Month: April 2022

The House of Representatives today approved a bill that would repeal the federal ban on marijuana by a vote of 220 to 204. That tally includes 217 Democrats but just three Republicans, two fewer than voted for an earlier version of the bill, the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, when the House approved it in December 2020.

The nearly nonexistent Republican support for the MORE Act in the House does not bode well for its chances in the Senate, where 10 Republican votes would be needed to overcome a filibuster even if Democrats unanimously supported the bill. The same goes for the legalization bill that Senate Majority Leader Chuck Schumer (D–N.Y.) plans to introduce next month.

The MORE Act and the draft bill that Schumer unveiled last July both include unnecessarily contentious provisions that are apt to alienate Republicans who might otherwise be inclined to resolve the conflict between federal prohibition and state laws that allow medical or recreational use of marijuana. Those provisions, which include new taxes, regulations, and spending programs, suggest that Democrats want credit for trying to legalize marijuana but are not really interested in building the bipartisan coalition that would be necessary to accomplish that goal.

When the House approved the MORE Act in 2020, it was the first time that either chamber of Congress had voted in favor of marijuana legalization. But as expected, the bill went nowhere in the Senate, which at the time was controlled by Republicans. The Senate is now evenly split between the two parties, with Democratic control hinging on Vice President Kamala Harris’ tie-breaking vote. Any serious attempt to repeal federal prohibition therefore depends on attracting Republican support, which Democrats have made little effort to do.

There is much to like in the MORE Act, which House Judiciary Committee Chairman Jerrold Nadler (D–N.Y.) reintroduced last May. The bill would remove marijuana from the list of federally prohibited drugs; eliminate federal criminal penalties for manufacturing, distribution, and possession; and require automatic expungement of federal marijuana convictions. It also would remove various marijuana-related restrictions on immigrants, government contractors, federal employees, and recipients of public benefits.

If Nadler had stopped there, the bill probably would have attracted more than three Republican votes. But the MORE Act also would impose a 5 percent federal excise tax on cannabis products, rising to 8 percent after four years, in addition to frequently hefty state and local taxes. The bill requires marijuana suppliers to pay an annual “occupational tax,” obtain federal permits, report information to the Treasury Department, and comply with packaging, labeling, and storage regulations. The tax and regulatory provisions, including civil and criminal penalties for violating them, account for half of the 92-page bill.

The MORE Act would use the marijuana tax revenue for various purposes, including drug treatment, “services for individuals adversely impacted by the War on Drugs,” loans for marijuana businesses owned by “socially and economically disadvantaged individuals,” and grants aimed at reducing “barriers to cannabis licensing and [to] employment for individuals adversely impacted by the War on Drugs.” Those “social equity” provisions gave pause even to Rep. Matt Gaetz (R–Fla.), the lone Republican cosponsor of the bill.

Schumer’s draft bill, the Cannabis Administration and Opportunity Act, doubles down on that overly prescriptive and burdensome approach. It would impose a federal excise tax on marijuana starting at 10 percent and rising to 25 percent by the fifth year. State-licensed marijuana businesses, which already are regulated by state and local governments, would also be supervised by the Food and Drug Administration (FDA), the Treasury Department’s Alcohol and Tobacco Tax and Trade Bureau (TTB), and the Justice Department’s Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). The bill envisions detailed rules dealing with production, storage, transportation, packaging, labeling, advertising, and sales.

Like the MORE Act, the Cannabis Administration and Opportunity Act would use revenue from the federal marijuana tax to create new spending programs. The Community Reinvestment Grant Program would “fund nonprofits that provide services to individuals adversely impacted by the War on Drugs, such as job training, reentry services, and legal aid, among other services.” The Cannabis Opportunity Program would “provide funding to eligible states and localities to make loans to assist small businesses in the cannabis industry owned by socially and economically disadvantaged individuals.” The Equitable Licensing Grant Program would “provide funding to eligible states and localities to implement cannabis licensing programs that minimize barriers for individuals adversely affected by the War on Drugs.”

