Tag Archive for 'medical marijuana'

Is There a Right to Use Marijuana for Religious Purposes?

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The current federal policy on marijuana is, to say the least, confusing. When President Obama took office, his Department of Justice said that it would not make prosecutions for the possession of marijuana a major priority, and that medical marijuana operations that are legal under state law will not be a target for federal prosecution.

Supporters of marijuana legalization or decriminalization were pretty excited, believing that, after years of federal crackdowns, a president was finally taking (in their view) a more sensible approach to marijuana.

However, over the last year or so, the federal government seems to have taken a harder line on marijuana. While there’s no question that the drug is illegal under federal law, and that federal law trumps state law (so the federal government can still prosecute people who use medical marijuana, even if they’re complying with the laws of their state), the federal government does have a good deal of discretion in deciding which cases it wants to prosecute, and under what circumstances to do so.

This controversy usually comes up in the context of medical marijuana. After all, there is mounting evidence that marijuana, while certainly not a cure-all, has a wide range of medical uses that are, at the very least, worth exploring. For example, it is one of the most powerful anti-nausea drugs known, which makes it a very effective treatment for some of the side effects of chemotherapy, greatly improving the quality of life for some cancer patients. And there is some evidence (though it’s far from conclusive) suggesting that it may even be able to prevent or treat some forms of cancer.

So, it’s not surprising that a lot of people get a little riled up when the federal government starts shutting down medical marijuana dispensaries.

However, there’s another non-recreational use of marijuana: religious rituals. Many indigenous religions treat marijuana as an entheogen (a substance that triggers what its user believes to be a religious experience), and use it ritualistically.

And as you probably know, the First Amendment enshrines the right of all Americans to freely exercise whatever religion they like.

So, a Native American group that uses marijuana for religious purposes should be exempt from laws against marijuana use, right? Not exactly. The Supreme Court has long ago held that laws of general application (i.e., laws that apply to everyone) that happen to place a burden on some religious practices are generally valid, though they do still warrant some scrutiny under the Constitution.

These generally-applicable laws are typically subject to “rational basis” review, meaning the government only needs to show that the law is related to a valid government interest. And whether you agree with them or not, most courts have held that preventing illegal drug use is definitely a valid governmental interest.

The Native American group sued the DEA in federal court after it seized a FedEx box containing marijuana, with a member of the group as its intended recipient. A federal district court dismissed the case. However, the 9th Circuit Court of Appeals just ruled that the case can continue. The appeals court is not handing the plaintiffs a victory – it’s just saying that their lawsuit should be allowed to proceed.

The court largely relied on the Religious Freedom Restoration Act, which requires federal courts to examine laws that burden religious practices under a more stringent “strict scrutiny” standard, requiring that the government prove that any law that substantially burdens religious practices be justified by a compelling government interest, and that the law is narrowly tailored to advance that interest.

The government argued that the religious group did not have a right to bring the lawsuit, because the Department of Justice had no plans to prosecute any of its members for transporting or using marijuana. In its ruling, the appeals court disagreed, holding that the threat of prosecution is not required to give the religious group standing to sue, because the government had already seized their marijuana, raising a legitimate issue over whether or not it had a right to do so.

The lower court will now have to rule on the merits of the case, deciding whether there is a constitutional and/or statutory right to use marijuana for religious purposes, laws generally prohibiting its use notwithstanding.

This is an interesting issue. Instinctively, I’m inclined to believe that there should be an exception to marijuana laws for religious use, since many different religions have used it in their rituals for thousands of years. However, this view is largely informed by my strong belief that marijuana should be decriminalized altogether.

Obviously, when the court is making its decision, the judge’s view on whether or not marijuana should be legal generally should not enter into his or her decision-making process. Of course, not being a judge, I have the luxury of letting my views on these issues be informed by whatever factors I see fit.

