnews.com /story/news/local/michigan/2019/07/24/more-than-500-communities-opt-out -recreational-marijuana-sales-michigan/1755325001/. Lyons, Kim. “The Super Bowl Won’t Be Lit: No Cannabis Ads Allowed.” The Verge. February 8, 2022. www.theverge.com/2022/2/8/22911200/superbowl-ads-cannabis-weed. Madhusoodanan, Jyoti. “Can Cannabis Go Green?” Nature. August 28, 2019. www.nature.com/articles/d41586-019-02526-3. Marijuana Policy Project. “Cannabis Tax Revenue in States That Regulate Cannabis for Adult Use.” Accessed March 3, 2022. www.mpp.org/issues /legalization/cannabis-tax-revenue-states-regulate-cannabis-adult-use/. . “Overview of the Illinois Cannabis Regulation and Tax Act.” Accessed March 3, 2022. www.mpp.org/states/illinois/overview-of-the-illinoiscannabis-regulation-and-tax-act/. Marino, David, Jr. “More Than 90 Percent of Maine Towns Still Don’t Allow Recreational Marijuana Sales.” Bangor Daily News. September 20, 2021. https://bangordailynews.com/2021/09/20/business/more-than-90-percent -of-maine-towns-still-dont-allow-recreational-marijuana-sales/. Marion, Nancy E. A History of Federal Crime Control Initiatives: 1960–1993. Westport, CT: Praeger, 1994. Massachusetts Cannabis Control Commission. “Community Outreach Meeting.” Accessed March 23, 2022. https://mass​-cannabis​-control​.com​ /community​-outreach​-meeting/. . “Equity Programs.” Accessed March 4, 2022. https://mass​-cannabis​ -control​.com​/equity​-programs/. . “Guidance for Business.” Accessed February 26, 2022. https://masscannabis-control.com/wp-content/uploads/2018/07/Guidance-for-Business .pdf.

Wexler-Weed Rule.indd 256

22/10/22 2:45 PM



bibliography

257

. “Guidance for Municipalities on Equity and Host Community Agreements.” November 2021. https://mass​-cannabis​-control​.com​/wp​-content​ /uploads​/2022​/01​/Guidance​-for​-Municipalities​-on​-Equity​-and​-Host​ -Community​-Agreements.pdf. . “Guidance on Cannabis Waste Management Requirements.” Accessed February 23, 2022. https://mass​-cannabis​-control​.com​/wp​-content​/uploads​ /2019​/04​/FINAL​-Guidance​-on​-Cannabis​-Waste​-Management​-Requirements​ .pdf. . “High Tetrahydrocannabinol (THC) Cannabis and Effects on the Human Body: More Research Needed: A Legislative Report and Considerations for Research and Policy.” October 2021. https://mass-cannabis-control.com​ /wp-content​/uploads​/2021​/10​/202110​_Report​_THC​_Potency​.pdf. . “Municipal Zoning Tracker.” October 7, 2021. https://mass​-cannabis​ -control​.com​/municipal​-zoning​-tracker/. . Report on Host Community Agreements and Marijuana Establishments. March 2019. Massachusetts Prevention Alliance. Statement of Concern: Marijuana Policy in Massachusetts. May 2019. www​.mapreventionalliance​.org​/wp​-content​ /uploads​/2019​/05​/MA​-MJ​-Policy_Statement-of-Concern-5-9-19_FINAL​ .pdf. Matthews, Zoe. “Large Turnout Expected at Special Town Meeting for Marijuana Vote.” Eagle Tribune. January 29, 2018. www​.eagletribune​.com​/news​ /merrimack​_valley​/large​-turnout​-expected​-at​-special​-town​-meeting​-for​ -marijuana​-vote​/article_d4cb2d83​-1724-5d53-b67e-c41ebd58896b .html. . “Pot Farm Would Pay North Andover $5m Per Year for 20 Years.” Eagle Tribune. January 25, 2018. www​.eagletribune​.com​/news​/merrimack_valley​ /pot​-farm​-would​-pay​-north​-andover​-5m​-per​-year​-for​-20​-years​/article _fb2eba49​-cf62​-5e50​-b9df​-0d8635ea0345​.html. Mauer, Roy. “More Workers Are Testing Positive for Marijuana.” SHRM. June 23, 2021. www.shrm.org/resourcesandtools/hr-topics/risk-management​ /pages​/more​-workers​-are​-testing​-positive​-for​-marijuana​.aspx. Mayor’s Committee on Marihuana. “The Marihuana Problem in the City of New York.” 1944. https://rodneybarnett.net/PDF/Laguardia%20Report%20 1944.pdf. McCoppin, Robert. “Cannabis Smoking Lounges Off to Successful Start in Illinois.” Chicago Tribune. August 31, 2021. www​.chicagotribune​.com​ /marijuana​/illinois​/ct​-ilinois​-marijuana​-consumption​-lounges​-update​ -20210831​-hnkgbc7ahzgsfaeqmdf3pvjc6e​-story​.html. . “Marijuana Ads Are Here and Largely Unregulated, as the Industry Acts to Set Its Own Guidelines.” Chicago Tribune. October 7, 2020. www​

Wexler-Weed Rule.indd 257

22/10/22 2:45 PM

258

bibliography

.chicagotribune.com/marijuana/illinois/ct-illinois-marijuana-advertising​ -20201007-axrenrsbnbg6tjf64rxmi6v4z4-story.html. McKibben, Bill. “Can Green Energy Power the Cannabis Boom?” The New Yorker. January 27, 2021. www.newyorker.com/news/annals-of-a-warming​ -planet/can-green-energy-power-the-cannabis-boom. Michael, Roberts. “Brandon Coats MMJ Ruling: Business Group Cheers, NORML Boos.” Westword. June 16, 2015. www.westword.com/news​ /brandon​-coats​-mmj​-court​-ruling​-business​-group​-cheers​-norml​-boos​ -6807326. Mickelson, Taryn. “No Lounging Allowed: WA Ban on Cannabis Clubs Continues.” Spokesman-Review. May 9, 2019. www​.spokesman​.com​/stories​/2019​ /may​/09​/no​-cannabis​-lounging​-allowed/. Mikos, Robert A. “Interstate Commerce in Cannabis.” Boston University Law Review 101, no. 3. (2021): 857–95. . Marijuana Law, Policy, and Authority. New York: Wolters Kluwer, 2017. . “Marijuana Localism.” Case Western Reserve University Law Review 65, no. 3 (2015): 719–67. . “On the Limits of Federal Supremacy: When States Relax (or Abandon) Marijuana Bans.” Policy Analysis, No. 714 (December 12, 2012): 1–42. . “Three Federal Courts (So Far) Have Held That State Residency Requirements for Cannabis Licenses (Probably) Violate the Dormant Commerce Clause.” Marijuana Law, Policy, and Authority. June 22, 2021. https://my.vanderbilt.edu/marijuanalaw/2021/06/three-federal-courts-so -far-have-held-that-state-residency-requirements-for-cannabis-licenses -probably-violate-the-dormant-commerce-clause/. Miller, Char, ed. Where There’s Smoke: The Environmental Science, Public Policy, and Politics of Marijuana. Lawrence: University of Kansas Press, 2018. Mills, Evan. “To Make Cannabis Green, We Need to Grow It Outdoors.” Slate. March 10, 2021. https://slate.com/technology/2021/03/cannabis​-environment​ -energy​-indoor​-outdoor​-growth​-climate​-change​.html. Mills, Evan, and Scott Zeramby. “Energy Use by the Indoor Cannabis Industry: Inconvenient Truths for Producers, Consumers, and Policymakers.” In The Routledge Handbook of Post-prohibition Cannabis Research, edited by Dominic Corva and Joshua Meisel. New York: Routledge, 2021. www .researchgate.net/publication/342364745_Energy_Use_by_the_Indoor _Cannabis_Industry_Inconvenient_Truths_for_Producers_Consumers _and_Policymakers/link/60b167eb92851cd0d980bc6e/download. Mitchell, Thomas. “Effort to Limit Marijuana Potency Coming to Colorado?” Westword. February 27, 2020. www.westword.com/marijuana/effort​-to​ -limit​-marijuana​-potency​-could​-be​-coming​-to​-colorado​-11643193.

