The Drug Enforcement Administration (DEA) on Thursday revealed a long-awaited final rule aimed at expanding the number of authorized growers of marijuana to be used in scientific research.
In a notice set to be formally published in the Federal Register on Friday, the agency said it made “minor modifications” from the initial proposed rule on licensing cannabis manufacturers it released in March.
DEA responded to numerous public comments it received since then, breaking them down into eight categories: application process and criteria; quality of marijuana; federal agency obligations pertaining to cannabis controls; the meaning of ‘medical cannabis;’ security costs and requirements applicable to the manufacture of marijuana; harvest; cost, pricing and fees of marijuana for DEA registrants and comments outside of the agency’s scope.
The release of these finalized regulations comes as both the House and Senate have recently passed bills to promote marijuana research. The goal of those pieces of legislation is similarly to streamline the process for researchers and expand access to cannabis for studies while mandating the DEA license additional growers by specific deadlines.
The House legislation contains a key provision that would allow scientists to access cannabis from state-legal dispensaries so that they can study products that are actually being used by consumers in commercial markets. In DEA’s new filing, the agency pushed back against public comments that suggested researchers be able to obtain dispensary marijuana.
Overall, DEA has maintained throughout the rulemaking process for licensing additional growers that it will have sole ownership over any marijuana that’s cultivated for research purposes.
That’s a fundamental change from current policy. As it stands, a single facility at the University of Mississippi is authorized to grow cannabis through a contract with the National Institute on Drug Abuse, and DEA does not maintain ownership over its products.
But DEA now asserts that in order to comply with international law, it must institute a practice of “taking possession of marihuana crops after harvest and maintaining the exclusive right of importing, exporting, wholesale trading, and maintaining stocks of marihuana and its resin.”
That’s based on an interpretation of the Single Convention by the Justice Department’s Office of Legal Counsel, which determined in April that DEA has been violating the international treaty by managing the cannabis program in coordination with two other agencies when it needs to be the sole agency.
Here’s an overview of some of the most notable responses and regulatory amendments in the new DEA filing:
-Many commenters argued that DEA should not disqualify applicants who’ve grown marijuana in compliance with state law. The agency responded that it is statutorily bound to consider instances where an applicant violated federal law—something that all state-legal marijuana cultivation businesses do—and it would continue to do so. “While the DEA Administrator has discretion to weigh the statutory factors and any one factor need not be dispositive, an applicant’s prior compliance with Federal law is a relevant consideration when determining whether to grant an application for registration,” the notice states.
-Relatedly, the agency responded to comments pushing it to factor in an applicant’s ability to produce “high quality” marijuana and their past experience cultivating the plant. It simply said that applicants are judged based on public interest and compliance with international treaties. “Under those factors, DEA will consider the applicant’s ‘past experience in the manufacture of controlled substances’ and its ‘promotion of technical advances in the art of manufacturing these substances.’”
-DEA also said it would not be allowing researchers to obtain marijuana products from state-legal cannabis businesses. It cited international treaty obligations and federal statutes, as well as public safety considerations. The agency also said that extending that access is “unnecessary” since it will be expanding the number of DEA-registered manufacturers.
-Since DEA first announced in 2016 that it would be expanding the number of marijuana cultivators, it received more than 30 applications but has yet to act on them. (This has led to several lawsuits, with scientists pushing the courts to mandate that the agency respond.) DEA said in the final rule that it would be prioritizing those applications before moving on to review new ones.
-The agency rejected pushback on the proposed rule’s provisions that specifically exempt it from liability for marijuana that’s damaged or destroyed under its possession. But DEA stressed that it only handles cannabis for a short time and it will maintain the statute of non-liability in order to “avoid costly and unnecessary disputes.”
-There were comments challenging DEA’s interpretation of international policies and what they mean as far as restrictions on cannabis research are concerned. The agency said it “acknowledges some may disagree with these legal conclusions, but DEA is bound by the law as [the Justice Department] and DEA understand it.” It said that questions about whether international treaties or the Controlled Substances Act controls of marijuana should be amended or abandoned “are beyond the scope of this rulemaking and DEA’s authority.”
-One of the allegations DEA has faced since announcing its intent to expand manufacturing facilities in 2016 is that it used a “secret” internal Justice Department memo to justify delaying additional application approvals. The agency said that DOJ reviewed its 2016 statement and concluded that rules would need to be changed in order to make those approvals. It “has acted as expeditiously as possible to amend its policies,” the notice states.
