Scientists have successfully forced the Drug Enforcement Administration (DEA) to release an internal document that was allegedly used to justify delaying the approval of additional marijuana manufacturers for research purposes. And it reveals that the Justice Department feels that the current licensing structure for cannabis cultivation has been in violation of international treaties for decades.
The Scottsdale Research Institute (SRI), which is one of several applicants seeking federal authorization to cultivate cannabis for studies, filed a lawsuit under the Freedom of Information Act (FOIA) last month, claiming that DEA had relied on a “secret” memorandum interpreting international drug treaties to avoid accepting more manufacturers.
On Tuesday, the parties reached a settlement in the case. And DEA released the Department of Justice Office of Legal Counsel (OLC) document on Wednesday, as part of the agreement.
The June 2018 memo—titled “Licensing Marijuana Cultivation in Compliance with the Single Convention on Narcotic Drugs”—was published, unredacted, on the Justice Department’s site.
“The parties acknowledge that this Settlement Agreement is entered into solely for the purpose of settling and compromising the claims in this action without further litigation, and it shall not be construed as evidence or as an admission regarding any issues of law or fact, or regarding the truth or validity of any allegation or claim raised in this action, or as evidence or as an admission by Defendants regarding Plaintiff’s entitlement to any relief (including attorneys’ fees or other litigation costs) under the Freedom of Information Act,” the text of the filing in the U.S. District Court for the District of Arizona states.
The document largely confirms what the scientists had suspected. They argued that, following a DEA announcement in the waning months of the Obama administration in 2016 that it would approve additional marijuana manufacturers, the Trump administration’s OLC secretly issued the 2018 internal government opinion that interprets international treaty obligations as making it impossible to fulfill that pledge.
OLC determined in the memo that the international Single Convention treaty requires just one federal agency to have sole control over the purchasing and possession of cannabis cultivated for research purposes. And because two agencies—DEA and the National Institute on Drug Abuse (NIDA)—currently have roles in this process, it’s in violation of that treaty obligation.
In order to resolve that issue and allow additional cultivators, OLC said DEA needed to issue a revised new rule to be in compliance with treaties.
“We conclude that DEA must change its current practices and the policy it announced in 2016 to comply with the Single Convention,” the memo states. “DEA must adopt a framework in which it purchases and takes possession of the entire marijuana crop of each licensee after the crop is harvested. In addition, DEA must generally monopolize the import, export, wholesale trade, and stock maintenance of lawfully grown marijuana.”
“There may well be more than one way to satisfy those obligations under the Single Convention, but the federal government may not license the cultivation of marijuana without complying with the minimum requirements of that agreement,” the Justice Department said.
“Under the CSA, DEA may register an applicant to cultivate marijuana only if the registration scheme is consistent with the Single Convention.”
Further, it explained that while the government assumed it was complying with international treaties by having NIDA regulate a single cannabis cultivation facility for research purposes while DEA has been responsible for registering scientists authorized to utilize such products, that isn’t necessarily the case—for three reasons.
“We conclude that the existing licensing framework departs from Article 23 [under the Single Convention] in three respects. First, the division of responsibilities between DEA and NIDA, a component of the Department of Health and Human Services (‘HHS’), contravenes Article 23(2)’s requirement that all Article 23 functions be carried out by a single government agency. Second, neither of the two government agencies ‘take[s] physical possession’ of the marijuana grown by the National Center, as required by Article 23(2)(d). Third, no federal agency exercises a monopoly over the wholesale trade in marijuana, as required by Article 23(2)(e).”
NIDA, which operates under the U.S. Department of Health and Human Services, is not overseen by DEA, raising problems with the single-agency requirement for marijuana licensing, the memo contends. The Justice Department also concluded the situation couldn’t be resolved administratively, as the president “may not delegate to DEA his constitutional authority to supervise NIDA in the exercise of its statutory responsibilities.”
The memo also notes that under the current licensing scheme, neither DEA or NIDA physically take possession of marijuana grown by the contracted third-party, the University of Mississippi facility. Instead, it’s delivered directly to DEA-registered researchers—another violation of international treaties.
“The contract at most results in a federal government agency’s having constructive, rather than physical, possession of the marijuana crop,” OLC said. “We think it evident from the treaty’s text and context that ‘physical possession’ requires growers licensed under the CSA to transfer the crops to the physical, and not merely legal, control of the federal government.”
