Will LA’s Social Equity Retail Licensing Be Stopped?

This Thursday, December 8, 2022, the City of Los Angeles will open Phase 3, Round 2 of storefront retail licensing. The City will only accept applications from verified social equity applicants. It will select winners via a “triple-blind” lottery, awarding up to 100 retail licenses. But a guy in Michigan is trying to prevent the lottery from moving forward on constitutional grounds. Let’s look at what’s going on.

Law360 recently reported on a case filed by a Michigan resident seeking to halt LA’s program. The same plaintiff successfully halted licensing in parts of New York on similar grounds, and has also filed claims in other jurisdictions to varying degrees of success. His claims boil down to one key question: do LA’s social equity violate the Dormant Commerce Clause of the United States Constitution?

Before analyzing LA’s retail licensing program, let’s look at why the Dormant Commerce Clause is important. As we wrote in a recent post:

[I]n general the [Dormant Commerce Clause] prohibits states from enacting laws that place substantial burdens (discriminate) on interstate commerce. This means that when a state enacts a law that regulates interstate economic activity by favoring its own residents, as with Maine’s residency requirement, it must be “narrowly tailored”.

Broadly speaking, this means the state must be able to justifiable the discriminatory law. That’s the rub: Maine’s (and many other states’) requirement that medical marijuana licensees be state residents is clearly discriminatory against non-residents. In this case, Maine did not dispute that the law was not narrowly tailored and as a result the First Circuit found it unconstitutional.

States often try to stack the deck in favor of locals by implementing residency requirements, which we have noted for quite a while violate the Dormant Commerce Clause (see here from all the way back in 2015 and here from more recently). In virtually any other industry, challenging laws like this would have yielded a clear victory. But since cannabis is federally illegal, many folks didn’t raise Dormant Commerce Clause challenges until much more recently. And as mentioned above (in the case of Maine and New York, for example), they are starting to win.

Now turning back to LA’s social equity retail licensing program, LA required social equity applicants to meet the following criteria.

• A qualifying California Cannabis Arrest or Conviction* prior to November 8, 2016; and,
• At least one other eligibility criteria:
  • 10 years of cumulative residency in a Disproportionately Impacted Area, as defined by police reporting districts; or,
  • Low Income in the 2020 or 2021 calendar year.

In other words, to qualify, one must have an arrest in California. The plaintiff here claims he meets all of the above criteria except that he had an out-of-state conviction. So he alleges a Dormant Commerce Clause violation.

The plaintiff’s claims are very interesting from a legal point of view. LA did not adopt a residency requirement. Instead, it just required evidence of an in-state conviction, not an in-state residence.

Technically, nothing would prevent someone who lived in Los Vegas, London, or Beijing from applying so long as they had been convicted in California. So the city has some leeway to argue that there are no Dormant Commerce Clause issues in play. It’s less clear how the case will play out.

Stay tuned to the Canna Law Blog for updates on the Dormant Commerce Clause and cannabis licensing.

The post Will LA’s Social Equity Retail Licensing Be Stopped? appeared first on Harris Bricken Sliwoski LLP.

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Delivery is in the works for New York’s new legal weed stores

New York's first day of recreational sales remains unknown, but the Office of Cannabis Management announced delivery will start while NY waits for physical dispensaries to open.

The post Delivery is in the works for New York’s new legal weed stores appeared first on Leafly.

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New Yorkers may soon be buying weed from union budtenders. Here’s why

New York established the nation’s first cannabis market with labor peace agreements. Here’s how that could affect the entire industry for years to come.

The post New Yorkers may soon be buying weed from union budtenders. Here’s why appeared first on Leafly.

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Ohio Bill Would Allow Record Sealing, Expungement for Paraphernalia Convictions

The Ohio Senate passed Senate Bill 288 on Nov. 30 with a 27-2 vote. The bill’s sponsor, Sen. Nathan Manning, spoke to the Senate about his goals for this 975-page measure. “We have done a lot of work on this bill. And, really, the goal of this—we talk about criminal justice reform, we talk about tough-on-crime, soft-on-crime—really what we want to do is improve our criminal justice system and lower crime in our society and make our society a safer place,” said Manning. “And to do that, we did a lot of work here.”