Wexler-Weed Rule.indd 258

22/10/22 2:45 PM



bibliography

259

. “Glendale Wants to Open State’s First Licensed Marijuana Tasting Room.” Westword. February 5, 2020. www​.westword​.com​/marijuana​ /glendale​-dispensary​-wants​-to​-open​-states​-first​-licensed​-marijuana​-tasting​ -room​-11631101. . “Marijuana Consumption and Hospitality Businesses Passes Legislature.” Westword. May 2, 2019. www.westword.com/marijuana​ /colorado​-legislature​-approves​-marijuana​-cafes​-lounges​-and​-social​-use​ -areas​-11331200. Mixon, John. “Commercializing Cannabis: Confronting the Challenges and Uncertainty of Trademark and Trade Secret Protection for Cannabis-Related Businesses.” Washington Journal of Law, Technology, and the Arts 16, no. 1 (2020): 1–28. MJBizDaily Staff. “Illinois Must Quit Awarding Adult-Use Craft Marijuana Licenses, Court Rules.” MJBizDaily. January 31, 2022. https://mjbizdaily​ .com​/illinois​-must​-quit​-awarding​-adult​-use​-craft​-marijuana​-licenses​-court​ -rules/. . “Vermont Doctors Push to Lower Cannabis Potency Cap.” MJBizDaily. December 17, 2021. https://mjbizdaily​.com​/vermont​-doctors​-push​-to​-lower​ -cannabis​-potency​​-cap/. Moore, Bethany. “Committee Blog: California Social Consumption Leads the Way.” National Cannabis Industry Association. March 10, 2020. https:// thecannabisindustry​.org​/committee​-blog​-california​-social​-consumption​ -leads​-the​-way/. Mora, Jennifer L., Adam R. Young, and Robert T. Szyba. “New Jersey Recreational Marijuana Law Provides Significant Employment Protections to Marijuana Users.” Seyfarth. March 8, 2021. www​.seyfarth​.com​/news​ -insights​/new​-jersey​-recreational​-marijuana​-law​-provides​-significant​ -employment​-protections​-to​-marijuana​-users​.html. Municipal Research and Services Center of Washington. “Marijuana Regulation in Washington State.” Accessed March 21, 2022. https://mrsc​.org​/home​ /explore​-topics​/legal​/regulation​/marijuana​-regulation​-in​-washington​-state​ .aspx. Murphy, Kevin. “Cannabis’ Black Market Problem.” Forbes. April 4, 2019. www .forbes.com/sites/kevinmurphy/2019/04/04/cannabis-black-market-problem /?sh=7524276a134f. National Academies of Sciences, Engineering, and Medicine. The Health Effects of Cannabis and Cannabinoids: The Current State of Evidence and Recommendations for Research. Washington, DC: National Academies Press, 2017. https://doi.org/10.17226/24625. . “Report Highlights: The Health Effects of Cannabis and Cannabinoids.” Accessed February 25, 2022. www.nap.edu/resource/24625/Cannabis _report_highlights.pdf.

Wexler-Weed Rule.indd 259

22/10/22 2:45 PM

260

bibliography

. “Uncertainty and Decision Making: Lessons from Other Public Health Contexts.” In National Academies of Sciences, Engineering, and Medicine. Environmental Decisions in the Face of Uncertainty. Washington, DC: National Academies Press, 2013. www.ncbi.nlm.nih.gov/books /NBK200849/. National Cannabis Industry Association. “Current Issues and Laws.” Accessed February 23, 2022. https://thecannabisindustry.org/government-affairs /current-issues/. National Commission on Marihuana and Drug Abuse. “Marihuana: A Signal of Misunderstanding.” 1972. www.druglibrary.org/schaffer/library/studies/nc /ncmenu.htm. National Conference of State Legislatures. Cannabis & Employment: Medical and Recreational Policies in the States. November 1, 2021. www.ncsl.org /research/labor-and-employment/cannabis-employment-laws.aspx. . State Medical Cannabis Laws. Accessed February 22, 2022. www.ncsl .org/research/health/state-medical-marijuana-laws.aspx. National Institute of Justice. “Field Sobriety Tests and THC Levels Unreliable Indicators of Marijuana Intoxication.” April 5, 2021. https://nij.ojp.gov /topics/articles/field-sobriety-tests-and-thc-levels-unreliable-indicatorsmarijuana-intoxication. National Organization for the Reform of Marijuana Laws (NORML). “25 Years Ago: DEA’s Own Administrative Law Judge Ruled Cannabis Should Be Reclassified under Federal Law.” September 5, 2013. https://norml.org /news/2013/09/05/25-years-ago-dea-s-own-administrative-law-judgeruled-cannabis-should-be-reclassified-under-federal-law/. . “Expungement.” Accessed April 29, 2022. https://norml.org/laws /expungement/. . Marijuana Policies in Legal States: A Comprehensive Review of AdultUse Marijuana Rules and Regulations. Washington DC: NORML, 2022. . “Nearly One in Eight US Drug Prisoners Are Behind Bars for Pot— Taxpayers Spending Over $1 Billion Annually to Incarcerate Pot Offenders.” October 12, 2006. https://norml.org/news/2006/10/12/nearly-one-in-eight -us-drug-prisoners-are-behind-bars-for-pot-taxpayers-spending-over-1 -billion-annually-to-incarcerate-pot-offenders/. National Survey on Drug Use and Health. “About the Survey.” Accessed February 23, 2022. https://nsduhweb.rti.org/respweb/about_nsduh.html. Nelson Pope Voorhis. “Land Use and Planning Considerations for the New York State Marijuana Regulation and Taxation Act.” May 2021. https:// nelsonpopevoorhis.com/wp-content/uploads/2021/05/MRTAWhite Paper_210510.pdf. New York Medical Cannabis Industry Association. “Policy Statement.” November 18, 2018. www.scribd.com/document/400192119/New-York-Medical-

Wexler-Weed Rule.indd 260

22/10/22 2:45 PM



bibliography

261

Cannabis-Industry-Association-Policy-Statement?secret_password=NHJ4D ujM7BukF0epI5uI#from_embed. New York State, Department of Labor. “Adult-Use Cannabis in the Workplace: New York Labor Law 201-D.” Accessed March 14, 2022. https://dol.ny.gov /system/files/documents/2021/10/p420-cannabisfaq-10-08-21.pdf. New York State, Office of Cannabis Management. “Local Government.” Accessed March 21, 2022. https://cannabis.ny.gov/local-government. Noguchi, Yuki. “Bags of Cash, Armed Guards, and Wary Banks: The Edgy Life of a Cannabis CFO.” National Public Radio, April 10, 2019. www.npr.org /2019/04/10/710076855/bags-of-cash-armed-guards-and-wary-banks-theedgy-life-of-a-cannabis-company-cfo. Oregon Department of Revenue. “Marijuana Tax Program.” Accessed February 14, 2022. www.oregon.gov/dor/programs/businesses/Pages/marijuana .aspx. Oregon Local Control Commission. “Land Use Compatibility Statement.” Accessed March 23, 2022. www.oregon.gov/olcc/marijuana/Documents /RecreationalMarijuana_LandUseCompatibilityStatement_OLCC.pdf. Osbeck, Mark K., and Howard Bromberg. Marijuana Law in a Nutshell. St. Paul, MN: West Academic, 2017. Pacula, Rosalie Liccardo, and Russell Lundberg. “Why Changes in Price Matter When Thinking about Marijuana Policy: A Review of the Literature on the Elasticity of Demand.” Public Health Review 35, no. 2 (2014): 1–18. Percival, Robert V. “Who’s Afraid of the Precautionary Principle?” Pace Environmental Law Review 23, no. 1 (Winter 2005–2006): 21–81. Peterman, David Randall. “Marijuana Use and Highway Safety.” Congressional Research Service. March 14, 2019. https://crsreports.congress.gov/product /pdf/R/R45719#. Philpott, Tom. “A Single Pot Plant Uses HOW Much Water?” Mother Jones. April 16, 2014. www.motherjones.com/food/2014/04/your-pot-habit-sucks -salmon/. Plautz, Jason. “As Legal Pot Farms Expand, So Do Air Pollution Worries.” Science. January 24, 2019. www.science.org/content/article/legal-pot-farms -expand-so-do-air-pollution-worries. Precious, Tom. “Now That Marijuana Is Legal in New York State, Here’s What You Need to Know.” Buffalo News. March 31, 2021. https://buffalonews .com/news/state-and-regional/now-that-marijuana-is-legal-in-new-york -state-heres-what-you-need-to-know/article_8a9c81ba-923b-11eb-a6ea -cb12dd52723d.html. Quest Diagnostics. “Marijuana Workforce Drug Test Positivity Continues Double-Digit Increases.” May 26, 2021. https://newsroom.questdiagnostics .com/2021-05-26-Marijuana-Workforce-Drug-Test-Positivity-ContinuesDouble-Digit-Increases-to-Keep-Overall-Drug-Positivity-Rates-at

