Marijuana Law, Policy & Reform

As federal marijuana reform remains stalled, new coalition formed to advocate for rescheduling under CSA

As many of my students should recall, I have long stressed in many of my marijuana classes that a complicating question in the debates over possible federal reforms concerns whether advocates should prioritize rescheduling or descheduling of marijuana under the federal Controlled Substances Act (CSA).  Most reform advocates certainly have a clear preference for removing marijuana entirely from the CSA (descheduling), which would mean marijuana is treated the same legally as alcohol and tobacco.  But rescheduling marijuana from Schedule I to Schedule III or lower would seem to be more politically viable in the short term and would at least soften some of the legal problems created by the current conflict between state marijuana reforms and the drug's federal status.

Though the rescheduling versus descheduling debate has been long simmering, it has gotten some renewed energy since Prez Biden in October 2022 directed his Administration to review the Schedule I status of marijuana under the CSA.  In addition, with Republicans in control of the US House of Representatives and perhaps poised to take back control of the US Senate in 2024, robust descheduling marijuana reforms from Congress may not be a realistic possibility for many years to come.  Consequently, it perhaps make sense that folks still eager for descheduling would, at least in the short term, now be open to supporting rescheduling.

Against this backdrop, it is not to surprising to see this news from Marijuana Moment under the headline "New Coalition Of Major Marijuana Groups Launches Push For Scheduling Reform, Even If It Falls Short of Legalization."  I recommend this lengthy piece in full, as it effectively highlights various aspect of the rescheduling versus descheduling debate.  And here is how the story starts:

As federal agencies work to complete a marijuana scheduling review at the president’s direction, a new coalition of major cannabis companies and advocacy organizations has launched, aiming to advance the conversation in a way that embraces the potential benefits of an incremental rescheduling move even as they push for broader legalization.

The Coalition for Cannabis Scheduling Reform (CCSR), which detailed its plans exclusively to Marijuana Moment ahead of an official launch on Tuesday, will be working with advocates, stakeholders, lawmakers and administration officials to promote education about the need to remove marijuana from Schedule I of the Controlled Substances Act (CSA).

Unlike other leading advocacy groups focused on full descheduling and legalization, however, its members are also united around the idea that moving cannabis to Schedules III, IV or V of the CSA would represent “historic progress” that shouldn’t be discounted.

But while there’s general agreement that such a move would resolve key federal tax issues for the industry and ease research restrictions, some advocates have cautioned against anything short of complete removal of marijuana from the CSA, insisting that a mere rescheduling would effectively capsize existing state markets and give way to further big business control of the industry.

"An Equity Action Plan for Marijuana: The Biden Administration’s Opportunity to Advance Equity Through Cannabis Reform"

The title of this post is the title of this notable new paper authored by Cat Packer now available via SSRN. (Note: Cat is my former student and also is now serving as a Distinguished Cannabis Policy Practitioner in Residence with the Drug Enforcement and Policy Center at the The Ohio State University Moritz College of Law.) Here is its abstract:

This paper examines the Biden Administration’s executive orders on equity, its position on marijuana reform before and after President Biden’s related October 2022 statement, and it's repeated statements acknowledging both cannabis criminalization’s disproportionate impact on Black and Latino communities and marijuana reform as an opportunity to advance equity.  Moreover, this paper critiques the omission of marijuana reform within the Biden Administration’s Equity Action Plans and highlights the opportunity for the Biden Administration to use its existing executive orders on equity as a framework to understand and address how marijuana laws and policies create barriers for underserved communities through the development of an equity action plan for marijuana reform.

Gearing up for US Senate hearing on "Examining Cannabis Banking Challenges of Small Businesses and Workers"

As detailed at this official site, the U.S. Senate Committee on Banking, Housing, and Urban Affairs has a hearing scheduled for tomorrow morning titled "Examining Cannabis Banking Challenges of Small Businesses and Workers."  Among the topics to be discussed is surely to be the SAFE Banking Act, and there are scheduled witnesses who will be supportive and who will be oppositional to this bill.   Here are the listed witnesses:

The witnesses on Panel I will be: 

• The Honorable Jeff Merkley, United States Senator (D-OR); and 
• The Honorable Steve Daines, United States Senator, (R-MT).

The witnesses on Panel II will be: 

• Mr. Ademola Oyefeso, International Vice President and Director of Legislative and Political Action Department, United Food and Commercial Workers International Union (UFCW); 
• Ms. Michelle Sullivan, Chief Risk & Compliance Officer, Dama Financial; 
• Dr. Kevin Sabet, PhD., President and CEO, Smart Approaches to Marijuana, and Fellow, Yale University; and 
• Ms. Cat Packer, Vice Chair, Cannabis Regulators of Color Coalition.

Some witness written tesimony is already available at the hearing website.

As is so often the case, the folks at Marijuana Moment hav lots of coverage on this topc, and here are links to some of its relevant pieces:

• "Key Senate Committee Officially Schedules Hearing On Marijuana Banking Bill For Next Week"
• "Schumer Says Marijuana Banking Bill Will Go To Senate Floor — With Expungements And ‘Social Justice’ Attached — At NYC Cannabis Rally"
• "American Bankers Association Calls For ‘Swift Passage’ Of Marijuana Banking Bill Ahead Of Senate Committee Hearing"
• "Senate Committee Adds New Witnesses For Marijuana Banking Hearing This Week"

Student presentation exploring past marijuana convictions and sentences amid reform efforts

I am always excited by the wide range of diverse topics that students in my Marijuana Law, Policy & Reform seminar focus upon for their research and class presentations.  But, because I was brought to this topic through my long-standing interest in criminal justice reform, I get extra excited when a student digs into criminal law stories.  And the second presentation slated for this week is in this space, and the topic is described by my student this way (along with background readings):

Efforts to change marijuana law at both the state and federal level are never-ending.  With so much excitement around the prospect of new laws, the passing of new laws, and the possibility of new business, one group appears to be left behind more often than not: the people who have already been affected by the criminalization of marijuana and are currently serving time in prison.

