In a recent decision, the Drug Enforcement Administration ruled that marijuana will remain a Schedule 1 substance under the Controlled Substances Act. Substances in Schedule 1 are determined by the Food and Drug Administration to be drugs with no currently accepted medical use and a high potential for abuse.
On Lawyer 2 Lawyer, host J. Craig Williams joins Paul Armentano, deputy director of NORML and Ben Cort, business development manager for the Center for Addiction Recovery and Rehabilitation (CeDAR), to discuss the recent decision by the DEA to keep marijuana on the Schedule 1 list. They will talk impact, the legalization of marijuana, manufacturing marijuana for scientific purposes, and what the future holds on this controversial topic.
Paul Armentano is deputy director of NORML, and the National Organization for the Reform of Marijuana Laws, and a senior policy advisor at Freedom Leaf, Inc: The Marijuana Legalization Company. He is the co-author of the book “Marijuana is Safer: So Why Are We Driving People to Drink?” Paul was also the principal investigator for defense counsel in U.S. v Schweder, the first federal evidentiary since 1973 hearing to challenge the constitutionality of cannabis as a schedule I controlled substance.
Ben Cort is business development manager for the Center for Addiction Recovery and Rehabilitation (CeDAR), part of the University of Colorado Health system. Ben’s passion for recovery, prevention and harm reduction comes from his own struggle with substance abuse. Sober since 1996, Cort is also a junior fellow at the University of Florida’s Drug Policy Institute and serves on the boards of Project SAM (Smart Approaches to Marijuana) and the Stout Street Foundation.
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The DEA, Schedule 1, and Marijuana
Paul Armentano: For the DEA to maintain this notion that cannabis does not possess accepted medical use in the United States at a time when a majority of the country lives in jurisdictions that allow the medical use of marijuana simply don’t pass the smell test.
Ben Cort: The 24,000 papers and peer-reviewed journal published places in the 1000-year history we have, we still don’t have anything that’s even close to a conclusive proof that says that it can be used medicinally and therapeutically. It’s why we need to continue studying it more, it’s why in addition to this decision which was saying that they would not reschedule, it didn’t meet the criteria for Schedule II.
It did say, we are going to have more people research, and that’s a really good thing. I have written position papers in support of that and I am hoping that one of the research centers is here at the University of Colorado.
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J. Craig Williams: Hello and welcome to ‘Lawyer to Lawyer’ on the Legal Talk Network. This is Craig Williams coming to you from Southern California. I write a legal blog called May It Please the Court. My co-host Bob Ambrogi is off today.
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Well, in a recent decision the Drug Enforcement Administration has ruled that marijuana will remain a Schedule 1 substance under the Controlled Substances Act. Substances that are listed in Schedule I are determined by the Food and Drug Administration to have no medical use. The DEA denied two petitions seeking change marijuana’s official federation designation as a Schedule I drug. There was a silver lining to this announcement for marijuana applicants; however, it was revealed that federal authorities will open up new avenues for more people and institutions to manufacture marijuana for scientific purposes.
So in regards to Schedule I, DEA Chief Chuck Rosenberg said the decision isn’t based on danger, the decision is based on whether marijuana is determined by the FDA is safe and effective medicine, and it’s not. The decision continues to classify marijuana in the same category as heroin, LSD and other drugs like ecstasy.
So today on ‘Lawyer 2 Lawyer’ we are going to take a look at the recent decision by the DEA to keep marijuana on the Schedule I list. We will look at the impact, the legalization of marijuana, manufacturing marijuana for scientific purposes, and what the future holds on this controversial topic.
Our first guest today is Ben Cort to help us do that. He is the Business Development Manager for the Center for Addiction Recovery and Rehabilitation (CeDAR), part of the University of Colorado’s Health system. Ben’s passion for recovery, prevention and harm reduction comes from his own struggle with substance abuse. Sober since 1996. Ben is a junior fellow at the University of Florida’s Drug Policy Institute and serves on the Boards of Project SAM which stands for Smart Approaches to Marijuana and the Stout Street Foundation.
Welcome to the show, Ben Cort.
Ben Cort: Thanks so much, Craig.
