As the "America First" train begins to pick up steam, look to the new Administration to consider means of relaxing the Federal Regulation on Medical Cannabis as more States seek to legalize across the Country.
Victories in the seven of eight States who voted to legalize Cannabis, either medically or recreationally, on November 7, 2016 sent a clear message to the world that a significant majority of Americans favored Cannabis over either Presidential Candidate. This signals the increasing year-to-year support by the American people on this nonpartisan issue.
However, there are some throughout the Cannabis Industry that remain unsettled because of the current Schedule 1 classification at the Federal level, and partially because of the incoming Administration. As Trump’s cabinet takes shape, many of his appointees have publicly opposed Cannabis legalization, leading many in the industry to rethink their plans for the next few years.
Nonetheless, the team at Mora Mota Group remains cautiously optimistic for the future of medical cannabis under the new Administration. We will assert three possible scenarios that have a chance of occurring during 2017, and a final prediction on which scenario is likely to pan out.
Scenario One: Congress fails to extend the Rohrabacher–Farr Medical Marijuana Amendment in April, allowing for the Department of Justice to spend funds in order to interfere with the implementation of state Medical Cannabis laws.
Originally introduced in 2003 by U.S. Representatives Maurice Hinchey, Dana Rohrabacher, and Sam Farr, the Rohrabacher-Farr amendment was a 2014 appropriations bill amendment that was passed in order to prohibit the Department of Justice from spending funds to prosecute within states with Medical Cannabis laws.
This was a historic decision considering it was the first time either chamber of Congress voted to protect medical cannabis patients at the federal level. The passage of the amendment received rare bipartisan support in 2014, with increasing support by both Democrats and Republicans on subsequent votes.
However, the Rohrabacher-Farr amendment is not considered permanent legislation since it does not change the federal scheduling of cannabis and it does not apply to the newly enacted medical cannabis laws enacted by voters last year as it applies to only 34 States, including the District of Columbia. While the amendment must be renewed each fiscal year for it to remain in effect, the latest extension expires on April 28, 2017.
It wouldn’t surprise me if the Republican-Majority Congress took this opportunity to let the amendment expire, in turn paving the way for the Department of Justice (DOJ) to help legitimize our newly elected “law and order” President. Additionally, the newly appointed Attorney General could also take a hard line approach toward enforcing the Controlled Substance Act (CSA) to reign in the actors in direct violation of the Federal Law. The White House has already begun to fulfill many of the President’s lofty campaign promises by signing polarizing Executive Orders and attacking various institutions on a litany of topics.
Regardless, there is no indication that this Administration aims to disrupt the established medical cannabis laws anytime soon. Recent polling show that eight out of ten Americans support the medical use of marijuana, and according to the most recent Gallup poll, 58% of Americans now favor legalizing marijuana. President Trump himself has publicly taken the stance that the medical cannabis laws should be left up to the States.
I sense that as bigger issues that take center stage throughout 2017, Congress will be focused on improving the economy, strengthening our national security, and considering entitlement reform, rather than pick a fight on an issue that a majority of Americans agree on. Look to the Republican-led Congress to try and balance their new majority (in all levels of government: local, state, and federal) while appeasing the incoming President and our anxiously awaiting nation.
Likelihood: Not Likely
Scenario Two: The Trump Administration stays quiet on the topic of medical cannabis, while Congress silently renews the Rohrabacher-Farr Amendment for another six months, while the President publicly opposes Recreational Cannabis due to its Federal Scheduling.
Thanks to the nature of the internet and the emergence of various technology companies helping to facilitate the growth of this industry, patients and consumers can retrieve countless data regarding strain types, grow methods, and newly formed ingestion types right at their fingertips.There has never before been so much data collected on the cannabis plant than ever in the history of mankind, and the opportunity to share our findings on the medical uses and benefits of this plant is ever expanding.
Scientists and researchers all across the globe have even received government approval to conduct studies on various cannabis species and subspecies to further analyze their components. The goal in many of these studies is to find the effective compounds found within the cannabis plant and determine the most efficient methods of ingesting or administering these benefits for humans.
Considerable research studies have been published in journals across the world that identify the various medical benefits of the psychoactive and non-psychoactive compounds found within cannabis, including CBD and THC respectively. While efforts are made by lobbying groups such as Marijuana Policy Project (MPP) and Drug Policy Alliance (DPA) to begin to refocus the U.S. Government’s policy on rescheduling cannabis, progress has barely inched forward at the federal level in the past decade.
The two government agencies in charge of determining scheduling substances, the Drug Enforcement Agency (DEA) and Department of Health and Human Services (HHS), continue to take the position that cannabis has “no currently accepted medical use and a high potential for abuse,” a conclusion made over 40 years ago when the CSA was first enacted. While both agencies make no concerted effort to amend the current federal scheduling of cannabis, millions of Americans are denied the equal access and benefit of the medical benefits of cannabis allowed in neighboring States.