Manning explained that “a lot of this bill is long-term, making sure that people that have entered our judicial system exit the judicial system as better people, and to lower recidivism rates, to improve their quality of life and to make sure that we have less victims in the future.”

Among many proposed changes, SB-288 would consider possession of cannabis paraphernalia a minor misdemeanor. “Arrest or conviction for a minor misdemeanor violation of this section does not constitute a criminal record and need not be reported by the person so arrested or convicted in response to any inquiries about the person’s criminal record, including any inquiries contained in any application for employment, license, or other right or privilege, or made in connection with the person’s appearance as a witness,” the current bill text states.

Those who receive a cannabis paraphernalia possession conviction would be allowed to seal their record from the public after six months have passed, and records would be eligible to be expunged after three years. The current draft notes that the application fee would cost “not more than $50.”

SB-288 now heads to the House of Representatives for further consideration. The 134th congressional assembly will end on Dec. 21, and if the bill is not passed in the House and then signed by Ohio Gov. Mike DeWine then it will need to be reintroduced in the next legislative session.

Earlier this year in May, Ohio advocates decided to delay a ballot proposal for adult-use cannabis legalization to 2023. At the time, Republican state officials refused to consider the ballot proposal, so the Coalition to Regulate Marijuana Like Alcohol sued them. The organization had already collected 140,000 signatures to qualify the measure for the ballot, but the lawsuit settlement will allow them to keep those signatures going into next year.

“We expect that we’ll be able to do it,” Attorney Tom Haren said about the adult-use cannabis effort. “We’ll have staff get ready. Our intention is to give Ohio voters an opportunity to weigh in if the General Assembly continues to ignore them.”

It’s been two years since Ohio legalized medical cannabis, and as of March 2022 the state has collected $725 million in sales revenue. The state allows resident patients to use medical cannabis as a treatment for 22 conditions, but this number may change if the general assembly passes a current proposal if “the patient’s symptoms may reasonably be expected to be relieved from medical marijuana.”

Recently, Kentucky Gov. Andy Beshear signed an executive order to allow medical cannabis if it has been purchased in a state that has legalized medical cannabis. Although Ohio borders Kentucky, patients would not be legally allowed to buy medical cannabis in Ohio because it only allows residents to purchase cannabis as medicine. Currently, this only leaves Illinois as an option, with Missouri and Virginia to possibly open up later on when their medical cannabis programs take effect.

The post Ohio Bill Would Allow Record Sealing, Expungement for Paraphernalia Convictions appeared first on High Times.

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Don’t Miss! New York Retail Dispensary Guidelines: What Every CAURD Applicant Needs to Know

Register Here

Date: December 7th, 2022

Time: 2 – 3pm EST

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New York recently released its adult-use cannabis retail dispensary guidelines and there is a lot to unpack. We will likely see additional changes to New York’s rules and regulations, but the released guidelines provide a robust initial framework for applicants (past and future) to follow.

Join Harris Bricken’s lead New York cannabis attorneys, Simon Malinowski and Matthew Schwartz as they analyze the recently released regulations.

Simon and Matt will cover operating requirements, employee training, and marketing rules, among many other topics covered in New York’s retail dispensary guidelines.

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Check out some of our past Canna Law Blog posts on New York’s cannabis regulation updates:

1. BREAKING: NY Federal Judge Blocks CAURD Licensing in Five Regions
2. New York’s Cannabis Retail Dispensary Regulations Are Here!
3. New York’s Cannabis Retail Dispensary Regulations, Part 1: Dispensary Operations

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How to safely dry and store psychedelic mushrooms

Do shrooms go bad? How long can you store shrooms? Leafly experts explain the best ways to store magic mushrooms so you're ready for your next trip.

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Minnesota Adds New Qualifying Conditions to Medical Cannabis Program

The Minnesota Department of Health announced on Wednesday that the agency will add irritable bowel syndrome and obsessive-compulsive disorder to the list of qualifying medical conditions for participation in the state’s medical cannabis program. Under state law, the addition of the new qualifying conditions will become effective beginning on August 1, 2023, according to state officials.

