In the past five years, twenty-nine states and the District of Columbia (DC) have voted to legalize medicinal marijuana; and seven states and DC have legalized recreational marijuana use. The federal government has historically classified cannabis, whether in the form of marijuana, hashish or hash oil, as an illegal controlled substance. However, in 2011, the Department of Justice (DOJ) changed its policy regarding the enforcement of the Controlled Substances Act in states where marijuana is legal. The Cole Memo explained the DOJ’s new policy of not prosecuting or seizing assets from marijuana businesses and users that complied with state law.
A hundred days into the new administration, there is no indication of whether the DOJ will alter or revoke the Cole Memo. “Murky” is a reasonable description of the new DOJ’s bluster regarding federal enforcement of marijuana use. Attorney General (AG) Jeff Sessions has personally denounced marijuana and has called it “slightly less awful than heroin” (More below on this comparison.) AG Sessions has certainly signaled the DOJ’s intent to devote federal funds to ramp up the so-called war on drugs in a broad sense. White House Press Secretary Sean Spicer subsequently used a kinder and gentler tone when he hinted that the DOJ might split the baby and enforce federal laws only against recreational marijuana. Advocates of states’ rights are somewhat placated by Spicer’s statement. Industry, medical and patient groups are not. Congress, however, is overcoming its bipartisan bickering to extend protections for medicinal marijuana through its plenary powers over fiscal matters.
On May 5, Congress reaffirmed protections of medicinal marijuana by barring the DOJ from using its funds to raid or otherwise disrupt medical cannabis businesses. The Rohrabacher-Blumenauer amendment is included in the budget resolution that Congress approved to prevent a government shutdown. California Republican Rep. Dana Rohrabacher joined Rep. Earl Blumenauer, a Portland Democrat, in drafting the amendment. The amendment extends legislation originally proposed by Rohrabacher and Democrats Sam Farr and Maurice Hinchey in 2003, and finally enacted in 2014. The amendment specifically protects medicinal marijuana and supports industrial hemp research. The inclusion of hemp research may be an Easter egg signaling Congress’ intentions about the federal government’s role in regulating cannabis beyond September 30.
Continued bipartisan support of this legislation indicates that Congress is more attuned to voters than AG Sessions on the issue of legal marijuana may indicate the federal government’s shift from enforcement to regulation of cannabis on par with other legal businesses. The states that have legalized marijuana share an interest in advocating for and promoting cannabis based businesses. On March 30, Blumenauer and Sen. Ron Wyden (Dem.) introduced the “Path to Marijuana Reform.” The three-step reform includes “The Small Business Tax Equity Act,” “Responsibly Addressing the Marijuana Policy Gap Act” and the “Marijuana Revenue and Regulation Act.” The overarching plan is to normalize the operation of marijuana businesses. Tax equity, banking and advertising are the immediate focus of the reform. A selling point of the Path to Marijuana Reform is the fact that its drafters do not advocate for additional state legalization of marijuana. Instead, they want to de- or re-schedule, tax and regulate marijuana even when a state chooses not to legalize it.
Reclassification is also important, because it opens the gate for medical and health research. Another area of much-needed reform is the Drug Enforcement Agency’s (DEA) classification scheme, including the way it reclassifies and/or de-classifies drugs. More policy makers are questioning why the DEA classifies marijuana as a Schedule I drug alongside bath salts, krokodil, LSD, GHB (the date rape drug) and heroin, which AG Sessions concedes to be slightly more awful than marijuana.
Eyebrows raise upon the realization that the DEA treats marijuana as more harmful, and with less accepted medical use, than Schedule II and III drugs like cocaine, opium, ketamine, codeine and OxyContin. Inconsistencies in the classification of drugs must be reconciled. Researching the long-term social and economic effects of marijuana and hemp in addition to the medical effects may rehabilitate their images. Of course, researching the medical efficacy of cannabis is stymied by the very fact that it is classified as a Schedule I drug. The demand for legal marijuana is increasing, as are the rates of job creation and taxation and business revenue growth. The signs point to the states retaining enforcement authority over marijuana. Many things can change in the next six months. Let us hope the current trend continues.
What’s the next move for cannabis clients? Extending the Rohrabacher-Blumenauer amendment permits is obviously good news for medical marijuana. Indeed, we have seen how the amendment has seemingly reduced federal scrutiny in the adult use industry as well. Early adopters should be well positioned to capitalize on any benefits derived from the passage of Path to Marijuana Reform. As always, communicate your frustrations, successes and dreams with your elected representatives, the liquor and cannabis board and industry trade groups.