At the federal level while marijuana is not legal, Biden pardoned roughly 6,500 people convicted of simple possession of marijuana in October of 2022.  This step showed so much promise of change, but what wasn’t accounted for was how simple possession charges can affect the sentences of other people within the federal sentence.  Maybe someone is convicted of heroin possession, but they have two previous marijuana possession charges — their criminal history increases, increasing their sentence.  How do we account for these disparities? One person is pardoned, no longer serving time for marijuana possession while another gets months tacked onto their sentence for that same offense.

At the same time, simple possession marijuana offenders are not the only group facing disparities.  People serving longer sentences in federal prison for trafficking marijuana also face disparities in sentence lengths due to mechanisms like compassionate release.  A system set up to help people — and it does — does not reach every person equally in prison.  Depending on your judge, you may have an order granting your motion for compassionate release because the judge understands the marijuana landscape has changed over the last 20 years.  However, on the other hand, you may receive an order from your judge denying your motion for compassionate release because to them trafficking marijuana is still a crime at the federal level, despite what states are doing.  How do you remedy one person receiving relief because of changes in marijuana law while another person being denied compassionate release because changes in marijuana law does not warrant a sentence change?

Maybe there is no good answer — but one thing is for sure, this group of people, feeling the impacts of antiquated marijuana law, cannot be left behind.

Background reading:

US Sentencing Commission, "Weighing the Impact of Simple Possession of Marijuana" (January 2023) 

From CNBC, "Biden pardons thousands of people convicted of marijuana possession, orders review of federal pot laws" (October 2022)

 Congressional Research Service, "Recent Developments in Marijuana Law" (December 2022)

Student presentation exploring legality of gun possession and marijuana use

Students in my Marijuana Law, Policy & Reform seminar often focus on cutting-edge issues in their class presentations on the research topics of their choice.  The second presentation slated for this week could not possibly be more cutting edge, as my student will be discussing gun possession and marijuana use.  Here is how she has described her topic along with background readings she has provided for classmates (and the rest of us):

                Although individual states have not necessarily legislated that possessing a gun is unlawful for state compliant marijuana users, cannabis’s federal illegality seems to produce this result.  The process for obtaining a gun – regardless of what state the individual resides in – requires the individual to fill out the Federal Bureau of Alcohol, Tobacco, and Firearms’ Form 4473. Form 4473 question 21g states:

"Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?  Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreation purposes in the state where you reside."

                Consequently, individuals that are fully in compliance with the marijuana laws in their home state are being stripped of their Second Amendment right, regardless of if the plant is being used for medicinal or adult use purposes.  Therefore, marijuana users who wish to possess a gun have three options: stop using marijuana entirely, stop using state compliant marijuana and instead obtain it from an illicit source, or lie.  Although ATF agents and prosecutors report that due to limited resources, they are not inclined to prioritize the nonviolent crime of lying on a form over more serious charges, lying on the form and obtaining a gun while being a marijuana user remains a federal felony offense. 

                In the wake of the 2022 Bruen holding, litigation on this matter seems to (so far) sway in favor of gun rights activists.  But there remain many unanswered questions in this area.  The implications of either a legitimization of state-legal marijuana use on the federal level (while the plant remains on Schedule I), or of an acknowledgement that the gun control/background check process can be changed, could be massive.

Links to Background Reading:

From the Washington Post, "Lying to ATF on gun-purchase form yields few prosecutions, data shows"

From the US Attorney's Office in the Western District of Oklahoma, "Federal Prosecutors Aggressively Pursuing Those Who Lie in Connection With Firearm Transactions"

From the Reason Foundation, "Medical Marijuana Patients Are Being Denied Gun Rights"

From US Congressman Alex Mooney, "There Are Two Sides Of The Fence, Use Marijuana And Give Up Gun Ownership Or Give Up Marijuana And Be A Gun Owner."

From CNN, "Gun form liars may go on to commit gun crimes, internal ATF research suggests"

"Tax Issues Affecting Marijuana Businesses"

The title of this post is the title of this new article recently posted to SSRN authored by Erik M. Jensen. Here is its abstract:

This article considers several issues affecting Internal Revenue Code section 280E, which denies income-tax deductions and credits to businesses trafficking in controlled substances.  Even though marijuana is legal in an increasing number of states, it remains a controlled substance under federal law and section 280E therefore applies to marijuana businesses.  As a result, investing in a marijuana business is much less attractive than it would otherwise be.  The article discusses issues of statutory interpretation but, more important, considers whether an almost complete denial of deductions and credits converts what is in form an income tax into something else.  If the “income” tax as applied to a marijuana business is not on income, within the meaning of the Sixteenth Amendment, it may have to be apportioned among the states on the basis of population to be constitutional (the so-called direct tax apportionment rule).  The article also argues, however, based on a 1911 Supreme Court decision, that the Sixteenth Amendment issues might go away if the business is conducted using a taxable corporation.  Finally, the article includes a brief discussion about marijuana businesses conducted either directly by American Indian nations or through tribally created corporations.  Those entities are not subject to the federal income tax; the limitations of section 280E therefore are irrelevant; and tribal businesses have a competitive advantage in the marijuana market.  Because of section 280E’s application to businesses that are legal under state law but illegal under federal law — an untenable situation — federalism issues underlie all of the discussion.