But taking a more detached view, I still don’t see why the First Amendment and the Religious Freedom Restoration Act wouldn’t protect the rights of people to use marijuana, or most other drugs that are otherwise illegal, for bona fide religious purposes, provided that the drugs are used in moderation, and possibly under the supervision of people who will remain sober, to ensure that the drug use poses absolutely no threat to anyone who is not directly involved in it (to make sure that nobody drives under the influence, for example). I don’t think the overall goals of anti-drug laws would be seriously impaired by carving out a narrow exception.

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States Lobbying for Relaxed Federal Marijuana Laws

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For decades, there have been many prominent organizations calling for the nationwide decriminalization, or full legalization, of marijuana. Full legalization of marijuana is no longer considered a fringe position, with some polls suggesting that nearly half of all Americans believe that marijuana should be legalized for both recreational and medical use. And a solid majority believes it should be legalized for medical use only.

Yet fewer than half of the states in the U.S. permit individuals to use marijuana medicinally, and none have completely legalized it. The cultivation, sale, possession, and use of marijuana remain completely illegal under federal law.

Under the U.S. Constitution, federal law is “supreme” over state law, meaning that federal authorities can arrest people for violation of federal marijuana laws, even if what they’re doing is legal and sanctioned by the laws of their state. For the owners of medical marijuana dispensaries in these states, this conflict between federal and state law puts them in a legal gray area.

When he was elected, President Obama stated that the Justice Department would not make it a priority to prosecute people who grow, sell, or consume marijuana in accordance with their state’s medical marijuana laws. However, this appears to have changed over the last year or so. According to this article, the Obama Administration has begun targeting businesses necessary for dispensaries to operate, like banks, in order to undermine the medical marijuana industry without actually prosecuting patients.

However, the governors of at least two states are adding some new political muscle to the debate about medical marijuana: the governors of Washington and Rhode Island have begun lobbying the federal government to reclassify marijuana. Currently, the federal government classifies marijuana as a “Schedule I” drug, meaning that (according to the feds) it has a “high potential for abuse, and no currently accepted medical use in treatment in the United States.” All drugs in this category are illegal. Other drugs in this category are heroin, LSD, and GHB (a sedative sometimes used as a date-rape drug).

These governors, along with many drug-reform advocates, are strongly lobbying Congress to move marijuana into “Schedule II.” These are drugs which have a high potential for abuse, but also have limited medical applications. They may be prescribed by doctors to treat approved medical conditions, but they are still tightly controlled, and are generally illegal to use without a prescription. Schedule II drugs include morphine, cocaine, and methamphetamine. In case you haven’t put two and two together, this means that marijuana is actually more tightly controlled than those drugs.

In case you’re not familiar with cocaine, methamphetamine, and morphine, those drugs are generally regarded as being far more dangerous than marijuana (all of them can cause a fatal overdose, while the main psychoactive ingredient in marijuana has no known lethal dose). They’re also widely regarded as being far more addictive than marijuana.

Given the fact that most U.S. states are facing huge budget deficits, one would expect their governments to be seeking new sources of tax revenue. One commonly-proposed source of revenue is the legalization of marijuana. This would allow states to impose taxes on marijuana sales, and it would make it far more likely for sellers of marijuana to pay income taxes on all of the money they earn in the trade, rather than attempting to hide it. And if medical marijuana were fully legalized and taxable, public opposition to taxing it at fairly high rates would probably be minimal, making it one of the only politically-safe new taxes that a government could impose.

On top of that, the costs of enforcing criminal laws governing marijuana, and incarcerating non-violent marijuana offenders, would be eliminated.

I’m honestly not sure if marijuana should be fully legalized for recreational use (though if it remains unlawful, punishments for small violations of these laws should be minimal). However, I see absolutely no reason why it should not be reclassified as a Schedule II controlled substance. This would allow the federal government to tightly regulate it, and prohibit its recreational use, while still allowing doctors to prescribe it according to their medical judgment.

Many doctors now believe that the active ingredients in marijuana have many unique pharmacological properties, which make it highly effective at treating the side effects of chemotherapy, vastly improving the quality of life of some cancer patients.