Wexler-Weed Rule.indd 261

22/10/22 2:45 PM

262

bibliography

-Historically-High-Levels,-Finds-Latest-Quest-Diagnostics-Drug-TestingIndex-TM-Analysis. Reetz, DJ. “A Tale of Two Cannabis Cafes: What We Can Learn from Denver’s Failed Public Consumption Program.” MJ Brand Insights. November 9, 2021. https://mjbrandinsights.com/a-tale-of-two-cannabis-cafes-what-wecan-learn-from-denvers-failed-public-consumption-program/. Reyes, Juliana Feliciano. “Her Doc Recommended Medical Marijuana for Chronic Pain. Then She Failed Her Drug Test and Jefferson Fired Her.” Philadelphia Inquirer. April 29, 2021. www.msn.com/en-us/health/medical /her-doc-recommended-medical-marijuana-for-chronic-pain-then-shefailed-her-drug-test-and-jefferson-fired-her/ar-BB1gb6SO. Roberts, Chris. “Marijuana Legalization Is Retiring Police Dogs. Why That’s Good—and Why All Drug K9 Units Should Go.” Forbes. May 30, 2021. www .forbes.com/sites/chrisroberts/2021/05/30/marijuana-legalization-is-retiringpolice-dogs-why-thats-good-and-why-all-drug-k9-units-should-go/?sh =774877e33695. Roberts, Jeff. “Lawmakers OK Restrictions on Medical Pot Advertising despite First Amendment Concerns.” Colorado Independent. April 14, 2016. www .coloradoindependent.com/2016/04/14/lawmakers-ok-restrictionson-medical-pot-advertising-despite-first-amendment-concerns/. Roberts, Michael. “Marijuana Ads Make Kids More Likely to Use and See Pot Positives, Study Says.” Westword. May 17, 2018. www.westword.com/news /marijuana​-advertising-makes-kids-more-likely-to-use-study-says10320080. . “Social Pot Use Coming to Denver as Yes on 300 Campaign Finally Claims Victory.” Westword. November 15, 2016. www.westword.com/news /social-pot-use-coming-to-denver-as-yes-on-300-campaign-finally-claims -victory-8124589. Roth, Andrea. “The Uneasy Case for Marijuana as Chemical Impairment under a Science-Based Jurisprudence of Dangerousness.” California Law Review 103, no. 4 (2015): 841–918. Schroyer, John. “Marijuana Foes Seek to Impose THC Potency Caps to Curb Industry’s Growth.” MJBizDaily. December 17, 2021. https://mjbizdaily .com/marijuana-foes-seek-to-impose-thc-potency-caps-to-curbindustrys-growth/. Seltenrich, Nate. “Into the Weeds: Regulating Pesticides in Cannabis.” Environmental Health Perspectives 127, no. 4 (April 25, 2019). https://ehp.niehs.nih .gov/doi/full/10.1289/EHP5265. Sessions, Jefferson B., III. “Memorandum for All United States Attorneys: Marijuana Enforcement.” U.S. Department of Justice, Office of the Attorney General. January 4, 2018. www.justice.gov/opa/press-release/file/1022196 /download.

Wexler-Weed Rule.indd 262

22/10/22 2:45 PM



bibliography

263

The Shredder. “How the NIMBYs Stole Cannabis.” New Times. October 17, 2019. www.newtimesslo.com/sanluisobispo/how-the-nimbys-stole-cannabis /Content?oid=8905305. Smith, Benjamin. “New Documents Reveal the Bloody Origins of America’s Long War on Drugs.” Time. August 24, 2021. https://time.com/6090016 /us-war-on-drugs-origins/. Smith, Jeff. “Washington State Marijuana Industry Robust, but Challenges Remain Ten Years after Legalization.” MJBizDaily. January 24, 2022. https://mjbizdaily.com/washington-state-marijuana-industry-robust-faceschallenges-10-years-after-legalization. Smith, Laura. “How a Racist Hate-Monger Masterminded America’s War on Drugs.” Accessed February 19, 2022. https://timeline.com/harry-anslingerracist-war-on-drugs-prison-industrial-complex-fb5cbc281189. Solensten, Brittany, and Dale W. Willits. Perceptions of Drug Recognition Experts (DREs) and DRE Evidence: A Qualitative Analysis of the Police, Prosecution, and Defense. WTSC Report No. 2021-AG-4186 (January 2021). Spiegelman, Ian. “California Lawmakers Are Battling over the Fate of Cannabis Billboards.” Los Angeles Magazine. April 1, 2021. www.lamag .com/citythinkblog/cannabis-billboards/. Staggs, Brooke. “Marijuana Laws for Every City and County? Our Database Shows California Slow to Accept Prop. 64.” Orange County Register. April 9, 2018. www.ocregister.com/2018/04/09/database-of-marijuana-rules-fromevery-city-and-county-in-california-shows-slow-acceptance-of-prop-64/. Stapleton, Susan. “New Cannabis Consumption Lounges Expected to Open in Nevada in 2022.” Eater Las Vegas. October 4, 2021. https://vegas.eater .com/2021/10/4/22708293/cannabis-consumption-lounges-open-nevada2022. State of Maine Office of Marijuana Policy. “Application Process.” Accessed March 23, 2022. www.maine.gov/dafs/omp/adult-use/application-process. Steuer, Faii. “7 Cannabis Consumption Lounges to Inspire Your Next Retail Venture.” COVA. March 7, 2022. www.covasoftware.com/blog/5-cannabisconsumption-lounges-to-inspire-your-next-venture. Stoa, Ryan. Craft Weed: Family Farming and the Future of the Marijuana Industry. Cambridge, MA: MIT Press, 2018. Sullum, Jacob. “Bogus Stoned Driving Arrests Highlight Dubious Methods of ‘Drug Recognition Experts.’ ” Reason. September 28, 2017. https://reason .com/2017/09/28/bogus-stoned-driving-arrests-highlight-t/. . “If Chuck Schumer Supports Marijuana Legalization, Why Did He Nix a Bill That Would Have Helped Pot Businesses Use Banks?” Reason. December 30,2021.https://reason.com/2021/12/30/if-chuck-schumer-supports-marijuanalegalization-why-did-he-nix-a-bill-that-would-have-helped-pot-businesses -use-banks/.

Wexler-Weed Rule.indd 263

22/10/22 2:45 PM

264

bibliography

. “What Good Is a Pot-Sniffing Dog When Pot Is Legal?” Forbes. January 15, 2015. www.forbes.com/sites/jacobsullum/2015/01/15/what-good-isa-pot-sniffing-dog-when-pot-is-legal/?sh=31e7a5462198. Swinburne, Matthew, and Kathleen Hoke. “State Efforts to Create an Inclusive Marijuana Industry in the Shadow of the Unjust War on Drugs.” Journal of Business and Technology Law 15, no. 2 (2020): 235–80. https:// digitalcommons.law.umaryland.edu/jbtl/vol15/iss2/3. Terry, C. E. “The Harrison Anti-Narcotic Act.” American Journal of Public Health 5, no. 6 (1915). www.ncbi.nlm.nih.gov/pmc/articles/PMC1286619/?page=1. Thill, David. “Illinois Marijuana Growers Will Face Energy Efficiency and Reporting Rules.” Energy News Network. September 16, 2019. https:// energynews.us/2019/09/16/illinois-marijuana-growers-will-face-energyefficiency-and-reporting-rules/. Title, Shaleen. “Bigger Is Not Better: Preventing Monopolies in the National Cannabis Market.” Website of the Ohio State University Drug Enforcement and Policy Center. January 22, 2022. https://papers.ssrn.com/sol3/papers .cfm?abstract_id=4018493. Tobin, Tommy, and Andrew Kline. “A Sleeping Giant: How the Dormant Commerce Clause Looms over the Cannabis Marketplace.” Yale Law & Policy Review Inter Alia. January 3, 2022. https://ylpr.yale.edu/inter_alia /sleeping-giant-how-dormant-commerce-clause-looms-over-cannabis -marketplace. Trout Unlimited Staff. “The Cannabis Conundrum.” Trout Unlimited. July 3, 2019. www.tu.org/magazine/conservation/the-cannabis-conundrum/. Tsou, Chang-Chih, and San-Yuan Huang. “The DSM-5 Changes and Challenges in Diagnosing Substance Use Disorders.” Taiwanese Journal of Psychology 30, no. 1 (2016). Ugwu, Reggie. “Veterans Groups Push for Medical Marijuana to Treat PTSD.” New York Times. November 3, 2017. www.nytimes.com/2017/11/03/us /medical-marijuana-veterans.html. Uritox. “Fortune 500 Companies That Drug Test.” August 7, 2020. www .drugtestpanels.com/blogs/articles/fortune-500-companies-that-drug -test. U.S. Census Bureau. “Quick Facts: North Andover Town, Essex County, Massachusetts.” Accessed March 20, 2022. www.census.gov/quickfacts /northandovertownessexcountymassachusetts. Vinney, Cynthia. “What’s the Difference between Eudaimonic and Hedonistic Happiness?” ThoughtCo. February 13, 2020. www.thoughtco.com/eudaimonicand-hedonic-happiness-4783750. Wallace, Alicia. “Patent no. 6,630,507: Why the U.S. Government Holds a Patent on Cannabis Plant Compounds.” Denver Post. August 18, 2016. www .denverpost.com/2016/08/28/what-is-marijuana-patent-6630507/.