FDA concludes that "new regulatory pathway for CBD is needed"

After extended study, the federal Food and Drug Administration has decided it cannot figure how to regulate cannabidiol (CBD). This FDA press release explains its decision, and here are excerpts:

Given the growing cannabidiol (CBD) products market, the U.S. Food and Drug Administration convened a high-level internal working group to explore potential regulatory pathways for CBD products. Today we are announcing that after careful review, the FDA has concluded that a new regulatory pathway for CBD is needed that balances individuals’ desire for access to CBD products with the regulatory oversight needed to manage risks. The agency is prepared to work with Congress on this matter. Today, we are also denying three citizen petitions that had asked the agency to conduct rulemaking to allow the marketing of CBD products as dietary supplements.

The use of CBD raises various safety concerns, especially with long-term use. Studies have shown the potential for harm to the liver, interactions with certain medications and possible harm to the male reproductive system. CBD exposure is also concerning when it comes to certain vulnerable populations such as children and those who are pregnant.

A new regulatory pathway would benefit consumers by providing safeguards and oversight to manage and minimize risks related to CBD products. Some risk management tools could include clear labels, prevention of contaminants, CBD content limits, and measures, such as minimum purchase age, to mitigate the risk of ingestion by children. In addition, a new pathway could provide access and oversight for certain CBD-containing products for animals.

The FDA’s existing foods and dietary supplement authorities provide only limited tools for managing many of the risks associated with CBD products. Under the law, any substance, including CBD, must meet specific safety standards to be lawfully marketed as a dietary supplement or food additive.

The working group ... has closely examined studies related to the CBD-based drug Epidiolex, published scientific literature, information submitted to a public docket, as well as studies both conducted and commissioned by the agency. Given the available evidence, it is not apparent how CBD products could meet safety standards for dietary supplements or food additives. For example, we have not found adequate evidence to determine how much CBD can be consumed, and for how long, before causing harm. Therefore, we do not intend to pursue rulemaking allowing the use of CBD in dietary supplements or conventional foods.

This Washington Post article about the decision highlights some industry grumpiness and the broader context:

“When it comes to the safety of CBD, the FDA gets it wrong,” Jonathan Miller, general counsel of the U.S. Hemp Roundtable, said in a statement. He called the agency’s intent to tighten regulations “unprecedented and unnecessary” but said he endorsed a legislative solution to allow marketing of CBD in dietary supplements and foods.

Alex Buscher, a Colorado-based lawyer who advises hemp companies, said that CBD doesn’t seem to be riskier than other dietary supplements on the market that have the potential for side effects if taken at higher-than-recommended doses. “The FDA is kicking the decision back to a divided Congress, which will take time to create a new regulatory framework,” he said. “We need actual regulation from the FDA.”Advocacy groups and food industry experts criticized the FDA decision.

Food safety experts have said that the FDA has been in an impossible situation as states have decriminalized marijuana — which remains illegal under federal law — and related products have gained popularity. According to the National Conference of State Legislatures, as of this past February, 37 states (plus D.C., Puerto Rico, Guam and the U.S. Virgin Islands) have legalized medical use. As of Nov. 9, 21 states (plus D.C., Guam and the Northern Mariana Islands) have decriminalized recreational use — a strong indication that public sentiment has shifted.

“I’m sure the FDA probably concluded that no matter which way they went, it would involve trying to fit a very big genie back into a very small bottle, and create a political firestorm,” said Brian Ronholm, director of food policy for Consumer Reports. “It’s not surprising that they would want to seek some cover from Congress.”

Highlighting the hazy "who" of marijuana reform with state reforms and persistent federal prohibition

In the classroom and also in some of my scholarship, I often lean into the questions relating to "who" takes the lead with various legal doctrines and reforms. In the marijuana space, of course, these "who" questions have the added complications from conflicting federal and state (and sometimes local) laws and regulations.  Usefully, this lengthy new Grid piece provides something of an overview of the messy realities of discordant "whos" in the marijuana policy space.  The full title for the piece highlights its themes: "Marijuana can be legal and illegal at the same time: How the hazy mix of state and federal laws is creating a mess: It’s hard to figure out when and where using or selling marijuana is a crime — and when it’s not."  Here are excerpts:

America is a little dazed and even more confused when it comes to how legal (or not legal) marijuana is. State laws have been changing dramatically over the past decade — but they’re also inconsistent across state borders. Something legal in one state could get you arrested the next state over. It has created a dizzying patchwork of rules, regulations and exceptions made even worse by the federal government’s complete ban of the substance....

[J]ust because federal agents aren’t exactly arresting every single person with a cannabis plant on their windowsill (there aren’t enough agents for that) that doesn’t mean there won’t be consequences. In child custody cases, for instance, one party can cite marijuana use as a violation of federal law when arguing that someone shouldn’t get custody.

There are also no workplace protections at the federal level, even for workers who use cannabis legally or medicinally in a state. That means that workers can be fired if they fail a drug test, even if they’re in a state where it’s legal and they aren’t currently using or high. Some states have passed worker protections for off-duty use of marijuana to address the issue.

And then there is housing: Federally subsidized public housing bans cannabis use. An applicant or tenant who is found to be in violation of this law might be denied housing or evicted — even if it’s legal in the state they are living in....

Besides the matter of taxes and prices, the matrix of federal and state policies has allowed a thriving “gray market” to proliferate.... This market might take the form of storefronts offering marijuana as a “gift” accompanying a purchase in D.C., where buying and selling weed is illegal — but possessing it isn’t — because of congressional members opposed to legalization putting a rider in a budget bill nearly a decade ago....