J. Craig Williams: And our other guest today is Paul Armentano. He is the Deputy Director of NORML (The National Organization for the Reform of Marijuana Laws), and a guest contributor to HYPERLINK “http://www.thehill.com” thehill.com. His writing on marijuana and marijuana policy has appeared in various peer-reviewed scientific journals and over two dozen anthologies. He is the co-author of the book “Marijuana is Safer: So Why Are We Driving People to Drink?” He is also the author of “The Citizen’s Guide to State-By-State Marijuana Laws.” Paul was also the Principal Investigator for the defense counsel in U.S. v Schweder, the first evidentiary hearing since 1973 to challenge the constitutionality of cannabis as a Schedule I controlled substance.
Welcome to the show, Paul.
Paul Armentano: Thank you for having me, Craig. It’s a pleasure to be here.
J. Craig Williams: Well, Ben, let’s start with you. Could you give us a little bit of the background of the history of how marijuana got on the DEA’s list and what your impression of why it’s staying there?
Ben Cort: I think that you are going to be better served by letting Paul do that. I am actually not a student of the history that goes back that far.
J. Craig Williams: Great. Let’s throw it to Paul then. Go ahead Paul.
Paul Armentano: Well, cannabis is classified as a Schedule I controlled substance because Congress gave it that classification when the Controlled Substances Act was passed in 1970.
At that time there was very little peer-reviewed research available with regard to marijuana and that’s why the part of that Act, Congress put together a gold within Presidential Commission, called the Shafer Commission to study marijuana and make recommendations on Marijuana Policy. Those recommendations were made in 1972. The federal government was told by the Shafer Commission that a smart public policy with regard to marijuana would be to decriminalize it and Congress rejected that opinion and marijuana has remained in Schedule I ever since.
J. Craig Williams: Well Ben, how does your work with CeDAR and Project SAM impact this issue?
Ben Cort: My work with CeDAR at the University Colorado Hospital has me right in the center of this, more in today’s landscapes than it is the history of this. I understand less about what happened in the ’70s than I do about what has happened from an addiction treatment standpoint from kind of on the ground perspective in Colorado in the last couple years. So, that actually led me to my affiliation with SAM when Dr. Sabet and Patrick Kennedy and Stu Gitlow and those guys called a primary motivation against SAM going was to have public policy being influenced by sound scientific thought which, it would be the first time we had done that in this country, but it will be pretty cool if we figured it out, so I am kind of the guy on the ground in Colorado open to keep them all appraised to what’s happening here from our perspective.
J. Craig Williams: And what is the ramifications of this decision? Paul, how does this implement especially with respect to how many states there are that have individualized medical, and in some instances recreational use of marijuana?
Paul Armentano: Well, this is a predictable decision for anyone who is familiar with the past history of the DEA of an agency. The DEA is a modern equivalent of the Flat Earth Society. They are in the reality denial business and at the end of the day they are a political organization and they made a political decision, not a scientific one. The science on marijuana, particularly if used as a therapeutic agent, is clear in 2016.
Humans have a 1000-year history using cannabis therapeutically. If one goes on PubMed, the repository for all peer-reviewed scientific literature, there is over 24,000 peer-reviewed scientific papers regarding marijuana and 26 states now acknowledge the use of marijuana as a medicine by statute. For the DEA to maintain this notion that cannabis does not possess accepted medical use in the United States at a time when a majority of the country lives in jurisdictions that allow the medical use of marijuana simply don’t pass the smell test.
J. Craig Williams: Ben, how is marijuana viewed, or what’s the DEA’s argument, they think this is a gateway drug, do they think that this is dangerous as heroin?
Ben Cort: I don’t know the answer to that. I wouldn’t presume to speak for the DEA, what I can tell you is that when it comes to scheduling there’s certain criteria that the drugs meet or do not meet and then they fall into one of the Schedules I through IV. And what the DEA decided in this particular decision was that I think clearly as much as a lot of people would like to see it be different, probably including a lot of people in the administration and in the DEA, the reality is that the 24,000 papers and peer-reviewed journal published places in the 1000-year history we have, we still don’t have anything that’s even close to conclusive proof that says that it can be used medicinally and therapeutically. It’s why we need to continue studying it more, it’s why in addition to this decision which was saying that they would not reschedule, it didn’t meet the criteria for Schedule II.
It did say, we are going to have more people research, and that’s a really good thing. I have written position papers in support of that and I am hoping that one of the research centers is here at the University of Colorado.
