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Congress Votes To Let Researchers Study Marijuana From Dispensaries

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The House of Representatives approved legislation on Wednesday aimed at finally letting researchers study marijuana purchased from businesses in state-legal markets instead of only letting them use government-grown cannabis, as is the case under current law.

The intent of the provision, tucked into a 2,000-plus-page infrastructure bill, is to allow the interstate distribution of such products even to scientists in jurisdictions that have not yet legalized marijuana.

While the main components of the INVEST in America Act concern funding for highway and transportation projects, the legislation as introduced also contains a separate section that would require legal marijuana states—and only those states—to consider methods of educating people about and discouraging impaired driving from cannabis.

Several lawmakers filed additional cannabis-related amendments in committee. Most were either withdrawn, defeated or never formally debated, but a wide-ranging marijuana measure that was recently filed by the chair of the House Transportation and Infrastructure Committee was successfully attached.

The provision calls for the Department of Transportation to consult with the attorney general and Department of Health and Human Services to develop a report with recommendations on providing researchers with access to “samples and strains of marijuana and products containing marijuana lawfully being offered to patients or consumers” in legal states.

The report should also explore “establishing a national clearinghouse to collect and distribute samples and strains of marijuana for scientific research,” and that would include cannabis from state-legal markets. Rep. Peter DeFazio (D-OR), sponsor of the main bill as well as the manager’s amendment the new marijuana language is part of, further wants the report to outline ways to provide researchers in states that haven’t legalized marijuana with access to cannabis from such a clearinghouse to study impaired driving.

Finally, the measure states that the report, which would be due two years after the bill’s enactment, should analyze “statutory and regulatory barriers to the conduct of scientific research and the establishment of a national clearinghouse for purposes of facilitating research on marijuana-impaired driving.”

Some of these components deal directly with transportation, but others seem to address broader issues in cannabis research that advocates and scientists have repeatedly identified as problematic. As it stands, researchers can only access marijuana from a single federally authorized manufacturing facility, and the quality of the products it produces has been criticized. At least one study found that its marijuana is chemically closer to hemp than what’s actually available to consumers in commercial markets.

The Drug Enforcement Administration is taking steps on its own to increase the number of licensed cannabis cultivation facilities beyond the current sole source at the University of Mississippi, but the process has seen long delays. A public comment period on its most recent proposal ended in May. However, even if the federal government does license additional research cultivation facilities, that still wouldn’t resolve the problem of scientists’ lack of access to marijuana from state marketplaces.

“There is a growing awareness among the public, politicians, and especially among those within the scientific community that the current regulations unduly limiting researchers’ ability to access and clinically study real-world cannabis products is both illogical and counterproductive,” NORML Deputy Director Paul Armentano told Marijuana Moment. “It makes zero sense that tens of millions of Americans can now readily purchase and consume these products, but that scientists cannot access these same products for the purpose of studying their effects on human subjects in the course of a controlled trial.”

The other cannabis provision that was included in the base bill has not been well-received by reform advocates.

Under the legislation, a section of current law requiring that states establish highway safety programs would be amended to add a section stipulating that states “which have legalized medicinal or recreational marijuana shall consider programs in addition to the programs…to educate drivers on the risks associated with marijuana-impaired driving and to reduce injuries and deaths resulting from individuals driving motor vehicles while impaired by marijuana.”

While advocates are supportive of measures to reduce impaired driving, some have raised issues with the implication that legalizing cannabis increases the risk of people driving while under the influence. Research isn’t settled on that subject.

A congressional research body said in a report last year that concerns expressed by lawmakers that cannabis legalization will make the roads more dangerous might not be totally founded. In fact, the experts tasked by the House and Senate with looking into the issue found that evidence about cannabis’s ability to impair driving is currently inconclusive.

Beside that contention, the legislation seems to neglect to take into account that cannabis-impaired driving isn’t exclusive to legal states and that public education could be beneficial across all states regardless of their individual marijuana policies.

Despite pushback from advocates, no lawmakers filed amendments to strike the language or revise it to apply to all states instead of just ones that have ended prohibition.

Hundreds of other amendments were filed on the legislation, both in the Transportation Committee and for potential floor action, with several others dealing with cannabis that didn’t make the cut.

That includes one calling for studies into the effects of cannabis on driving and the development of an “objective standard for measuring marijuana impairment.” Another would establish a grant program for research into marijuana-impaired driving. Both of those were withdrawn during the Transportation Committee hearing on the bill last month.