The university manufacturer—known as the National Center—is “not an extension of the federal government,” the memo continues. What’s more, DEA “certainly does not have title to the crops” grown there.”
“Even if NIDA had formal legal title to the crops, the current arrangement would still have to be adjusted to comply with the treaty’s requirement that a single government agency be charged with licensing cultivators, purchasing, and physically possessing the crops… The government agency responsible for the relevant controls must own the crops and be the sole distributor of the marijuana. In allowing the National Center to maintain possession of the marijuana and ship it to DEA-approved researchers, the NIDA contract does not create the required government monopoly over the lawful marijuana trade.”
OLC noted that several other countries—Canada, the United Kingdom and Israel—are similarly violating the Single Convention mandates.
“While DEA focuses on its view of the broader purposes of the treaty’s requirements, the Single Convention requires the United States to adopt specific, listed controls if it licenses cannabis cultivation,” the memo reiterates. “A single government agency must purchase and take physical possession of harvested cannabis, and generally monopolize the wholesale trade in that plant. The United States cannot satisfy those requirements simply by employing alternatives that the government believes may prevent unlawful diversion.”
“We conclude that DEA must alter the marijuana licensing framework to comply with the Single Convention.”
The agency concluded that it sees “no reason why the NIDA contract framework might not remain in place under a system in which DEA assumes clear title to the marijuana, either at inception or by purchase after harvest, and then takes physical possession after harvest.” And DEA could, theoretically, “station one or more employees at the National Center after cultivation as a way of ensuring physical possession of the marijuana and exclusive control over its distribution.”
It was previously reported that the Justice Department, under then-Attorney General Jeff Sessions, a vociferous opponent of cannabis reform, blocked DEA from processing any of the several dozen cultivation license applications it received in response to the 2016 announcement. Attorney General William Barr has taken a different tone, however, telling lawmakers that he’s pushed “very hard” to get more manufacturers approved and that he thinks “it’s very important to get those additional suppliers.”
The reason all of this matters to researchers and advocates is because of issues resulting from the monopolized cannabis supply for research purposes at the University of Mississippi. And studies have indicated that the marijuana it produces is not reflective of the cannabis sold in retail dispensaries in legal states, raising questions about the veracity of previous studies that have relied on it.
Three years after DEA announced it would begin approving more manufacturers, applicants didn’t hear anything back, and SRI filed an initial lawsuit alleging that the agency was deliberately holding up the process. A court mandated that it take steps to make good on its promise, and that case was dropped after DEA provided a status update.
Last month, DEA did unveil a revised proposal that contained changes the agency said were necessary due to the high volume of applicants and to address potential complications related to international treaties. A public comment period is now open, after which point the agency says it will finally approve an unspecified number of additional growers.
That was a step in the right direction as far as advocates are concerned, but the proposed rule neglected to provide information about how the Justice Department advised DEA on the matter and which parts of the amended proposal would make expanding cannabis cultivators compliant with international treaties.
SRI argued in its latest lawsuit that DEA had violated federal statutes that prohibit the creation of “secret law.” Federal agencies must make records—including final opinions and policy interpretations not published in the Federal Register—public, the case maintained.
Now that the Justice Department memo has been publicly released as a result of the FOIA lawsuit, the newly revised rule makes contextual sense, with DEA proposing that it will maintain authority over the purchasing and possession of research-grade marijuana as required under international treaties. As such, the rule seems to resolve OLC’s concerns.
Read the OLC memo below:
Read the DEA marijuana FOIA settlement and related documents below:
This story has been updated to include the newly disclosed OLC memo.
Photo courtesy of Mike Latimer.
Senator Touts New Marijuana Legalization Bill In Floor Speech On Racial Justice
Sen. Tina Smith (D-MN) talked up her new marijuana legalization bill during a speech on racial justice that she delivered on the Senate floor on Thursday.
The senator, whose “Substance Regulation and Safety Act” was introduced late last month, said that ending cannabis prohibition could help law enforcement devote more resources to serious crimes, rather than continue to criminalize people in a racially disparate manner.
