Nearly two dozen attorneys general from across the country wrote a letter to congressional leaders this week, urging them to enact legislation to federally regulate intoxicating hemp products. In the letter, the top law enforcement official from 21 states wrote that the legalization of hemp with the 2018 Farm Bill has resulted in “the proliferation of intoxicating hemp products across the nation and challenges to the ability for states and localities to respond to the resulting health and safety crisis.”

The letter, dated March 20, was addressed to the committee chair and ranking minority members of the Senate Committee on Agriculture, Nutrition, & Forestry and the House Committee on Agriculture. The correspondence was led by Indiana Attorney General Todd Rokita and Arkansas Attorney General Tim Griffin, both Republicans, and co-signed by the attorneys general of 19 additional states, including Democrats and Republicans.

In their letter, the state officials call on the leaders in Congress “to address the glaring vagueness created in the 2018 Farm Bill.” The legislation has led to the proliferation of products containing psychoactive novel and minor cannabinoids that can be derived from hemp, including delta 8 THC, THCA, HHC and others.

“The reality is that this law has unleashed on our states a flood of products that are nothing less than a more potent form of cannabis, often in candy form that is made attractive to youth and children — with staggering levels of potency, no regulation, no oversight, and a limited capability for our offices to rein them in,” reads the letter.

To address the issue, regulators and lawmakers in many states across the country are seeking ways to stem the tide of unregulated intoxicating hemp products, arguing that they pose a health risk, particularly to young people. Advocates for tighter controls on intoxicating hemp products in states with legal weed note they pose a competitive threat to licensed marijuana businesses, which face the high costs and taxes often associated with the regulated pot industry.

Regulating intoxicating hemp products has been resisted by some businesses and industry advocates. Some companies marketing intoxicating hemp products have filed lawsuits to block new regulations, arguing that the 2018 Farm Bill specifically legalizes hemp-derived cannabinoids other than delta-9 THC.

These legal actions have produced mixed results. In Arkansas, a federal judge issued a preliminary injunction in September that bars the implementation of a law to ban intoxicating hemp products. 

“These inconsistent court rulings are part of the reason I have urged Congress to step in and create consistency across the nation to protect our children from these dangerous drugs,” Griffin said in an email to Politico.

California Attorney General Bonta, one of the attorneys general who signed the letter to congressional leaders, said that intoxicating hemp products constitute a health risk for young people.

“Our children deserve better,” Bonta said in a statement. “The 2018 Farm Bill, however well-intentioned, created a loophole that has led to the proliferation of products, often containing synthesized cannabinoids, that are more intoxicating than legal and regulated cannabis products. These products often take the form of candy and are designed to appeal to young people and children. California prohibits intoxicating cannabinoids in hemp products, whether naturally derived or synthetic. The California Department of Justice will continue to protect the legitimate businesses who are operating responsibly in this space.”

The letter calls on the leaders of the congressional agricultural committees to take action to regulate intoxicating hemp products by redefining hemp in the next farm bill, which is currently being debated in Congress. The legislation, which guides policy on a wide range of issues related to agriculture, is updated every five years, although progress on last year’s anticipated renewal of the legislation was delayed to this year.

“The reason Congress needs to act is that its definition of industrial hemp is the original source of the problem and the confusion that has sprung up around what is allowed and what’s not allowed under state and federal law,” Indiana Solicitor General James Barta said in an interview with Politico.

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Arkansas Attorney General Tim Griffin recently rejected a medical cannabis ballot measure because of its title.

The Arkansas Medical Cannabis Amendment of 2024 was submitted on Jan. 12 by Stephen Lancaster of the law firm Wright Lindsey & Jennings LLP. Griffin responded to the submission, although the opinion was initially prepared by Assistant Attorney General William R. Olson on Jan. 29, explaining the reasoning behind his decision to reject the measure in its current form.

He clearly states in the beginning of this letter that his decision is not a reflection of his support or opposition to this ballot measure, or any others. “My decision to certify or reject a popular name and ballot title is unrelated to my view of the proposed measure’s merits,” Griffin began. “I am not authorized to consider the measure’s merits when considering certification.”