J. Craig Williams: Well, why does marijuana get such a bad name? I mean, what is it that has it so much different than alcohol which is obviously permitted?
Paul Armentano: Well, as the author of a book called “Marijuana is Safer: So Why Are We Driving People to Drink?” I think my stance is probably rather obvious, certainly by any objective metric, whether we are talking about dependence liability, or abuse potential or toxicity, risk of overdose, cost to society, marijuana is far safer than alcohol.
And, I think this is an important point to make when we are talking about scheduling in public policy. As Ben mentioned, there are different criteria for the scheduling of drugs, there’s Schedule I all the way to Schedule V, but not all drugs are scheduled. Alcohol and tobacco, despite their abuse potential are not included in the scheduling.
And we believe that marijuana should also be de-scheduled to allow states to have the autonomy, the flexibility and the freedom to set their own marijuana regulatory policies free from federal government interference.
J. Craig Williams: Ben, what are the misconceptions that exist about marijuana, I mean, how does your own experience with substance abuse play into it?
Ben Cort: The misconceptions are great and they continue to — the delta between the conceptions and the reality just continues to get larger and larger. I think one of the most important points that we can make here when — and I think Paul said it very well here; we have federal government that has not rescheduled yet. We have a majority of the country that thinks that medicinal is okay, thinks that marijuana does have medicinal properties.
We have a lot of states who cited with voters saying that they can have access to what they are calling medicinal, but public opinion does not make something true. Science, solid, sound, vetted science make something true. And what we’ve had is kind of this big public opinion battle that’s been going on really for 30 years, and I think a lot of it from our friend Paul’s organization but recently, the last couple of years has been way hijacked by these guys who were profiteering in the businesses kind of what I’m seeing in Colorado, but the idea that marijuana is, one, not addictive, it is something that is continuing to be kind of sold to the world out there and that’s just categorically not true. Now it is considerably less addictive as is measured than some other things; tobacco for example. For me the argument that you have in that is to limit tobacco and alcohol consumption more than it is to expand the consumption of marijuana.
Another is that a person can’t become physically addicted to it. The DSM, which is the manual that we use in psychiatric medicine, the fifth ideation that came out last year, and for the first time ever included cannabis withdrawal as a diagnosable condition, and that’s because the cannabis of today is so different than even the cannabis of the ’70s or the ’80s, and certainly what’s naturally occurring.
So those are two of the big misconceptions, and then to address the alcohol one, it’s a difficult argument for me to weigh in on, because I feel like we are kind of — I am constantly being asked this, well, is it safer than alcohol and what’s the difference between it and alcohol, and the differences are innumerable.
And is it safer than — we don’t do that with drugs in my field. We don’t do the — this one is better than this one, this one is worse than that one. What we do is kind of look at reducing harms associated with.
So the side I am always looking at this through is from the negative aspects of, and while there are absolutely positive aspects and some interesting things happening with the study of potential medicinal properties inside of certain elements of, there is a lot of negative effects from the use of this substance as well that just aren’t getting talked about.
J. Craig Williams: Now there is certainly enough to talk about, and Paul, how do we have the issue of the various states’ approvals of these things competing with the Supremacy Clause in the Constitution and federal control of this? I mean ultimately let’s envision this situation where we have 50 states that all say in one form or another, marijuana use is fine, we’ve approved it, and then we have a federal government that’s on the other side of the fence, what’s going to happen?
Paul Armentano: Well, we are getting to the point where in fact that could be the reality. There is going to be five additional states this November where voters will decide on the adult use of marijuana, and in four additional states voters will decide on the use of marijuana for therapeutic purposes.
The federal government when it comes to marijuana policy simply does not lead. At a minimum it may eventually follow what the states are doing, but it has never led on this issue and has never engaged in a public policy that has been guided by science.
As was said earlier in this program, it would be tremendous if science is guiding federal policy, not just in marijuana, but in all sorts of other public policies, but unfortunately that has not been the case and I don’t expect it to be the case in this arena anytime soon.
J. Craig Williams: There was a recent Ninth Circuit decision, I don’t have the case at my fingertips, but it was in the last several weeks and it decided that where there is a marijuana dispensary or usage of marijuana in compliance with state law that a federal government cannot prosecute?
