Sign up to receive updates about events and research from DEPC.
The Good, the Bad, and the Ugly: Why IRC § 280E Is Not the Industry Killer It Is Portrayed to Be
Patrick Cleary, Michael E. Moritz College of Law
The Good, the Bad, and the Ugly: Why IRC § 280E Is Not the Industry Killer It Is Portrayed to Be
Taxes implicate nearly every area of business. The recent marijuana boom has thrust one tax code provision into the spotlight. IRC § 280E prohibits tax deductions and credits for expenses paid or incurred in the trafficking of Schedule I or II controlled substances. This increases tax liability for marijuana businesses who commonly refer to the provision as an “industry killer.” This paper intentionally goes against the grain to show how IRC § 280E is not the “industry killer” it is portrayed to be and explores ways in which slow growth may be marijuana’s best path forward. The argument in favor of IRC § 280E is made by explaining the provisions’ development and legal framework before applying it to the marijuana industry. Next, IRC § 280E must be contextualized within the marijuana industry’s rapid growth and the 2017 Tax Cuts and Jobs Act. Lastly, the Oregon example is used to exemplify how IRC § 280E is helping the industry by providing a check on cash flow and preventing prices from being driven down further through saturation.
Cannabidiol (CBD) in the Therapeutics Industry
Sara Goots Blair, Michael E. Moritz College of Law
Use of Cannabidiol (CBD) in the therapeutics industry has become increasingly popular in the last few years. CBD rode into public consciousness on the coattails of three booming consumer trends: the herbal supplement industry, the anxiety economy, and the growing legitimate cannabis industry. However, many uncertainties remain about the legality, safety, and quality of CBD. The passage of the 2018 Farm Bill legalized hemp production throughout the US, thereby removing hemp-derived CBD from Center for Disease Control and Prevention (CDC)-regulation. However, the U.S. Food and Drug Administration (FDA) still stakes a claim on regulating dietary supplements and food additives containing CBD. The sudden legality of CBD, coupled with uncertainty as to its safety, quality, and effectiveness, means it is imperative for states to support research and impose sufficient regulatory oversight over CBD-infused products.
Land of the Free, Home of the (Disgruntled) Brave: The Case for Allowing Veterans Access to Medical Marijuana
David Haba, Michael E. Moritz College of Law
Approximately 30 percent of post-9/11 veterans have been diagnosed with Post-traumatic Stress Disorder (PTSD). Over half of U.S. veterans struggle with chronic pain, and approximately 22 veterans commit suicide every day in America. For veterans currently seeking medical treatment through Veteran Affairs (VA), 50 percent of PTSD patients cannot tolerate or do not adequately respond to existing treatments of opioids, anti-anxiety, and anti-depressant medications. While an overwhelming majority of veterans, about 83%, support the use medical marijuana, they remain unable to obtain their preferred course of treatment (or financial assistance for it) through the VA because the federal government prohibits VA health care providers from recommending MMJ.
This paper argues that veterans, especially those with PTSD, should be able to obtain a recommendation, and financial assistance, for medical marijuana from the VA. This is especially true in states with legal medical marijuana programs. Veterans have recently been calling on lawmakers to help them in their time of need as they battle hosts of ailments such as PTSD, chronic pain, and opioid addiction. The government's current policy, which has allowed thirty-three states to enact legal medical marijuana programs, yet does not allow veterans to obtain a MMJ recommendation from the VA, nor obtain financial assistance for this medication, is unacceptable. This paper calls on researchers to continue to enhance our understanding of MMJ's effects on PTSD, and for lawmakers to step up and do the right thing — to give the veterans the medicinal treatment that they want, need, and deserve for laying it all out on the line for our freedoms.
Tribal Cannabis: Balancing Tribal Sovereignty and Cooperative Enforcement
Patricia Danielle Cortez, Michael E. Moritz College of Law
The cannabis industry remains a difficult space to navigate for Native Americans both because of the continued federal ban on cannabis and the extra layer of laws and regulations on tribal land, as well as the potential for continued stigma arising from their involvement in an industry that was until recently considered illegal at all levels of government. Because of the complex jurisdictional circumstances which arise within tribal land, tribes are left with pioneering strategies on implementing a successful cannabis business alone – whether that be growing, wholesaling, selling on tribal land, or all three. At the same time, Native American tribes have many competitive advantages – they have water rights and access to power, they own land, and they have a historical and cultural tie to cannabis and natural healing. This article discusses several short term and long term steps that Native American tribes should undertake once a state in which a tribe is located legalizes medical marijuana in order to ready themselves to take advantage of an economic opportunity in the form of a cannabis industry should it arise including gaining community support and amending tribal codes, establishing a compact and setting up protections from outside investors, and seek long term legislative fixes such as opt-out provisions in the CSA.
