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Biden’s Health Secretary Pick Could Help Reclassify Marijuana

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President-elect Joe Biden has picked the current attorney general of California to lead serve as the next federal secretary of health and human services, a position that could play a central role in loosening laws prohibiting marijuana.

That seems to be good news for legalization advocates, as Attorney General Xavier Becerra (D) has a considerable record supporting cannabis reform and working to protect California’s legal program from federal interference.

What’s yet to be seen is who President-elect Biden will nominate as U.S. attorney general—a position that’s also significantly consequential when it comes to marijuana’s classification and enforcement of drug laws.

Before getting into the details of Becerra’s record, here’s why the U.S. Department of Health and Human Services (HHS) is important to enacting a cannabis policy change at the federal level: While the Justice Department plays a key role in marijuana’s federal scheduling, a medical and scientific review by HHS is binding on the attorney general’s subsequent classification decision.

In other words, HHS is a key player in enacting reform through the available executive process. And Becerra has made clear that he feels federal marijuana policy needs to change, even if he hasn’t weighed in specifically on scheduling.

As far as Biden in concerned, he feels marijuana should be placed in Schedule II, the second most restrictive category under the Controlled Substances Act. But advocates argue that does not go far enough and could have an inadvertent, adverse impact on state-legal markets. They’re pushing him to adopt a policy of complete descheduling, which would be accomplished if a bill approved by the House last week makes it through the Senate and onto the president’s desk.

But even if Congress doesn’t advance cannabis legalization though the whole legislative process, the next administration can enact some amount of reform on its own, administratively—and that’s where Becerra would come in if confirmed by the Senate to join Biden’s cabinet.

Here’s where would-be HHS secretary Becerra stands on cannabis:

On states’ rights

Last year, Becerra was one of 21 state attorneys general who sent a letter to congressional leaders expressing support for a bipartisan bill to protect state-legal cannabis programs against federal intervention.

“Just as we allow alcohol to be sold, we’ve come into the 21st century and announced that it’s better to regulate marijuana than criminalize it,” he told The Los Angeles Times in 2017. “The federal government has to catch up and get into the 21st century, first. Secondly, we have to make sure the federal government is helping us, not hindering us, when it comes to coming up with a good way to regulate it.”

“So it behooves the federal government to pull its head from underneath the sand and start to figure out how to do this the right way,” he said. “There are far more important things to worry about than whether someone’s smoking marijuana for medicinal purposes or not.”

In July, the state’s top prosecutor asked a federal court to reject a Justice Department lawsuit that sought to force regulators to hand over documents about several licensed marijuana businesses.

“I think at this stage what we’re finding is that, with more than half the states in the country having some form of legalized marijuana, that we’re moving forward,” Becerra said in 2018, responding to a question about then-Attorney General Jeff Sessions signaling that a federal crackdown could come. “This is a 21st century, not the 20th century.”

“We can’t stop the federal government from doing what the federal government is allowed to do under the Constitution, but the federal government is not absolute in its power,” he said. “The Constitution restricts the federal government’s ability to intervene in state affairs and so, to the degree that we have rights under the U.S. Constitution to move forward with the public safety and the general welfare of our 40 million residents, we will. And if the federal government tries to interfere, we’ll challenge them wherever we need to.”

“In California, we decided it was best to regulate, not criminalize, cannabis. Unlike others, we embrace, not fear, change. After all, this is 2018 not the 20th century,” he said in 2018. “At the California Department of Justice we intend to vigorously enforce our state’s laws and protect our state’s interests.”

In 2019, Becerra’s office released guidelines for continuing to implement the state’s medical cannabis program.

“In light of California’s legalization of recreational adult-use cannabis, as well as its decision to remove the use and cultivation of physician-recommended medicinal cannabis from the scope of the state’s drug laws,” the document says, “it is recommended that state and local law enforcement officers not arrest individuals or seize cannabis under federal law when the officer determines, from the facts available, that the cultivation, transportation, delivery, and/or possession, is permitted under California’s medicinal or adult use cannabis laws.”