Paul Armentano: That is because there was a specific budgetary provision that was enacted by Congress over the last two years that forbids the Justice Department from spending taxpayer monies to prosecute state-compliant individuals or operations that engage in the cultivation or distribution of marijuana.
And so what that ruling was upholding was the fact that that specific budgetary amendment forbids the federal government from going after these individuals in states where their actions are compliant with state law.
J. Craig Williams: That seems like it would have a big effect?
Paul Armentano: It does, but because it is a budgetary amendment, it needs to be renewed by Congress every year when they pass their budgetary appropriation bill. So it’s not as if this is any sort of long-term or permanent change in federal law or federal policy, this is a very limited change in that it only exists as long as that budgetary appropriation is in place, it’s sort of a half-step.
J. Craig Williams: Well, it’s steps nonetheless. Ben, you talked about the scientific aspects of marijuana and its study, there is this silver lining in the DEA’s decision that allows more scientific study, so what’s going to be happening there?
Ben Cort: That’s a good question, and I think it’s to be determined. I think a lot of it will also depend on who is awarded permission by the feds to — I mean, right now the only place we are able to go for, it’s in Mississippi. So clearly we have got some geographical constraints and then we also have — not that they don’t have fantastic brain powers at university, but there is a lot of people at other great institutions who probably have thought about this a little bit more.
So I think it will depend on where we end up allowing it to be done. Again, we are hoping Colorado somewhere, because it does need rigorous — it needs medical study, and while we have seen some interesting anecdotal evidence of medicinal properties, again, inside of components of the plan, like no medicine is smoked, no medicine has ever been smoked, no medicine will ever be smoked. But when you see these interesting potential qualities inside of it, someone has got to extract that. And then we have got a couple of examples of it with Sativex and Marinol and things like that, but we need quite a bit more.
So I’m hoping that my state is one and I’m hoping that it’s really a focus on research into the potential medicinal qualities more than anything else, because it seems to me like we have got a fair amount of research taking place looking at the negative aspects of it right now.
J. Craig Williams: Okay. Well, before we move on to our next segment, we’re going to take a quick break to hear a message from our sponsor.
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Well, welcome back to ‘Lawyer 2 Lawyer’. I am Craig Williams. My co-host Bob Ambrogi is off today. With us today is Ben Cort. He is the Business Development Manager for the Center for Addiction Recovery and Rehabilitation; and Paul Armentano, he is the Deputy Director of NORML.
We have been recently in our last segment talking about the decision by the DEA to keep marijuana on the Schedule I list, and most recently about some of the scientific aspects of that.
So either Paul or Ben for this one, do you think that Big Pharma will be stepping in here to conduct some of the scientific research?
Paul Armentano: Well, if one actually reads the document that was issued by DEA. It is clear that that is their intention. In fact, right in the document they argue that in fact they believe the University of Mississippi can adequately supply marijuana for clinical research, but they note that they wish to broaden the pool of eligible providers so that there will be a clear legal pathway for the commercial development of marijuana as a commercial product. They say that right in their documentation.
So it is clear that DEA is taking a position that marijuana as a raw plant material will never in their opinion meet the definition of medicine, but they do wish to encourage the development of medicines based on components of the marijuana plant, which will ultimately be developed by pharmaceutical companies.
I am all for patients having choices, but among those choices ought to be the potential to use marijuana as a plant if that is most applicable, and that should not be precluded by the pharmaceuticalization of marijuana.
J. Craig Williams: Well, Ben, your thought.
Ben Cort: I think I would probably come from a different school of thought with it. I certainly don’t think we disagree totally on that, I mean, Big Pharma has done some really dirty awful stuff when you look at the way that opiates are pushed on people inside of this country, so a no fan of the produce of the world.
However, I am also not a fan of kind of more to the artisanally produced medications, because there’s no quality controls inside of, there is no dosages, there’s no regulation. So if we will call something medicine, medicine is prescribed for duration in a specific amount that’s never ever consumed as much as you want, as often as you want until you feel what you want.
And again, it never would be smoke. While there might be some people who would prefer that, I think that providing them with something that we could guarantee would be — with the system issues, and I am not going to — again, I have got all sorts of issues with the shortcomings of Big Pharma, but I would much rather have something that is FDA approved and we can be sure.