The current legal situation with marijuana is untenable, however. By forcing patients seeking medical marijuana, and those selling it, to operate in a legal gray area, a criminal element is necessarily drawn to the medical marijuana industry. Also, because of this, many people have come to view the entire medical marijuana system as an excuse for people to get high legally, without fear of arrest. This is unfortunate, as it exposes those patients who can genuinely benefit from medical marijuana to the same scorn.

Hopefully, someday, medical marijuana’s legal situation can be clarified.

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The Endless Medical Marijuana Debate Continues

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It’s funny how the medical marijuana debate has raged on for years and years now, and yet still has not been settled.  You would think that with all the time that both the federal and state governments have put into the issue that it would finally be resolved by now.  Instead, all we get from our elected leaders is an endless parade of seesawing public policy that only serves to confuse the public rather than help it.  We saw this last year with the defeat of Prop 19 in California, and now Washington is jumping in as the latest state to do an about face on its medical marijuana laws.

You might’ve had a tough time finding this story amidst all the celebratory news reports about professional jerk Osama Bin Laden finally being popped in the head, but it’s a report worth scouring the middle pages of your local newspaper for.  Washington’s governor, Gov. Chris Gregoire, recently vetoed SB 5073.  The bill, which was passed by Washington’s House of Representative last month, would have established a regulatory system for the control, licensing, and taxation of medical marijuana dispensaries and growers.  SB 5073 would have effectively made the sale and distribution of medical marijuana by way of dispensaries legal and was estimated to bring in over $6 million in revenue for the state by 2017.  It would have also served as the perfect and, not to mention, necessary compliment to a Washington law approved by voters in 1998 that made it legal for patients to use cannabis for medicinal purposes.

Why do I categorize SB 5073 as necessary in this case?  Well, because without it how is a patient supposed to be able to buy marijuana legally?  Quite the paradox it would seem to everyone but Gov. Gregoire, who in only a few short moments was able to do away with over 12 years of established Washington policy on the legal status of medical marijuana.

With the bill being vetoed, dispensaries across the state of Washington have once again been flung back onto police radars.  These businesses now exist straddling the line between being a legal and/or illegal operation, and critics acknowledge that they’ll likely become the target of prosecution from both federal and state officials.

The worst part about all of this, however, is that the status of medicinal marijuana’s legality has also been thrown back into flux.  As mentioned earlier, Gov. Gregoire veto effectively creates a paradox for medical marijuana patients who are authorized to use cannabis, but now cannot buy it without risking prosecution against both them and the dispensary that sells it to them.  What’s the point of having a law that lets you do something if at the same time it also strips the means to do it?  That’s like if the government required everyone to have car insurance, but banned insurance from being sold in the state.  Sure, you’d probably still be able to find someone to sell you insurance since everyone needs it, but getting it would be such a hassle that you’d probably want to just opt to bike to work instead.

And that, it would seem, appears to be the point behind much of this oxymoronic law-making.  The Washington government in this case likely just doesn’t want to legalize nor likes the idea of people smoking pot within its borders, medical or otherwise.  It doesn’t matter that the state’s own citizens voted to legalize medical cannabis.  Nope, no one is getting high on Gov. Gregoire’s watch.

However, though the idea of government circumventing the will of the people isn’t necessarily a notion that sits well with me, it’s not what truly bothers me about the whole marijuana debate both in Washington and around the country.  What is most troubling about this situation is its lack of stability and consistency.  Certainly the issue of marijuana is a touchy subject, but what I can’t understand is why can’t these state governments simply decide one way or the other whether to legalize or criminalize the substance?  By constantly flip-flopping back and forth and creating inconsistent legislation, all that is accomplished is confusion.  Dispensaries operation in a constant state of fear that they’ll be shut down and/or jailed and patients are left wondering whether the cannabis they’ve come to rely on will still be available the next time they need a refill.