“We could actually improve public safety by devoting resources to combating violent crime, rather than over-enforcing low-level offenses in communities of color. Let’s think about what this means for marijuana offenses,” Smith said. “The federal marijuana prohibition is a failed policy that contributes to mass incarceration and over-policing of communities of color.”
“White and black people use marijuana at roughly the same rate, but a black person is almost four times as likely to be arrested for a marijuana offense. The federal government is behind both state law and public opinion. Forty-two states and the District of Columbia already allow some type of marijuana use, despite the longtime federal prohibition.
While the senator recently introduced her own legalization bill, she also called on Congress to pass a separate reform bill that she’s cosponsored: the Marijuana Opportunity, Reinvestment, and Expungement (MORE) Act.
The legislation “would address the devastating impact on communities of color of a war on drugs by expunging marijuana-related convictions and then reinvesting in community,” she said.
“It is time to legalize marijuana, and we should do it in a practical and commonsense way that protects the health and safety and the civil rights of our communities.”
Watch the senator discuss cannabis policy and racial justice below:
Her own bill, meanwhile, “would ensure that marijuana is regulated to protect the health and the safety of youth, of consumers and of drivers,” she said. “We do this without replicating the racist enforcement patterns of our current drug policy.”
Neither piece of legislation has advanced in the Republican-controlled Senate so far. The House version of the MORE Act cleared the Judiciary Committee last year, however, and a committee chairman’s staffer told Marijuana Moment last month that there are plans in the works to get it to the floor for a vote in September.
During her speech, Smith also discussed a number of other proposals concerning policing reform and racial justice. She announced the introduction of another new bill that she says “would help, state, local and tribal governments reimagine policing in their communities by funding innovative projects and best practices that will transform how we deliver public safety and other social services.”
The senator’s marijuana legalization bill would federally deschedule cannabis, require the U.S. Department of Health and Human Services (HHS) to develop rules that treat the substance in the same way as tobacco, create a national research institute to evaluate the risks and benefits of use, require the U.S. Department of Agriculture to impose quality control standards and mandate that the Department of Transportation study methods for detecting THC-impaired driving.
The descheduling provisions “are retroactive and shall apply to any offense committed, case pending, or conviction entered, and, in the case of a juvenile, any offense committed, case pending, or adjudication of juvenile delinquency entered, before, on, or after the date of the enactment of this Act,” the text of the bill states.
HHS would have to come up with a “national strategy to prevent youth use and abuse of cannabis, with specific attention to youth vaping of cannabis products.” Further, text of the legislation states that the department would be required to “regulate cannabis products in the same manner, and to the same extent,” as it does with tobacco.
That includes “applying all labeling and advertising requirements that apply to tobacco products under such Act to cannabis products.”
U.S. Customs and Border Protection would be tasked with working with other agencies to develop policies on allowing marijuana imports and exports.
The legislation further contains racial justice provisions. For example, HHS would have to consult with “consult with civil rights stakeholders” to determine “whether cannabis abuse prevention strategies and policies are likely to have racially disparate impacts” within 100 days of the bill’s enactment.
The Department of Transportation would similarly have to determine whether its impaired driving prevention policy “is likely to contribute to racially disparate impacts in the enforcement of traffic safety laws.”
Agencies charged with establishing these regulations would have one year following the bill’s enactment to finalize those rules.
A federal age requirement for marijuana sales would be set at 21 under the measure.
The legislation was introduced one day after the House approved a spending bill amendment that would protect all state, territory and tribal cannabis programs from federal intervention.
Smith’s focus on marijuana reform comes as lawmakers in her home state of Minnesota push for legalization, with a top legislator unveiling a comprehensive plan for legalizing cannabis for all adults 21 and older in May.
Further, it comes shortly after the Democratic National Committee rejected an amendment to adopt legalization as a 2020 party plank, with members opting instead to embrace more modest reforms. Advocates suspend that there may have been pressure for the panel not to formally embrace a policy change that is opposed by presumptive Democratic presidential nominee Joe Biden.
Photo courtesy of Philip Steffan.
Oregon Officials Explain How Decriminalized Drugs And Legal Psilocybin Therapy Would Impact The State
Oregon officials finalized a series of analyses this week on separate ballot measures to legalize psilocybin mushrooms for therapeutic use and decriminalize drugs while investing in substance misuse treatment.