-Several commenters made the argument that DEA should relinquish control of the marijuana growers program and give that responsibility to an agency such as the U.S. Department of Health and Human Services, National Institutes of Health, Food and Drug Administration or U.S. Department of Agriculture. The agency said it works in concert with those other government entities and would continue to do so, but it is statutorily obligated to maintain sole control.
-DEA said it would not be taking special steps to “ensure diversity and inclusion of minority applicants.” The agency said it “gives all applicants equal treatment regardless of the gender, race, socioeconomic status, or disabled status of the applicant.”
-DEA said that multiple factors mean that it cannot significantly streamline the process of approving applications to become cannabis manufacturers for studies, despite the multiple requests it received. However, it did pledge to provide notice that an application was received within 90 days of its accepted filing.
While the final rule clears up some uncertainty about the DEA’s perspective on advancing marijuana research as Congress moves forward with its own plans, advocates have already taken issue with several of the agency’s responses to the comments.
“Time and time again, the DEA has proven itself full of empty promises when it comes to the issue of facilitating clinical cannabis research in the United States,” Paul Armentano, deputy director of NORML, told Marijuana Moment. “This history of inaction is why Congress needs to enact legislative reforms.”
He added that the bill recently passed by the House would end “the DEA’s longstanding fiefdom” by allowing scientists to study cannabis products available in state-licensed dispensaries, whereas the agency’s new proposal shows it is “not willing to make the sort of substantive changes necessary to provide U.S. scientists with the tools they need to adequately do their job.”
Without a clear directive from Congress, Armentano said, “there is little reason to believe that the DEA will ever act in a manner that will facilitate the changes necessary to put science first and politics second.”
Corey Cox, a senior associate attorney at Vincente Sederberg LLP, shares that perspective.
“My primary takeaway from this is it just really emphasizes the importance of pursuing legislative reforms through Congress—that the existing framework of the [Controlled Substances Act], as interpreted and implemented by the DEA, is really incompatible with the types of reforms that many stakeholders seem to be seeking through this rulemaking process,” he said.
“I think for members of Congress that are maybe on the fence, this really shows that the existing statutory framework—the CSA, the DEA’s interpretation of the CSA, the rules they promulgated pursuant to that act—are really incompatible with some of the goals and objectives Congress seems to be pursuing through these research bills,” he said.
This story has been updated to include additional details and commentary on the final rule.
Read the DEA final rule on expanding marijuana research below:
Top Pennsylvania Official Restores Marijuana Flag After GOP Lawmakers Allegedly Got It Removed
Lt. Gov. John Fetterman’s (D) marijuana and LGBTQ flags are waving again at his Capitol office after state officials removed them Monday night, allegedly at the behest of certain GOP lawmakers who feel strongly about the activist decor.
The day after their removal, the lieutenant governor proudly announced on Twitter that he’d restored the flags—one rainbow-themed and the other displaying cannabis leaves.
“I really can’t emphasize this enough, my issue isn’t with the individuals that came to take them down. They’re kind of caught in the middle of it so it’s not them,” Fetterman told Marijuana Moment. “But the Pennsylvania GOP exerted enough pressure and made enough drama so they felt that they needed to do something and they took them down. When I realized that, I just put them back up.”
I even had to rehang this one. 🙄 pic.twitter.com/NPuADtb1Lt
— John Fetterman (@JohnFetterman) January 26, 2021
The flags have been an unusual source of controversy for some members of the legislature. In November, Republican lawmakers passed budget legislation that included a provision targeting his cannabis-themed office decor, making it so only the American flag, the Pennsylvania flag and those honoring missing soldiers could be displayed at the Capitol building.
It’s kinda flattering that they changed Pennsylvania law just for me. 🥺👉👈
Speaking of changing laws…
I’ll take them down when we get:
LEGAL WEED 🟩 FOR PA + EQUAL PROTECTION UNDER THE LAW for LGBTQIA+ community in PA.
— John Fetterman (@JohnFetterman) November 20, 2020
“There’s one great way to get them down for good and we can end this,” the lieutenant governor said. And that’s by enacting legislative reform.
“It shouldn’t have to be this way. These are not controversial things. These are very fundamentally American things. It’s freedom-related. It’s individuality-related. It’s jobs. It’s revenue,” he said. “These are not controversial, but these flags are. For the party that thinks it’s A-OK to talk about how an election that was secure was rigged, they sure have a real thin skin when it comes to free speech.”