However, ballot titles are required to be written in a very specific way. Those who write the measures must ensure that the titles contain all of the essential facts “which would give the voter serious ground for reflection,” but also attempt to keep it brief. “The ballot title is not required to be perfect, nor is it reasonable to expect the title to address every possible legal argument the proposed measure might evoke,” Griffin explained. “The title, however, must be free from any misleading tendency—whether by amplification, omission, or fallacy—and it must not be tinged with partisan coloring. The ballot title must be honest and impartial, and it must convey an intelligible idea of the scope and significance of a proposed change in the law.”

Griffin continued to share the core reason behind the rejection, explaining that the title was not formatted properly and contained ambiguous statements. “Where the effects of a proposed measure on current law are unclear or ambiguous, I am unable to ensure the popular name and ballot title accurately reflect the proposal’s contents until the sponsor clarifies or removes the ambiguities in the proposal itself.”

Griffin is sending the ballot measure authors back to the drawing board to fix the wording. The header, for instance, currently reads “Be it Enacted by the People of the State of Arkansas,” but wording including “enacting clauses” is only required for bills, not constitutional amendments, which may cause voters to be unsure if this is a bill or a constitutional amendment. He also suggested new text to a section that discusses advertising, and ambiguous wording for “rules shall also require child-proof packaging,” addresses that “medical cannabis” as a phrase is not defined anywhere, noting that the interchangeable use of “marijuana plants” and “cannabis plants” be just “cannabis plants” to avoid confusion, and more.

If the Arkansas Medical Cannabis Amendment of 2024 is passed, it would amend the constitution to allow patients and caregivers to cultivate up to seven mature cannabis plants, as well as seven younger plants, expand the qualifying conditions of medical cannabis to include more than the current 18 conditions, allow out-of-state patients holding medical cannabis cards to purchase cannabis in Arkansas, remove fees for cannabis card applications, and allow those cards to last for three years instead of one.

It also includes a section entitled “Effect of future federal classification of marijuana” which would permit possession of up to one ounce of cannabis if the federal government decides to remove cannabis from the list of controlled substances.

The Arkansas Advocate published an article on this topic and noted that the advocate group can only begin collecting signatures once Griffin has signed off on a ballot measure. After that, they have until July 5 to submit 90,704 signatures in order to qualify for the ballot in November.

Erika Gee, an attorney representing Arkansans for Patient Access, shared a statement with the news outlet regarding what’s next. “Arkansans for Patient Access is reviewing Attorney General Tim Griffin’s ballot proposal opinion. We intend to address the issues raised and resubmit,” Gee said. “We are confident ballot language will be presented that ultimately gains approval.”

Arkansas voters legalized medical cannabis in November 2016 through Amendment 98, and sales began in May 2019. In August 2022, a recreational cannabis ballot initiative from Responsible Growth Arkansas was rejected because of its name and title. The group quickly filed a lawsuit  “to challenge the State Board of Election Commissioners’ thwarting of the will of the people and their right to adopt laws by initiative.” The Arkansas Supreme Court said that the measure would still appear on the ballot, as Arkansa Issue 4. However, in November 2022, 56.25% of voters voted no, while only 43.75% voted yes.

Late last year, the Arkansas Medical Marijuana Commission announced that medical cannabis taxes were helping to fund kids’ school lunches in the state. The commission stated that while the state collected $115 million from cannabis taxes, an estimated $87 million was granted for food insecurity.

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Hawaii Attorney General Anne Lopez last week released a new plan to legalize adult-use cannabis that one lawmaker characterized as the state’s best effort so far. Under the plan, the state would allow for the production and sale of recreational cannabis while protecting the state’s existing industry for medical marijuana. 

Hawaii legalized medical marijuana in 2000, although the state did not license medicinal cannabis dispensaries until 2018. Earlier this year, the Hawaii Senate passed a bill to legalize recreational cannabis, but the bill failed to gain the support of the state House of Representatives.

State lawmakers who have seen the attorney general’s new proposal for adult-use cannabis legalization say that she has produced a comprehensive plan that addresses the shortcomings of previous efforts at marijuana policy reform.

“The attorney general has done a really good job pulling together all of the different input and providing a comprehensive bill,” said David Tarnas, the chair of the House Judiciary Committee, according to a report from Hawaii News Now.

The attorney general’s 294-page cannabis legalization proposal establishes a 4.25% excise tax on adult-use marijuana plus a 10% tax surcharge. Tax revenues would be directed to enhancing law enforcement resources and education programs to protect young people.