The Oregon Criminal Justice Commission determined that the decriminalization initiative would reduce felony and misdemeanor convictions for drug possession by 91 percent, and that reduction would be “substantial for all racial groups, ranging from 82.9% for Asian Oregonians to approximately 94% for Native American and Black Oregonians.”
Overall, the policy change would result in a 95 percent drop in racial disparities for possession arrests, the panel projects.
“The CJC estimates that IP 44 will likely lead to significant reductions in racial/ethnic disparities in both convictions and arrests.”
The conviction estimate was included in the panel’s draft analysis first released last month, but the final version was expanded to include the arrest data as well. The new document also notes that “disparities can exist at different stages of the criminal justice process, including inequities in police stops, jail bookings, bail, pretrial detention, prosecutorial decisions, and others”—a point that activists hoped the panel would include.
That said, the commission noted it “lacks sufficient or appropriate data in each of these areas and therefore cannot provide estimates for these other stages.”
The new report, published on Wednesday, cites research indicating that the resulting “drop in convictions will result in fewer collateral consequences stemming from criminal justice system involvement, which include difficulties in finding employment, loss of access to student loans for education, difficulties in obtaining housing, restrictions on professional licensing, and others.”
The decriminalization proposal was the first ballot initiative in the state’s history to receive a report on the racial justice implications of its provisions under a little-utilized procedure where lawmakers can request such an analysis.
This information will be included in a voter pamphlet as a factual statement from the secretary of state’s office.
“Our current drug laws can ruin lives based on a single mistake, sticking you with a lifelong criminal record that prevents you from getting jobs, housing and more,” Bobby Byrd, an organizer with the More Treatment, A Better Oregon campaign, said in a press release.
Both the psilocybin therapy and drug decriminalization measures also received final explanatory statements and fiscal impact statements this week.
For the therapeutic psilocybin legalization initiative, the Financial Estimate Committee said that it projects the measure will have an impact of $5.4 million from the general fund during the two-year development period. After the program is established, it will cost $3.1 million annually, “which will be covered by the fees and tax funds for the administration and enforcement of the Act.”
The explanatory statement says the measure “directs the Oregon Health Authority to regulate the manufacture, delivery, purchase, and consumption of psilocybin, a psychoactive component found in certain mushrooms, at licensed psilocybin service centers” and that a “person would be allowed to purchase, possess, consume, and experience the effects of psilocybin only at a licensed psilocybin service center during a psilocybin administration session with a licensed psilocybin service facilitator.”
It also describes an initial two-year development period during which officials will research and make recommendations on “the safety and efficacy of using psilocybin to treat mental health conditions,” after which time the new law will allow “a client who is at least 21 years of age to purchase, possess, consume, and experience the effects of psilocybin at a licensed psilocybin service center during a psilocybin administration session with a licensed psilocybin service facilitator.”
Sam Chapman, campaign manager for the psilocybin initiative, told Marijuana Moment that the group is “satisfied with the explanatory statement and believe it captures the thoughtful approach we took that led to psilocybin therapy being on the ballot this November.”
“Specifically, we were happy to see the regulations and safeguards that are built into the measure highlighted in the explanatory statement,” he said. “We also believe that the fiscal committee saw and respected our approach to keep the psilocybin therapy program revenue neutral once up and running.”
The drug possession decriminalization measure is expected to cost $57 million annually, according to state officials, but it will be covered by marijuana tax revenue, which is “estimated at $61.1 million in 2019-21 and $182.4 million in 2021-23” and would therefore be “sufficient to meet this requirement.” Cannabis revenue to cities and counties would be reduced under the measure.
The reform would also save money through reduced drug enforcement. “These savings are estimated at $0.3 million in 2019-21 and $24.5 million in 2021-23,” the analysis says. “This will reduce revenue transferred from the Department of Corrections for local government community corrections by $0.3 million in 2019-21 and $24.5 million in 2021-23. The savings are expected to increase beyond the 2021-23 biennium.”
The initiative “mandates the establishment of at least one addiction recovery center in each existing coordinated care organization service area in the state,” the separate explanatory statement says, and describes how they would be funded with marijuana tax revenue.