Race Based Statutes at Play with Cannabis: Cultivating a Process for Weeding Out the Competition
Tyrus D. Hudson, Michael E. Moritz College of Law
The ongoing battle between federal and state cannabis laws have created a perplexing realm of ambiguity for legislatures tasked with establishing drug policy. In the midst of this intricate conflict lies another issue that is wreaking havoc throughout the legalized cannabis marketplace. With federal and state governments failing to administer concrete guidance by virtue of lacking to establish policies which govern concurrently and in a harmonious manner, laws have been enforced on both the federal and state levels, that are negatively impacting various minority groups and their potential to capitalize on the multibillion-dollar cannabis industry. This article will examine the arguments for, and against, current and proposed legislation that impacts licensure for minority groups trying to enter the legalized cannabis marketplace. Particularly, this article will address the primary obstacles that most negatively affect minorities and the specific role that each barrier has played in preventing minority entrepreneurs from becoming business owners and seizing the opportunity to cash in on this new lucratively flourishing agricultural business that is taking the nation by storm. While not much research has been conducted on the topic of minority business owners obtaining licenses to operate in the legalized cannabis market, the primary goal of this article is to stimulate dialogue and encourage further research into the impact that legalizing cannabis is having on minority business owners trying to establish themselves as legitimate participants in this up-and-coming industry.
Social Equity Assessment Tool for Cannabis Industry
Starting in 1996 with the state of California legalizing the use of medical cannabis, the wave of cannabis legalization has continued at a rapid pace. But with the growth comes increased acknowledgment that the benefits and financial profits of the legal cannabis industry are not flowing to the communities that have been disproportionately harmed by past drug policies as enacted during the War on Drugs. The industry and government officials are increasingly facing calls to create social equity programs to address the past harms. But while the number of these programs is growing, very little has been written about what makes a given program effective. This report aims to fill this gap by introducing the Social Equity Assessment Tool, which localities can use not only to assess the effectiveness of their existing efforts but also to design a better functioning program for the future. The Social Equity Assessment Tool is a formula that accounts for ten components that are critical for successful social equity programs. The ten components are grouped into two categories – Accessibility (Eligibility, Application Process, Expungements, Preferential Licenses and Shareholder/Ownership Requirements) and Environment (Educational Services, Incubator Program, Zoning Regulations and License Caps, Government Responsiveness and Community Reinvestment). Accessibility encompasses components that affect the ease with which applicants can learn about and access a given program. Environment, on the other hand, encompasses factors that form a support structure for SEP applicants and their communities.
The State of Marijuana in The Buckeye State and Fiscal Policy Considerations of Legalized Recreational Marijuana
In 1975, Ohio’s 63rd Governor James A. Rhodes joined the growing trend of marijuana decriminalization by signing a bill passed by the legislature that supported amending the Ohio Revised Code to remove criminal penalties for use of marijuana. This was the first big change to marijuana laws in Ohio. Despite Ohio being one of the most conservative states in the country at the time, Rhodes brought Ohio to become the 6th state to relax punishments on marijuana use.
Since that time, a lot has changed regarding the status of cannabis in the Buckeye State. This paper will first describe the past legal framework for marijuana along with current developments and proposed changes in the future, including a citizen’s ballot initiative that will appear on the November 2019 ballot that could potentially make sweeping changes to Ohio’s Constitution and marijuana law in Ohio. This is then followed by an analysis of the potential benefits that recreational marijuana could have in respect to key fiscal budgetary issues facing the state of Ohio.