On marijuana banking

On several occasions, Becerra has teamed up with other state attorneys general from across the country in calling on Congress to pass legislation to expand cannabis businesses’ access to banking services.

One such letter from last year was signed Becerra and 37 other state attorneys general who pressed federal lawmakers to allow legal marijuana businesses to access the banking system.

“Regardless of how individual policymakers feel about states permitting the use of medical or recreational marijuana, the reality of the situation requires federal rules that permit a sensible banking regime for legal businesses,” they wrote.

In a 2018 letter to lawmakers, the attorney general and 16 of his counterparts wrote that “we are requesting legislation that would provide a safe harbor for depository institutions that provide a financial product or service to a covered business in a state that has implemented laws and regulations that ensure accountability in the marijuana industry such as” the Secure and Fair Enforcement (SAFE) Banking Act.

Earlier this year, Becerra joined 33 other state attorneys general in signing a letter to House and Senate leadership that called on Congress to pass a coronavirus relief bill that included SAFE Banking Act language.

“The continued exclusion of the licensed cannabis industry from the federal banking system is untenable—and unwise,” he said in a press release. “The coronavirus crisis has only exacerbated the economic and investigatory challenges that arise from keeping a $15 billion industry in the shadows. Congress should move swiftly to pass this commonsense legislation and provide relief to the many local cannabis businesses that are playing by the rules.”

The attorney general’s office also announced in 2018 that it would be conducting a study into the possibility of setting up a state-run publicly owned bank to service the marijuana industry.

On California cannabis eradication and regulations

While pushing for federal reforms to marijuana policies and defending his state’s program from interference, Becerra has also led efforts to crack down on cannabis operations in California that do not comply with local law.

The attorney general said in 2019 that illegal cultivation and marijuana sales represent some of the most challenging regulatory enforcement problems and that these illicit activities harm “the ability for the industry to be a legitimate one.” However, he said, “I do agree with the initiative and the votes of the people in California to move from criminalizing to regulating cannabis.”

He and other California officials held a press conference in partnership with the Justice Department in 2018 to highlight the consequences of illicit marijuana cultivation on public lands, focusing in particular on the dangers associated with pesticides.

In October of this year, Becerra touted that more than 1.1 million marijuana plants at 455 illegal grow sites were eradicated as part of the state’s annual Campaign Against Marijuana Planting (CAMP) Program. Also, 140 people were arrested.

“Illegal marijuana planting risks public safety, endangers public health, and devastates critical habitats and wildlife,” he said. “Every year, the California Department of Justice works with federal, state, and local partners to hold illegal growers accountable and reclaim our public lands.

The prior year, his office announced that 148 people had been arrested and 953,459 marijuana plants were destroyed at 345 illegal grow sites.

“Illegal cannabis grows are devastating our communities,” Becerra said. “Criminals who disregard life, poison our waters, damage our public lands, and weaponize the illegal cannabis black market will be brought to justice.”

Congressional record

Becerra, who served in the U.S. House from 1993-2017, didn’t proactively cosponsor any marijuana reform bills. However, he did vote in favor of numerous cannabis-related spending bill amendments on the floor, including one in 2015 to prevent the Justice Department from using its funds to intervene in any state-legal marijuana programs.

He voted for a more limited rider to protect state medical cannabis programs all eight times that it came up for a vote while he was in office, starting in 2003. The then-congressman also approved amendments to let the U.S. Department of Veterans Affairs recommend medical marijuana to veterans, protect state industrial hemp and CBD programs, give cannabis businesses access to the banking system and promote hemp research.

On broader drug policy

In July, Becerra and a coalition of other state attorneys general filed an amicus brief in a federal court defending the right of a safe injection facility for currently illicit drugs to open in Philadelphia, Pennsylvania.