State Senator Jarrett Keohokalole, the chair of the Consumer Protection Committee, said that the plan is “the best version to date. And part of it is the efforts to try and address a lot of the issues that came up along the way.”

Proposal Modeled After Massachusetts’ Legalization Plan

Lopez’s plan is similar to Massachusetts’ marijuana legalization model and includes a social equity program to address the harms caused by years of cannabis prohibition. The social equity program, which includes grants and support programs for illegal growers to help them adapt to the regulated industry, is designed to help the current illicit industry have a chance to participate in the legal market. 

“The most important thing we can do is we can bring the people who have been growing and selling marijuana illegally into the legal market,” Lopez said.

The cannabis legalization plan establishes a 14-member law enforcement unit to help ensure compliance with the state’s cannabis legalization laws.

“It’s going to be a concerted investigative process to ensure that the law is followed,” Lopez said.

Under Lopez’s plan, the cannabis industry would be regulated by the Hawaii Cannabis Authority. The new agency would be tasked with enforcing regulations, establishing a lab testing program to ensure the safety of cannabis products and implementing social equity and health education programs.

To support medical cannabis patients and the existing medical marijuana industry, the 10% cannabis tax surcharge will not apply to medical marijuana purchases. Retail sales of adult-use cannabis will likely begin at medical dispensaries because they have already completed the state’s licensing process.

“They’re already standing up, they’re already growing, they are already prepared to go to market,” said Lopez. 

Under Lopez’s plan, retail sales of adult-use cannabis would begin 18 months after the proposal becomes law. Lawmakers said the delay is reasonable and necessary to effectively implement the program. Keaohokalole said that he hopes the plan can be introduced and approved during the upcoming legislative session, which begins in January. Tarnas, however, said he was not sure that timeline would be feasible because the legislature will be busy with issues related to responding to this year’s wildfires on Maui and state budget negotiations.

Hawaii lawmakers attempted to legalize adult-use cannabis earlier this year with a bill that was approved by the state Senate in March. Had it passed, Senate Bill 669 would have legalized marijuana for adults 21 and established a regulated market for licensed sales of adult-use cannabis. The state House of Representatives, however, declined to approve the legislation.

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Florida Attorney General Ashley Moody on Monday filed a challenge to a proposed ballot measure to legalize recreational marijuana with the state Supreme Court, arguing that the initiative should not appear before voters in next year’s general election. If successful, the proposed amendment initiative from the group Smart & Safe Florida would legalize cannabis for all adults aged 21 and up. 

In a legal opinion filed with the Florida Supreme Court on Monday, Moody, a Republican who has been the state’s attorney general since 2019, argued that the proposed marijuana legalization ballot measure is misleading to voters. In the brief, she notes that according to the ballot summary, the proposed initiative would permit “adults 21 years or older to possess, purchase, or use marijuana products and marijuana accessories” for non-medical consumption.

“That is incorrect and misleading,” because marijuana remains illegal under federal law, she wrote in the state’s brief. “In previously approving similarly worded ballot summaries, the court erred.”

“[M]arijuana is independently prohibited by federal law,” the brief notes, as cited by the Orlando Sentinel. “Indeed, every individual who possesses marijuana under the scheme provided by the proposed amendment would become a federal criminal.”

The ballot summary notes that the initiative does not change federal law, but that language is “inadequate to resolve the confusion,” Moody wrote in the brief.

To qualify for the ballot, the proposal must first be approved by the Supreme Court and receive nearly 900,000 verified signatures from registered voters. If the initiative survives the challenge by Moody, it must receive at least 60% of the vote in the 2024 general election to become law.

Medical Marijuana Legalized In 2016

In 2016, the Florida Supreme Court approved a medical marijuana legalization ballot measure that went on to garner 71% of the vote at the polls in that year’s election. But in her legal brief, Moody wrote that “voters need clear guidance before being asked to lift state-law penalties for the possession of a substance that would subject users to devastating criminal liability under federal law. And the rampant misinformation in the press and being peddled by the sponsor of this initiative about its effects makes clarity all the more pivotal.”

In a 5-2 decision in 2021, the Florida Supreme Court rejected a proposed recreational marijuana initiative that was challenged by Moody. The same year, the court also rejected a second adult-use cannabis ballot proposal in a separate decision.

Campaign Responds To Challenge

After Moody filed the brief challenging the proposal, Smart & Safe Florida spokesman Steve Vancore said the campaign does not agree with Moody’s assessment of the ballot measure.

