Big Acid

The following video is relevant to people who advocate for psychedelic legalization.

Cannabis lawyer Hilary Bricken posits that (a) state-level regulatory factors have given rise to “Big Marijuana,” the for-profit industry that requires deep capitalization and therefore monopoly (functional or actual) and (b) the prohibitionist movement (which is not dead, just dormant waiting for the opportunity to reassert the control they traditionally exercised over the federal drug control agencies) has made “Big Marijuana” the centerpiece of their current position. (To their credit, the prohibitionists have evolved with the current national mood to a position more reasoned and sophisticated than “Just Say No.”)

I have always assumed that the supply side of a legal market for psychedelics will not be dominated by for-product interests.

Am I wrong? Are there self-limiting factors inherent to psychedelics that will necessarily avoid what Bricken posits, the type of commercialization required by a heavily-regulated supply side to keep consumption steady (if not increasing) in order to be make a profit?

If not, what happens if the supply of psychedelics in a legal market is subject to over-restrictive regulations, limiting the supply only to corporate interests that can obtain financing?  (I ask thinking especially of botanicals if over-harvesting in the natural environment requires cultivation in artificial conditions and thus high-tech expenses.) Will these corporate interests require promotion of psychedelics as part of a hip lifestyle in order to promote consumption? Will use in a legal market increase to the extent that people will simply need higher, deeper, farther experiences, thus shaping a different kind of industry? If yes, what, if any, are the public health consequences?

The only model I can see is one that, presumably through tax incentives, facilitates development of small, not-for profit membership organizations that have both (a) the ability to monitor use by individual members and (b) the ability either (1) to cultivate/manufacture their own ‘products’ [I use that term deliberately] or (2) the ability to purchase collectively from professional cultivators/manufactures, whether (i) domestic or (ii) foreign exporters.

Psychedelic prohibition as restraint-of-trade: results from a limited trial of psilocybin for treatment-resistant depression

The Imperial College of London just announced that a small safety trial of twelve patients with moderate to severe treatment-resistant depression shows that psilocybin can be administered safely and can relieve symptoms of depression for up to five months.

The article states that 350 million people around the world (that’s all?) suffer from depression. Other than safety the purpose of the study was to make an initial determination as to whether psilocybin could be an effective treatment for depression.

It has always seemed to me that if news spreads that psychedelics can be useful in treating depression and/or anxiety there will be heavy pressure on the floodgates considering the high number (so it seems to me) of people who experience those conditions. Perhaps the 350 million number is limited to people who are “clinically” depressed, as opposed to people who have depressive or anxious tendencies. Still 350 million people is a respectable consumer pool.

Preliminary findings that psychedelics, including but not limited to psilocybin, can affect those conditions positively highlight what I, as a commercial litigator, have always believed is the essence of psychedelic prohibition (including cannabis): psychedelic prohibition is a form of market-protection for businesses whose pharmacotherapy products simply suppress symptoms as opposed to facilitating changes in cognitive perspectives. In other words, psychedelic prohibition just prohibits competition in the market of treatments for “psychiatric disorders,” a restraint-of-trade that should be illegal – except that it is a creation of governments around the world. I can’t claim any great familiarity with the travails of the market for “alternative” energy, however it seems to me that there is an analogy: imagine if solar energy were criminally-prohibited.


"Medical marijuana" programs have few patients – and why is that?

The press release is the summary of a study authored by researchers at Columbia University:

Variation in medical marijuana program regulations impacts enrollment: A study published today in Health Affairs found that while 14 of the nation’s 24 medical marijuana programs were essentially nonmedical in practice, they enrolled more than 99 percent of overall participants. Fewer than one percent were enrolled in ‘medicalized’ programs that adhere to accepted professional standards in medicine. The study analyzed the extent to which medical marijuana laws and program regulations incorporate accepted medical practice, good pharmaceutical manufacturing practices as established by the FDA, and restrictions on controlled substances.

They conclude that the very low number of patients enrolled in states with “medicalized” programs means only that there are high numbers of “recreational” users who are ‘gaming’ the system [my term] in the states with “non-medicalized” programs:

“The extent to which states regulate their medical marijuana programs appears to have a striking impact on how many people actually use each program,” noted Mark Olfson, MD, professor of psychiatry at Columbia University Medical Center (CUMC) and senior author of the paper. “High enrollment rates in less regulated medical marijuana programs raise the possibility that these programs may inadvertently attract recreational users.”

“The new findings raise questions of why doctors are involved in non-medical programs in the first place,” added lead author Arthur Robin Williams, MD, MBE, a fellow in the Department of Psychiatry at CUMC. “Building on this study we will look for associations between more restrictive regulations and public safety – including rates of recreational marijuana use, diversion to adolescents, emergency department visits and drug treatment admissions.”

Based on the experience of New York, I will propose another hypothesis, which is that the unduly onerous “medicalized” programs are a cruel perversion of the original idea of state laws that were intended to facilitate access to cannabis by patients; instead the medicalized programs are intended to be or are operated as a means to deny access.

