The US Senate, by an overwhelming 86-11 vote, last week approved the sweeping Farm Bill containing language which fully legalizes industrial hemp. As we know, hemp, which is derived from cannabis plants, is used to make products from rope to clothing and does not contain THC, the psychoactive part of the plant. In colonial days hemp was so crucial that farmers, like George Washington, were legally required to grow it.
Most believe the House will follow suit. Hemp has not been legal on a federal level since federal criminalization of cannabis in the 1930s. Many believe that occurred in part because of fears of hemp competing with powerful timber interests and DuPont’s then new patent on nylon. After the 1930s bill was declared unconstitutional in 1968, the Nixon Administration helped orchestrate passing the Controlled Substances Act. That law, still in force, declared all parts of the cannabis plant as Schedule I drugs, as dangerous as heroin and LSD. A top Nixon aide later admitted, “Did we know we were lying about the drugs? Of course we did.” Constitutional challenges thus far have been unsuccessful.
Legalization of hemp could yield a variety of products that previously could only be produced with imported hemp. These could include food, building materials, paper products and many others. Currently, it it believed that China is the largest producer of hemp, since it is legal to do so in a number of Chinese provinces. They started farming it during the Vietnam War to make more breathable uniforms for their soldiers in the intense heat. This Senate vote is indeed a significant step towards relaxation of federal cannabis regulation.
An Israeli peer-reviewed study, just published in the European Journal of Internal Medicine, reports that pain and nausea of cancer patients can be lessened through the use of medical cannabis. The study included thousands of cancer patients using medical cannabis between 2015 and 2017. Over 95% of the patients reported an improvement in their condition after using cannabis. The conclusion of the study: “Cannabis as a palliative treatment for cancer patients seems to be well tolerated, effective and safe option to help patients cope with the malignancy related symptoms.”
As we know, the US Government continues to defend the status of cannabis as a Schedule I drug, deemed as dangerous as heroin and LSD. Their previous claims suggested that no research shows that cannabis is safe or has medical benefit. At the same time, the Government severely limits the amount of research on cannabis that can be conducted in the US. According to the DEA website, Schedule I drugs are “drugs with no currently accepted medical use and a high potential for abuse.” This study, with others also underway, appear to now counter the belief that cannabis has no accepted medical use.
With the recent dismissal of a constitutional challenge to the Controlled Substances Act as it relates to cannabis (which may be appealed), more eyes are turning to Congress and the various bills pending to deschedule cannabis at the federal level.
On Thursday, the House had passed a continuing resolution to the Appropriations Act which would have kept the government funded through February 16, 2018. That resolution kept in tact the protections for state medical marijuana programs from prosecutions by the Department of Justice, by restricting its funding. The Senate, however, would not agree to the resolution (because it included protections for young immigrants from importation) and the government has shutdown as of midnight on Friday.
The protection for medical marijuana operators that is typically included in the government’s budget, known as the Rohrabacher-Blumenauer amendment (f/k/a Rohrabacher – Farr Amendment), provides that none of the funds made available to the Department of Justice in the Appropriations Act may be used to prevent states from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.
This provision had been contained in the appropriations act (Consolidated Appropriations Act, 2017, PL 115-31, Division B section 537), which funded the Department of Justice and other government departments through September 30, 2017. The provision was carried over through the appropriations act (Appropriations Act 2018, PL 115-56, Division D, section 101(a)(2)) that funded the Department through December 8, 2017, and was thereafter extended by Congress through two continuing resolutions through January 19, 2018. With the failure to pass a resolution to continue funding the Justice Department, the limitations on that funding, including those provided by the Rohrabacher Amendment, have no effect (since no funds have currently been approved to begin with).
This may raise more questions in the marijuana industry given Attorney General Jeff Session’s rescission of the Cole Memorandum on January 4th. The Cole Memorandum had provided guidance to federal prosecutors not to enforce federal marijuana laws against those marijuana businesses that were compliant with state law where the federal priorities were not implicated. Based on that rescission, the U.S. Treasury Department, on January 17th, stated that it is reviewing the FinCen guidance for financial institutions that provide services to marijuana businesses. Continue reading Rohrabacher-Blumenauer Amendment On Hold; FinCen Guidance Reviewed; and Cole Memo Rescinded
According to The Fresh Toast, US Attorney General Jeff Sessions is now hinting at expanding enforcement of federal cannabis laws. The report indicates that, at a news conference this past Wednesday, Sessions said they are looking “very hard right now” at possible changes to the Cole Memo. That 2013 memo adopted a policy to de-emphasize enforcement activities against those complying with state cannabis laws, with certain exceptions. He added, “We’ll be working our way through to a rational policy. But I don’t want to suggest in any way that this department believes that marijuana is harmless and people should not avoid it.”
Sessions has used various methods to seek to interfere with state legal cannabis. He is attempting to stop the renewal of the Rohrabacher-Blumenauer amendment to the annual budget bill. That amendment prohibits the spending of federal money to bring enforcement action against those complying with state medical cannabis laws. It is not clear whether the amendment, passed annually since 2014, will survive the current budget battle. The existing continuing resolution expires in several weeks along with the current budget.
The Attorney General has also put governors in adult use states on notice to ensure they are working hard to enforce their local laws, implying he might come in if they do not, something permitted by the Cole Memo. That said, Sessions’ boss, the President, has said he is “100%” in favor of medical cannabis and believes adult use should be up to the states. Therefore it seems Sessions would not be acting at Trump’s direction if he were to do something dramatic. Watch this space.
A bipartisan group in Congress last week reintroduced the Compassionate Access, Research Expansion and Respect States (CARERS) Act to the legislature. The bill, originally introduced in 2015 in much broader form, would, among other things, amend the Controlled Substances Act to end the federal prohibition of medical marijuana in the currently 29 states, plus the District of Columbia, that have legally permitted it.
The bill also would allow VA Hospital physicians to prescribe medical marijuana to veterans in states that have legalized it. It further would expand the availability of cannabis for much needed medical research. The bill also permits states to import cannabidiol (CBD), a non-psychoactive compound contained in cannabis, removing CBD from regulation under the Controlled Substances Act. CBD is used, among other things, to treat epilepsy and can be prescribed to children.
Recent polls show more than 90% of Americans support the legal availability of medical marijuana. Until now, however, prior attempts to pare back federal regulation have not progressed in Congress. This bill, by limiting its benefit from its original version only to medically supervised use, may actually have a chance to begin the process of removing federal restrictions on cannabis growth, sale and use.