[Congressional Record Volume 162, Number 21 (Thursday, February 4, 2016)]
[Senate]
[Pages S671-S673]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. WYDEN (for himself, Mr. Merkley, and Mrs. Murray):
S. 2504. A bill to amend the Controlled Substances Act to allow for
advertising relating to certain activities in compliance with State
law; to the Committee on the Judiciary.
Mr. WYDEN. Mr. President, today I am introducing the Marijuana
Advertising In Legal States Act to allow small businesses and
newspapers in States that have legalized marijuana to advertise
marijuana products.
In the last few years, voters in Oregon, Washington, Colorado and
Alaska overwhelmingly approved initiatives to legalize the adult use
and sale of marijuana. Additionally, 23 States, the District of
Columbia and Guam have legalized full medical marijuana programs, and
17 more States have approved more limited medical marijuana programs.
In many of these States, State-approved dispensaries are up and
running, bringing the industry out of the shadows of the black market
and creating a safe, regulated system in much of America.
Despite passage of these state laws, marijuana remains stuck in the
past as a Schedule I substance according to the Federal Controlled
Substances Act, CSA. This designation means it is a felony to
distribute, possess or consume it. Recognizing this discrepancy, the
Obama administration issued a memorandum in 2013 which held: so long as
certain enforcement criteria were met, Federal law enforcement entities
would not interfere with legal state marijuana activity. Congress then
followed suit and barred the Department of Justice from expending
resources in contravention of state medical marijuana laws.
However, since marijuana is designated as a Schedule I substance,
according to Federal law it is still unlawful for anyone to place an
advertisement for marijuana, including a medical marijuana product, in
any newspaper, magazine, handbill or other publication, even if that
activity is legal under State law. This creates a legally conflicted
reality in States, like Oregon, where marijuana is legal for those
marijuana businesses that seek to advertise in local newspapers, as
well as for the many newspapers around the country that rely on
advertising revenue.
Further complicating the matter, the United States Postal Service,
USPS, recently declared that it is illegal to mail any items, including
newspapers, which contain advertisements offering
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to buy or sell marijuana, even if the marijuana-related activity is in
compliance with a state law. The USPS stated that if it uncovers any
items deemed to be ``non-mailable,'' it would report the item to the
Postal Inspection Service, which would refer it to a law enforcement
agency for investigation. Despite the 2013 Obama administration memo
indicating Federal law enforcement would not interfere, these
businesses are concerned. Small businesses and community newspapers
rely on the USPS to reach their customers, especially in rural areas.
The USPS policy could have the effect of stopping all written marijuana
advertisements in states that have already made the decision to
legalize marijuana, which would be a blow to newspapers and small
businesses that are already struggling financially.
My proposal would create a narrow exception in CSA to allow for the
written advertisement of an activity, involving marijuana, if it is in
compliance with State law.
I am pleased to be joined on this bill by my colleague from Oregon
Senator Jeff Merkley who has worked closely with me over the years to
ensure that the decision that Oregon voters made at the polls is
respected by the Federal Government.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to printed
in the Record, as follows:
S. 2504
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Marijuana Advertising in
Legal States Act of 2016'' or the ``MAILS Act''.
SEC. 2. AMENDMENT.
Section 403(c)(1) of the Controlled Substances Act (21
U.S.C. 843(c)(1)) is amended by adding at the end the
following: ``This paragraph does not apply to an
advertisement to the extent that the advertisement relates to
an activity, involving marihuana, that is in compliance with
the law of the State in which that activity takes place.''.
______
By Mr. LEAHY (for himself, Mr. Franken, Mr. Blumenthal, Mr.
Durbin, and Mr. Whitehouse):
S. 2506. A bill to restore statutory rights to the people of the
United States from forced arbitration; to the Committee on the
Judiciary.
Mr. LEAHY. Mr. President, I rise to discuss legislation I am
introducing today to protect workers and families in Vermont and across
the country who are being forced to give up crucial rights because of
legal fine print forced on them by corporations.
The Restoring Statutory Rights Act combats the injustice of forced
arbitration. It will ensure that hardworking men and women can
vindicate their rights in court instead of being forced into a private,
shadow justice program. Some of the contracts people sign
automatically, with little, tiny type, say: If we overbill you, if we
give you defective equipment, if we do anything to you, it will go to
arbitration. Guess what. The only people who primarily get to pick the
arbitrators are those who side with the corporations.
Mr. President, I am introducing this legislation on behalf of myself,
Mr. Franken, Mr. Blumenthal, Mr. Durbin, and Mr. Whitehouse.