Wexler-Weed Rule.indd 264

22/10/22 2:45 PM



bibliography

265

Walsh, Sean Collins. “Many Philly Employers Won’t Be Able to Test New Hires for Marijuana under a New Bill.” Philadelphia Inquirer. April 22, 2021. www.inquirer.com/politics/pennsylvania/philadelphia-employmentmarijuana-testing-city-council-bill-20210422.html. Ward, Andrew. “Why Are So Many Municipalities Opting Out of Their State’s Adult-Use Cannabis Marketplace?” Markets Insider. May 24, 2021. https://markets.businessinsider.com/news/stocks/why-are-so-manymunicipalities-opting-out-of-their-state-s-adult-use-cannabis-marketplace1030459111. Washington State Department of Revenue. “Recreational and Medical Marijuana Taxes.” Accessed February 14, 2022. https://dor.wa.gov/about/statistics -reports/recreational-and-medical-marijuana-taxes. Washington State Liquor and Cannabis Board. “Home Grow Study.” Accessed February 27, 2022. https://lcb.wa.gov/sites/default/files/publications /WSLCB%20Home%20Grows%20Study%20Report%20FINAL.PDF. . “Renew Your License.” Accessed March 23, 2022. https://lcb.wa.gov /licensing/renew-your-license. . Taxing Cannabis by Potency: A Feasibility Study. Accessed March 4, 2022. https://lcb.wa.gov/sites/default/files/publications/Marijuana/Potency _Tax_Study/Cannabis-Potency-Tax-Workgroup_Report_FINAL.PDF. Weisz, Barry, and Michael Rosenblum. “Cannabis State-by-State Regulations.” Thompson Coburn website. August 2021. www.thompsoncoburn.com/docs /default-source/blog-documents/ranking-of-state-cannabis-regulations .pdf. Weitzman, Michael, and Lily Lee. “Similarities between Alcohol and Tobacco Advertising Exposure and Adolescent Use of Each of These Substances.” Journal of Studies on Alcohol and Drugs (Supplement 19, 2020): 97–105. WESH. “Central Florida Teacher Fired for Prescribed Medical Marijuana Use.” WESH.com.March25,2021.www.wesh.com/article/florida-teacher-fired-medicalmarijuana-use/35928058#. Wood, Josh. “Second Chances: How Ex-convicts Are Lighting Up the Cannabis Industry.” The Guardian. July 19, 2018. www.theguardian.com/society/2018 /jul/19/massachusetts-marijuana-social-equity-program-ex-convicts. Yakowicz, Will. “Where Is Cannabis Legal? A Guide to All 50 States.” Forbes. January 10, 2022. www.forbes.com/sites/willyakowicz/2022/01/10/whereis-cannabis-legal-a-guide-to-all-50-states. Young, Colin A. “Equity Advocates Tired of Waiting on Marijuana Delivery Framework.” Taunton Daily Gazette. November 9, 2020. www.tauntongazette .com/story/news/2020/11/09/equity-advocates-tired-of-waiting-on-marijuana -delivery-framework/114797214/. . “Massachusetts Marijuana Growers Turning Up Legal Pressure on Cannabis Control Commission.” Boston Business Journal. January 22, 2019.

Wexler-Weed Rule.indd 265

22/10/22 2:45 PM

266

bibliography

www.bizjournals.com/boston/news/2019/01/22/massachusetts-marijuanagrowers-turning-up-legal.html. . “State Senate Passes Bill to Grow, Diversify Mass. Cannabis Sector.” WBUR. April 8, 2022. www.wbur.org/news/2022/04/08/senate-passes-billcannabis-sector-massachusetts. Zhang, Mona. “Cannabis Industry Struggles with Hiring People with Past Pot Convictions.” Forbes. October 4, 2017. www.forbes.com/sites/monazhang /2017/10/04/cannabis-industry-hiring-people-past-pot-convictions. . “How State Marijuana Legalization Became a Boon for Corruption.” Politico. December 27, 2020. www.politico.com/news/2020/12/27 /marijuana-legalization-corruption-450529.

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Index

ACLU marijuana enforcement report (2013), 22 addiction and dependence, 39, 46, 51, 52, 53, 55–57. See also public health and safety adolescents. See minors Advantage Sales and Marketing employment termination case, 124–25 advertising restrictions. See marketing restrictions affirmative action programs, 85–86. See also equity concerns AIDS epidemic, 23–24 Alaska: industry participation exclusions, 77–78; marijuana taxation and revenue use, 73–74; marketing restrictions, 97–98, 99, 100; medical marijuana legalization, 24; police search court decision, 183–85; recreational marijuana legalization, 26–27; social consumption establishments, 138 alcohol use, 140–41; as context for policies to prevent marijuana-impaired driving, 145–47; marijuana use and, 53, 101, 111, 137, 149 Alito, Samuel, 30 Altieri, Erik, 71

Amazon, 128–29 Americans with Disabilities Act, 119 Anderson, Laurie Monnes, 137 Anslinger, Harry, 17, 18, 19, 58, 201–2n6 Apple, 129 Arizona: local control policy, 167; medical marijuana employment case, 119–21; police search court decision, 181, 185; social consumption establishments, 138 Armentano, Paul, 129, 131 Atlanta: employment protections for marijuana users, 128 banking, 4, 34, 194 bankruptcy law, 36 Barbera, Mary Ellen, 180–81 Barbuto v. Advantage Sales and Marketing, LLC, 124–25 Berg, Austin, 73 Berman, Douglas, 161–62 Biden administration, 27 Bigelow v. Virginia, 110 Booth, Martin, 18 Bottoms, Keisha Lance, 128 Bourne, Peter, 221 British Report on Hemp in India, 18 Bureau of Cannabis Control (California), 5

267

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Burke, Jenny, 129 Bush, George H. W., 22 Caesars Entertainment, 129 California: equity promotion efforts, 75, 77; licensing policy, 68; local control policy and impacts, 158–59, 161; local marijuana business bans, 157; marijuana industry in, 33; marketing restrictions, 102, 111–12; medical marijuana employment termination case, 123–24, 132; medical marijuana legalization and federal response, 23–26; police search court decisions, 178; recreational legalization, 26–27; social consumption establishments, 140 cannabidiol (CBD) legalization, 24 cannabis, as term, 202n6. See also marijuana entries Cannabis Administration and Opportunity Act (CAOA), 196 Cannabis: A History (Booth), 18 cannabis cafés or lounges. See social consumption establishments Cannabis Control Commission (CCC) (Massachusetts), 5–6, 70, 74, 75, 78, 160 cannabis hyperemesis syndrome, 39 cannabis use disorder (CUD), 51, 55–57. See also dependence and addiction CAOA (Cannabis Administration and Opportunity Act), 196 careful exuberance approach, 11, 38, 63–64, 193; the joys of marijuana use, 60–63 Carroll et al. v. United States, 174 Carter, Jimmy, 21 Casias, Joseph, 121 Caulkins, Jonathan, 10, 53, 66 CBD (cannabidiol) legalization, 24 CCC (Massachusetts Cannabis Control Commission), 5–6, 70, 74, 75, 78, 160 Central Hudson Gas & Electric Corporation v. Public Service Commission, 106–7, 109–10 Chemerinsky, Erwin, 31, 195 children. See minors Clark, Dave, 128–29 Clinton, Bill, and Clinton administration, 22, 58–59 Coats v. Dish Network, 117, 121–22, 176 cognitive harms and impairment, 51, 52. See also driving and marijuana use Cole Memo, 27, 33, 34

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Colorado: employment termination case, 117, 121–22, 176; home cultivation policy, 70; licensing policy, 68; marketing restrictions, 98, 99, 100; medical marijuana legalization, 24; police search court decisions, 175–77, 178–79, 184–85; recreational legalization, 26–27; social consumption establishments, 139–40 Commerce Clause, 25–26, 89; the Dormant Commerce Clause, 89, 155, 197–98 commercial speech jurisprudence, marketing restrictions and, 96–97, 105–10, 113 Commonwealth v. Canning, 183 Commonwealth v. Cruz, 179 Commonwealth v. Gerhardt, 146–47 Commonwealth v. Overmyer, 179–80 communities of color. See equity concerns Conant v. Walters, 25, 103 Connecticut: employment protections for medical marijuana users, 119; THC concentration cap, 72 Connolly, Michael, 152 Considering Marijuana Legalization (RAND Corporation Research Report, 2015), 50, 51–53, 62, 66 constitutional legal context. See U.S. constitution “contraband,” police searches and, 174, 176, 178. See also police searches Controlled Substances Act of 1970 (CSA), 20, 194; CSA commission report (1972), 20–21; ongoing impacts of, 33–36; potential de-scheduling or full removal of marijuana from, 36, 195–96; state law conflicts and, 28–29, 31–32, 119. See also federal drug policy; federal marijuana policy co-op/craft co-op licenses, 66, 68–69, 214n9 “Cooperative Federalism and Marijuana Regulation” (Chemerinsky et. al.), 31, 195 Correia, Jasiel, 161 corruption, local control and, 154, 161–62 Crapo, Mike, 34 crime: marijuana industry employees’ vulnerability to, 34; marijuana use equated with, 16–17. See also criminal convictions; illicit marijuana market; public health and safety criminal convictions: expungement of prior marijuana convictions, 76, 196; industry participation exclusions for individuals with, 67, 77–78, 88–89, 90