One of the 202 Republicans who voted against the MORE Act today was Rep. Dave Joyce (R‒Ohio), a co-chair of the Congressional Cannabis Caucus. While Joyce remains committed to repealing the federal ban, he is not keen on the “social equity” stuff and thinks the MORE Act does not create a “responsible regulatory framework.” He has introduced a competing legalization bill, the Common Sense Cannabis Reform Act, that aims to treat marijuana like alcohol.

Joyce’s bill is just 14 pages long, and it does not include a federal marijuana tax. He calls it “the only Republican-led comprehensive cannabis reform bill that does not include any MORE Act provisions.”

That seems like a veiled reference to the 133-page legalization bill sponsored by Rep. Nancy Mace (R‒S.C.), the States Reform Act, which is closer to the MORE Act but aims to attract more GOP support. Mace, who also voted against the MORE Act today, would impose a 3 percent excise tax, which would remain at that level for at least 10 years. According to Mace’s summary of the bill, the 10-year moratorium on raising the excise tax is meant to “ensure competitive footing in the market.” In other words, a relatively low tax rate will help legal marijuana businesses compete with black-market dealers, who do not pay taxes.

The States Reform Act would create a Law Enforcement Retraining and Successful Second Chances Fund, which would funnel marijuana tax money to three existing programs: the Crisis Stabilization and Community Reentry Grant Program, the Edward Byrne Memorial Justice Assistance Grant Program, and the Community-Oriented Policing Services Program. Some of the money also would be assigned to “veterans’ mental health,” “state opioid epidemic responses,” “preventing underage use of cannabis,” and the SBA “for supporting newly licensed small [marijuana] businesses through its various programs.”

Mace’s bill, like Schumer’s and the MORE Act, envisions a regulatory role for federal agencies, but it is relatively restrained and gives states more leeway. For example, it says the FDA “shall have the same authorities with respect to cannabis products that it has with respect to alcohol,” such as label regulation for certain beverages, “and no more.”

According to the summary, that provision “ensures that cannabis products in interstate commerce will be treated like alcohol and that the regulatory issues harming the industrial hemp-derived CBD industry will not be repeated in the cannabis space.” The bill also “grandfathers ‘designated state medical cannabis products,'” including “those produced consistent with state law,” to ensure “continued access” for patients. The FDA “may still prescribe serving sizes, certify designated state medical cannabis products as a ministerial duty, and authorize new drugs or approved new uses of drug applications to create new pharmaceutical grade products, but may not prohibit the use of cannabis or its derivates in non-drug applications, such as in designated state medical cannabis products, dietary supplements, foods, beverages, non-drug topical solutions, or cosmetics.”

Continuing the analogy to alcohol, the TTB “will be the primary regulator of cannabis products in interstate commerce,” while the ATF “will serve as the primary law enforcement agency supporting the TTB’s work, exactly as it does in the alcohol space.” The Department of Agriculture would regulate cannabis crops in the same way it regulates raw materials for alcoholic beverages, such as grain and hops. The bill “applies to cannabis the same recordkeeping, liability, reporting, packaging, and labeling requirement[s]” that apply to the alcohol industry under the Internal Revenue Code. The bill would prohibit cannabis advertising that is false, misleading, or aimed at minors.

Joyce’s brief and straightforward bill seems like the best approach to me. While Mace’s complicated concessions are aimed at attracting Democratic support, that does not seem to have worked so far. Her bill has just four cosponsors, all Republicans. Joyce’s bill has eight cosponsors, including Mace and four Democrats. Neither tally is very impressive. But even at this stage, both bills have more GOP support than Democrats managed to attract for the MORE Act.

The post The House Just Approved Marijuana Legalization Again, but GOP Support Remains Nearly Nonexistent appeared first on Reason.com.