Today I want to speak about a problem that many Americans are unaware
of but that affects all of us in our daily lives. When Americans sign
cell phone agreements, rent an apartment, or accept a contract for a
job, most of us focus on the service we are about to receive or that we
are about to provide. What Americans do not realize--until it is too
late--is that too often we are also signing away crucial legal rights.
Legal fine print tips the scales against us. It is forcing consumers
into private arbitration, denying us of our constitutional right to
protect ourselves in court and to have others learn about the harm
caused by corporations.
This problem has meaningful, real-world implications for Americans'
ability to seek justice. When victims are forced into private
arbitration, their cases proceed without public record. The cases
cannot serve as precedent for future injustices, and the plaintiffs--
hardworking consumers--cannot obtain a meaningful appeal. An arbitrator
is selected by the corporate defendant, creating incentives that favor
repeat corporate players. In many cases, forced arbitration stops
victims' legal actions altogether: by requiring victims to waive their
legal right to join with other victims in a class action, arbitration
clauses often remove the crucial tool that plaintiffs need to afford
pursuing their claims.
The injustice of forced arbitration affects consumers, workers,
seniors, veterans, and families in every State across the country. The
cases are heart-wrenching. In one recent case, a pregnant woman
suffered a tragic miscarriage and was not able to work for 7 days. When
she returned to work, she was fired. When this woman attempted to hold
her employer accountable in court for violating the Family and Medical
Leave Act and her State's pregnancy discrimination laws, her case was
forced into private arbitration. We do not know the outcome of the
case, but that is precisely the problem. In private arbitration, there
is no way to know if she obtained justice, no precedent to deter other
employers from such behavior, and no public accountability for the
corporation that may have violated both State and Federal law.
In another recent case, an hourly employee at a hospital realized she
was not being paid for all of the time she worked because her
employer's payroll system was ``rounding down'' her time. When she
attempted to bring a class action on behalf of all the hourly employees
at the hospital, her lawsuit was dismissed and forced into individual
arbitration. To seek justice, the hospital employees must now pay to
bring their complaints case-by-case, even though the cost of bringing
an individual arbitration almost certainly outweighs the lost wages any
worker would receive.
Forced arbitration has also been a favorite tool for well-heeled
corporations to make an end-run around our civil rights laws. When
working women are paid less for doing the same job; when minorities are
denied promotions despite their success; or when banks target poor
minority neighborhoods with predatory loans, the closed and
unaccountable forum of private arbitration lets them conceal their
discriminatory actions.
This system of forced arbitration denies individuals access to
justice. But it also guts vital protections we have fought for in our
laws. Whether we are talking about family and medical leave, equal pay,
or crucial civil rights protections, what strength do our laws have
when the legal process Congress created to enforce them is stripped
away without recourse? Through legal fine print, corporations are
giving themselves a ``get out of jail free'' pass that guts citizens'
rights and shields bad actors from accountability.
When Congress passed the Federal Arbitration Act, it was intended to
give sophisticated businesses an alternative venue to resolve their
disputes. There is a valid role for arbitration when parties choose it
willingly, after a dispute arises, as an alternative to court. But
arbitration should not be forced upon consumers and workers through
take-it-or-leave it contracts they have no real choice but to accept.
And it should not--it must not--prevent Americans from enforcing their
rights under fundamental State and Federal laws.
Nor should Federal law interfere when States take action to address
the injustice of forced arbitration. A full 47 of our 50 States have
tried to protect their citizens in some way from forced arbitration,
but these efforts have been thwarted by Federal law. In Vermont,
lawmakers required that arbitration clauses be accompanied by a written
acknowledgement signed by both parties, to ensure that consumers were
aware of them. This reasonable, commonsense requirement was invalidated
because it conflicted with Federal law.
Following a 2011 Supreme Court case, AT&T v. Concepcion, other
efforts in Vermont and across the country to protect citizens from
forced arbitration have also been invalidated. Vermonters who tried to
sue their phone service provider for disturbing them with unwanted text
messages and Vermont drivers who tried to sue their car insurers over
coverage have all been forced into private arbitration despite
conflicting measures in Vermont law. This restriction on States'
authority is wrong, especially when the enforceability of contracts is
traditionally an area left to State law. This is not a partisan issue.
Both Republican and Democratic attorneys general have repeatedly spoken
out against the Federal Arbitration Act's intrusion on State
sovereignty and a State's compelling interest in protecting the health
and welfare of its citizens.