The dose makes the poison – LSD microdosing

I note that LSD microdosing is trending, if only a little bit (see the recent articles in Rolling Stone and the Huffington Post). Microdosing is the practice of taking extremely low doses of LSD during the regular work week for the purposes of increasing functionality, in a sense like a performance-enhancing supplement – indeed, the Huffington Post quotes a practitioner comparing it to Adderall.

What interests me most about this story is how much it focuses on a critical under-examined aspect of drug control, which is – obviously – dosage. The story immediately calls to mind the famous adage attributed to Paracelsus, the dose makes the poison, i.e. because all substances are toxic at some level (depending on the nature of the substance) what determines toxicity is not the substance itself but the amount of the substance ingested. Whether or not that principle is universally true, this story – in which mini doses of LSD are alleged to improve functionality as opposed to high doses teleporting the user to Somewhere Else for 8 hours – demonstrates that the issue of dosage deserves attention in the context of discussions of legalizing psychedelics.

San Francisco has created a "legalization task force" to prepare for the possibility of full cannabis legalization in California – NYC can do the same with regard to full legalization here

Chris Roberts’ column in the SF Weekly announces that San Francisco Supervisor Todd Wiener has created a “legalization task force”. After describing what he considers problems in that city’s approach to regulating the medical cannabis market, he continues: 

In 2016, with legalization a real possibility, the city may finally take a different tack. Under legislation authored by Supervisor Scott Wiener, the city has set up and seated a “legalization task force.”
A collection of cannabis industry owners, workers, lawyers, and city and school district officials, the task force’s mission is to grapple with the possibility of legal, recreational cannabis — if legalization is approved by California voters this fall.

Numerous New York City Council Members have publicly stated that they support full adult legalization and, indeed, the Council is on record in supporting full adult legalization, a position that appeared in the Council’s New York State Legislative Agenda (see page 25) this spring.

In my experience, however, even Council Members who are vocal in support of legalization have not given much thought as to how it would work in practice.

Council Member Corey Johnson has proposed legislation for the City that would create a municipal “Drug Czar’s Office” (to use the term first popularized when Nixon created an executive office in the White House to coordinate drug control policy and now used colloquially to describe the Office of National Drug Control Policy).

Such an office would be a good start in creating a progressive drug policy for the City and would be a logical place in which the City could begin preparing for legalization.

However, it seems to me that instead of waiting for enactment of legislation and then executive action, there is no obstacle to creating now a task force within the Council focused exclusively on cannabis that will begin sketching out the mechanism for implementing legalization. Engaging in that exercise is more likely than inaction to pull forward into existence, by generating public discussion, the full legalization system proposed by State Senator Liz Krueger and Assembly Member Crystal Peoples-Stokes.

At a minimum such a task force would prepare the Council to evaluate the degree to which the medical use-only created by the State’s Compassionate Car Act succeeds or fails in meeting the needs of patients.

Power to the People: cannabis legalization and the New York City Community Boards

Last night Manhattan Community Board Number 8 overwhelmingly voted to adopt a resolution concerning cannabis legalization. In essence it calls upon the state legislators who represent Community Board 8 in the Senate and Assembly to take action to cause a “serious discussion” of the Marijuana Regulation and Taxation Act (“MRTA”), i.e. the proposed full legalization statute introduced by Senator Liz Krueger and Assembly Member Crystal People-Stokes.

The vote was something like 29-5 (as related to me by someone else who was there); I started counting too late to record the exact numbers but I could tell from the consistent “yes” votes that it was a landslide.

I consider this event a very big deal. Adoption of this resolution means that part of a municipal government is calling upon part of the state government to hold a discussion of legalization. I’m not aware of anything like this happening before.

New York City Community Boards are very interesting institutions. They are the part of New York City government with the lowest barriers to entry for the public. The City is divided up into 59 Community Board districts. The Boards hold general monthly meetings that are open to the public at which members of the public can speak. There are also numerous committees, such as health, public safety, youth, economic development, and so on that meet as well and, at least according to my experience, are also open to the public.

One feature of the Community Boards is extremely relevant to cannabis legalization. Although different Community Boards may have different committees, there is one committee they have in common: the State Liquor Authority Committee (“SLAC”).  A business seeking an initial liquor license in New York City or renewal of its license will first present its application to the local Community Board via the SLAC, which then presents its position to the full Board, which then presents its position on the application to the State Liquor Authority. Now, since its intent is to regulate cannabis like alcohol, the MRTA gives regulatory authority over cannabis to the State Liquor Authority, i.e. that administrative agency becomes a cannabis regulator in addition to being an alcohol regulator. (That is the basic mechanism of general legalization: regulating cannabis like alcohol means putting regulatory authority in the liquor control authority – or a new similar authority – as opposed to the Department of Health, which in New York under Governor Cuomo treats cannabis like a severe threat to public safety.) In practice, that means that persons seeking licenses to operate cannabis businesses will also need to present their applications to the Community Boards preliminary to their applications to the State Liquor Authority. Since the Community Boards will play a fundamental role in implementing cannabis market legalization at such time as the MRTA is enacted, Community Board buy-in is important and can, perhaps, best be cultivated by beginning a dialogue now with Community Boards as to how legalization would work.