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From the University of Richmond School of Law Intellectual Property Institute:

April 1, 2022

Richmond, Virginia—The Intellectual Property Institute (IPI) at the University of Richmond School of Law announced that it has filed a lawsuit in the U.S. District Court for the Eastern District of Virginia against the Center for Law & Intellectual Property (CLIP) at Texas A&M University School of Law. The lawsuit seeks to prevent CLIP from continuing to violate the IPI’s rights in its well-known “Evil Twin Debate” trademark.

Founded in 2004, the IPI is a dynamic and respected center for the study of contemporary intellectual property issues. The Evil Twin Debate is its marquee national event, which it has hosted every year since 2007. “The debate has been a prominent part of our public programming for more than a decade,” stated IPI executive director Christa Pechora Poirot. “Its distinctive format brings together pairs of experts who disagree on an important topic but who can air their disagreements in a friendly exchange-serious in substance but lighthearted in tone. It’s very important to our brand.”

Late last year, the IPI became aware that CLIP was using the tagline “Shaping Debate” to promote its own intellectual property center. Despite a friendly request to choose a term other than “Debate,” CLIP persisted in its use. “It’s still right there in their marketing materials,” noted Poirot. “It’s right at the top.”

According to Poirot, “Like any trademark owner, we take our brand seriously-and we have an obligation to our students, faculty, alumni, and donors to police it to the maximum extent of the law. We simply cannot afford to see our trademark rights violated by another school.” The lawsuit states claims for trademark infringement and dilution by tarnishment.

For more information, please contact Christa Pechora Poirot at ipi@richmond.edu.

And a prompt response from the Texas A & M School of Law Intellectual Property Center :

INTELLECTUAL PROPERTY CENTER RESPONDS TO TRADEMARK ALLEGATION by Abrahan Baku Shivsthu, Texas A&M University School of Law

Fort Worth, Texas—April 1, 2022TheCenter for Law and Intellectual Propertyat Texas A&M University School of Law intends to vigorously defend against recent allegations that it violated the University of Richmond’s trademark rights.

“We learned today that the University of Richmond has filed suit against us for allegedly violating their supposed rights in the term ‘Evil Twin Debate,'” said Pru Keety, director of operations for CLIP. Until recently, Keety was the executive director at another nationally regarded IP program. “We also plan to demonstrate that any association between our IP center and theirs can only enhance Richmond’s image,” Keety added.

“They should be paying us for burnishment—not suing us for tarnishment.”

In the past five years, peer surveys conducted by U.S. News and World Report have ranked Texas A&M continuously among the top 10 intellectual property law programs in the United States. The Center combines classroom time with hands-on experience to prepare its J.D. and graduate students to navigate the complex legal issues surrounding patents, copyrights, trademarks and trade secrets.

The case was filed in federal court in Virginia. Keety is consulting with attorneys for the law school, but she predicts that they will file a motion asking for the case to be dismissed outright, and that the court will likely grant it. “We’ll be fighting the allegations on Richmond’s home turf, but I am nevertheless confident that our superior understanding of the applicable law will convince the judge,” asserted Keety. “In fact, they can’t even get their complaint right: ‘Evil Twin Debate’ is a service mark, not a trademark. Goes to show how well those clowns at Richmond know their IP law.”

###

Media contacts: Abrahan Baku Shivsthu, clip@law.tamu.edu

I should note that a possible request for Rule 11 sanctions would likely be met with a Rule 4(1) defense.

The post Now There's a Trademark Issue for You appeared first on Reason.com.

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Activist organizations and families affected by Florida’s bill restricting discussions on LGBT issues in public schools have filed suit to stop it, arguing that it violates the First and 14th Amendment rights of students, parents, and teachers in the state.

H.B. 1557, known by its opponents as the “Don’t Say Gay” bill, was passed by Florida’s Legislature earlier in the year and signed into law by Republican Gov. Ron DeSantis in March. The bill’s supporters insist that its purpose is to stop inappropriate discussions of sex and gender in front of young school children from kindergarten through third grade.