While the Executive Branch Departments in charge of classifying substances showcase zero sense of urgency in revising the current scheduling of cannabis, a significant amount of States and their constituents continue to push for easing the prohibited use of cannabis in various ways; a few state legislators aim to decriminalize possession while others look toward strictly regulating and taxing the substance.
States will continue to reconsider their criminal laws surrounding cannabis while the Federal Government to continue their apathetic ways in pursuit of rescheduling our cannabis laws for the benefit of our country. While I believe neither our conservative-leaning Congress, nor our newly elected President, will attempt to reform our criminal justice system anytime soon, I see this Administration keeping the status quo by ignoring the issue and leaving law enforcement issues up to the individual States.
Additionally, do not be surprised if President Trump candidly shuns the recreational cannabis industry in the near future. While he may not appreciate the nuanced Supremacy Clause issues, conflicts with the CSA and those States that have implemented recreational cannabis laws or U.S. treaty obligations, I believe he will openly criticize the industry by the year’s end.
Likelihood: Very Likely
Scenario Three: Congress moves toward legitimizing the medical cannabis such as passing legislation to expand banking services for state-licensed businesses or by amending or reforming IRS § 280E.
President Obama has said that it will become untenable, in the long run, for either the DEA or DOJ to enforce the “patchwork of laws” surrounding cannabis; President Trump’s appointee for Attorney General, Alabama Senator Jeff Sessions, who has been historically against the legalization of cannabis, stated in his Senate Confirmation Hearing last month that if people believe cannabis should not remain federally illegal, then “Congress should pass a law to change it.”
Over 20 years ago, Californians voted into law Proposition 215, also known as the Compassionate Use Act of 1996, as a way to allow severely ill patients to legally obtain or grow cannabis for medical purposes. Today, one in four people live in a State where cannabis is legal in some form. Aside from individual states taking strides in implementing sensible drug policy, some in Congress have considered the ample evidence produced at the state-level as reason to introduce legislation to help legitimize the industry.
In March of 2015, U.S. Senators Cory Booker, Rand Paul and Kirsten Gillibrand introduced the Compassionate Access, Research Expansion, and Respect States Act of 2015 (CARERS Act of 2015) to end the federal ban on medical cannabis and implement other reforms to help legitimize the medical cannabis industry.
The CARERS Act would reschedule marijuana from Schedule 1 to Schedule 2, allow doctors to recommend marijuana to veterans who qualify for it, expand access to researchers so they can study the medical benefits associated with cannabis, and help make it easier for banks to provide services to cannabis businesses. The bill also received support from Democratic Senator Chuck Schumer who later signed on as a co-sponsor, and has publicly stated that it was a good idea to let the “states as laboratories” move ahead in legalization in order to help guide the decisions at the federal level.
State legislators have begun to listen to their constituents as they consider the need for relaxing access to cannabis while also implementing sensible criminal justice reform. One of the less strenuous ways of structuring these laws are by decriminalizing the possession of cannabis for personal use, such as in Washington D.C., whose jurisdiction also allows the medical use of cannabis for individuals under a regulated framework.
Other States, such as Nevada, Washington and Colorado, have thoughtfully implemented regulated frameworks to strictly allow access to both medical and recreational cannabis. Opponents of medical cannabis have no doubt expressed their displeasure of states regulating Recreational Cannabis, even to the extent that certain State’s Attorney General's attempted to take the issue to the Supreme Court in order to delegitimize the recreational frameworks implemented those emerging markets.
The implementation of progressive legislation concerning cannabis does not appear to be slowing down at the State level, with no signs of the Federal Government picking up the pace. With so much influence on the Hill from competing commodity lobbyist, whether from Big Tobacco, Big Pharma, and Big Alcohol, the end of cannabis prohibition at the federal level will not occur quickly or easily.
Final Prediction: Individual States will continue to roll out sensible cannabis legislation while Cannabis Lobbyists attempt to convince Congress to move favorably toward legitimizing the industry.
I believe that a major federal change in stance concerning medical cannabis will not, unfortunately, occur this year. However, despite an affirmation from the Federal Government to relax the current classification of cannabis as a Schedule 1 drug, many State legislators have thoughtfully considered the positive impact that regulating cannabis can have in their jurisdictions and will move during 2017 to implement laws in the best interests of their constituents.
Whether these States allow for the use of non-psychoactive chemicals such as CBD in limited forms, or implement a fully-integrated system to improve the access and use of medical cannabis, there will be a significant number of lawmakers who consider the federal classification of cannabis as the linchpin that will stagnate the industry's progress.
There is still a considerable need to educate our society on the benefits of legalizing cannabis for either medical or adult use. Through lobbying our legislators at the State and Federal levels, we can help identify the real priority concerning the federal classification of substances, and begin to reconstruct a more effective strategy for fighting the War on Drugs.