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Cruz, Benjamin, 179 CSA. See Controlled Substances Act of 1970 CUD (cannabis use disorder), 51, 55–57. See also dependence and addiction cultivation licenses, 68, 69, 157–58. See also licensing regimes Cuomo, Andrew, 71 Cyr, Julian, 138 D’Amico, Elizabeth, 101, 111 DEA (Drug Enforcement Administration), and marijuana rescheduling petition, 22–23 Delaware: employment protections for medical marijuana users, 119 delivery licenses, 68, 69, 79, 80. See also licensing regimes demand. See ease of access; market freedom/ regulation; supply and demand dependence and addiction, 39, 46, 51, 52, 53, 55–57. See also public health and safety Diagnostic and Statistical Manual of Mental Disorders (DSM) cannabis abuse/dependence listings, 51, 55–57 Dillon’s Rule, 156 disability discrimination statutes, 119, 122–25 Dish Network employment termination case, 117, 121–22, 176 diversity concerns. See equity concerns doctors: federal policy targeting, 25; marketing restrictions advocacy by, 102; rights to recommend medical marijuana to patients, 25, 103 dogs, drug-sniffing, 171, 174–75, 175–77, 184, 185 DOJ. See U.S. Department of Justice Dormant Commerce Clause, 89, 155, 197–98 Dowd, Maureen, 143 DREs (drug recognition experts), 147–48 driving and marijuana use, 5, 39, 136, 144– 49, 170; research on, 51, 52, 144; social consumption establishments and, 80, 136, 148–49; state laws and court decisions, 145–48; testing issues and enforcement challenges, 144–46. See also vehicle searches drug enforcement. See marijuana enforcement Drug Enforcement Administration (DEA), and marijuana rescheduling petition, 22–23

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drug-free workplace policies, 130. See also workplace and employment issues Drug Policy Alliance, 24 drug recognition experts (DREs), 147–48 drug testing: difficulties of testing for THC, 5, 84, 118, 144–45; marijuana testing and impaired driving, 144–46. See also marijuana product testing; workplace and employment issues drug use, non-marijuana, 16, 18, 20; marijuana use and, 16, 18, 21, 53–54. See also war on drugs Drug Use for Grown-Ups (Hart), 62 DSM cannabis abuse/dependence listings, 51, 55–57 Dufton, Emily, 21 DUI concerns. See driving and marijuana use ease of access criterion, 39–40, 41–42, 46, 187, 192; employment protections and, 132–33; environmental protection measures and, 87; federal legalization options and, 195; home cultivation and, 81; licensing and, 80; local control and, 165, 166; police searches and, 187; social consumption establishments and, 141–42 economic liberty interests, 47, 48, 59–60, 132. See also market freedom/regulation edibles, 39, 141, 143–44 Edmonson v. Commissioner, 34–35 Ehrlichman, John, 20 Eid, Allison, 122 employee marijuana use. See workplace and employment issues energy use, 76–77, 87. See also environmental protection Enright, Allison, 116–17 environmental protection, 6, 9–10, 67; challenges and current policies, 40–41, 76–77; indoor vs. outdoor cultivation, 40, 76, 86–87; local control and, 163; as policy criterion, 40–41, 44, 76–77, 163, 192; policy recommendations, 86–88, 90 Epstein, Pamela, 102 equity concerns, 4–5, 9, 38–39; employment protections and, 133; equity as policy criterion, 38–39, 46, 58–59, 192; equityfocused loan and grant programs, 3, 39, 75, 85, 86, 90; the equity policy paradigm, 46, 47; equity-promoting licensing, 39, 46, 68–69, 70, 75, 79, 80, 85–86, 220n90; equity-promoting policy

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equity concerns (continued) recommendations, 79, 84–86, 90; home cultivation policy and, 81–82; legal obstacles to equity programs, 85–86; local control and, 161, 167; marijuana advertising and, 112; other equity-promoting policy provisions and spending decisions, 67, 74–76, 84–86; police search powers and, 186, 188; potential federal legislation or legalization and, 196, 197; the racist history of marijuana prohibition and enforcement, 4, 8, 9, 16–17, 20, 22, 58–59, 88; related to prior marijuana convictions, 76, 77–78, 88–89; social consumption establishments and, 141–42; tax policy and, 83 Evans, Michael, 122 Excellence Health, Inc., 128 excise taxes, 72, 73. See also taxation; tax revenue exigent circumstances, police searches and, 173

28–32, 155. See also Controlled Substances Act; marijuana enforcement federal trademark protection, 35–36, 194 felony convictions. See criminal convictions Fevry, Chris, 69 Fiat Chrysler, 129 financial issues: banking and the marijuana industry, 4, 34, 194; federal taxation and the marijuana industry, 4, 34–35, 194. See also public revenue maximization; taxation; tax revenue First Amendment rights, marketing restrictions and, 96–97, 103–10, 113. See also marketing restrictions Florida v. Jardines, 175 44 Liquormart, Inc. v. Rhode Island, 107–9 Fourth Amendment rights, police searches and, 171–75. See also police searches freedom of speech rights, marketing restrictions and, 96–97, 103–10, 113 Fry, Jason, 182 Fry, Tina, 182

false/misleading advertising prohibitions, 95, 97 Federal Bureau of Narcotics, 17. See also Anslinger, Harry federal drug policy, 16–23; before the 1960s, 16–18, 58; drug legislation, 16, 18–19, 20–21, 28–29; past decriminalization and rescheduling efforts, 21, 22–23; post–1960, 19–23, 58–59. See also Controlled Substances Act; federal marijuana policy; war on drugs federal legislation: recent marijuana-related bills, 194, 195–96, 238n1. See also Controlled Substances Act federal marijuana policy: federal responses to medical legalization, 24–26; federal responses to recreational legalization, 4, 27; the history of federal prohibition, 16–19; potential federal legalization/ decriminalization, 4, 7, 36, 66, 194–98; prohibition and medical marijuana employment termination decisions, 117, 123–24; prohibition and the legality of state marketing restrictions, 109–10; prohibition as research obstacle, 36, 49; prohibition’s impacts on the marijuana industry, 4, 32, 33–36; the scope of federal regulatory authority, 25–26; users who live in subsidized housing and, 36, 135; why state laws are not preempted,

Gerhardt, Thomas, 146–47 Goldstein, Jeffrey, 151 Gonzales, Bryan, 175–77 Gonzales v. Raich, 25–26 grant and loan programs, 3, 39, 75, 85, 86, 90 Grass Roots (Dufton), 21 Greater New Orleans Broadcasting Association v. United States, 107 grudging toleration approach, 90–91, 202n13; employee rights and, 118; key features of, 10–11, 192–93; marketing restrictions and, 96; public health values and, 39, 45–46 “Guidance Regarding Marijuana Enforcement” (Cole Memo), 27, 33, 34

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Harned, Karen, 122 Harrison Act, 16 Hart, Carl, 62 Hawaii: medical marijuana legalization, 24 HCAs (Host Community Agreements), 159– 62, 168 The Health Effects of Cannabis and Cannabinoids (NASEM report, 2017), 50, 51, 52–53 health uses and concerns. See medical marijuana use; public health and safety Hearst, William Randolph, 17 Hoffman, Steve, 78

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homes: home cultivation, 25–26, 67, 70–71, 81–82, 90; obstacles to at-home use, 36, 135, 141, 142; police searches at, 171, 175, 181–84, 185 Host Community Agreements (HCAs), 159–62, 168 Hudak, John, 20 Hudnell, Donna, 116 illicit marijuana market: environmental concerns, 87–88; excluding past illicit-market participants from the legal industry, 77–78, 88–89, 90; home cultivation and, 70–71, 81, 82; legal marijuana advertising and, 111–12; license caps and, 69, 80–81; local control and, 163, 166; potency restrictions and, 82; reduction as policy criterion/goal, 42, 44, 192; social consumption establishments and, 143; tax policy and, 42, 73, 83, 84 Illinois: environmental protection efforts, 77; equity promotion efforts, 75; home cultivation policy, 70; licensing policy, 70, 75, 214n9; marijuana taxation and revenue use, 73, 216n45; marketing restrictions, 99; social consumption establishments, 139 Illinois v. Caballes, 175, 176, 177 immigration and immigrant workers, federal prohibition and, 36, 195–96 impact fees (Massachusetts), 160–62 impaired driving concerns. See driving and marijuana use intellectual property protections, federal prohibition and, 35–36, 194 interstate commerce: the Commerce Clause and scope of federal drug regulation authority, 25–26; the Dormant Commerce Clause and its impacts on states, 89, 155, 197; federal prohibition’s impact on, 33, 206n89 invasion of privacy. See police searches; privacy interests Irwin, Jacqui, 101 Jacobs, Leslie Gielow, 102, 110 JAMA (Journal of the American Medical Association) study on legalization and cannabis use disorder, 55 Johnson, Lyndon, 19 joy, marijuana policy and, 9, 38, 60–63 Justice Department. See U.S. Department of Justice