“The measure eliminates criminal penalties for possession of specified quantities of controlled substances by adults and juveniles,” it says. “Instead, possession of these specified quantities of controlled substances becomes a non-criminal Class E violation for which the maximum punishment is a $100 fine or completion of a health assessment with an addiction treatment professional.”
Here’s a status update on other 2020 drug policy reform campaigns across the country:
A measure to effectively decriminalize a wide range of psychedelics has officially qualified for the November ballot in Washington, D.C.
Montana activists said last month that county officials have already certified that they collected enough signatures to place two marijuana legalization measure on the state ballot, though the secretary of state’s office has yet to make that official.
In Arizona, the organizers of a legalization effort turned in 420,000 signatures to qualify for the ballot last month.
Organizers in Nebraska last month submitted 182,000 signatures in an attempt to put a medical marijuana measure on November’s ballot.
Idaho activists behind a medical marijuana legalization initiative were hoping to get a second wind after a federal judge said recently that the state must make accommodations for a separate ballot campaign due to signature gathering complications caused by the coronavirus pandemic. But following a recent U.S. Supreme Court ruling against the other group, hopes are dashed.
Prior to the COVID-19 outbreak and stay-at-home mandates, separate measures to legalize marijuana for medical and recreational purposes qualified for South Dakota’s November ballot.
The New Jersey legislature approved putting a cannabis legalization referendum before voters as well.
And in Mississippi, activists gathered enough signatures to qualify a medical cannabis legalization initiative for the ballot—though lawmakers also approved a competing (and from advocates’ standpoint, less desirable) medical marijuana proposal that will appear alongside the campaign-backed initiative.
A campaign to legalize cannabis in Missouri officially gave up its effort for 2020 due to signature collection being virtually impossible in the face of social distancing measures.
North Dakota marijuana legalization activists are shifting focus and will seek qualification for the 2022 ballot.
Washington State activists had planned to pursue a drug decriminalization and treatment measure through the ballot, but citing concerns about the COVID-19 outbreak, they announced last month that they will be targeting the legislature instead.
Read the full state analysis of the Oregon drug decriminalization and psilocybin therapy measures below:
Top White House Official Blasts Marijuana Banking Provisions In Democrats’ Coronavirus Bill
Vice President Mike Pence’s top staffer on Thursday joined the chorus of Republicans criticizing House Democrats for including marijuana banking provisions to the chamber’s latest coronavirus relief bill.
Marc Short, who is Pence’s chief of staff and previously served as director of legislative affairs for the White House, discussed the COVID-19 legislation during an interview with Fox Business, and he described the Democratic proposal as a “liberal wish list” with “all sorts of things totally unrelated to coronavirus.”
“In one instance they have provided guarantees for banking access for marijuana growers,” Short said. “That has absolutely nothing to do with coronavirus.”
He’s referring to language that was inserted from the Secure and Fair Enforcement (SAFE) Banking Act to protect financial institutions that service state-legal cannabis businesses from being penalized by federal regulators.
Numerous Republicans—including Senate Majority Leader Mitch McConnell (R-KY)—have been critical of the provision, arguing that it is not germane to the issue at hand.
Democrats, for their part, have made the case that granting cannabis businesses with access to the banking system would mitigate the spread of the virus by allowing customers to use electronic payments rather than exchange cash. They also say it could provide an infusion of dollars into the financial system that’s especially needed amid the economic downturn caused by the pandemic.
Rep. Tulsi Gabbard (D-HI) told Marijuana Moment in an interview this week that she agrees with her colleagues that the marijuana banking provision is relevant to COVID-19 bill.
“By continuing to disallow anyone associated with these industries that states have deemed legal is further perpetuating serious problems and uncertainty during a time when, frankly, we need as much certainty as we can get,” she said.
While the Senate did not include the banking language as part of their COVID-19 bill, there’s still House-passed standalone legislation that could be acted upon.
The SAFE Banking Act has been sitting in the Senate Banking Committee for months as lawmakers negotiate over the finer points of the proposal.
Last month, a bipartisan coalition of state treasurers sent a letter to congressional leaders, asking that they include marijuana banking protections in the next piece of coronavirus relief legislation.
In May, a bipartisan coalition of 34 state attorneys general similarly wrote to Congress to urge the passage of COVD-19 legislation containing cannabis banking provisions.