“The opioid epidemic has devastated communities throughout our nation. Safe injection sites aim to increase public health and safety by providing comprehensive services to victims of the opioid epidemic, while reducing the public nuisance of drug use in public spaces,” he said. “Safe injection sites like Safehouse are an innovative tool to combat the opioid epidemic and drug dependency while reducing overdose death and transmission of diseases. California has always been a trailblazer, and we’re committed to doing what it takes to keep our communities healthy and safe.”

What to expect if Becerra leads HHS

As HHS secretary, Becerra seems likely to support any Biden administration marijuana rescheduling effort and to push for broader drug policy reforms as well.

And while the president-elect remains opposed to federally descheduling cannabis for now, he’s pledged to reschedule the plant, which he could leave up to HHS and the Justice Department to facilitate the specifics of. The attorney general nominee is yet to be named, but in HHS, it stands to reason that Becerra would happily go along with a reclassification, if not advocate for further changes.

Process-wise, the secretary of HHS is able to unilaterally submit a petition for rescheduling to the attorney general. After the Justice Department reviews a request, the Food and Drug Administration (under HHS) conducts its own analysis and the HHS secretary sends its findings and recommendations back to the attorney general. The health agency’s medical and scientific findings are then binding on the Justice Department’s scheduling decision.

House Will Vote On Marijuana Research Bill Allowing Scientists To Study Dispensary Cannabis This Week

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Congressman Files New Marijuana Banking Reform Amendment To Large-Scale House Bill

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The House sponsor of a bill to protect banks that work with state-legal marijuana businesses announced on Friday that he is seeking to attach an amendment containing the reform to a broader bill dealing with research and innovation in the tech and manufacturing sectors.

Rep. Ed Perlmutter (D-CO), sponsor of the Secure and Fair Enforcement (SAFE) Banking Act, has expressed interest in finding another vehicle to pursue his proposal after it was stripped from a separate defense bill late last year. The congressman’s legislation has cleared the House in five forms at this point, only to stall in the Senate.

His latest attempt to get the reform enacted is by filing an amendment with the SAFE Banking language to the America COMPETES Act, which does not deal specifically with cannabis issues as drafted but was introduced in the House this week.

“Cannabis-related businesses—big and small—and their employees are in desperate need of access to the banking system and access to capital in order to operate in an efficient, safe manner and compete in the growing global cannabis marketplace,” Perlmutter, who is retiring from Congress after this session and committed to passing his bill first, said in a press release.

“The SAFE Banking Act is the best opportunity to enact some type of federal cannabis reform this year and will serve as the first of many steps to help ensure cannabis businesses are treated the same as any other legal, legitimate business,” he said. “I will continue to pursue every possible avenue to get SAFE Banking over the finish line and signed into law.”

It remains to be seen whether the America COMPETES Act will serve as a more effective vehicle for the cannabis banking bill than the National Defense Authorization Act (NDAA), where the language was successfully attached on the House side but later removed amid bicameral negotiations. Perlmutter said at the time that Senate leadership, which is working on comprehensive legalization legislation, was to blame for the decision to remove his amendment from the proposal.

The new SAFE Banking Act amendment will still need to be made in order by the House Rules Committee in order to be formally be considered on the House floor when the body takes up the research and innovation package. The deadline to file amendments was Friday, and the panel is set to take them up starting on Tuesday.

Even some Republicans are scratching their heads about how Democrats have so far failed to pass the modest banking reform with majorities in both chambers and control of the White House. For example, Rep. Rand Paul (R-KY) criticized his Democratic colleagues over the issue last month.

In the interim, federal financial regulator Rodney Hood—a board member and former chairman of the federal National Credit Union Administration (NCUA)—recently said that marijuana legalization is not a question of “if” but “when,” and he’s again offering advice on how to navigate the federal-state conflict that has left many banks reluctant to work with cannabis businesses.

