Regulatory policy

What is the US cannabis policy?

I was relieved to learn that Albert Einstein never really said that “[i]madness does the same thing over and over again and expects different results,” because it seems like a really bad idea to start a blog post disagreeing with Albert Einstein.

Turns out, madness is US cannabis policy.

Let me say this upfront: This is not about partisan politics or blame. Rather, it is about how Americans ended up with a cannabis policy that is so irrational and inconsistently applied that it makes the targeting rule in college football look like old-fashioned common sense.

I will readily admit that it would be not make no sense that the federal government would ban cannabis and enforce that ban. It would be not be mad that the federal government is making cannabis legal nationwide. It would be not would be foolish for the federal government to leave the matter to the states to decide.

What is Foolish, however, is the following set of policies:

  • The United States Congress stipulates that marijuana is a Schedule I controlled substance under the Controlled Substances Act.

  • The United States Congress nullifies any effort by the Department of Justice to prosecute state-legal marijuana operations.

  • The Justice Department issues and rescinds opinions on whether federal prosecutors should take action against legal marijuana operations in the states.

  • The United States Congress stipulates that the banking product of marijuana is money laundering.

  • The Treasury Department’s Financial Crimes Enforcement Network (FinCEN) says the state’s banking of legal marijuana operations is not a law enforcement priority.

  • Thirty-seven states stipulate that marijuana is legal under state law, while Congress keeps in place a law requiring marijuana to be a Schedule I controlled substance under the Substances Act controlled.

It’s crazy but it’s the reality. And the policies that flow from it are, almost by definition, just as crazy. For example, the war on drugs makes no sense in light of these policies. Again, this is not partisan, but how come people are arrested for selling marijuana while others are given government licenses to do so? How come we are spending millions incarcerating Americans for marijuana-related crimes while other Americans are selling marijuana licenses for millions?

And it’s insane that policymakers aren’t acting on the common-sense proposals currently on the table that might make things a little less crazy. I’ve already written twice about how Congress has the votes to help deal with this madness. The SAFE law is the most obvious reform of this type. The law would allow the cannabis industry to access a range of financial services such as business loans, checking accounts and credit card processing. This would take money off the streets, reduce the possibility of criminal opportunities, and allow more patients to access medical cannabis. More recently I wrote:

I think there are enough votes in both houses of Congress – including Republican votes – to push cannabis reform efforts through. In particular, the SAFE Act and legislation allowing increased research could become law if they receive a direct vote. The more difficult question is whether those leading the charge will allow the proposal to proceed to a piecemeal vote or whether they will insist that lawmakers vote on the entire reform package as a whole. If the latter, I think Republicans might balk at some of the more progressive provisions []. If that happens, we’ll see if the more outspoken proponents of cannabis reform are ready to score a narrower victory or if they will insist on an all-or-nothing approach.

Despite what appears to be bipartisan support (including nine Republican sponsors in the Senate!), there was no vote in the Senate on the SAFE Act or any other meaningful marijuana reform. If they can’t agree on this, what hope do we have of them agreeing on marijuana reform?

And the madness doesn’t stop with marijuana – hemp is also involved. It makes no sense that a consumer can buy an unlimited amount of cannabidiol (CBD) and pour it into a glass of water, but the FDA prohibits putting any amount of CBD into a bottle of water. It makes no sense that marijuana is illegal in a dozen states, when those states allow the sale of Delta-8 THC – which can provide a euphoric high that largely mirrors traditional Delta-9 THC marijuana – without meaningful regulation.

So what is the solution?

Let’s start with what might not be obvious to many. A lot of people are totally fine with the current state of affairs, crazy as it is. There is money to be made in a market with uncertain laws and/or lax enforcement. Perhaps the marijuana industry and those in the gray areas of the hemp industry are comfortable with the status quo; they may prefer to ask for forgiveness rather than permission.

For those who appreciate reason and consistency, the only refuge seems to be the federal government. Congress can pass the SAFE Act or the Department of Health and Human Services can adopt President Biden’s recent suggestion to consider rescheduling or delisting marijuana from the Controlled Substances Act.

As for hemp, Congress is expected to pass a new Farm Bill next year. This gives Congress wide latitude to permit, deny, or regulate hemp-derived products currently available to millions of Americans.

How does it all play out? You would have to be crazy to make a prediction.

© 2022 Bradley Arant Boult Cummings LLPNational Law Review, Volume XII, Number 313