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justice interests, 47, 48, 58–59. See also equity concerns Kamin, Sam, 31 Kennedy, Anthony, 108 Kilmer, Beau, 66 Kirby, Stev3, 137 Kleiman, Mark, 10, 73 Knutson, Erik, 143 Kulpinski, Leslie, 152 labeling and packaging regulations, 97–98, 196, 202n13 La Guardia, Fiorello, 19 lawful activity statutes and defenses (employee marijuana use), 117, 121–22, 126, 127 Leary, Timothy, 19 Leary v. United States, 18–19 Lee, Martin A., 17 Lelling, Andrew, 161 liberty interests, 47, 48, 59–60. See also market freedom/regulation licensing regimes, 5, 67, 68–70, 79–81; early drug user tax-and-registration programs, 16, 18; equity-promoting licensing, 39, 46, 68–69, 70, 75, 79, 80, 85–86, 220n90; license caps, 45, 69–70, 80–81, 157–58, 168, 220n90; license types, 68–69, 79–80, 90, 214n9; local licensing, 75, 78, 153–54, 168; policy analysis and recommendations, 68–70, 79–81, 90; residency requirements for license holders, 78, 89, 90; social consumption establishment licensing, 68; user licensing, 10, 78. See also social consumption establishments Lindsay, Shanel, 69 loan and grant programs, 3, 39, 75, 85, 86, 90 local control, 11, 90, 151–68, 192; current state policy overview, 6, 156–62; drawbacks of, 5, 154, 161–62, 165–68; legal context for, 155–56; local control as policy criterion, 42–43, 44–45, 192; market freedom and, 46, 59; policy analysis and recommendations, 162–68, 193; potential benefits of, 154, 162–65. See also local marijuana policy local marijuana policy: employment protections, 128; equity promotion efforts, 75, 77; licensing, permitting, and fees, 78, 153–54, 157–62; public sentiment and

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local marijuana policy (continued) debates about, 151–53, 157, 167; related equity concerns, 161, 167; social consumption establishment permitting, 135– 36, 138, 139, 140, 149–50; taxation, 72, 73, 153, 166; tensions between state and local implementation efforts, 85; total bans on marijuana businesses, 156–57, 165, 168. See also local control Lorillard Tobacco Co. v. Reilly, 107, 108–9 Maine: local control policy, 156, 158–59; medical marijuana legalization, 24; recreational legalization, 26–27; residency requirements for license holders, 78; social consumption establishments, 138 manufacturing licenses, 68. See also licensing regimes “Marihuana: A Signal of Misunderstanding,” 20–21 Marihuana Tax Act, 18–19 marijuana, as term, 201–2n6 Marijuana: A Short History (Hudak), 20 marijuana cultivation, 40; in California, 33; cultivation licensing, 68, 69; environmental concerns and protection, 6, 9–10, 40–41, 44, 76–77, 86–88, 90; home cultivation, 25–26, 67, 70–71, 81–82, 90; impacts of federal prohibition, 36; indoor facility permitting and debates, 151–53; indoor vs. outdoor, 76, 86–87. See also marijuana industry marijuana enforcement: enforcement questions for states, 67; federal enforcement or lack thereof, 4, 24–26, 27, 33, 34; home cultivation and, 70; impaired driving laws and enforcement challenges, 144–48; marijuana-related activities that remain illegal post-legalization, 170; the 1994 crime bill’s effects, 22; racial inequities in, 4, 8, 9, 22, 58–59, 88, 188. See also illicit marijuana market; police searches; war on drugs; workplace and employment issues marijuana industry: corporate players and Big Marijuana concerns, 45, 69–70, 80, 112; home cultivation and, 71; the impacts of federal prohibition on, 32, 33–36, 194; implications of federal legalization for, 197–98; industry participation exclusions, 67, 77–78, 88–89, 90.

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See also illicit marijuana market; market freedom/regulation marijuana legalization: outside the U.S., 5; potential models for federal legalization/ decriminalization, 194–98. See also state marijuana policy, post-legalization; specific states Marijuana Legalization Equalizer Preference Combinations (MLEPCs), 45; four common paradigms, 45–47 “Marijuana Localism” (Mikos), 155, 164–65 Marijuana Opportunity Reinvestment and Expungement Act (MORE Act), 196, 238n1 marijuana policy. See federal marijuana policy; local marijuana policy; policy areas; policy evaluation criteria; policy recommendations; state marijuana policy; specific policy areas and states marijuana prices: demand and, 2, 73; ease of access and, 81; illicit market and, 42, 69, 83; licensing and, 69; price advertising restrictions, 95, 96, 98, 109, 113–14; taxation and, 42, 73, 83 marijuana product testing, 68, 80, 84 marijuana research: CSA commission report (1972), 20–21; federal prohibition and, 36, 49; on impacts of marijuana advertising exposure, 101; on marijuana odor perception, 180; on marijuana use and vehicle safety, 144; medical marijuana research, 36, 57–58; New York City study (1944), 19; recent studies on health and safety risks, 50–53, 55, 57–58, 62, 144; research uncertainties and their policy implications, 50, 51, 53–55 marijuana testing: difficulties of, 5, 84, 118, 144–45; impaired driving and, 144–46. See also marijuana product testing; workplace and employment issues marijuana use: alcohol or other drug use and, 16, 18, 21, 53–54, 101, 111, 137, 149; depictions of, in advertising, 98–99, 109; in the early twentieth century, 16–18; equated with crime, 16–17; health effects studies and reports, 19, 20–21, 36, 50–54, 57–58, 62; joys of, 9, 38, 60–63; obstacles to at-home use, 36, 135, 141, 142; public-use prohibitions and the social consumption problem, 11, 90, 134–36, 202n13; racist tropes about, 16–17, 20; user licensing, 10. See also

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dependence and addiction; ease of access; medical marijuana use; minors and marijuana use; normalization of use; public health and safety; social consumption establishments; workplace and employment issues market freedom/regulation, 59–60, 65–91, 213n72; advertising liberalization benefits, 111–14; employment protections and, 130, 131–32; equity goals and, 46; the government monopoly model, 32, 42, 65–66, 213n3; industry participation and nonresident exclusions, 67, 77–78, 88–89, 90; licensing policy and, 69–70, 80, 81; local control and, 165–66; market freedom as policy criterion and paradigm, 41–42, 44, 46, 59–60, 64, 192; not-forprofit and highly regulated market models, 66; obstacles to interstate commerce, 33, 206n89; potential federal legalization/regulation and, 196–97; product or potency restrictions, 67, 71–72, 82–83, 90. See also ease of access; illicit marijuana market; licensing regimes; marketing restrictions; supply and demand; taxation; other specific policy areas marketing restrictions, 5, 10–11, 90, 95–115, 192; advertising content regulations, 95, 96, 97–99, 107–8, 109; advertising placement regulations, 95–96, 99–100, 108–9; arguments for advertising liberalization, 111–14; current state policy overview, 94–95, 97–100; ease of access and, 40; First Amendment rights and, 96–97, 103–10, 113; health and safety claim prohibitions, 98; labeling and packaging regulations, 97–98, 196, 202n13; normalization of use and, 43–44, 102–3, 114; policy recommendations, 59–60, 114–15, 193; price advertising restrictions, 95, 96, 98, 109, 113– 14; to protect minors, 95–96, 98, 99–101, 108–9, 110–11; sign regulations, 96, 99–100, 111–12; to suppress adult demand, 101–2, 107–8. See also market freedom/regulation Maryland: police search court decisions, 178, 180–81 Massachusetts: environmental protection efforts, 77, 87; equity promotion efforts, 75, 77, 85; home cultivation policy, 70; industry participation exclusions, 78;

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licensing policy, 68, 69, 70, 79; local control policy and its impacts, 151–53, 154, 156, 158, 159–61; local marijuana business bans, 157; marijuana-impaired driving case, 146–47; marijuana possession decriminalization, 23; marijuana taxation and revenue use, 72, 74; marketing restrictions, 95–96, 97, 98, 99, 100; medical marijuana employment termination case, 122, 124–25; medical marijuana policy, 78; police search court decisions, 179–80, 183, 184–85; recreational legalization, 26–27; regulation development process, 5–6; social consumption establishments, 138 Massachusetts Innovation Works (MIW), 151–53 McCarty, Jason, 116 McKibben, Bill, 76 McKnight, Kevin, 175–77, 184–85 medical marijuana legalization, 23–26, 103 medical marijuana use: before federal prohibition, 16, 203n2; and DEA decision on rescheduling petition, 23; ease of access policy criterion and, 40; federal prohibition and its impacts, 20, 36; home cultivation for, 25–26; negative employment actions and, 6, 116–17, 118–26, 132; police searches and, 181–84; research on, 36, 57–58; state legalization and federal responses, 23–26; use location restrictions and, 135, 141, 142 mental health, marijuana use and, 39, 51, 52 Mexico and Mexican immigration, 16–17, 21 Michigan: employment termination case, 121; home cultivation policy, 70; licensing policy, 68; local marijuana business bans, 157; marijuana taxes, 72; police vehicle search case, 169–70, 179, 185; residency requirements for license holders, 78; social consumption establishments, 138, 229n14 micro-business licenses, 68–69 Mikos, Robert, 7, 30–31, 155, 164–65 Mills, Evan, 77 Minnesota: employment protections for medical marijuana users, 119 Minority Cannabis Business Association, 75 minors and marijuana use, 10, 32, 42, 46, 144, 170; marketing restrictions and, 95–96, 98, 99–101, 108–9, 110–11; public concern about, 152, 153, 157