Ohio Lawmakers Will Be Forced To Consider Marijuana Legalization As State Validates Activist Signatures

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Ohio Lawmakers Will Be Forced To Consider Marijuana Legalization As State Validates Activist Signatures

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Ohio activists have collected enough signatures to force the legislature to take up the issue of marijuana legalization, the secretary of state’s office confirmed on Friday.

This comes about two weeks after the Coalition to Regulate Marijuana Like Alcohol (CTRMLA) submitted a final round of signatures for the measure. The petitions’ formal validation triggers the legislative review of legalization, but it does not require lawmakers to enact the reform.

The legislature now has four months to consider the campaign’s cannabis reform proposal. Lawmakers can adopt the measure, reject it or pass an amended version. If they do not pass the measure, organizers can then collect an additional 132,887 valid signatures from registered voters to place the issue on the ballot in November.

CTRMLA previously submitted petitions for the initiative but the state said they were short some 13,000 signatures, requiring activists to go back and make up the difference.

“We are ready and eager to work with Ohio legislators over the next four months to legalize the adult use of marijuana in Ohio,” CTRMLA spokesman Tom Haren said in a press release. “We are also fully prepared to collect additional signatures and take this issue directly to voters on November 8, 2022, if legislators fail to act.”

The measure that lawmakers will be required to consider would legalize possession of up to 2.5 ounces of cannabis for adults 21 and older, and they could also have up to 15 grams of marijuana concentrates. Individuals could grow up to six plants for personal use, with a maximum 12 plants per household.

A 10 percent sales tax would be imposed on cannabis sales, with revenue being divided up to support social equity and jobs programs (36 percent), localities that allow adult-use marijuana enterprises to operate in their area (36 percent), education and substance misuse programs (25 percent) and administrative costs of implementing the system (three percent).

A Division of Cannabis Control would be established under the state Department of Commerce. It would have authority to “license, regulate, investigate, and penalize adult use cannabis operators, adult use testing laboratories, and individuals required to be licensed.”

The measure gives current medical cannabis businesses a head start in the recreational market. Regulators would need to begin issuing adult-use licenses to qualified applicants who operate existing medical operations within nine months of enactment.

The division would also be required to issue 40 recreational cultivator licenses and 50 adult-use retailer licenses “with a preference to applications who are participants under the cannabis social equity and jobs program.” And it would authorize regulators to issue additional licenses for the recreational market two years after the first operator is approved.

Individual municipalities would be able to opt out of allowing new recreational cannabis companies from opening in their area, but they could not block existing medical marijuana firms even if they want to add co-located adult-use operations. Employers could also maintain policies prohibiting workers from consuming cannabis for adult use.

Further, regulators would be required to “enter into an agreement with the Department of Mental Health and Addiction Services” to provide “cannabis addiction services,” which would involve “education and treatment for individuals with addiction issues related to cannabis or other controlled substances including opioids.”

With respect to social equity, some advocate are concerned about the lack of specific language on automatic expungements to clear the records of people with convictions for offenses that would be made legal under the legislation. That said, it does include a provision requiring regulators to “study and fund” criminal justice reform initiatives including expungements.

Ohio voters rejected a 2015 legalization initiative that faced criticism from many reform advocates because of an oligopolistic model that would’ve granted exclusive control over cannabis production to the very funders who paid to put the measure on the ballot.

Activists suspended a campaign to place another measure on the 2020 ballot due to the coronavirus pandemic.

Aside from the new voter initiative, state lawmakers from both parties are separately working to advance marijuana reform.

A legalization bill that was the first of its kind to be introduced in the Ohio legislature last year would legalize the possession, sale and cultivation of cannabis by adults. It’s being championed by Reps. Casey Weinstein (D) and Terrence Upchurch (D).

A pair of Ohio Republican lawmakers similarly filed a bill to legalize marijuana in the state in December. Reps. Jamie Callender (R) and Ron Ferguson (R) first announced their plan to push the legislative reform proposal in October and circulated a co-sponsorship memo to build support for the measure.