“We are adding the new qualifying conditions to allow patients more therapy options for conditions that can be debilitating,” Minnesota Commissioner of Health Jan Malcolm said in a statement from the health department.

Irritable bowel syndrome (IBS) is a disorder characterized by abdominal pain or discomfort, as well as irregular bowel movements that can result in diarrhea, constipation, both diarrhea and constipation, or bloating. Obsessive-compulsive disorder (OCD) is characterized by recurring, intrusive thoughts that often cause significant emotional distress and anxiety in those living with the disorder. This can lead to repetitive actions or other behaviors that those affected by the condition feel compelled to perform to reduce that distress.

“Research has shown that people who suffer from these conditions can see benefits from using medical cannabis to treat their symptoms,” the health department wrote. 

The new qualifying conditions offer a modest expansion to the state’s medical cannabis program, with an estimated 10% of adults having IBS and 1% meeting the diagnostic criteria for OCD, according to media reports. 

Minnesota Patients Support Adding New Conditions

In public comments on the petitions to add IBS and obsessive-compulsive disorder to Minnesota’s medical marijuana program, a man identified by the initials RH described himself as a working professional with a wife and two daughters.

“My daily life consists of constant fear and stress,” said RH, who noted he has OCD. “Practically the only time I am free of the symptoms is when I am sleeping.”

Under state rules, patients certified for the newly approved qualifying medical conditions will become eligible to enroll in the state’s medical cannabis program on July 1, 2023. Patients will be able to receive medical cannabis from either of the state’s two medical cannabis manufacturers beginning on August 1, 2023. Patients who wish to use medical marijuana to treat any of the state’s qualifying conditions need advance certification from a participating Minnesota healthcare provider.

Opioid Use Disorder Not Approved

The health department declined to approve petitions to add opioid use disorder and gastroparesis, a condition that affects the normal spontaneous movement of the stomach muscles, to Minnesota’s list of conditions that qualify a patient to use medical marijuana. The petition not to add gastroparesis was not approved as a qualifying medical condition because research indicates that cannabis can make the condition worse.

Chris Tholkes, director of the Minnesota Department of Health’s Office of Medical Cannabis, said that the decision not to add opioid use disorder was a difficult one, noting that limited access to existing treatment options, such as methadone clinics, in some geographic areas was one factor that supported approval of the petition.

“We did struggle with this one,” Tholkes told the Star Tribune, adding that medical providers were concerned that “introducing another type of drug could lead to relapse. And in the case of opioid use, relapse can be fatal.”

The decision not to approve opioid use disorder comes as Minnesota and the nation remain in the grips of an opioid overdose death epidemic. Many public comments revealed success in substituting marijuana for opioids.

“After having gone (through) nine years of painkiller use under medical prescription for pain, I know that the use of cannabis would help ease the withdrawal side of it,” said a commenter, identified publicly by the initials TB. “I only use cannabis now.”

When Minnesota lawmakers passed legislation creating the state’s medical cannabis program in 2014, the law included nine conditions that qualified a patient to receive medical cannabis. With the new additions, the list of qualifying conditions will be 19. Current qualifying conditions include chronic pain, post-traumatic stress disorder (PTSD), cancer in certain circumstances, glaucoma, and other serious medical conditions.

More than 39,000 Minnesotans are enrolled in the state’s medical marijuana program, up from 29,000 in 2021. Almost all registered participants are qualified because of intractable or chronic pain, and about a third for PTSD. Muscle spasms, cancer, and sleep apnea are also common qualifying conditions.

New Conditions Considered Annually

Each year, the health department conducts a formal petition process to solicit public input on potential qualifying medical conditions and delivery methods, followed by a public comment period and a review panel.

Under state rules, the commissioner of health is required to annually consider new petitions to add qualifying medical conditions and cannabis delivery methods. No petitions for new delivery methods were submitted this year.

The post Minnesota Adds New Qualifying Conditions to Medical Cannabis Program appeared first on High Times.

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