[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 [[Page S672]] 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. [[Page S673]] 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. ____________________