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Congressional Report Urges Feds To Update Marijuana Employment Policies

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A congressional committee is urging the federal government to reconsider its hiring and firing policies as they relate to workers who use marijuana in compliance with state laws.

The House Appropriations Committee made the recommendation in a report attached to a large-scale spending bill funding parts of the federal government for Fiscal Year 2020 that was released on Monday. That same legislation also includes a provision protecting banks that service cannabis businesses and deletes a longstanding rider prohibiting Washington, D.C. from using its local tax dollars to implement a system of legal marijuana sales.

The panel made its new recommendation to the U.S. Office of Personnel Management (OPM).

Hiring Guidelines—The Committee encourages OPM to review its policies and guidelines regarding hiring and firing of individuals who use marijuana in states where that individual’s private use of marijuana is not prohibited under the law of the State. These policies should reflect updated changes to the law on marijuana usage and clearly state the impact of marijuana usage on Federal employment.”

Existing federal policy strictly prohibits marijuana usage for federal workers even in states that have enacted legalization.

The full Appropriations Committee is scheduled to consider the Financial Services and General Government spending legislation and approve the report on Tuesday.

But even while the committee report is adding the new encouragement for a legal-state carveout for cannabis, the bill itself maintains a provision stating that a federal agency can only receive funds under the legislation if it “has in place, and will continue to administer in good faith, a written policy designed to ensure that all of its workplaces are free from the illegal use, possession, or distribution of controlled substances by the officers and employees of such department, agency, or instrumentality.”

That language could potentially be amended as the bill makes it way through the legislative process.

“We’re proud to support any efforts to ensure that the successful cannabis reform efforts in states around the nation are able to be implemented in smooth and sensible manner,” Justin Strekal, political director of NORML, told Marijuana Moment. “The prospect of responsible adults being denied federal employment opportunities is counterproductive and disproportionally impacts the veterans community.”

“It is our hope that the final appropriations package maintain these provisions to give certainty to the increasing number of states that are ending the failed war on cannabis,” he said.

The report recommendation is in line with a piece of standalone legislation introduced in March by Reps. Charlie Crist (D-FL) and Don Young (R-AK) that would bar federal agencies from firing employees solely because they tested positive for THC if they live in a legal cannabis state. That bill has not yet been scheduled for any hearings or votes.

“Voters across the country are saying yes to legalization. It’s time for the federal government to catch up with the will of the people,” Crist said in a press release about the new appropriations moves. “For folks from all walks of life, veterans, seniors, people facing chronic pain or disabilities, cannabis is an incredible source of relief – and that legal commerce is providing an economic boost to our communities. You shouldn’t lose your job if you need cannabis to live a healthy, normal life, and companies shouldn’t be at risk of operating a cash-only business in this day and age.”

Besides the employment section, the spending bill report also discusses the cannabis banking provision that made it into the base spending bill.

That provision states that none of the money appropriated through the bill “may be used to penalize a financial institution solely because the institution provides financial services to an entity that is a manufacturer, a produce, or a person that participates in any business or organized activity that involves handling marijuana, marijuana products, or marijuana proceeds” in a jurisdiction where it’s legal.

Standalone legislation to provide that protection is making headway in Congress. It was approved by the House Financial Services Committee in March. Last week, it was placed on the chamber’s Union Calendar and is expected to be taken up for a full floor vote in coming weeks. In the meantime, lawmakers are considering adding amendments to broaden its GOP appeal.

Missing from the report is a description of a rider that appeared in earlier versions of the appropriations bill, stipulating that Washington, D.C. isn’t allowed to spend local tax revenue to implement legal marijuana sales. That section was nixed from the draft legislation as introduced. If it doesn’t get put back in later in the legislative process, the path would be cleared for officials in the nation’s capital to move ahead with a local proposal to expand the city’s current noncommercial legal cannabis system.

The 116th Congress has seen numerous standalone cannabis reform bills introduced so far, but it seems that lawmakers are also increasingly interested in pursuing change though the appropriations process.

Several other House Appropriations Committee reports released so far this year include provisions aimed at expanding research into medical cannabis, establishing a regulatory framework for CBD, providing funds for the implementation of hemp regulations, addressing impaired driving and protecting military veterans from losing their benefits for working in the cannabis industry.

On Friday, Rep. Alexandria Ocasio-Cortez (D-NY) filed an amendment to a separate spending bill coming to the floor this week that would eliminate a provision blocking the use of federal funds for “any activity that promotes the legalization of any drug or other substance in Schedule I.” The purpose of the legislation is to lift barriers to research into the therapeutic potential of substances such as psilocybin and MDMA, a summary prepared by the congresswoman’s office says.