Another amendment contained a section that would require the National Highway Traffic Safety Administration to “carry out a collaborative research effort to study the effect that marijuana has on driving and research ways to detect and reduce incidences of driving under the influence of marijuana.” It was defeated in a 25-35 vote.

There was also an amendment filed that called for the creation of a pilot program to promote education about the risks of impaired driving from prescription and over-the-counter drugs. The sponsor never ended up formally offering it.

In the House Rules Committee, which held a hearing last week to prepare the bill for floor action, an amendment was offered to make it so the Transportation Department would “establish a program to provide grants on a competitive basis to States to educate the public on the dangers of drug-impaired driving.” The measure wasn’t made in order, however.

The panel did advance another drug-related measure that would create “a pilot program to provide funding to states to incorporate wastewater testing for drugs at municipal wastewater treatment plants and to develop public health interventions to respond to the findings.”

“This would allow public health departments to monitor drug consumption and detect new drug use more quickly and in a more specific geographic region than methods currently in use while preserving individual privacy,” the text of the measure, which was approved by a voice vote in a bloc along with other amendments on the House floor, states.

The overall infrastructure bill was approved by a vote of 233-188. It’s not clear if the Senate will include cannabis provisions in any related legislation it takes up this year.

Read the text of the manager’s amendment on expanding marijuana research and access to state-legal cannabis products below: 

SEC. 3014. REPORT ON MARIJUANA RESEARCH.

(a) IN GENERAL.—Not later than 2 years after the date of enactment of this Act, the Secretary of Transportation, in consultation with the Attorney General and the Secretary of Health and Human Services, shall submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate, and make publicly available on the Department of Transportation website, a report and recommendations on—

(1) increasing and improving access, for scientific researchers studying impairment while driving under the influence of marijuana, to samples and strains of marijuana and products containing marijuana lawfully being offered to patients or consumers in a State on a retail basis;

(2) establishing a national clearinghouse to collect and distribute samples and strains of marijuana for scientific research that includes marijuana and products containing marijuana lawfully available to patients or consumers in a State on a retail basis;

(3) facilitating access, for scientific researchers located in States that have not legalized marijuana for medical or recreational use, to samples and strains of marijuana and products containing marijuana from such clearinghouse for purposes of research on marijuana-impaired driving; and

(4) identifying Federal statutory and regulatory barriers to the conduct of scientific research and the establishment of a national clearinghouse for purposes of facilitating research on marijuana-impaired driving.

(b) DEFINITION OF MARIJUANA.—In this section, the term ‘‘marijuana’’ has the meaning given such term in section 4008 of the FAST Act (Public Law 114–94).

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DEA’s Hemp Rule On THC Content Misinterprets Congressional Intent, Senators Say

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A pair of senators representing Oregon sent a letter to the Drug Enforcement Administration (DEA) on Thursday to demand changes to the agency’s proposed hemp regulations.

This is the second congressional request DEA has received on the subject this week, with a group of nine House members similarly imploring a revision of a rule concerning hemp extractions on Tuesday.

DEA released an interim final rule (IFR) for the crop in August, and it said the regulations were simply meant to comply with the 2018 Farm Bill that legalized hemp and its derivatives. But stakeholders and advocates have expressed serious concerns about certain proposals, arguing that they could put processors at risk of violating federal law and hamper the industry’s growth.

Sens. Ron Wyden (D-OR) and Jeff Merkley (D-OR) said in the new letter that despite DEA’s claim that its IFR is only about compliance, the proposal “does significantly more.”

“The IFR treats hemp as a Schedule I controlled substance at any point its THC content exceeds 0.3% THC,” they said. “However, when Congress passed the 2018 Farm Bill, we understood that intermediate stages of hemp processing can cause hemp extracts to temporarily exceed 0.3% THC, which is why we defined hemp based on its delta-9 THC level.”

“In effect, the IFR criminalizes the intermediate steps of hemp processing, which is wholly inconsistent with Congress’s clearly stated purpose and the text of the 2018 Farm Bill,” the letter states.

In other words, while Congress intended to legalize hemp extracts, businesses that produce the materials could find themselves inadvertently breaking the law and be subject to enforcement action if THC levels temporarily increase beyond 0.3 percent.

A public comment period on DEA’s proposed rules closed on Tuesday. It saw more than 3,300 submissions, many of which focused on issues with the “work in progress” hemp THC issue.