The removal of a federal prohibition might result in consolidation. Any huge company, which would be able to ship the product across state lines, could buy out any smaller competitors and bring down prices for legal cannabis products. (For reference, Rand previously estimated that all the cannabis used in the U.S. could be grown on a few dozen industrial-size farms.)

"Building Solidarity in Support of Immigrants’ Rights in the Evolving Marijuana Legislative Landscape"

As I have mentioned before, after a very busy Fall semester, I am catching up on the posting of some recently produced papers that are part of the on-going series of student papers supported by the Drug Enforcement and Policy Center.   And now I have just started teaching a new semester of my marijuana seminar, it is especially enjoyable to be able to highlight some of the great work that was done by students in my last class.   The title of this post is the title of this paper authored by Charlotte Kalfas who was in my marijuaan seminar last year and who now completing her 3L year at The Ohio State University Moritz College of Law.  Here is the abstract of her paper: 

This paper attempts to raise the profile of and build solidarity among disparate groups on the issue of considering how immigration law should be amended or enforced in the wake of the move towards legalization, whether on a state-by-state or federal level.  It goes into detail on perspectives and policy rationales for amending the INA to remove marijuana from disparate political perspectives -- those who are already committed to immigrants' rights, those who are already committed to marijuana legalization, and those who are less amenable to either.

For the first group, it's fairly self-explanatory: marijuana use is a deportable offense for immigrants whether or not it is legal, which makes little sense in the era of marijuana reform.  For legalization supporters, I focus on economic developments and social justice.  Allowing immigrants into the group of people who could purchase and use marijuana would both bring more revenue into the market and create a new group of folks who could work in both agricultural and retail ends of the business.  Further, given the divisive history of the connections between marijuana criminalization and immigration, noncitizens should be a key consideration in legalization legislation and regulation just as social equity programs are now for women and other minoritized people. Finally, for those who aren't familiar or amiable to either perspective, the paper dives into arguments about justice and fairness from a legal perspective, and the assertion that supporting minoritized individuals such as immigrants and people of color is beneficial for all members of the U.S.

"2022 Was Marijuana Reform’s Best Year And Everyone Is Unhappy About It: How To Move Forward"

As I am gearing up for another exciting new semester of teaching my always exciting Marijuana Law and Policy seminar at The Ohio State University Moritz College of Law, I was especially drawn to this lengthy new op-ed by Justin Strekal at Marijuana Moment which has the same title as this post.  I recommend the full piece, and here are excerpts highlighting some of its main themes:

2022 was the best of times for marijuana policy reform in America—but if you read the headlines or (god forbid) log onto Twitter, you could be forgiven for thinking that it was the worst.

This Orwellian doublethink is understandable if you look at it through the lens of a minute-by-minute analysis, or by only looking at the stock prices of the young, dominant players in the emerging cannabis industry. But we must keep the long game in mind when we think about ending the 85-year policy of marijuana prohibition and criminalization....

I have been a supporter of the SAFE Banking Act since I started at NORML in 2016, and I even took pro-SAFE meetings with groups that have since evolved their positions on the bill and are now demanding reforms to its underlying structure.

Back then, the purpose of the effort was to advance an aspect of legalization and the regulated marketplaces in Congress at a time when neither chamber had a leader who explicitly said they supported reform, be it SAFE or comprehensive. In other words, being for SAFE Banking was a form of harm reduction, not a cure.

Since the 115th Congress, a lot has changed. This includes the funding power of the reform movement, which has shifted dramatically in recent years, with the number of earnest advocates from the Drug Policy Alliance, Marijuana Policy Project and Americans for Safe Access shrinking, for example.  On the flip-side, K Street lobby shops are hiring new suits seemingly every month, many of whom never thought about marijuana prohibition before being paid by a private company or trade association to do so....

As for what the Republican flip in the House means for this reported agreement between Schumer and Daines? What about comprehensive reform?  Well, I’m not going to give you a percentage likelihood because only snake oil salespeople treat Congress like a betting market.

Whatever comes next in the House majority, it’s important to remember that 51 percent of House Republicans already voted for SAFE in the last Congress, including leaders like Reps. Kevin McCarthy (R-CA), Elise Stefanik (R-NY), Dave Joyce (R-OH), Bryon Donalds (R-FL), Kevin Hern (R-OK) and many others....

Because democracy is a verb and, as recent and ongoing events clearly show, things are not working well in America.  But for the first time ever, there is actually a pathway to accomplish something pertaining to marijuana law reform — but only if the monied interests are willing to live up to the rhetoric they espouse.

Reviewing the latest stories of big federal marijuana reforms not getting done in this Congress

It has been an interesting couple of months for discussions of marijuana reforms at the federal level.  Prez Biden got the federal reform conversation amped up in early Fall when he pardoned low-level marijuana possession offenders and ordered administrative review of marijuana Schedule I status under the CSA (basics here).  Then, with the November midterm election giving control of the House to Republicans in the next Congress, formal and informal discussions of broad and narrow federal statutory marijuana reforms grew along with suggestions of including reforms in lame-duck bills (basics here and here).

This buzz did result in one tangible reform, as Congress in November passed and Prez Biden in December signed the Medical Marijuana and Cannabidiol Research Expansion Act.  But, though historic and important, this research reform bill is unlikley to be all that impactful and consequential anytime soon.  And hopes for the passage of the SAFE Banking Act and other possible reforms were finally fully dashed this week, raising the possibility that we may not see big federal marijuana reforms coming from Congress for many, many more years.