Rep. Lou Correa (D-CA) also introduced an amendment to that bill that would prevent the Department of Education from denying or limiting “any funding or assistance to institutions of higher education” as a punishment for allowing the use of medical cannabis in a legal marijuana state.

The House Rules Committee will decide on Monday whether those drug policy amendments will be allowed for votes by the full body.

That panel’s chairman, Rep. James McGovern (D-MA), had repeatedly criticized his Republican predecessor for blocking cannabis votes on the floor and pledged to take a different approach.

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This story was updated to include comment from Crist.

Photo courtesy of Mike Latimer.

Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.

Kyle Jaeger is Marijuana Moment's Sacramento-based senior editor. His work has also appeared in High Times, VICE and attn.

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Federal Agency Loosens Marijuana-Related Grant Funding Restrictions For Mental Health Treatment

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The federal Substance Abuse and Mental Health Services Administration (SAMHSA) loosened restrictions this week on grant funding for state health providers and other entities that allow patients to use medical marijuana for mental heath treatment.

The Pennsylvania Department of Drug and Alcohol Programs flagged the new policy change in a notice to SAMHSA grant recipients on Monday. It said that the federal agency has removed language from its terms and conditions that until now has prevented grant funds from going to any institution that “provides or permits marijuana use for the purposes of treating substance use or mental disorders.”

This restriction led the state department to issue a memo in June warning recipients and applicants about the possible withholding of funding.

Despite the recent change, SAMHSA is still continuing a narrower ban that says federal funds themselves “may not be used to purchase, prescribe, or provide marijuana or treatment using marijuana.”

The broader prohibition, which has now been rescinded, prompted a notice last year from Maine’s Education Department, which said is was no longer eligible for certain federal funds to support mental health programs in schools because the state allows students to access medical marijuana.

It seems the federal agency is now being somewhat more permissive.

Here’s how SAMHSA’s updated marijuana restriction reads:

“SAMHSA grant funds may not be used to purchase, prescribe, or provide marijuana or treatment using marijuana. See, e.g., 45 C.F.R. 75.300(a) (requiring HHS to ensure that Federal funding is expended in full accordance with U.S. statutory and public policy requirements); 21 U.S.C. 812(c)(10) and 841 (prohibiting the possession, manufacture, sale, purchase or distribution of marijuana).”

The older, more broad prohibition read:

“Grant funds may not be used, directly or indirectly, to purchase, prescribe, or provide marijuana or treatment using marijuana. Treatment in this context includes the treatment of opioid use disorder. Grant funds also cannot be provided to any individual who or organization that provides or permits marijuana use for the purposes of treating substance use or mental disorders. See, e.g., 45 C.F.R. § 75.300(a) (requiring HHS to “ensure that Federal funding is expended in full accordance with U.S. statutory requirements.”); 21 U.S.C. §§ 812(c)(10) and 841 (prohibiting the possession, manufacture, sale, purchase or distribution of marijuana). This prohibition does not apply to those providing such treatment in the context of clinical research permitted by the DEA and under an FDA-approved investigational new drug application where the article being evaluated is marijuana or a constituent thereof that is otherwise a banned controlled substance under federal law.”

The marijuana restrictions were first added to grant award terms for Fiscal Year 2020. The language was initially carried over to Fiscal Year 2021 but was more recently switched out for the narrower language by the federal agency.

In a January 2020 FAQ that the Pennsylvania department shared from SAMHSA this June, the federal agency responded to a prompt inquiring whether grant recipients can serve patients who are “very clear about their wish to remain on their medical marijuana for their mental or substance use disorder.”

“No. The organization cannot serve a patient who is on medical marijuana for a mental or substance use disorder and wishes to remain on such treatment,” it said. “SAMHSA promotes the use of evidence-based practices and there is no evidence for such a treatment; in fact, there is increasing evidence that marijuana can further exacerbate mental health symptoms.”

While the agency seemed adamant in enforcing that policy at the time, it appears to have had a change of heart and has since loosened the restriction.

A SAMHSA spokesperson told Marijuana Moment that the new rules took effect on Sunday, but played down their significance.

“This Aug. 1 clarification simply made clearer what was already in place: SAMHSA funds should not be used to procure a federally prohibited substance,” he said in an email.

While it is true that the revised provision, as was the case in the prior language, states that federal funds cannot be used to pay for marijuana, the spokesperson avoided commenting on the new deletion of the broader prohibition on grants going to entities that otherwise allow patients to use medical cannabis to treat substance use or mental disorders.