I mean, there’s been like literally hundreds of thousands of pieces of candy and of different strains of marijuana in Colorado recalled in the last two years because they were found to be infected with pesticides. You get the FDA involved, you get actual rigorous scientific study, you get a company that’s used to producing things in a better environment than someone growing something in the yard or someone producing something in their basement, and I think that we would have considerably less of that.
So there’s no perfect solution, but yeah, I think I would probably rather see this regulated like other pharmaceuticals than just have it be something that we are giving the label of medicine, but with none of the other kind of stringent requirements that we would place on anything else in this country that we would be calling medicine.
J. Craig Williams: Well, Paul, obviously NORML — I am going to guess here that NORML has a different perspective than that, and it’s relatively more acceptable obviously by the DEA’s decision itself for scientific study and medicinal uses to be there, but there’s also on the other hand a significant number of states, including Colorado, Washington, and others that have moved toward recreational use, and as kind of, I think, Ben aptly put it, as much as you want, as often as you want until you feel like you want type of usage.
So do you think Congress is ever going to approve that, the DEA would ever approve that type of use?
Paul Armentano: Well, we need to make the distinction between therapeutic use and social use of a particular substance. Obviously, most substances that are used therapeutically are done under the guise of a doctor’s supervision. I do want to take a little bit of umbrage with some comments about this notion that people never use certain therapeutics when they want as needed or as much as they want.
My son is an asthmatic, he has several bronchodilating drugs like Qvar and albuterol and he takes those as needed, and in fact, he takes as much as he wants until he has received relief. We don’t check in with the doctor and call them and ask how many puffs he should take off his inhaler. So in fact, there are precedents for individuals taking drugs and self-administering their drugs.
Ben Cort: I am corrected Craig. Point well made Paul.
J. Craig Williams: Yeah, I think me too.
Paul Armentano: Okay. But with regard to the adult use, of course we are talking about a different standard, a different environment, and NORML takes the position that criminalizing adults who consume cannabis responsibly is a disproportionate public policy response to behavior that is at worst a public health concern, but it shouldn’t be a criminal justice matter. We believe that a regulated market rather than a criminal market best addresses and mitigates cannabis’ potential risks and abuse potential; the sort of risks that Ben is concerned about.
J. Craig Williams: Where do we come out on that or where does NORML come out on that issue with respect to the criminal aspect of treatment of the use of marijuana in the same way that we treat alcohol as driving under the influence or DWDU or whatever you want to call it, DWI, how does marijuana usage or social marijuana usage fit into that aspect of criminalization?
Paul Armentano: Sure. Well, we as a society in 2016 already have blueprints of how to successfully regulate these sort of recreational substances. Look at tobacco, for instance, use of tobacco among the American population is at historic lows today. That’s not the case because we have criminalized the responsible use of tobacco, but because we have regulated it accordingly, we tax the product, we have age impositions, and the enforcement of those age restrictions, and we promote evidence-based public health campaigns to discourage individuals from picking up the habit. Those same principles ought to apply to cannabis.
With alcohol we have also seen a tremendous decrease in the use of alcohol by our society. We have seen a decrease in the problematic use of alcohol, like binge drinking, like drunk driving. Again, the solution to these problems isn’t blanket criminalization; it is legalization and commonsense regulation.
Ben Cort: So this is where Paul and I will differ completely on it. I think that the example of tobacco is an absolutely phenomenal one and we allowed them to — up until the mid-90s to sit in front of Congress and tell everyone that it was not addicted, there was no issue with it, because they were making money hand over fist, because they were advertising any way that they could, because when they finally released all of the papers that we got a few years ago we saw how they were specifically targeting children, minorities, low income communities. We saw the strategy that happens when you allow American-style capitalism to intersect with the marketing and sale of a potentially addicted vice substance.
And it took us 150 years to start to get tobacco under control, and we finally got to a point where we won’t allow television commercials for it, where kids see somebody smoking and they all say, hey, that’s bad, because of the social stigma, because of the ostracizing that we have done and making people move away to smoke; the exact opposite has happened with marijuana consumption.