Of course, Marijuana Moment has great coverage of all the action, and here are some of the pieces that discuss a significant failure in the modern marijuana reform movement:

"Marijuana Banking Left Out Of Federal Spending Bill, Congressional Sources Confirm"

"Congress Keeps Ban On D.C. Marijuana Sales While Failing To Act On Cannabis Banking And Expungements"

"Schumer Blames GOP For Marijuana Banking Failure, But Says He’ll ‘Go Back At It Next Year’"

"Democrats Blew The Opportunity For Federal Cannabis Reform (Op-Ed)"

Is significant marijuana reform coming from Congress now very unlikely for now very many years?

As mentioned in this post from the past weekend, lots and lots of folks had seeemingly come to believe that significant federal marijuana reform was quite likely to get enacted in Congress this month.  But this new Politco piece, headlined "How the plan to pass a weed package went awry, " not only explains why the prospects for reform are dim this month, but perhaps for many years to come.  Here are excerpts:

Democrats almost had a weed deal — for real this time.  For weeks, a bipartisan group of senators worked to negotiate a historic package in the office of Senate Majority Leader Chuck Schumer.  The ideologically diverse crew included Sens. Steve Daines (R-Mont.), Jeff Merkley (D-Ore.), Dan Sullivan (R-Alaska) and Rand Paul (R-Ky.).

The bargain they ultimately reached represents the broad spectrum of cannabis issues: banking, guns and criminal record expungements.  The package gave progressives, libertarians and conservatives all something to be happy about.  But in the final days of negotiations over the National Defense Authorization Act, which they hoped would serve as a must-pass vehicle for the cannabis package, enthusiasm evaporated.  The unraveling of the plan was sparked by top Republicans attacking cannabis banking legislation that was the centerpiece of the deal....

The SAFE Banking Act, which the cannabis package revolves around, would allow banks to offer financial services to the weed industry....  SAFE was then paired with the HOPE Act — a bill introduced by Reps. Dave Joyce (R-Ohio) and progressive stalwart Alexandria Ocasio-Cortez (D-N.Y.) that creates grants for expungements at the state level, lending it a “states rights” component.  Finally, the GRAM Act — introduced by late Alaska GOP Rep. and former co-chair of the Congressional Cannabis Caucus Don Young — was thrown in. It would protect marijuana users’ right to own a firearm.

Support was there: At least 10 Republicans have co-sponsored or signaled they support the SAFE Act to date.  Co-sponsor Sen. Kevin Cramer (R-N.D.) said in November he was open to SAFE and HOPE, especially if Daines was on board.  On Thursday, Daines said conversations were productive and Paul claimed that there were more than 60 votes for the package.

But the potential deal began to fall apart when key Republican senators took aim at the cannabis banking provision.  On Monday, staffers for Sen. Chuck Grassley (Iowa), the ranking member on the Senate Judiciary Committee, and other senators involved in the deliberations met with representatives from the Justice Department to discuss concerns about how agency officials would enforce the bill.  Following that meeting, Grassley’s office released a statement attacking the bill.

Then on Tuesday, Senate Minority Leader Mitch McConnell took to the floor to rip Democrats for trying to add extraneous proposals to the defense spending bill. “We’re talking about a grab bag of miscellaneous pet priorities, like making our financial system more sympathetic to illegal drugs,” he said.

Even stalwart supporters got cold feet about attaching the cannabis package to the NDAA. Cramer and Tommy Tuberville (R-Ala.), who both support the banking bill, said a defense spending package wasn’t the place for it.  “It dilutes the proper role of this place,” Cramer said, suggesting that the deal be given a full committee markup and floor time instead.

The NDAA isn’t the last piece of legislation that will likely be passed in the lame duck, but the same obstacles will apply to an omnibus funding package that’s being negotiated.  Simply put, if McConnell remains opposed to SAFE, it won’t make it into a major package.

But the bill isn’t dead yet: Paul is still bullish on its prospects, saying he is confident there are more than 60 senators in favor of SAFE if it were to receive a standalone floor vote.  Democrats left this until the last minute, though, and the chances that the Senate can find any floor time for a standalone SAFE “plus” package before the end of the year are slim....

Daines said he’s focused on getting something passed before the end of the year, but other GOP supporters, including Tuberville, said they may just need to deal with it in the next year.  Republicans are set to take over the House in January, dimming the chances for SAFE. House Minority Leader Kevin McCarthy has voted in favor of the bill, but he hasn’t signaled that cannabis is something he wants to spend time on.

It may be that after more than three years of trying to see SAFE passed, Democrats took a gamble with the lame duck and ran out of time to get it passed.

Because I am not an expert in congressional procedure, I do not know if there would be a way in 2023 for a SAFE+ package of reforms to make its way through the new Congress as a stand alone bill.  But I do know that if Senate Minority Leader McConnell and and the future House Speaker McCarthy are not excited about moving forward any federal marijuana reform legislation, then no such legislation will move forward in the next Congress.   And, as political prognosticators know, there is a pretty good chance that Senate Minority Leader Mitch McConnell could become Senate Majority Leader Mitch McConnell come January 2025.  Thus, an oppositional Senator McConnell could very well scuttle any federal cannabis reform efforts for the next four years and maybe longer.

That said, Prez Biden and his agencies can possibly move forward with reforms under the CSA without Congress involved.  And, like the research bill that became law recently, there may be smaller reforms (included needed criminal justice measures) that Senator McConnell and other marijuana skeptics may not aggressively oppose.  And, with the red states of Oklahoma and Ohio possibly embracing full legalization in 2023, the broad politics here are always in flux.  So, I do not think that all is lost with federal reform even as the plans and paths get much less certain.