After SAMHSA announced in 2019 that its marijuana policy would impact organizations applying for its two main opioid treatment programs and another that provides funding to combat alcoholism and substance misuse, the Illinois Department of Human Services and Oregon Health Authority issued notices on the impact of the rule.

Read the Pennsylvania department’s notice on the SAMHSA marijuana policy change below: 

Pennsylvania SAMHSA marijuana by Marijuana Moment

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Photo courtesy of Philip Steffan.

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Mexican Lawmakers Could Finally Legalize Marijuana Sales Next Month (Op-Ed)

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The legislature missed repeated deadlines, and then the Supreme Court moved to allow homegrow. What’s next?

By Zara Snapp, Filter

Mexico has never seemed so close and yet so far from fully regulating the adult-use cannabis market.

first Supreme Court resolution determined in 2015 that the absolute prohibition of cannabis for personal use was unconstitutional because it violates the right to the free development of personality. To reach jurisprudence in Mexico, five consecutive cases, with the same or more votes each time, must be won before the Supreme Court. This was achieved in October 2018, which detonated a legislative mandate that within 90 days, the Senate should modify the articles in the General Health Law that were deemed unconstitutional.

The first deadline came and went without the Senate modifying the articles; so the Senate requested an extension, which was granted. The second deadline to legislate expired on April 30, 2020—but another extension was provided because of the COVID-19 pandemic.

At first, it looked like the third time was the charm. The Senate overwhelmingly approved the Federal Law to Regulate and Control Cannabis in November 2020 and passed it to the Chamber of Deputies, the lower house, for review and approval. Since the deadline of December 15, 2020, was fast approaching, the Chamber asked for its own extension. The Supreme Court granted it (until April 20, 2021) and the bill underwent significant changes before being approved by the Chamber on March 10, and so sent back to the Senate.

The Senate certainly had enough time to review and either reject or accept the changes made by the lower house. That would have made this a shorter story. However, the Senate had other plans. Rather than approve the bill or request an additional extension, it simply did not do anything. June’s national midterm elections were approaching, and political calculations were made. The legislative process came to a standstill.

Since the Senate did not approve the bill by the deadline, the Supreme Court basically did what it had mandated Congress to do. It activated a mechanism to guarantee rights that had only been undertaken once before in Mexican history: the General Declaration of Unconstitutionality (GDU).

On June 28, the Supreme Court approved, with a qualified majority of eight of the 11 Ministers, that two articles in the General Health Law must be modified to permit adults to cultivate cannabis for personal use in their homes.

These changes were officially published on July 15, with specific instructions to the Health Secretary to approve authorizations for any adult who applies.

The GDU has certain restrictions attached, including that this is only for personal use and cannot be used to justify any commercialization of cannabis or cannabis-derived products. Adults cannot consume in front of minors, or other adults who have not expressly given their permission. Nor can they operate heavy machinery or drive while under the effects.

With the GDU, the judicial process concludes. However, the Supreme Court was clear in its final recommendations: Congress can and should legislate to clear up inconsistencies and generate a legal framework for cannabis users.

Whether the Senate decides to take up the matter again in September when it returns to its legislative session will depend largely on its political whim. The body no longer has a deadline to meet; however, there are growing calls from society to regulate the market beyond home-grow, as well as several legal contradictions that obviously need to be harmonized.

The General Health Law has now been modified and the health secretary must approve permits or authorizations for adults to cultivate in their homes. But the Federal Criminal Code has not changed—it still penalizes those same activities with sanctions ranging from 10 months to three years or more in prison.

The Supreme Court decision ignores the need for a comprehensive regulation that would allow the state to apply taxes to commercial activities, which are currently still criminalized with penal sanctions. It also overlooks the urgency of an amnesty program for the thousands of people currently incarcerated on low-level cannabis charges, or hampered by criminal records for such charges.

The Senate should now revisit the bill it initially passed. It should maintain the positive aspects of the bill, which would improve things well beyond the scope of the Supreme Court decision. These include provision for cannabis associations (permitting up to four plants per person for up to 20 members), for home-grow without the need to request authorization, and for a regulated market with a social justice perspective—allocating 40 percent (or more!) of cultivation licenses to communities harmed by prohibition and imposing restrictions on large companies.

The Senate could also build upon the previous version of the bill by eliminating simple possession as a crime, by allowing the associations to operate immediately and guaranteeing the participation of small and medium companies through strong government support.

During the last three years, and before, civil society has closely accompanied the process of creating this legislation, providing the technical and political inputs needed to move forward in a way that could have great social benefits for Mexico.