“We believe the language as written clearly complies with the requirements of the Constitution. We look forward to bringing this matter to the Florida Supreme Court and are confident that the court will conclude that there is no lawful basis to set aside the ballot initiative,” Vancore said in a public statement. “This important issue should be entrusted to the citizens of Florida — over a million of whom have already signed the Smart & Safe Florida petition saying they support it — to decide for themselves through democratic choice.”

Daniel Russell, an attorney specializing in cannabis law, accused Moody of politicizing the issue.

“This document is more Fox News fear-mongering intended to produce goodwill from ‘the base’ than a legal document filed by Florida’s chief legal officer on behalf of the state’s 22 million residents,” Russell told The News Service of Florida in an email. “It reeks of conservative nonsense and Nixonian views on a substance that is legalized for recreational use in 23 states, three U.S. territories, and the District of Columbia. I believe that the Supreme Court of Florida will see this for what it is and allow voters to decide the next steps for Florida’s future.”

Proposal Would Legalize Weed For Adults in Florida

The proposal from Smart & Safe Florida would allow the state’s current providers of medical marijuana to begin selling cannabis to all adults aged 21 and up. Consumers would be permitted to purchase up to three ounces of marijuana at a time, including no more than five grams of cannabis concentrates. The proposed constitutional amendment ballot measure allows state lawmakers to authorize additional adult-use cannabis business licenses, although there is no requirement for the legislature to do so. The initiative also retains Florida’s current vertically integrated business structure, which requires operators to control the production and marketing of marijuana from seed to sale.

The Smart & Safe Florida campaign is sponsored by Trulieve, the state’s largest medical marijuana provider, to the tune of contributions totaling more than $38 million, according to data from the state Division of Elections. Earlier this month, Trulieve announced that the proposal had received enough signatures from Florida voters to qualify for the 2024 general election ballot.

“Our investment demonstrates our firm belief that Floridians are ready to experience the freedom to use cannabis for personal consumption; a freedom which is currently enjoyed by more than half of America’s adults,” Trulieve CEO Kim Rivers said in a statement from the company on June 1. “With over 965,000 validated signatures from nearly every part of our state, it is clear these voters share that belief. We are thrilled the campaign has made this milestone and look forward to seeing this initiative on the ballot next November.”

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It’s been nearly a year since New Jersey’s adult-use cannabis program went live in April 2022. Attorney General Matthew J. Platkin revised his Law Enforcement Drug Testing Policy document to reflect this change for officers across the state. “Due to the complex nature of the law, and in order to provide uniformity in State employee drug testing as it pertains to the use of cannabis, it is necessary to revise this policy,” the document states in its introduction.

The revision also includes a section explaining the differences between drug testing for reasonable suspicion and probable cause. “Agencies must undertake drug testing when there is reasonable suspicion to believe a law enforcement officer is engaged in the illegal use of a controlled dangerous substance, or is under the influence of a controlled dangerous substance, including unregulated marijuana, or cannabis during work hours,” the policy states. It adds that this requires objective facts to lead a person to conclude that drug-related activity has taken place.

The policy for reasonable cause is described as “less demanding” than establishing probable cause because 1) more is required to satisfy the probable cause standard and 2) the “type of information” for reasonable suspicion is “less reliable than that required to show [probable] cause.”

Being found under the influence of cannabis or consuming cannabis “at work or during work hours” is prohibited. Reasonable suspicion in testing officers for cannabis use will be required if there is reasonable suspicion of the individual’s use of cannabis during work, or “observable signs of intoxication.”

Platkin initially released a memo one day after legal sales began in April 2022, stating that police can use cannabis while off duty. At the time, some senators penned a letter to Platkin with concerns about how it “fails to mention that marijuana users are federally prohibited from purchasing or possessing firearms, an omission that may put officers unknowingly at risk of criminal prosecution.”

In October 2022, just after Platkin was sworn in as attorney general, he issued a directive that required law enforcement agencies to conduct two random drug tests for “at least 10 percent of the total number of sworn officers within the agency, and every officer must have an equal chance of selection during each test.”

Within the first 10 weeks of sales following the launch of adult-use cannabis in April 2022, New Jersey collected nearly $80 million in sales. “The market is improving. It is performing as we expect with the current number of dispensaries, the spread of locations, and the high prices,” said New Jersey Regulatory Commission Executive Director Jeff Brown. “As more cannabis businesses come online, consumers won’t have to travel as far to make purchases, and prices will fall with increased competition. The market will do even better.”

