In the last week both the US Attorney General and the Treasury Secretary have encouraged Congress to take action towards easing US cannabis prohibition. Yesterday, in testimony before Congress, AG William Barr seemed to support the currently pending Strengthening the Tenth Amendment Through Entrusting States (STATES) Act, while still opposing legalization. He was concerned about the continuing conflict between federal and state laws in the area, saying: “The situation that I think is intolerable and which I’m opposed to is the current situation we’re in, and I would prefer one of two approaches rather than where we are. Personally, I would still favor one uniform federal rule against marijuana but, if there is not sufficient consensus to obtain that, then I think the way to go is to permit a more federal approach so states can make their own decisions within the framework of the federal law and so we’re not just ignoring the enforcement of federal law…I would much rather that approach—the approach taken by the STATES Act—than where we currently are.”
Separately, many have been disappointed by the lack of action by Secretary Steven Mnuchin’s Treasury Department. In February 2018 he said that addressing the challenge of cannabis businesses’ access to commercial banking was at the “top of the list” of his priorities. Since then the Department has taken no action on the issue. On Tuesday of this week, Mnuchin announced in Congressional testimony, essentially, that his hands are tied and he believes he cannot solve the cannabis banking problem administratively. He urged Congress to address the issue with new laws “on a bipartisan basis.” Mnuchin spoke of the need to build “cash rooms” at Treasury to hold taxes that cannabis companies pay in cash. The SAFE Banking Act of 2019, which would effectively eliminate most restrictions on banks taking cannabis companies as customers, has passed the House Financial Services Committee and is expected to pass the full House as well. It’s fate in the US Senate is less clear. The STATES Act also would address the banking issue.
Politically, it appears we are closer than ever to Congressional action in this area. Every Presidential candidate, including all the Democrats, Trump and his current Republican contender Bill Weld, favors some form of legalization or allowing states to decide on the matter. Between the growing public support for legalization, the taxes and jobs pouring into cannabis-legal states and the desire to right the wrongs of the War on Drugs, it is becoming both more politically acceptable and politically expedient to support easing of federal criminal restrictions. The current holdup? The US Senate, where Lindsey Graham and Mitch McConnell continue to appear to desire to stonewall further legalization efforts. Stay tuned.
A long standing legal prohibition on federal enforcement against state legal medical cannabis operators expired on December 21, 2018 when the U.S. Government partially shut down. The amendment had been renewed and extended multiple times through that date.
First adopted in 2014, the amendment to annual appropriations bills known as the Rohrabacher-Blumenauer Amendment is expected to be reimplemented when the Government is reopened and the current budget stalemate resolved. In the meantime, however, technically, federal enforcement against state legal medical cannabis companies is possible. That said, most of the government agencies who could pursue such enforcement remain unfunded and shut down.
Most commentators also do not expect to see any change in federal enforcement activity as public sentiment, Congressional activity and state legalization efforts are all moving in the direction of ultimately eliminating prohibition on the medical and adult use of cannabis.
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.
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.