January 5 will be Cannabis New Year’s Day in New York

Yet again, it’s been a long time since my last post, this time because I have been recovering from the permitting and general organizational work for the 2015 NYC Cannabis Parade and some event programming on the subject of New York City law and policy on cannabis in January and May, to be discussed more below.

A lot has happened in a very short time in New York City since this time last year, i.e. at this stage of the state legislative session. I intend to address those changes in greater detail in other posts.

The big news of the moment, of course, is the announcement of the forty-three applicants for the five cannabis cultivation and dispensing licenses to be awarded under the new “medical marijuana” law, the Compassionate Care Act (the “CCA”), followed by the possibility that there will be emergency access regulations. There is sure to be another swirl of media coverage when the next date for implementation comes around later this summer – announcement of the winners of the five licenses. New York State politics being what it is, and in light of the volatility of cannabis law reform issue within New York City, and in light of the growing media focus on the irrationality of the CCA as enacted under Cuomo’s pressure, I believe that there will be a lot of interest in who gets those licenses. 

However, all of the foregoing leads only to the following. 

January 5, 2016 is going to be a big party in New York

Readers of this blog know that I believe that the CCA is a debacle that should be abandoned entirely in favor of general legalization (regulated like alcohol, as in Colorado) as soon as possible. There is no objective reason why the State of New York cannot have full legalization immediately – there is legislation (the “Marijuana Regulation and Taxation Act” or the “MRTA”) pending in both houses that would put cannabis under the control of the State Liquor Authority, instead of the Department of Health.

Which part of the bureaucracy regulates is, of course, a crucial consideration: up until July 2014, the police alone regulated the cannabis market (since it was completely illegal) and since July 2014 there has been the promise that the Department of Health will regulate a small portion of the cannabis market under severely restricted conditions. There was a time when transferring regulatory authority from the police to doctors was a revolutionary step forward. That is no longer the case.

The Cuomo administration has taken credit for enactment of a medical marijuana law with a heart-warming photo op in July 2014 and a lot of platitudes from the Department of Health, along with a bunch of excuses as to why patients cannot have immediate access. On paper, yes, a medical marijuana law was enacted in his term as governor. My understanding from the beginning, like that of Debra Borchardt writing for Forbes, has been that the CCA was dead-on-arrival: what had been a fair though still conservative bill was mutilated so badly by the Governor in May-June 2014 that it scarcely qualifies as a “medical marijuana” law and cannot possibly create a viable market that offers any advantage over the remainder of the market, which will remain illegal.

There is a lot of interest now in New York in the economic potential of a legal cannabis market, especially in the financially-depressed upstate counties, whose press has been covering the issue much more closely than the downstate press. A lot of people put up a lot of money to compete for the five licenses – it’s a logical guess that investors are interested. Many people are ready for the creation of a functional legal market.

Therefore, January 5, 2016 is a big date. That’s the date on which the medical market created by the CCA is supposed to start functioning. (Don’t forget, though, the part about how the beginning of operations can be delayed indefinitely until the Executive Branch says it’s a go; also don’t forget that the Governor can terminate the program at will at any time.)

My read of New York is that if the market is not functioning in a meaningful way on January 5, 2016 or very shortly thereafter, people are going to know that (a) they got ripped off and (b) there is a much better option – general legalization, which is immediately within their grasp. When people wake up on January 5 either they will rejoice because the medical cannabis market is functioning well under the CCA or they will rejoice because everyone will know that the time for a “medical model” in New York has come and gone and it is time to design and implement general legalization. The media and even advocates who characterized enactment of the CCA as a victory are focusing on the profound, fatal defects in the statute and I expect that when January 5 comes with a sad excuse for a medical cannabis market they will tell it like it is. Many parents of children with severe epilepsy have not been kind in their reaction to the CCA. I’m looking forward to January 5 as the day on which Cuomo’s jig is up. It would be a lovely irony if the extent of Cuomo’s savaging of progressive drug law reform and his administration’s disingenuousness and double-speak weigh significantly in pulling Cuomo into the wave of corruption investigations taking place here.

“Regulating Marijuana: What New York Can Learn from Other States” 

Readers of this blog may be interested in the audio recording of the program “Regulating Marijuana: What New York Can Learn from Other States” that took place at the New York City Bar Association on May 21, focusing on inconsistencies between federal, state, and local cannabis law

The event featured New York State Senator Liz Krueger; New York City Council Member Mark Levine,; Malik Burnett, M.D., Policy Manager, Drug Policy Alliance; William J. Caruso, Steering Committee member, New Jersey United for Marijuana Reform; Robert Raich, Esq.; Rachelle Yeung, Government Affairs Manager,Vicente Sederberg LLC.  Eric Sterling, President of the Criminal Justice Policy Foundation, was the moderator. (The official program appears here.)

This program is a continuation of the examination that began with the January 28 program “The Future of Marijuana in New York City.”