Of course, 23 months ago, when Prez Biden was picking his cabinet and the Democrats won the Georgia run-offs to take control of the Senate, many believed federal marijuana reforms coming from a Democratic-controlled Congress would be right around the corner.  Fast forward to the end of 2022, and Congress in a few weeks will no longer be controlled entirely by Democrats, and they have remarkably little to show on cannabis reform for their time in full control.

Notable new talk about SAFE Banking Act and HOPE Act getting added to "must-pass" defense bill

New reporting by Axios and Politico suggest that US Senators on both sides of the aisle are working to get notable marijjuana reform measures included in this year's (must-pass) National Defense Authorization Act.  The Politico piece, headlined "Senators push for SAFE Banking in defense bill," starts this way:

A landmark bill that would make it easier for banks and other financial institutions to service the cannabis industry could finally be poised for passage.  The SAFE Banking Act could be included in the National Defense Authorization Act that Congress is expected to take up next week.

Republican senators had a “productive” meeting about the legislation on Thursday with Majority Leader Chuck Schumer, Sen. Steve Daines (R-Mont.) told POLITICO. Sen. Sherrod Brown (D-Ohio), chair of the Senate Banking Committee, said he "hopes" it is in the NDAA.

The final decision is likely to be made on Monday, when the House Rules Committee meets to tee up the compromise version of the NDAA for a vote on the House floor as early as Tuesday. A final version of the defense bill was expected to be filed Friday, but has been delayed as House and Senate leaders iron out last-minute issues around what outside bills should be attached.

The Axios piece adds these details:

The targeted legislation is the result of the pairing of two bills —Secure and Fair Enforcement (SAFE) Banking Act and the Harnessing Opportunities by Pursuing Expungement (HOPE) Act—that would attract both conservatives and progressives across Congress.

The latest changes to the bill ensure that the legislation does not unintentionally make it harder for law enforcement to prosecute other crimes involving other drugs or money laundering.

Schumer and the bipartisan group plan to attach this legislation to a must-pass year-end bill like the annual National Defense Authorization Act.

Schumer and Sen. Jeff Merkley have been working with Republicans for months, including Sens. Steve Daines, Rand Paul, and Dan Sullivan.

Prez Biden formally signs into law new "Medical Marijuana and Cannabidiol Research Expansion Act"

As reported in this Marijuana Moment piece, "President Joe Biden has officially signed a marijuana research bill into law, making history by enacting the first piece of standalone federal cannabis reform legislation in U.S. history." Here is more:

The bill cleared the House in April and the Senate last month, and a White House spokesperson confirmed to Marijuana Moment that the president intended to sign it. On Friday, he did just that.

The law gives the U.S. attorney general 60 days to either approve a given application or request supplemental information from the marijuana research applicant. It also creates a more efficient pathway for researchers who request larger quantities of cannabis....

Reps. Earl Blumenauer (D-OR) and Andy Harris (R-MD) sponsored the House version of the research legislation, which is substantively identical to a Senate bill from Sens. Dianne Feinstein (D-CA), Brian Schatz (D-HI) and Chuck Grassley (R-IA) that previously cleared that chamber....

The four co-chairs of the Congressional Cannabis Caucus — Blumenauer and Reps. Barbara Lee (D-CA), Dave Joyce (R-OH) and Brian Mast (R-FL) — released a joint statement following the president’s signing.

“For decades, the federal government has stood in the way of science and progress—peddling a misguided and discriminatory approach to cannabis. Today marks a monumental step in remedying our federal cannabis laws,” they said. “The Medical Marijuana and Cannabidiol Research Expansion Act will make it easier to study the impacts and potential of cannabis.”...

In a press release, Schatz said that “the medical community agrees that we need more research to learn about marijuana’s potential health benefits.” “Our new law will remove excessive barriers that make it difficult for researchers to study the effectiveness and safety of marijuana, and hopefully, give patients more treatment options,” he said.

Blumenauer and Harris previously championed a separate cannabis research bill that advanced through their chamber in April. Unlike that legislation, however, the newly approved bill notably does not include a provision that scientists had welcomed that would have allowed researchers to access cannabis from state-legal dispensaries to study.

The research legislation further encourages the Food and Drug Administration (FDA) to develop cannabis-derived medicines. One way it proposes doing so is by allowing accredited medical and osteopathic schools, practitioners, research institutions, and manufacturers with a Schedule I registration to cultivate their own cannabis for research purposes.

The Drug Enforcement Administration (DEA) is now mandated to approve applications to be manufacturers of marijuana-derived, FDA-approved drugs under the bill. Manufacturers will also be allowed to import cannabis materials to facilitate research into the plant’s therapeutic potential.

Another section requires the Department of Health and Human Services (HHS) to look at the health benefits and risks of marijuana as well as policies that are inhibiting research into cannabis that’s grown in legal states and provide recommendations on overcoming those barriers.

The bill further states that it “shall not be a violation of the Controlled Substances Act (CSA) for a State-licensed physician to discuss” the risk and benefits of marijuana and cannabis-derived products with patients.

New CRS report (incompletely) reviews "Recent Developments in Marijuana Law" in Fall 2022

This notable new five-page Congressional Research Service report titled "Does the President Have the Power to Legalize Marijuana?". Here is how it gets started:

Marijuana and other products derived from the cannabis plant are regulated under both federal and state law.  In recent years, a significant divide has developed between federal and state regulation.  Under the federal Controlled Substances Act (CSA), marijuana is strictly regulated and may not legally be used for medical or recreational purposes.  In contrast, a substantial majority of states have relaxed state law prohibitions on medical or recreational marijuana.