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misleading/false advertising prohibitions, 95, 97 Missouri: residency requirements, 78 Mitchell, Thomas, 72 MIW (Massachusetts Innovation Works), 151–53 MLEPCs (Marijuana Legalization Equalizer Preference Combinations), 45; four common paradigms, 45–47 Monson, Diane, 25–26 Montana: employment protections for marijuana users, 127 Montana Cannabis Industry Association v. State of Montana, 109–10 Moorman, Thomas, 169–70, 179, 185 MORE Act, 196, 238n1 Murphy v. NCAA, 30

New York City: employment protections for marijuana users, 128; 1944 marijuana study, 19 NIMBYism, 157 Nixon, Richard M., and Nixon administration, 19–21 normalization of use criterion, 43, 46, 81–82, 90, 192; federal legalization options and, 195; lack of employment protections and, 130, 131; local control and, 167; marketing restrictions and, 43–44, 102–3, 114; police search powers and, 187–88; social consumption establishments and, 140– 41, 142–43 NORML (National Organization for the Reform of Marijuana Laws), 21, 22, 62, 71, 129, 131

Nadelmann, Ethan, 24 narcotics use and regulation, 16, 18, 20 NASEM (National Academies of Sciences, Engineering, and Medicine) report on marijuana’s health effects (2017), 50, 51, 52–53, 57–58 National Federation of Independent Business, 122 National Organization for the Reform of Marijuana Laws (NORML), 21, 22, 62, 71, 129, 131 National Survey on Drug Use and Health, 57 Neafsey, William, 186 Nevada: employment protection for marijuana users, 127; home cultivation policy, 70; marketing restrictions, 98, 99, 100; medical marijuana legalization, 24; recreational legalization, 26–27; social consumption establishments, 139 Newbauer, April, 178, 186 New Hampshire: support for state-run marijuana market, 213n3 New Jersey: employment protections for marijuana users, 127–28; social consumption establishments, 138 New Mexico: marketing restrictions, 100 New York: employment protections for marijuana users, 127; expungement of prior marijuana convictions, 76; home cultivation policy, 71; local control policy, 157, 158; marijuana tax revenue use, 74; police search policy and court decision, 171, 178, 186, 188–89; social consumption establishments, 138

Oakland Cannabis Buyers’ Cooperative, 24 Obama administration marijuana policy, 27 Ohio: minority cannabis licensing program, 85–86 Oklahoma: residency requirements, 78 opiate use, marijuana use and, 53–54 Oregon: early marijuana possession decriminalization, 23; efforts to legalize social consumption establishments, 137–38; home cultivation policy, 70; licensing policy, 69; local control policy, 159; local marijuana business bans, 157; marijuana taxation and revenue use, 6, 74; marketing restrictions, 98–99; medical marijuana employment termination case, 122– 23; medical marijuana legalization, 24; police search court decisions, 178, 179; recreational legalization, 26–27; residency requirements for license holders, 78

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Pacheco v. State, 180–81 packaging and labeling regulations, 97–98, 196, 202n13 Panama Canal Zone Governor’s Report (on marijuana use), 18 Papalia, Susan, 152 paraquat use, on Mexican marijuana crops, 21 Park, Alan, 169–70 patent protection, 35 People v. McKnight, 175–77, 184–85 Peron, Dennis, 23–24 pesticide use: federal prohibition and, 36; paraquat in 1970s Mexico, 21

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PharmaCann, Ohio v. Ohio Department of Commerce, 85–86 police funding, from marijuana tax revenues, 74 police searches, 6, 11, 90, 169–89, 192–93, 197; arguments for limiting police search powers, 184–88; the constitutional context, 170, 171–75, 185; drug-sniffing dogs and, 171, 174–75, 175–77, 184, 185; home/real property searches, 171, 175, 181–84, 185; personal searches, 180–81; policy recommendations, 188– 89, 193, 197; racial inequities in, 188; stop-and-frisk “searches,” 173; vehicle search court decisions and current law, 169–71, 173, 174, 175–77, 178–81, 184–85 policy areas and choices: four common policy paradigms, 44–49; key policy decision areas summarized, 67–78; policy problem areas summarized, 90–91. See also specific policy areas policy evaluation criteria, 38–44, 191–92; application overview, 79–89; ease of access as, 39–40, 41–42, 46, 187; employment protections and, 132–33; environmental protection as, 40–41, 44, 192; environmental protection policy and, 86–88; equity as, 38–39, 58–59, 192; equity concerns and, 84–86; home cultivation policy and, 81–82; illicit market reduction as, 42, 44, 192; industry participation exclusions and, 88–89; licensing policy and, 79–81, 85–86; local control as, 42–43, 44–45, 192; local control policy and, 162–68; market freedom as, 41–42, 44, 59–60, 64, 192; marketing restrictions and, 110–14; normalization of use as, 43, 46, 81–82, 90, 192; police search policy and, 185–89; product/potency restrictions and, 82–83; public health as, 39, 63–64, 192; rationality as, 41, 47, 192; revenue maximization as, 40, 60, 64, 192; social consumption policy and, 141–44, 148; taxation and spending policy and, 83–84; tensions among, 38, 44–45, 191–92; weighing and ranking, 44–47, 63, 192. See also specific criteria and policy areas policy paradigms, 44–49; equity paradigm, 46, 47; market freedom paradigm, 46; public health paradigm, 45–46, 47; sta-

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tist paradigm, 46–47; values underlying, 47–49. See also policy areas; policy evaluation criteria; specific areas and criteria policy recommendations: author’s views summarized, 11, 63–64, 90, 193; embracing joy, 38, 60–63; employment protections, 132–33, 193, 197; environmental protections, 86–88, 90; equity-promoting measures, 79, 84–86, 90; for federal regulation, 197; home cultivation policy, 81–82, 90; industry participation exclusions, 88–89, 90; licensing regimes, 79–81, 90; local control, 167–68, 193; marketing restrictions, 59–60, 114–15, 193; police search powers, 188–89, 193, 197; product or potency restrictions, 82–83, 90; residency requirements, 90; social consumption establishments, 148– 49, 193; taxation and revenue usage, 83–84, 90 post-traumatic stress disorder (PTSD), 36 potency. See THC and THC concentrations precautionary principle, public health concerns and, 54–55 privacy interests, searches and, 172–73, 175, 176–77, 182–83, 187. See also police searches probable cause for searches. See police searches processing and production licenses, 68. See also licensing regimes product or potency restrictions, 67, 71–72, 82–83, 90 product testing, 68, 80, 84 promotion. See marketing restrictions Proposition 215 (California), 23–24 psychological harms, marijuana use and, 39, 51, 52 PTSD, 36 public goods interests, 47, 48, 60. See also public revenue maximization; statist policy paradigm public health and safety, 10, 49–58; dependence and addiction, 39, 46, 51, 52, 53, 55–57; federal industry involvement and, 196; federal prohibition as health research obstacle, 36, 49; the government-run production model and, 66; health warning requirements, 95, 97–98; high-THC products and, 54, 72, 82; licensing policy and, 79–80; local control and, 163; marketing restrictions to

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public health and safety (continued) protect minors, 95–96, 98, 99–101, 108–9, 110–11; marketing restrictions to suppress adult demand, 101–2; police search powers and, 186; potency limits and potency-related taxation, 71–72, 73, 82–83, 90; potential health and safety benefits of legalization, 53, 57–58, 111; public health as policy criterion, 39, 63–64, 192; the public health policy paradigm, 45–46, 47; research/reports on marijuana health and safety risks, 19, 20–21, 50–53, 55, 57–58, 62, 144; research uncertainties and their policy implications, 50, 51, 53–55; social consumption establishments and, 137, 141, 143–49; twentieth-century marijuana law and, 17, 18, 19; workplace protections/policies and, 129, 130, 131, 132. See also crime; driving and marijuana use; illicit marijuana market public marijuana use: public-use prohibitions and the social consumption problem, 11, 90, 134–36, 202n13. See also social consumption establishments public revenue maximization criterion, 40, 60, 64, 192; home cultivation and, 70; license caps and, 80–81; revenue use options and decisions, 67, 73–74, 75, 84, 166–67; the statist policy paradigm, 46–47 public safety interests, 47, 48. See also public health and safety purchase quantity restrictions, 10, 202n13 Quest Diagnostics, 129 Quirk, Bill, 111–12 racial equity concerns. See equity concerns RagingWire Telecommunications employment termination case, 122–24, 132 Raich, Angel, 25–26 RAND Corporation: marijuana legalization report (2015), 50, 51–53, 62, 66; report on impacts of marijuana advertising exposure, 101 Rathbun, Mary Jane, 24 rationality, as policy criterion, 41, 47, 192; employment protections and, 132–33; felon-exclusion policies and, 88; marketing restrictions and, 113; police search powers and, 187; product/potency restrictions and, 82; social consumption establishments and, 143