We have been working towards the normalization of this for so long that while the other uses continue to drop, because people are finally learning, and we are finally starting to bust these guys’ butts and not allow them to run ads on TV for Marlboro anymore and they can’t have Joe Camel. I could send you 250 photographs this afternoon of cartoon characters specifically marketing marijuana and THC based products that are clearly to young people, like the issue is not the criminalization, decriminalization; I have always thought decriminalization was a good idea, the issue is in the mass commercialization and industrialization of another vice substance, which is the situation we find ourselves in here in Colorado.
This is the crux of the issue and to consider some of the other states that we were talking about, one of the other five that’s going to vote on it this year, the law in California is written in a way that would very clearly allow for the advertisement of marijuana and THC based products on television. How many years did it take us to get tobacco to quit doing that.
I think we have got to learn from the mistakes that we made with tobacco and alcohol, because man, if we could go back and do it all over again, I guarantee you it would be a tighter leash that we would have on those guys than what we have on cannabis today.
Paul Armentano: Well, I am going to agree with Ben by and large, NORML does not support mass commercialization. We represent the consumer end of this equation, and I agree, we as a society have learned some important significant lessons from the unbridled capitalism that surrounded the promotion of cigarettes, alcohol. We are seeing it now with prescription drugs, particularly opioids. And just as those industries are being reined in and restricted in their ability to commercialize and promote a product, I think we are going to utilize those same lessons with regard to marijuana, particularly if we get to an environment where there is in fact federal regulation of the product.
Unfortunately, that cannot happen in a system where marijuana remains either criminalized or in this gray market area, which it exists in today.
J. Craig Williams: Well gentlemen, it looks like we have just about reached the end of our program, so I would like to take this moment to have you summarize your final thoughts along with your contact information so our listeners can reach out to you. So Ben, I will throw it over to you.
Ben Cort: Sure. I think my final thoughts on this are probably pretty simple. We have traditionally made all sorts of silly decisions in this country when it comes to creating policy around, everything from driving, to alcohol, to drugs, and poor decisions in the past I think need to be considered when we are looking at what we are going to do in the future.
There’s about a million miles between what some of these silly laws that were instituted a 150 years ago around certain drugs and the ridiculous environment that I live in today, that is this kind of untouched commercialization of. And one of the areas that I have always appreciated the direction that NORML has come from with it, like these are not the profiteers; NORML truly are the social activists, and while Paul and I might disagree on a few things, I love that we can have an intelligent conversation and agree to disagree about it.
The issue that I take is with the profiteers, the issue is with the people who are selling with absolutely no regard for what they are doing to the communities and specifically advertising to poor and minority communities and young people, and that’s what we have done.
We have run away from what we were and we have found ourselves where we are, which is total unchecked, driven by capitalism, industrialization, and commercialization of another substance.
If we want to reschedule this, if we want to continue this conversation, science takes time, and right now all the science that we have shows us that it does meet the criterium for a Schedule I, maybe we need to look in this country at changing the way we define schedules, but I think three is a lot of room between what we have done in the past in this country and the direction we are going, which is giving the keys to the kingdom to the industry that’s going to sell as much as they can to everyone who they can so they can make as much money as they can.
J. Craig Williams: Great! And Paul, your final thoughts?
Paul Armentano: Sure. Again, thank you for having me. I would like to also thank Ben for being an articulate guest, and to also congratulate you on your years of sobriety.
The reality is that the criminal prohibition of marijuana does not work. If it did work we wouldn’t be having this conversation right now in 2016. The reality is, is despite nearly a century of cannabis criminalization nearly one out of two adults in this country acknowledge having used the substance, and about 10% or 11% of the country acknowledge using it regularly. That’s reality. And our public policy ought to reflect that reality, and as such, we ought to regulate the production, sale and use of this product accordingly.
Ultimately a pragmatic regulatory framework that allows for the legal license commercial production in sale of cannabis to adults, but continues to restrict and discourage its use among young people best reduces the risks associated with the plant’s use and abuse, and best creates an environment where consumers can readily delineate between those two behaviors. Ultimately, public opinion is on our side and eventually the politics will be on our side as well.
If folks want to learn more about this issue, if they want to reach out and get involved, NORML has a website that people can reach by simply going to HYPERLINK “http://www.norml.org/”www.norml.org.
J. Craig Williams: Great. Thank you very much, Paul. Well, that brings us to the end of our show. This is Craig Williams. Thanks for listening. Join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.
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