But that’s not what the law actually says—it instead bans discussion about “sexual orientation or gender identity” in those grades, not sex. It further bans any discussion about topics that are not “age-appropriate or developmentally appropriate for students” without identifying what any of that means. It also allows parents of students to take schools to court and seek financial damages for violations of this very vaguely written law.

Nonprofit group Equality Florida filed suit Thursday in the U.S. District Court of the Northern District of Florida, joined by some gay and trans students in Florida schools, several gay couples with children in public schools, and a teacher.

The lawsuit describes H.B. 1557 as a bill that does not, in fact, stop overly vivid discussions of sex with children but instead attempts to censor speech about LGBT issues, sexual or not:

It offends principles of free speech and equal protection by seeking to censor discussions of sexual orientation or gender identity that recognize and respect LGBTQ people and their families. It offends due process by using broad and vague terms to define its prohibitions—thus inviting discriminatory enforcement and magnifying its chilling effect on speech. And it arises from discriminatory purposes and outdated sex-based stereotypes that offend deeply rooted constitutional and statutory requirements.

The lawsuit explains what people mean when they call it the “Don’t Say Gay” bill, even though the text of the bill doesn’t technically forbid saying “gay.” The bill authorizes families to sue over violations of terms that are never defined by the bill:

H.B. 1557 recruits every parent as a roving censor, armed with a legal warrant to sue schools for damages whenever they believe a teacher, a student, or any “third party” has provided any “classroom instruction” that may be perceived as relating to “sexual orientation” or “gender identity.” The potential for arbitrary and discriminatory enforcement here is self-evident—and it reflects a choice designed to maximize the law’s in terrorem (threatening) effects. H.B. 1557 thus operates in a manner antithetical to reasonable requirements of an age or developmentally appropriate education, instead creating a scheme in which parents can use the threat of litigation over vague statutory terms to menace school boards and intimidate teachers into offering a skewed, discriminatory curriculum.

The lawsuit lists a bunch of potential discussions of LGBT issues that aren’t inherently about sex or gender identity and questions whether they run afoul of the law. “Can a student of two gay parents talk about their family during a class debate about civics? Can that student paint a family portrait in art class? Can a lesbian student refer to their own coming out experience while responding to a work of literature? Can a transgender student talk about their gender identity while studying civil rights in history class?”

If you believe people who say that H.B. 1557 is about stopping only sexual discussions around children, you might think that the answer to these questions would be “yes.” But that’s not what the bill actually says, and this lawsuit is intended to highlight that fundamental flaw. In fact, when one lawmaker attempted to amend the bill to make the language more explicitly about prohibiting discussion of “human sexuality or sexual activity,” he was shot down.

The lawsuit lists six counts of potential First and 14th Amendment violations. Plaintiffs argue that the law should be considered “void for vagueness,” a judicial principle that requires that laws (particularly criminal laws or laws that have penalties like this one) have clear definitions of their prohibitions. In this case, because all the terms go undefined and the “state standards” the bill refers to do not yet exist, the plaintiffs argue that they are uncertain about what they can legally discuss without violating H.B. 1557.

The lawsuit further claims that the bill violates the Equal Protection Clause of the 14th Amendment by targeting LGBT people and treating them differently from other people. (Under the text of the bill, a teacher could quite vividly discuss sexual behavior with school children as long as it’s heterosexual behavior.)  They argue the law violates the First Amendment rights of students to receive information for reasons unrelated to pedagogical concerns and by creating a chilling effect that censors speech.

The lawsuit asks the court to stop Florida from implementing and enforcing H.B. 1557.

As a reminder, the last big bill Florida passed out of political spite, S.B. 7072, their “anti-Big Tech” bill that attempts to wrest control away from social media platforms, has been blocked by a federal judge for violating the First Amendment rights of the social media companies. The judge further warned that several of the bill’s provisions were “especially vague,” an issue because the bill also threatened massive fines. Don’t be surprised if the exact same thing happens here.