There are also additional local reform efforts underway in Ohio for 2022.

After voters in seven cities approved ballot measures to decriminalize marijuana possession during last November’s election—which builds on a slew of previous local reforms in the state—campaigns are now looking to enact decriminalization in Marietta, Rushville, Rutland, Shawnee, McArthur and Laurelville.

Ohio marijuana activists already successfully proved that they turned in enough valid signatures to put a local decriminalization initiative before Kent voters after having missed the 2021 ballot due to a verification error on the part of county officials. That measure is now expected to go before voters this November.

Top Federal Drug Official Says Marijuana Use ‘Stable’ Among Youth At Prohibitionist-Hosted Panel Sponsored By D.A.R.E.

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Top Federal Drug Official Says Marijuana Use ‘Stable’ Among Youth At Prohibitionist-Hosted Panel Sponsored By D.A.R.E.

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A top federal drug official participated in a panel hosted by a prohibitionist group and sponsored by D.A.R.E.—and she again reiterated that data shows youth marijuana use has remained stable “despite the legalization in many states.”

While National Institute on Drug Abuse (NIDA) Director Nora Volkow expressed concerns about certain cannabis trends related to potency, commercialization and use by pregnant women, she affirmed that surveys funded by her own federal agency have demonstrated that adolescent marijuana use is “stable,” despite repeated arguments from prohibitionists that legalization would lead more young people to experiment with cannabis.

The event was hosted by Smart Approaches to Marijuana (SAM), an anti-legalization group. SAM President Kevin Sabet and the organization’s co-founder former Rep. Patrick Kennedy (D-RI) led the discussion.

Sabet said that data on youth use has showed varying results in states that have legalized cannabis and asked Volkow to weigh in on the issue. She replied that federal data “have not been able to see large differences in terms of prevalence” of cannabis consumption among young people in legal and non-legal states.

The official made similar comments in an interview with Marijuana Moment late last year.

That said, Volkow said that they have seen some differences when it comes to consumption rates among adolescents for edible cannabis products.

“But the effects are not large, and one of the things that also certainly surprised me [is] the rate overall, the prevalence rates of marijuana use among teenagers, have been stable despite the legalization in many states,” she said, adding that there are some concerns about increased frequency of use and limitations in data collection with respect to dosages being taken.

Volkow also commented on a recent federally funded survey that found illicit drug use by young people has taken a significant plunge in the last year, though she largely attributed that to the reduced social interaction resulting from COVID-19 policies across the country.

“Interestingly what we’ve observed during the COVID pandemic is, across schools in the United States, the prevalence of drug use has gone down,” she said, “which likely very much reflects the fact that kids don’t have the opportunity to interact with others, and drug taking at that stage is a peer pressure behavior.”

The official also briefly addressed the fact that she feels criminalizing people over drugs in the first place is the wrong policy approach—a point she’s made repeatedly in interviews and blog posts.

She said that “criminalization has created a system for that allows a structural racism to be implemented, you can control people, and that’s a horrible policy. This criminalization actually opens up our eyes that well, yes, we need to change that.”

However, she said that “liberalizing and making the drugs widely available, with no counter messaging,” is not the alternative she would recommend.

While the SAM-hosted event did not touch specifically on psychedelics policy, Volkow has also recently discussed that issues, especially as data has shown an increase in use of the substances among adults.

She said people are going to keep using substances such as psilocybin—especially as the reform movement expands and there’s increased attention being drawn to the potential therapeutic benefits—and so researchers and regulators will need to keep up.

Volkow also mentioned that NIDA is “pleased” the Drug Enforcement Administration recently announced plans to significantly increase the quota of certain psychedelic drugs to be produced for use in research.

USDA Teams Up With Cornell University For Hemp Education Webinar Series

Photo courtesy of Philip Steffan.

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