Rather than persisting to continue this unstable pattern, local legislators should simply end the debate and pick a side.  It’s not that hard, we did it with alcohol and the world didn’t end.  And though I’m aware that progress and changes in public attitude typically don’t come in clear cut endings and beginnings, in the case of medicinal marijuana, this evolutionary model of growth just isn’t working because too many people are being harmed while our leaders are squabbling.

Sometimes the simplest way to resolve a debate is to just pick a side and stop.  This may sound like a pretty radical idea, but in the case of medical marijuana I think it’s a prudent one.

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Are Medical Marijuana Trademarks in the Pipeline?

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In what could have conceivably been an April Fool’s Day joke, the U.S. Patent and Trademark Office (USPTO) created on April 1 of this year a new category (also reported here and here) for trademarks: “processed plant matter for medicinal purposes, namely medical marijuana.”

About 3 months later, the category was removed. However, during that time, the USPTO received around 250 trademark applications for strains of medical marijuana, and related products.

This clearly illustrates that medical marijuana is a booming business, and that those who engage in it are eager to ply their trade through the ordinary legal channels that every other legitimate business takes advantage of, such as federal trademark and patent protection. Given the number of applications that the office received when it created this category, it seems clear that the growers and sellers of medical marijuana are chomping at the bit to operate as legitimate businesses. The USPTO received applications to trademark the names of particular strains, like Acapulco Gold. Some food companies applied for trademarks for soda and candy made with marijuana.

Medical marijuana is already legal, to varying degrees, in about 20 states. And every election cycle, it seems like one or two additional states legalize it. California is even flirting with the idea of fully legalizing (along with regulation and taxation) the possession, cultivation, use, and sale of marijuana for recreational purposes. The issue will be decided by that state’s voters through a ballot initiative this November.

Although marijuana is illegal under federal law, with no exceptions for medical use, the Justice Department, under Attorney General Eric Holder, has indicated that it will not arrest or prosecute people who grow, sell, and use medical marijuana when they are in compliance with the laws of their state. This is a major departure from the policies of the Bush administration, which took a hard line against medical marijuana. Earlier this year, a poll by ABC News indicated that 81% of Americans support the legalization of medical marijuana, and nearly half support legalizing or decriminalizing recreational use.

It seems that the U.S. is slowly but surely adopting a more permissive attitude towards marijuana use. If the U.S. is on the gradual road to legalization of medical marijuana (with full legalization for recreational use likely being farther down the line, if it ever happens), it stands to reason that those who are in the business of selling it should get the same legal rights and protections that every other legitimate business enjoys.

A huge benefit that most businesses in the U.S. take for granted is federal trademark protection. Trademark law is what makes modern branding and marketing possible (or at least what allows it to be worth the time and money involved).

Trademark law allows businesses to prevent others from using their names and logos in association with other products.

Suppose you invented Coca-Cola (congratulations, by the way). You spent many years marketing your new product, and it gradually developed a rock-solid reputation among consumers as a delicious and refreshing beverage. Consumers could immediately recognize your product on store shelves by its name, the distinctive shape of its bottle, and its red and white packaging. Many consumers have developed a brand loyalty to your product, and often add it to their shopping carts without even looking at other alternatives. In short, you’re living the dream.

Now, suppose that another company, seeing your success, wanted to take a shortcut. It began making an inferior soft drink, and started selling it under the name “Coca-Cola,” and sold it in packaging that looks identical to yours. This would hurt your business in a number of ways. In the short run, people who would ordinarily buy your product might buy the competitor’s product by mistake, robbing you of sales. Furthermore, because it is selling an inferior product under the name of your product, your product’s reputation among consumers is going to be hurt. And on a moral level, this company is simply freeloading off of you, riding on your years of hard work to make a quick buck for itself. On top of that, consumers are being misled into buying a product which is inferior to the product they wanted to buy.

Trademark law lets producers stop their competitors from doing this through lawsuits, which provide successful plaintiffs with large monetary rewards, serving as a deterrent. Obviously, any business that values the integrity of its brands should seriously consider getting a registered trademark.