An Argument Against Regulating Cannabis Like Alcohol
Jonathan R. Elsner
As cannabis prohibition comes to an end in the United States, federal and state governments must decide how to regulate its cultivation, distribution, and sales. One option, supported by some alcohol wholesalers and distributors, is a regulatory system based on that of the alcohol industry, whereby the government mandates a distribution system consisting of three mutually exclusive tiers: manufacturers, distributors, and retailers. This paper argues against creating a regulatory framework for the nascent adult-use cannabis industry modeled after the government-mandated, three-tier distribution system established for alcohol post-Prohibition as it inherently stifles innovation and quality. Essentially, the three-tier distribution system creates an unnatural layer of government-mandated middlemen, distributors and wholesalers, who perpetuate market inefficiencies that benefit them and large corporations to the detriment of consumers and small-to-medium-sized businesses. The beer industry, now dominated by two breweries offering largely undifferentiated products, provides a cautionary tale regarding the effects of the three-tier distribution system to those developing the regulatory structure for the adult-use cannabis industry.
Marijuana in the Workplace: Distinguishing Between On-Duty and Off-Duty Consumption
Tyler G. Aust, Michael E. Moritz College of Law
The proliferation of legal marijuana foretells an uncertain future for businesses that implement zero-tolerance drug policies. In states where recreational marijuana is legal, businesses still have the power to enforce drug policies through employment contracts. That changed in Maine, where state law prohibits employers from making adverse employment decisions based solely on an employee’s off-duty use of marijuana. As legalization efforts sweep across the Midwest, it is unclear whether other states will follow Maine’s model. Some businesses have already relaxed pre employment marijuana testing amid labor shortages. To prepare for the future, employers should revise their drug policies to distinguish between on-duty and off-duty marijuana consumption and allow employees to use marijuana outside of the workplace.
Intellectual Property Survey: Cannabis Plant Types, Methods of Extraction, IP Protection, and One Patent That Could Ruin It All
Amanda Maxfield, Michael E. Moritz College of Law
Intellectual property is one of a company’s most valuable assets, at times deserving rigorous time and effort for proper protection. Companies rely on patent, trade secret, trademark and copyright laws to protect their intellectual property. For most businesses, this process is routine and a standard part of their ordinary course of business. Cannabis companies, unfortunately, have many obstacles to overcome to use some of these same protections, as cannabis is considered federally illegal, yet legalized in many states to varying degrees. Cannabis companies must, therefore, be innovative and nuanced in their strategies for protecting their proprietary business information such as patentable subject matter through the use of patents and trade secrets. The method of intellectual property protection is driven by the subject matter. Cannabis growers target specific plant types based on cannabidiol (“CBD”) and delta-9-tetrohydrocannabinol (“THC”) ratios and desired characteristics using specific method of extraction, all of which are patentable if legal elements are met. Unfortunately, while the cannabis industry is an emerging market with plenty of growth ahead of it, an ongoing Colorado court case involving liquids containing cannabinoids that could result in major negative ramifications for all involved in the cannabis industry.
Marijuana Banking in New York and Around the US: "Swim at Your Own Risk"
Jordan Hoffman, Michael E. Moritz College of Law
Today, banking in any way relating to marijuana is a violation of federal law. Conflicting laws and guidance from the federal and state governments threatens the welfare and success of a billion-dollar industry. Analyzing the current marijuana banking laws, regulations, and practices in New York and around the US provides a glimpse into an industry suffocating from public pressures and overpowering economic tides. To protect and uphold the integrity of our government and the agencies it deems controlling, the federal government must reform marijuana banking.
The Canna(business) of Higher Education
Shelby Slavin, MPA, MSL, 2019
While the idea of legalizing cannabis for adult use is gaining on acceptance among the public, the past and current policies on both, the state and federal level, have resulted in dearth of research on the efficacy of cannabis for therapeutic purposes as well as possible societal and health consequences of recreational use. Institutes of higher education are best positioned to not only reform research on the substance, but to train a generation of cultivators, distributors, and healthcare professionals, and while doing so address some of the historical harms perpetrated by the policies of the War on Drugs. Students are seeking out ways to capitalize on a growing market and remedying past discrimination should be a top priority. This paper first provides an overview of cannabis legalization as it stands today, the political efforts that got it here, and those that will move it forward. It then discusses institutes of higher education and the efforts to bring cannabis into the classroom. Lastly, this paper argues that Historically Black Colleges and Universities can provide education, training, and a foot in the door for Black individuals who have suffered harsher criminal penalties in the name of the war on crime