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Congress must act to stop these abuses. That is why today I am
introducing legislation to limit the injustice of forced arbitration
and protect Americans' right to seek justice in our courts. The
Restoring Statutory Rights Act will ensure that critical State and
Federal laws can actually be effective, by ensuring that citizens
cannot be stripped of their ability to enforce their rights using our
independent justice system. It will also ensure that when States take
action to address forced arbitration, they are not preempted by an
overbroad reading of our Federal arbitration laws.
This effort is supported by the Leadership Conference for Civil and
Human Rights, the National Employment Lawyers' Association, Americans
For Financial Reform, Alliance for Justice, Earthjustice and consumer
groups such as Consumers Union, Public Citizen, the National Consumer
Law Center, and Consumers for Auto Reliability and Safety. These groups
and many others have worked tirelessly to highlight the injustice of
forced arbitration and the unparalleled scope and number of people it
affects.
All Senators should care about the implications of forced arbitration
for statutes that this body writes, debates, and enacts into law.
Senators should also care about their home States' ability to protect
consumers from unconscionable contracts when their State chooses to
act. I urge Members to support this bill.
Mr. LEAHY. Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. FRANKEN. Mr. President, I rise today to discuss the widespread
and harmful impact of forced arbitration--mandatory arbitration. Last
November, the New York Times published a three-part investigative
series, which I recommend to every Member, on the pervasive use of
forced arbitration--or mandatory arbitration. Mandatory arbitration is
a privatized system of justice that corporations rely on when their
customers or workers seek justice for being cheated, injured, or
mistreated.
The series in the New York Times, while shocking, illustrates
something that I have been saying for a long time: Mandatory
arbitration agreements--forced arbitration agreements, which are often
buried in the fine print of employment and service contracts, severely
restrict Americans' access to justice by stripping consumers and
workers of their legal rights and insulating corporations from
liability. From nursing home contracts and employment agreements to
credit card and cell phone contracts, corporate America uses forced
arbitration clauses to rig the system against ordinary Americans in a
wide variety of cases.
My staff recently heard from a Minnesota lawyer who represents
families with serious injury and wrongful death claims. He told the
heartbreaking story of a man who suffered from dementia and was
eventually checked into a nursing home. Twenty-one days after entering
the home, it became clear to the man's family that his life was in
danger; he was rapidly losing weight and had fallen into a coma. He was
then sent to a hospital, where it was discovered that he was suffering
from ``profound dehydration.'' Unfortunately, the hospital could not
correct the harm caused by the nursing home, and the man died shortly
thereafter. He was 71 years old. Then, instead of being able to take
the nursing home to court, the man's family was forced to settle their
wrongful death claim through arbitration. When all was said and done,
the arbitrators actually received greater compensation than the family,
and the nursing home got away with a slap on the wrist.
Egregious cases like that of this Minnesota family are not rare. Time
and again, arbitration clauses stack the deck in favor of big business
and against consumers, as if the deck weren't stacked enough already.
As the number of unbelievable stories grows, the need for reform has
become clearer and more urgent. That is why I am proud to be joining
Senator Leahy, as well as Senators Blumenthal, Durbin, and Whitehouse,
in introducing the Restoring Statutory Rights Act to ensure that
Americans can enforce their civil rights.
As Members of Congress, we have fought hard to pass legislation that
will protect Americans from discrimination. This critical work is
undermined, however, if we strip away their right to go to court and
instead force these claims into a privatized justice system.
Remember that corporations can write the rules for the arbitration
proceedings; everything can be done in secret, without public rulings;
discovery can be limited, making it hard for consumers to get the
evidence they need to prove their case; and there is no meaningful
judicial review, so there is not much a consumer or an employee can do
if the arbitrator gets it wrong. It is simply not fair.
I have also introduced with a number of colleagues my own bill, the
Arbitration Fairness Act, which would fix these unfair practices by
amending the Federal Arbitration Act to prohibit the use of mandatory,
predispute arbitration agreements in consumer, employment, civil
rights, and anti-trust cases. This bill gives Americans a real choice:
If a consumer or worker wants to take his claim into arbitration, then,
by all means, he is free to do so, provided that the corporation is
willing to do so as well. However, if the consumer or employee wants to
go to court, that option will once again be available.
To put it simply, both of these bills are about reopening the
courthouse doors to American consumers and workers, because the
courthouse doors never should have been closed in the first place.
I ask others to please join me in fighting back against mandatory
arbitration and cosponsor the Restoring Statutory Rights Act and the
Arbitration Fairness Act.
Mr. President, I yield the floor.
____________________