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Ravin v. State, 183 Reagan administration, 21–22 real property: police searches of, 171, 175, 181–84, 185. See also homes reasonable suspicion standard, searches and, 173, 175. See also police searches recreational legalization: federal responses to, 4, 27; history and current status of, 4, 26–27; outside the U.S., 5. See also state marijuana policy, post-legalization; specific states recreational marijuana use. See marijuana use research. See marijuana research residences. See homes residency requirements, 78, 89, 90 restorative justice. See equity concerns retail licenses, 68, 69, 79. See also licensing regimes revenue. See public revenue maximization; tax revenue Rhode Island: employment protections for medical marijuana users, 119 Ross v. RagingWire Telecommunications, Inc., 123–24, 132 Rubin v. Coors, 107 Sabet, Kevin, 102 SAFE Banking Act, 34, 194, 238n1 safety concerns. See public health and safety sales taxes, 6, 72, 73. See also taxation; tax revenue Salisbury, Charles, 152 Sanders, Richard, 182–83 San Francisco social consumption establishments, 140 Scalia, Antonin, 26 Schedule I and Schedule II classifications (Controlled Substances Act), 20 schizophrenia, marijuana use and, 39, 51, 52 scientific studies. See marijuana research search and seizure law. See police searches Section 280E (U.S. Tax Code), 34–35, 194 Secure and Fair Enforcement Act (SAFE Banking Act), 34, 194, 238n1 self-determination, local control as, 164–65 Sessions, Jeff, 27, 33 Shafer, Raymond, 20 Sheridan, Mark, 74 Sisolak, Steve, 127 Smedile, Rosemary Connolly, 153 Smith, Gary, 167 Smoke Signals (Lee), 17

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smoking bans, 134, 135, 137–38, 139, 140, 149 social consumption establishments, 11, 134– 50, 193, 202n13; arguments for authorizing, 40, 140–44; current status and authorization efforts, 6, 68, 137–40; lack of, as problem, 11, 90, 134–36, 192; local opt-in/permitting authority, 135– 36, 138, 139, 140, 149–50; medical marijuana use and, 135, 141, 142; public health benefits of, 143–44; public health risks of, 80, 136, 137, 141, 144–49; questions that will need to be addressed, 137; types of, 136, 140, 149 social equity concerns. See equity concerns Soros, George, 24 South Park, 71 state cannabis oversight agencies, 5–6, 67 state marijuana policy, before recreational legalization, 16, 18, 23–27; decriminalizations of marijuana possession, 23–24; medical marijuana legalizations and federal response, 23–26 state marijuana policy, post-legalization: the “careful exuberance” approach, 11, 38, 63–64, 193; common policy paradigms and their underlying values, 45–49; complexities of, 2–7; enforcement-related questions, 67; federal preemption and, 28–32, 119, 155; the “grudging toleration” approach, 10–11, 39, 45–46, 90–91, 192–93, 202n13; implications of federal legalization for, 197–98; key policy decision areas, 67–78, 79–89; obstacles to government-run systems, 32, 66; policy evaluation criteria and their application, 38–44, 79–89; problematic policy areas, 90–91; state cannabis regulatory bodies, 5–6, 67; tensions among policy goals, 38, 44–45, 191–92; weighing and prioritizing values and policy goals, 36, 44–48, 63, 192. See also policy areas; policy evaluation criteria; policy recommendations; specific policy areas and specific states state-run marijuana markets, 32, 42, 65–66, 213n3 STATES Act, 195–96 state trademark protection, 35 State v. Crocker, 183–84 State v. Fry, 181, 182–83 State v. Sisco, 181, 185 State v. Smalley, 178, 179 statist policy paradigm, 46–47. See also pub-

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lic goods interests; public revenue maximization stop-and-frisk “searches,” 173 Strengthening the Tenth Amendment Through Entrusting States Act (STATES Act), 195–96 Stroup, Keith, 21 supply and demand: policies that reduce legal supply, 69; policies to suppress demand, 73, 83, 101–2, 107–8, 165; potential benefits of increased demand, 111; prices and, 69, 83. See also illicit marijuana market; market freedom/regulation; marketing restrictions Taft, William Howard, 174 Tanner-Richter, Mary, 186 taxation, 6, 67; early drug user tax-and-registration regimes, 16, 18; federal tax rules for marijuana businesses, 4, 34–35, 194; the illicit market and, 42, 73, 83, 84; local taxes, 72, 73, 153, 166; policy analysis and recommendations, 72–73, 83–84, 90; tax revenue use options and decisions, 67, 73–74, 75, 84, 166–67; as use disincentive, 45, 73, 202n13. See also public revenue maximization; tax revenue tax revenue: funding equity-promoting loan and grant programs, 3, 39, 75, 85, 86, 90; home cultivation and, 70, 81; public revenue maximization, 40, 47, 60, 70, 81; revenue use options and decisions, 67, 73–74, 75, 84, 166–67 teenagers. See minors testing. See drug testing; marijuana product testing; workplace and employment issues THC and THC concentrations, 54, 72; difficulties of testing for, 5, 84, 118, 144– 45; impaired driving concerns and, 144– 46; potency restrictions, 71–72, 82–83, 90; potential health risks of high-THC products, 54, 72, 82; tax rates tied to, 73, 83–84, 216n45 Title, Shaleen, 74, 75, 78, 81, 161 trademark protection, 35–36, 194 transportation licenses, 68, 69. See also licensing regimes Trump administration, 27, 33 Uniform Narcotic Drug Act, 18 U.S. constitution: Commerce Clause and the scope of federal drug regulation authority, 25–26; constitutional obstacles to equity

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U.S. constitution (continued) programs, 85–86; the Dormance Commerce Clause and its impacts on states, 89, 155, 197; First Amendment rights and marketing restrictions, 96–97, 103– 10, 113; Fourth Amendment rights and police searches, 171–75; nonresidentexclusion policies and, 89; Supremacy Clause and state law preemption, 28–32, 155; the Tenth Amendment and the anticommandeering rule, 29–30 U.S. Department of Justice, 4, 24–25, 34; appropriations rider prohibiting medical marijuana prosecutions, 26, 205n70; responses to recreational legalization, 27 U.S. Supreme Court: affirmative action programs and, 85; First Amendment decisions and their implications for marijuana policy, 97, 103–10, 113; Gonzales v. Raich decision, 25–26; Leary v. United States decision, 18–19; Murphy v. NCAA decision, 30; Oakland Cannabis Buyers’ Cooperative case, 24; search and seizure decisions, 174–75, 176, 177 United States v. McIntosh, 26 United States v. Place, 175, 176, 177 Uruguay, 5 user licensing, 10; early drug user tax-andregistration programs, 16, 18 VA benefits, federal prohibition and, 36 vehicle accidents. See driving and marijuana use vehicle searches, 169–71, 173, 174, 175–77, 178–81, 184–85. See also police searches Vermont: RAND Corporation report on Vermont legalization, 50, 51–53, 62, 66; recreational legalization, 27; social consumption establishments, 138; THC concentration cap, 72 Veterans Affairs (VA) benefits, federal prohibition and, 36 Virginia: police search policy, 171, 177, 189 Virginia Board of Pharmacy v. Virginia Consumer Council, 105–6, 113 Voegtlin, Carl, 18 Walmart employment termination cases, 119–21

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war on drugs, 9, 17, 19–20, 58, 131. See also equity concerns; federal drug policy; marijuana enforcement “The War on Marijuana in Black and White” (ACLU report), 22 warrantless searches. See police searches Washington, D.C.: employment protections for marijuana users, 128 Washington: efforts to legalize social consumption establishments, 137; home cultivation policy, 70; industry participation exclusions, 78; licensing policy, 78; local control policy, 157, 158, 162, 233n17; marijuana taxes, 6, 72; marketing restrictions, 96, 98, 99, 100; medical marijuana legalization, 24; police search court decision, 181, 182–83; public-use prohibition, 135; recreational legalization, 26–27 weed, as term, 202n6. See also marijuana entries Whitmire, Carole, 119–21 Wilson, Jim, 101 workplace and employment issues, 90, 116– 33, 192, 193; arguments for including employment protections in marijuana policies, 117–18, 131–33; disability discrimination protections and defenses, 119, 122–25, 126; employer rationales for testing employees, 129–32; employers’ hiring and firing discretion, 6, 11, 117– 18, 125–26; employment protections in state marijuana statutes, 6, 119–22, 125– 26, 127–28; federal legalization and, 196, 197; “lawful activity” statutes and defenses, 117, 121–22, 126, 127; the limits of marijuana testing’s usefulness, 5, 118; local employee-protection measures, 128; medical marijuana users, 116–17, 118–26, 132; on-duty vs. off-duty use, 117, 130–31; recreational marijuana users, 6, 126–29; voluntary changes to employer testing policies, 128–29 Yerba Buena (Oregon cannabis farm), 87 Young, Francis L., 22 zoning regulations, 42–43, 153, 158, 168. See also local control; local marijuana policy

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