However, this presents a major problem for the producers of medical marijuana, who are struggling to get on equal footing with other businesses: to receive federal trademark protection, the product that the mark will be associated with must be legal to sell under U.S. law. As it stands, federal law clearly prohibits the sale of marijuana. Accordingly, every application for marijuana-related trademarks has been denied, and it’s unlikely that any will be granted in the near future.

It seems clear that if legalization of marijuana is going to proceed, far more needs to be done than simply lifting prohibitions on its sale and use. The ultimate goal of legalizing marijuana (either for medicinal or recreational use) should be to bring it on par with any other legitimate business in terms of legal rights, and public acceptance.

Now, I don’t expect marijuana to be legal under federal law any time soon, which pretty much excludes the producers of marijuana getting federal trademark protection. However, unlike other areas of intellectual property law (patents and copyrights), trademark is not, constitutionally, the exclusive domain of the federal government.

There are many circumstances where state law can and does get involved in trademark disputes. Perhaps states which have legalized medical marijuana, and want to remain on the cutting edge of what may well become a booming industry sooner than we think, should adopt more robust trademark registration systems, allowing for cannabis-related products to receive trademark protection. Obviously, the state could only provide protection within its own borders, but almost all growers and sellers of medical marijuana operate exclusively in their state of residence, so this wouldn’t be a huge problem.

It’s obvious that the federal government won’t legalize medical marijuana any time soon, so states that want to turn it into a legitimate, taxable business, shouldn’t bother waiting around.

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Can legalized Medical Marijuana survive in the Wild Wild West?

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Medicinal Marijuana use is becoming more accepted, but as the field of legitimate medicinal shops expands, so does the shadow of illegal growers and sham prescriptions. Certain counties are even working on adding marijuana workers to local unions. However, even as acceptance grows, so does the backlash, as medical  marijuana clinics are being attacked by people opposed to legalization.

Back in 2009, the Obama administration advised its US attorneys that they should bow to state law when pursuing marijuana cases in states with marijuana laws. If the operations they investigated were following state law, then they should chose not to prosecute. This goes along with a general policy of using federal resources in the most effective and efficient manner.

With that leniency, the legal marijuana business is growing; but as with any new field they still have significant issues. Since marijuana use (even medical marijuana use) is still technically illegal, there is a hodgepodge of overlapping and contradicting Federal, State, county and city laws which make the lucrative business a risky one as well.

One of the biggest obstacles to legal operations is their illegal competitors. Illegal growers don’t have as many costs as legal growers, i.e. the long and costly permit process, and so can undercut the price point of legal growers. They also operate outside regulations so don’t have to worry about proper business practices, while the legal businesses have to, and are having difficulty getting business loans from banks.

There’s also the issue of legal competition. In certain cities, local government has enacted legislation which restricts the number and placement of legitimate medical marijuana shops. In Los Angeles, CA, the city enacted a cap on the number of shops allowed to operate, but failed to enforce it for a number of years.  When they finally sought to enforce it and faced a backlash of complaints from store-owners who felt they were being unfairly attacked.

As the medical marijuana business continues its efforts to legitimize itself, it must also take up the additional burden of product regulation. At this point, product regulation for quality and safety is largely at the whim of the growers and shop operators, which allows some growers to claim their product is of higher quality than it actually is.  Some growers are even endangering the lives of their customers by using toxic pesticides (which the FDA would not allow any legal farmer to use) on their crops.

Whether they are legal or not, across the board marijuana growers also face threats to their own personal safety. Marijuana is a lucrative business, owing largely in part to its status as a quasi-illegal (or actually illegal) substance. This means that dispensaries, sellers, growers are all in increased danger of theft or physical assault to themselves or their employees. In San Francisco, a local seller was attacked and robbed of his product and $1000 when he went to make a delivery.

When it comes to medical marijuana, the whole industry seems to be stuck in the lucrative but dangerous mentality of the “Wild Wild West.” And while certain forces are trying to curb those influences, without a comprehensive federal policy, the rodeo show will just keep on going.

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