The post Florida Sued by Activists, Students, Parents, and Teachers Over LGBT School Censorship Bill appeared first on Reason.com.

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While oil and gas have gotten most of the headlines in the Russian sanctions debate, with oil being the commodity whose price changes are most obvious to the average consumer, the effect of sanctions on other Russian commodities is also important. Russia controls 4 percent of global cobalt production, for example, and 11 percent of nickel production.  Following the sanctions package dropped on Russia, cobalt’s price increased from $74,000 per ton to $82,000 per ton and has now more than doubled since the start of 2021.  Nickel’s price, meanwhile, has zoomed since the beginning of March, rising from $25,000 per ton on March 1 to a high above $45,000 briefly before settling at $32,000. Since 2019, the price of nickel has nearly tripled.

Shortages and price rises in those commodities will stymie any transition from carbon-emitting combustion engines to electric cars, since the average electric car battery contains 80 pounds of nickel and 15 to 30 pounds of cobalt. Increased gas prices due to a Russian oil collapse would not necessarily increase the adoption of green energy programs because electric cars, solar panels, and wind turbines all use nickel and cobalt to varying degrees. The rising costs of nickel and other inputs will very likely cause electric vehicle batteries, which were growing rapidly less expensive over the last decade, to stop getting more affordable until at least 2024.

Reduced access to Russian commodities will drive up the cost of renewables and electric vehicles as gas prices also increase. It’s easier to increase oil production than it is to increase nickel or cobalt production; America has at least 35 billion barrels of proven oil reserves and OPEC can increase oil production whenever it wants. Pumping more oil is a faster and less arduous process than building a new nickel mine.

But the U.S. has another available source of nickel and cobalt that could be counted on when countries on the other side of the world have production difficulties due to war or internal strife, and it’s a scant 90 nautical miles off the coast of Florida.

Unfortunately, this source happens to be Cuba, and American companies have been forbidden by law to do business with Cuba for most of the last 60 years.

Cuba has the fifth-largest estimated nickel reserves in the world and the third-largest cobalt reserves. Its reserves of nickel are almost as large as those of Russia (5.5 million metric tons to Russia’s 6.9 million) and Cuba actually has twice as much cobalt as the Russians do. With the exception of Canada, which only has 40 percent of Cuba’s estimated reserves, all the top cobalt-producing countries—Australia, the Democratic Republic of the Congo (DRC), Russia, and the Philippines—are on the other side of the world from America’s manufacturing centers and therefore subject to potential supply chain disruption.

Three of those countries are untrustworthy as sources of cobalt because the DRC and the Philippines have serious questions regarding political stability, and there is no telling what will happen to Russian commodity production while Putinism is making it history’s most sanctioned economy.

Cobalt and nickel are only going to grow more important over time and are increasingly integral to American energy policy and manufacturing. These two resources come disproportionately from sources that we cannot rely on in the long term.

The good news is that America has an available trading partner within spitting distance of Miami that is among the most nickel- and cobalt-rich places in the world. The bad news is the U.S. government’s continued shocking, stubborn refusal to take advantage of this golden opportunity because of anachronistic and always-harmful Cold War–era sanctions on Cuba.

Cold Warriors might spin in their graves at the thought of America making common cause with Latin American socialists so as to shore up vital resources in a potential second Cold War with an ultra-nationalist, far-right Russian government. But America cannot afford to be beholden to the policies of the 1960s. We should scrap the Cuban sanction policies and do business with any country in the Western Hemisphere that wishes to trade with us, or we will find that resources upon which we rely cannot be accessed in times of crisis. Fidel Castro is dead; it is past time our sanction policies followed him.

The post Buy Cuban Minerals To Mess With Russia appeared first on Reason.com.

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