More recently, sales reached more than $100 million. “New Jersey is only seeing the beginning of what is possible for cannabis,” said Brown last month in January. “We have now awarded 36 annual licenses for recreational cannabis businesses to New Jersey entrepreneurs, including 15 for dispensaries. Those businesses alone will be a significant growth of the market. With more locations and greater competition, we expect the customer base to grow and prices to come down.” New Jersey’s cannabis industry continues to thrive, attracting big celebrities such as Raekwon and Ice-T to open a dispensary in the state.

Next up, the New Jersey Cannabis Regulatory Commission is establishing a plan to permit public cannabis lounges. According to the Philadelphia Inquirer, the agency released draft rules at the end of January, which would allow cannabis dispensaries to have indoor or outdoor spaces for legal consumption.

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Pardoning 6,000 prisoners is a win. We’ll take it. But that “review” of marijuana’s Schedule I status could end in disaster.

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Michigan Attorney General Dana Nessel argued in a legal brief filed on Monday that workers who are fired for using cannabis off the job should be eligible for state unemployment benefits. The brief was filed with the Michigan Unemployment Insurance Appeals Commission, which is deciding the cases of three employees who were fired for testing positive for cannabis metabolites in drug screenings.

In the brief, Nessel wrote the commission’s decisions in the cases are of “statewide importance,” and that the issue “tests the State’s statutory commitments to worker protections and personal freedom.”

“The commission’s ruling on this issue will directly impact many law-abiding Michigan workers who may be terminated for the use of marijuana,” she said.

In two of the cases, an administrative law judge determined that the terminated employees were eligible for unemployment benefits under state law because marijuana is legal under the Michigan Regulation and Taxation of Marijuana Act (MRTMA), the cannabis legalization initiative passed by voters in 2018. In the third case, the judge ruled that a positive test for marijuana metabolites disqualified the worker for unemployment benefits.

Michigan Attorney General: Private Cannabis Use Not Misconduct

Nessel’s brief argues that employees fired for marijuana use that does not impact job performance are not disqualified from receiving unemployment benefits under the “misconduct’ or “illegal drugs” provisions of Michigan employment law. In the case of an HVAC worker who was fired after a minor collision in a company vehicle, the brief holds that the employee’s private use of marijuana did not constitute “misconduct connected with the individual’s work.”

“Of course, an employee discharged for knowingly using an intoxicating substance at work could be disqualified for benefits, whether the substance was a legal one like alcohol or marijuana, or an illegal one,” the attorney general’s office wrote in the brief. “But employers cannot use a code of acceptable conduct to avoid paying unemployment benefits to workers who, on their own time, engage in legal behavior the employer simply does not like.”

Nessel also argued that positive tests for marijuana use are not “drug tests” under Michigan law, which defines a drug test as a test to detect the “illegal use of a controlled substance.” The brief states that because marijuana is not an illegal drug, positive test results for marijuana are not legally drug tests and therefore not grounds for disqualification from benefits.

Additionally, while marijuana is still legal under the federal Controlled Substances Act, the brief notes that marijuana metabolites are not included in the legislation’s list of banned substances. The opinion is consistent with the administrative law judge’s ruling in one case, which found that while “the THC metabolite may be indicative of some exposure to marijuana in the past, it is not a controlled substance.”

Nessel noted that a ruling by the commission in favor of the employees would be in line with voters’ intentions as expressed through cannabis legalization.

“For too long, marijuana had been widely perceived by policymakers as a corrupter of the social fabric—a theory riddled with racial stereotypes and resulting in severe over-incarceration, among other things,” the attorney general wrote in the brief. “To close the chapter on this sordid history, the people broadly expressed their intent ‘to prevent arrest and penalty for personal possession and cultivation of marihuana’ with the adoption of the” MRTMA.

Nessel went on to write that the legalization bill protects workers’ right to legally consume cannabis.

“The people spoke loud and clear when they voted in 2018 to legalize marijuana once and for all,” Nessel said. “Nobody over 21 can be penalized or denied any right or privilege solely for legally using marijuana, and employers cannot control their employees’ private lives by calling the legal use of marijuana outside of work hours ‘misconduct’.”

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