By becoming the third country in the world to regulate adult cannabis use, after Uruguay and Canada, Mexico could transition from being one of the largest illegal producers to being the largest legal domestic market in the world. As well as economic benefits, this could have substantial impacts on how criminal justice funds are spent, freeing up law enforcement dollars to focus on high-impact crimes and changing the way the state has shown up in communities that cultivate cannabis.

Rather than eradicating crops, the government could accompany communities in gaining legal licenses, provide technical assistance and improve basic services. These positive externalities of regulation could signal a shift from a militarized state of war to a focus on rights, development and social justice.

Of course, this all depends on key political actors recognizing the benefits—and that requires political will. Mexico deserves better; however, it remains to be seen whether legislators will act.

This article was originally published by Filter, an online magazine covering drug use, drug policy and human rights through a harm reduction lens. Follow Filter on Facebook or Twitter, or sign up for its newsletter.

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Oregon Governor Plans To Veto Bill To Regulate Kratom Sales That Advocates Say Would Protect Consumers

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The governor of Oregon has announced her intent to veto a bill that’s meant to create a regulatory framework for the sale and use of kratom for adults.

The Oregon Kratom Consumer Protection Act is bipartisan legislation that would make it so only people 21 and older could purchase the plant-based substance, which some use for its stimulating effects and which others found useful in treating opioid withdrawals.

Vendors would have to register with the state Department of Agriculture to sell kratom. The agency would be responsible for developing regulations on testing standards and labeling requirements. The bill would further prohibit the sale of contaminated or adulterated kratom products.

But while the House and Senate approved the legislation in June, Gov. Kate Brown (D) said on Sunday that she plans to veto it, in large part because she feels the federal Food and Drug Administration (FDA) is better suited to regulate the products.

“Given there is currently no FDA-approved use for this product and there continues to be concern about the impacts of its use, I would entertain further legislation to limit youth access without the state agency regulatory function included in this bill,” the governor said.

This comes as a disappointment to advocates and regulators who share concerns about the risks of adulterated kratom but feel a regulatory framework could help mitigate those dangers and provide adults with a safe supply of products that have helped some overcome opioid addiction.

“Kratom has been consumed safely for centuries in Southeast Asia and Americans use it in the same way that coffee is used for increased focus and energy boosts. Many use kratom for pain management without the opioid side effects,” Rep. Bill Post (R), sponsor of the bill, wrote in an op-ed published in June. “The problem in Oregon is that adulterated products are being sold.”

“Kratom in its pure form is a natural product,” he said. “Adulterated kratom is a potentially dangerous product.”

Pete Candland, executive director of the American Kratom Association, said in written testimony on the bill in February that four other states—Utah, Georgia, Arizona and Nevada—have enacted similar legislation with positive results.

He said that “the number of adulterated kratom products spiked with dangerous drugs like heroin, fentanyl, and morphine in those states has significantly decreased” in those states.

Meanwhile, six states—Vermont, Alabama, Indiana, Wisconsin, Arkansas and Rhode Island—have banned kratom sales altogether.

Candland said that number is actually a testament to the noncontroversial nature of the plant, as prohibition is only in effect in six states despite “a full-throated disinformation campaign on kratom by the FDA with outrageously untrue claims about kratom being the cause of hundreds of deaths.”

After failing to get kratom prohibited domestically, FDA recently opened a public comment period that’s meant to inform the U.S. position on how the substance should be scheduled under international statute.

“Kratom is abused for its ability to produce opioid-like effects,” FDA wrote in the notice. “Kratom is available in several different forms to include dried/crushed leaves, powder, capsules, tablets, liquids, and gum/ resin. Kratom is an increasingly popular drug of abuse and readily available on the recreational drug market in the United States.”

Responses to the notice will help inform the federal government’s stance on kratom scheduling in advance of an October meeting of the World Health Organization’s (WHO) Expert Committee on Drug Dependence, where international officials will discuss whether to recommend the substance be globally scheduled.

Last week, the U.S. House of Representatives approved a report to spending legislation that says federal health agencies have “contributed to the continued understanding of the health impacts of kratom, including its constituent compounds, mitragynine and 7-hydroxymitragynine.”

It also directed the Health and Human Services secretary to continue to refrain from recommending that kratom be controlled in Schedule I.

Late last year, the Agency for Healthcare Research and Quality (AHRQ) asked the public to help identify research that specifically looks at the risks and benefits of cannabinoids and kratom.

The Centers for Disease Control and Prevention (CDC) last year separately received more than one thousand comments concerning kratom as part of another public solicitation.

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Photo courtesy of Wikimedia/ThorPorre.

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