The fall of 2022 saw two key developments in federal and state marijuana regulation.  In October 2022, President Joe Biden granted clemency to certain low-level federal marijuana offenders and directed the Attorney General to review the status of marijuana under federal law.  While some observers consider President Biden’s grant of clemency to represent a significant change in federal marijuana policy, as a legal matter it did little to alter the growing disparity between federal and state marijuana regulation.  Then, in November 2022, voters in five states considered ballot initiatives to legalize recreational marijuana at the state level, two of which were adopted.  Legislators and commentators have proposed a number of legal reforms that would alter federal marijuana regulation and potentially reduce the divergence between federal and state law.

This Legal Sidebar provides an overview of the legal status of marijuana under federal and state law, then discusses recent developments including the grant of clemency for federal marijuana possession offenses and November 2022 state ballot initiatives related to marijuana.   The Sidebar concludes with an overview of selected legislative proposals related to marijuana.

This CRS document is dated November 16, 2022, so it only makes a brief reference/link to the federal research bill that was passed by Congress on that very day, the "Medical Marijuana and Cannabidiol Research Expansion Act." As of this writing (Nov 20, 2022), that bill is still awaiting the President's signature.

"President Biden's Pardons: What It Means for Cannabis and Criminal Justice Reform"

Though I have already flagged this event at my other blog, I wanted to be sure to highlight here this exciting webinar scheduled for next month (December 13 starting at 12noon), which is organized by Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Last Prisoner Project.  Here is a bit of the backstory and the panel lineup:

On October 6th, 2022, President Biden issued a proclamation granting pardons to over 6,500 people with federal simple possession of marijuana offenses.  In an acknowledgment of the fact that the vast majority of cannabis convictions take place on the state level, President Biden simultaneously encouraged the country’s governors to use their clemency power to issue similar grants.  While the President’s executive actions are an unprecedented and important step forward, there is still much more work ahead to fully redress the harms of cannabis criminalization.

Please join the Drug Enforcement and Policy Center and the Last Prisoner Project as we host a panel of experts to discuss how these pardons will affect people with cannabis convictions on their record, how states could act on the President's call, and what implications this may have for the future of cannabis and criminal justice reform in the United States.

Panelists:

Elizabeth G. Oyer, U.S. Pardon Attorney, U.S. Department of Justice

JaneAnne Murray, Associate Clinical Professor of Law, Director of the University of Minnesota Law School Clemency Project

Sarah Gersten, Executive Director and General Counsel, Last Prisoner Project

Moderator:

Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law; Executive Director of the Drug Enforcement and Policy Center

Congress passes marijuana research bill, the "Medical Marijuana and Cannabidiol Research Expansion Act"

With a Senate motion, the US Congress made some history today by passing a standalone piece of marijuana reform legislation.  Here are the basics from Politico:

The Senate passed a bill designed to expand medical marijuana research on Wednesday by unanimous consent. Passage of the legislation, which is sponsored by Sen. Dianne Feinstein (D-Calif.) and Rep. Earl Blumenauer (D-Ore.) in their respective chambers, signaled a new era in federal cannabis policy: It’s the first standalone marijuana-related bill approved by both chambers of Congress.  The House passed the bill in July, also by unanimous consent.

The bill, which will make it easier for scientists to conduct medical marijuana research and protect doctors who discuss the benefits and drawbacks of using the drug with patients, now heads to President Joe Biden’s desk....

Passage of the medical research bill by unanimous consent signals that perceptions about marijuana are changing.  While expanded research is arguably the most conservative action Congress could take on marijuana, it is something that would have been unthinkable a decade ago.  The bill came close to passing in September, but was held up by Sen. John Cornyn (R-Texas). Cornyn lifted the hold earlier this week.

“After working on the issue of cannabis reform for decades, finally the dam is starting to break,” Blumenauer told POLITICO in a statement.  “At a time when more than 155 million Americans reside where adult-use of cannabis is legal at the state or local level and there are four million registered medical marijuana users with many more likely to self-medicate, it is essential that we are able to fully study the impacts of cannabis use.”

This Marijuana Moment article, headlined "Senate Sends Marijuana Research Bill To Biden’s Desk, With Schumer Saying He’s Having ‘Productive Talks’ On Broader Reform," highlights why this little bit of history might be a sign of things to come:

Just before the vote, Senate Majority Leader Chuck Schumer (D-NY) said on the floor that he is continuing to have “productive talks” about a broader package of cannabis reforms he hopes to pass before the end of the lame duck session.

In the meantime, while numerous marijuana measures have been filed and advanced in each chamber in recent sessions, reform has consistently stalled before reaching the president. But now, the “Medical Marijuana and Cannabidiol Research Expansion Act” is just one signature away from historic enactment.

On eve of hearing, House staff releases "joint memo" extolling federal marijuana reform

As reported in this Marijuana Moment piece, "House Democrats and Republicans have co-published a joint memo ahead of a congressional subcommittee meeting on marijuana on Tuesday, laying out key background details on the issue that will likely inform the conversation at the meeting." Here is more:

The House Oversight Subcommittee on Civil Rights and Civil Liberties announced the meeting—titled “Developments in State Cannabis Laws and Bipartisan Cannabis Reforms at the Federal Level”—last week. And the witnesses set to testify are broadly pro-legalization.

Several documents have been posted in advance of the meeting, including what’s described a “joint memo” from majority and minority staff that was uploaded on Sunday. Rep. Jamie Raskin (D-MD) chairs the panel, with Rep. Nancy Mace (R-SC) serving as the ranking member.

Given that leadership on the subcommittee shares bipartisan interest in advancing cannabis reform, it makes sense that the witnesses are well-known advocates for ending prohibition and that the joint memo generally provides information that makes the case for a comprehensive policy change.