Another issue identified by more than 1,000 commenters concerns delta-8 THC. The most widely known cannabinoid is delta-9 THC, the main component responsible for creating an intoxicating effect, but delta-8 THC from hemp is also psychoactive and is an object of growing interest within the market.

Because DEA’s proposed regulations state that all “synthetically derived tetrahydrocannabinols remain schedule I controlled substances,” some feel that would directly impact the burgeoning cannabinoid, as its converted from CBD through the use of a catalyst—and that could be interpreted as a synthetic production process.

In any case, it’s not clear whether DEA deliberately crafted either of these rules with the intent of criminalizing certain hemp producers—but stakeholders and advocates aren’t taking any chances.

The U.S. Department of Agriculture (USDA) has faced separate criticism over its own proposed hemp rules, though it has been more proactive in addressing them. Following significant pushback from the industry over certain regulations it views as excessively restrictive, the agency reopened a public comment period, which also closed this month.

USDA is also planning to distribute a national survey to gain insights from thousands of hemp businesses that could inform its approach to regulating the market.

Read the letter from Wyden and Merkley on DEA’s hemp proposal below:

Wyden and Merkley letter on… by Marijuana Moment

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USDA Releases, Then Rescinds, Hemp Loan Notice Following Congressional Action

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The U.S. Department of Agriculture (USDA) recently released—and then promptly rescinded—a notice on providing federal loans for hemp processors.

After the crop was federally legalized under the 2018 Farm Bill, USDA announced that regulations were being developed to offer direct and guaranteed loans to the industry. The federal agency unveiled those guidelines in April and then issued a new notice this month notifying applicants about the policy change ahead of the planned expiration of the earlier 2014 hemp pilot program.

The next day, however, it posted an “obsoleting notice” invalidating the prior document.

The new guidance “was developed with the understanding that operators would no longer be authorized to produce hemp under the 2014 Farm Bill Pilot Program,” USDA said. However, because Congress approved a continuing resolution that extends the program until September 30, 2021, the loan policies are not currently applicable.

That pilot program extension came at the behest of numerous stakeholders, advocates and lawmakers who have been pushing USDA to make a series of changes to its proposed hemp regulations. As those rules are being reviewed and finalized, they said it was necessary to keep the 2014 program in place.

The president signed the continuing resolution late last month, so it’s not clear why the notice on loan policy changes was released weeks later, which then necessitated a follow-up recision. But in any case, it’s another example of the fluidity and challenges of rulemaking for the non-intoxicating cannabis crop following its legalization.

It stands to reason that the loan processes outlined in the now-invalid notice will likely be consistent with what’s ultimately released next year, assuming the pilot program does expire then.

The primary rule change concerns licensing requirements for borrowers. After the 2014 regulations are no longer in effect, hemp loan applicants must be licensed under a USDA-approved state or tribal hemp program, or under the agency’s basic regulations if the jurisdiction the business operates in has not submitted its own rules.

Borrowers who are not licensed to grow hemp will be considered in non-monetary default and any losses will not be covered. For direct and guaranteed loans, hemp businesses must have a contract with USDA’s Farm Service Agency laying out termination policies and their ability to repay the loans.

As of this month, USDA has approved a total of 69 state and tribal hemp regulatory proposals—mostly recently for Illinois, Indiana, Michigan, New Mexico, Oklahoma and South Dakota. Illinois and Oklahoma were among a group of states that USDA had asked to revise and resubmit their initial proposals in August.

While the agency released an interim final rule for a domestic hemp production program last year, industry stakeholders and lawmakers have expressed concerns about certain policies it views as excessively restrictive.

USDA closed an extended public comment period on its proposed hemp regulations earlier this month. Its initial round saw more than 4,600 submissions, but it said last month that it was reopening the feedback period in response to intense pushback from stakeholders on its original proposal.

The federal Small Business Administration (SBA) said last month that the new 30-day comment window is too short and asked USDA to push it back, and it also issued a series of recommended changes to the interim final rule on hemp, which it says threaten to “stifle” the industry and benefit big firms over smaller companies.

All told, it appears that USDA is taking seriously the feedback it’s received and may be willing to make certain accommodations on these particular policies. The department’s rule for hemp is set to take effect on October 31, 2021.

In July, two senators representing Oregon sent a letter to Perdue, expressing concern that hemp testing requirements that were temporarily lifted will be reinstated in the agency’s final rule. They made a series of requests for policy changes.