It mentions several pieces of marijuana legalization legislation, including the House-passed Marijuana Opportunity, Reinvestment and Expungement (MORE) Act, Senate leadership’s Cannabis Administration and Opportunity Act (CAOA) and Mace’s States Reform Act (SRA).

“This hearing will be a bipartisan examination of the many benefits of decriminalization at the federal level, including: criminal justice reform, which will largely benefit communities of color, as well as the justice system more broadly; access for veterans through the Department of Veterans Affairs (VA); and the ability for the legal cannabis industry to access financial services,” the memo says.

The full 11-page "Joint Memo" is available at this link.  It makes for an interesting read.

US House subcommittee hearing scheduled on "Developments in State Cannabis Laws and Bipartisan Cannabis Reforms at the Federal Level"

Interestingly, on the morning of Election Day, the US House Committee on Oversight and Reform released this notice announcing that on "Tuesday, November 15, 2022, at 10:00 a.m. ET, the Subcommittee on Civil Rights and Civil Liberties will host a hybrid hearing titled 'Developments in State Cannabis Laws and Bipartisan Cannabis Reforms at the Federal Level'.” The next evening, this follow-up memo was released providing a lot more notable details about this notable congressional hearing (including a list of scheduled witnesses).  Here are excerpts:

On October 6, 2022, President Biden announced that he granted a pardon to everyone convicted of simple marijuana possession under federal law and called for a review of how marijuana is scheduled under the Controlled Substances Act (CSA). Advocates for cannabis reform welcomed the President’s actions but continue to call for action in the legislative branch to decriminalize cannabis....

This hearing will be a bipartisan examination of the many benefits of decriminalization at the federal level, including: criminal justice reform, which will largely benefit communities of color, as well as the justice system more broadly; access for veterans through the Department of Veterans Affairs; and the ability for the legal cannabis industry to access financial services.

And this official website provides some more interesting background and also the expected witnesses. Here is a snippet:

On Tuesday, November 15, 2022, at 10:00 a.m. ET, Rep. Jamie Raskin, Chairman of the Subcommittee on Civil Rights and Civil Liberties, and Rep. Nancy Mace, Ranking Member of the Subcommittee on Civil Rights and Civil Liberties, will hold a hybrid hearing to examine the many benefits of cannabis decriminalization at the federal level, including addressing racial disparities in the criminal justice system, improving treatment options for veterans, and allowing marijuana companies to access traditional banking services.

Marijuana arrests account for 43% of all drug arrests, and nine in ten of those marijuana arrests are for simple possession. Although Black and white people use cannabis at roughly the same rates, Black people are nearly four times more likely to be arrested for violating marijuana possession laws, which carries life-altering implications for employment, housing, and education. Decriminalizing cannabis at the federal level and expunging criminal convictions for possession would alleviate these burdens and allow for societal advancement.

Marijuana Moment has good coverage of this planned hearing in pieces here and here.

Prez Biden asking to start "administrative process to review expeditiously how marijuana is scheduled under federal law"

In this post at my other blog, I focused on the interesting (but not really big) news, set forth in a this official statement from the White House, that Prez Biden today announce that his is "pardoning all prior federal offenses of simple marijuana possession" and that he is "calling on governors to pardon simple state marijuana possession offenses."  I will likely blog more over there about the criminal justice echoes of this interesting mass pardon announcement and exhortation to governors to follow suit.

But here, where we focus on "Marijuana Law, Policy & Reform," I want to focus on the interesting (and perhaps really) news that Prez Biden has also leaned into rescheduling of marijuana via this part of his statement:

Third, I am asking the Secretary of Health and Human Services and the Attorney General to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law.  Federal law currently classifies marijuana in Schedule I of the Controlled Substances Act, the classification meant for the most dangerous substances.   This is the same schedule as for heroin and LSD, and even higher than the classification of fentanyl and methamphetamine – the drugs that are driving our overdose epidemic. 
 
Finally, even as federal and state regulation of marijuana changes, important limitations on trafficking, marketing, and under-age sales should stay in place.

I have been asked a few questions already about how long it will take to conduct an "administrative process to review expeditiously how marijuana is scheduled under federal law." My sense is that it will take years, not months, and that there is sure to be lots of debate over the science and politics of rescheduling even if there is a broad consensus that marijuana should no longer be on schedule I.  This Marijuana Moment piece, headlined "DOJ To ‘Expeditiously’ Act On Biden’s Marijuana Pardon Directive, While HHS ‘Looking Forward’ To Scheduling Review," covers a bit of the process and the politics:

The Justice Department and U.S. Department of Health and Human Services (HHS) say they will quickly act to follow President Joe Biden’s new directive to review marijuana’s federal scheduling status and process mass cannabis possession pardons.

Within an hour after the president made the surprise announcement, a DOJ spokesperson released a statement saying the department would abide by the cannabis directive in an expedited fashion.... “Also, in accordance with the President’s directive, Justice Department officials will work with our colleagues at the Department of Health and Human Services as they launch a scientific review of how marijuana is scheduled under federal law,” the agency said.

HHS Secretary Xavier Becerra separately said in a tweet — posted as precisely 4:20 PM ET — that he’s “looking forward to working with Attorney General Garland to answer [Biden’s] call to action to review how marijuana is scheduled under federal law.”...

Biden’s scheduling review—which would be conducted by DOJ and HHS—could reshape federal marijuana policy depending on the final recommendation. Biden has faced numerous calls from advocates to use his executive authority to unilaterally initiate that process.

The agencies could ultimately recommend moving marijuana from the strictest classification of Schedule I under the Controlled Substances Act (CSA) to a lower schedule or no schedule at all.

Biden has said he supports rescheduling to Schedule II, but advocates have pushed for complete descheduling, which would effectively end prohibition.