Senate Minority Leader Chuck Schumer (D-NY) wrote to Perdue in August, asking that USDA delay issuing final regulations for the crop until 2022 and allow states to continue operating under the 2014 pilot program in the meantime.

Sen. Cory Gardner (R-CO) also called on USDA to delay the implementation of proposed hemp rules, citing concerns about certain restrictive policies the federal agency has put forward in the interim proposal.

The senators weren’t alone in requesting an extension of the 2014 pilot program that was ultimately enacted legislatively, as state agriculture departments and a major hemp industry group made a similar request to both Congress and USDA in August.

Amid the coronavirus pandemic, hemp industry associations pushed for farmers to be able to access to certain COVID-19 relief loans—a request that Congress granted in the most recent round of coronavirus legislation.

While USDA previously said that hemp farmers are specifically ineligible for its Coronavirus Food Assistance Program, that decision was reversed last month. While the department initially said it would not even reevaluate the crop’s eligibility based on new evidence, it removed that language shortly after Marijuana Moment reported on the exclusion.

Meanwhile, USDA announced last week that it is planning to distribute a national survey to gain insights from thousands of hemp businesses that could inform its approach to regulating the industry.

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New York Will Legalize Marijuana ‘Soon’ To Aid Economic Recovery From COVID, Governor Cuomo Says

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New York Gov. Andrew Cuomo (D) recently said that legalizing marijuana represents a key way the state can recover economically from the coronavirus pandemic.

During a virtual event last week to promote his new book on the state’s COVID-19 response, the governor was asked when New York will legalize cannabis for adult use.

“Soon, because now we need the money,” he said, according to a recording that was obtained by USA Today Network. “I’ve tried to get it done the last couple years.”

“There are a lot of reasons to get it done, but one of the benefits is it also brings in revenue, and all states—but especially this state—we need revenue and we’re going to be searching the cupboards for revenue,” he said in remarks that will be released in full in a podcast in the coming weeks by Sixth & I, which hosted the event. “And I think that is going to put marijuana over the top.”

Cuomo has included legalization in his last two budget proposals, but negotiations between his office and the legislature fell through both times, with sticking points such as how cannabis tax revenue will be allocated preventing a deal from being reached.

A top adviser of his said earlier this month that the plan is to try again to legalize cannabis in New York in early 2021.

“We’re working on this. We’re going to reintroduce this in our budget in January,” he said. “We think we can get it done by April 1.”

Cuomo was similarly asked about legalization as a means to offset the budget deficit caused by the pandemic in May.

While he said it’s the federal government’s “obligation as part of managing this national pandemic that they provide financial relief to state and local governments,” he added that “I support legalization of marijuana passage. I’ve worked very hard to pass it.”

“I believe we will, but we didn’t get it done this last session because it’s a complicated issue and it has to be done in a comprehensive way,” he said.

The governors of New Jersey, New Mexico and Pennsylvania have also made the case that implementing a regulated marijuana program can help their states financially recover from the health crisis.

Cuomo indicated in April that he thought the legislative session was “effectively over” for the year and raised doubts that lawmakers could pass cannabis reform vote remotely via video conferencing amid social distancing measures.

Assembly Majority Leader Crystal Peoples-Stokes (D) made similar comments when asked about the policy in April, though she seemed to signal that she laid partial blame for the failure to enact reform on the governor prioritizing other issues during the pandemic.

In June, a senator said the legislature should include cannabis legalization in a criminal justice reform package, making the case that the policy change is a necessary step especially amid debates over policing reform. That didn’t come to pass, however.

The New York State Association of Counties said in a report released last month that legalizing marijuana for adult use “will provide the state and counties with resources for public health education and technical assistance” to combat the pandemic.

Meanwhile, the state Senate has approved several modest marijuana reform bills in recent months.

The chamber passed a bill in July that broadens the pool of people eligible to have their low-level marijuana convictions automatically expunged. That was preceded by a Senate vote in favor of legislation to prevent tenants from being evicted solely because of their legal use of medical marijuana.

Thanks to a bill expanding cannabis decriminalization in the state that the governor signed last year, the New York State Unified Court System made an announcement last month outlining steps that people can take to clear their records for prior marijuana convictions.

Locally, a local law enacted in New York City this summer bans pre-employment drug testing for marijuana for most positions. It was finalized in July following regulators’ approval of certain exemptions.

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