A spokesperson for the state Department of General Services confirmed to Marijuana Moment that it was tasked with removing the flags and did so “in order to comply with section 1724-E of the fiscal code.” Asked whether lawmakers from the legislature’s Republican majority influenced the recent action, the representative repeated: “All I can say is the Department of General Services removed the flag in order to comply with section 1724-E of the fiscal code.”
Marijuana Moment reached out to the offices of the Senate majority leader and House speaker for comment, but representatives did not respond by the time of publication.
Defying the flag order is par for the course for Fetterman, a longtime marijuana reform advocate who is weighing a run for the U.S. Senate. His enthusiastic embrace of the issue has often put him in the spotlight, and he said he’d take that advocacy to Congress if he ultimately decides to enter the race and is elected.
“I’m the only person that’s actually called out my own party for its failure to embrace it when it is appropriate,” he said, referring to his repeated criticism of the Democratic National Committee’s rejection of a pro-legalization platform. “There has never been—or would ever be—a more committed advocate to ending this awful superstition over a plant for the United States.”
🚨🚨 PENNSYLVANIA *AND* DNC IS BEING LAPPED ON LEGAL WEED BY THE DAKOTAS NOW
— John Fetterman (@JohnFetterman) January 26, 2021
On his campaign website, the lieutenant governor touts his role in leading a listening tour across the state to solicit public input on the policy change. He noted that, following his efforts, Gov. Tom Wolf (D) “announced his support for legalization for the first time.”
It remains to be seen when legalization will happen in Pennsylvania, however. Despite Fetterman and Wolf’s support for legalization and the pressure they’re applying on lawmakers, convincing Republican legislative leaders to go along with the plan remains a challenge.
Fetterman previously told Marijuana Moment that pursuing reform through the governor’s budget request is a possibility. But in the meantime the administration is exploring the constitutionality of issuing “wholesale pardons for certain marijuana convictions and charges.”
Since adopting a pro-legalization position in 2019, Wolf has repeatedly called on the legislature to enact the policy change. He’s stressed that stressed that marijuana reform could generate tax revenue to support the state’s economic recovery from the coronavirus pandemic and that ending criminalization is necessary for social justice.
In September, he took a dig at the Republican-controlled legislature for failing to act on reform in the previous session. And in August, he suggested that the state itself could potentially control marijuana sales rather than just license private retailers as other legalized jurisdictions have done.
Fetterman previously said that farmers in his state can grow better marijuana than people in New Jersey—where voters approved a legalization referendum in November—and that’s one reason why Pennsylvania should expeditiously reform its cannabis laws.
He also hosted a virtual forum where he got advice on how to effectively implement a cannabis system from the lieutenant governors of Illinois and Michigan, which have enacted legalization.
Shortly after the governor announced that he was embracing the policy change, a lawmaker filed a bill to legalize marijuana through a state-run model.
A majority of Senate Democrats sent Wolf a letter in July arguing that legislators should pursue the policy change in order to generate revenue to make up for losses resulting from the COVID-19 pandemic.
Photo courtesy of Twitter/John Fetterman.
Hawaii Could Legalize Psychedelic Mushroom Therapy Under New Senate Bill
Hawaii could legalize the use of psychedelic mushrooms for therapy under a newly filed bill in the state legislature.
The measure, if approved, would direct the state Department of Health to “establish designated treatment centers for the therapeutic administration of psilocybin and psilocyn,” two psychoactive substances produced by certain fungi.
It would also remove the two compounds from the state’s list of Schedule I controlled substances and create a seven-person psilocybin review panel to assess the impacts of the policy change.
Few other specifics are provided in the bill, SB 738, introduced in the state Senate on Friday. It doesn’t specify who would qualify for the therapy, for example, or how precisely the drugs—which remain federally illegal—would be administered. The legislation simply says the Department of Health “shall adopt rules” in accordance with state law.
The new legislation comes less than a year after Hawaii lawmakers introduced bills to begin studying the therapeutic use of psychedelic mushrooms with the goal of eventually legalizing them, though those measures did not advance.
Entheogens—including other substances like ayahuasca and ibogaine—have emerged as a promising treatment for severe depression, anxiety and other conditions, although research remains ongoing.
In November, voters in Oregon approved a ballot measure to legalize psilocybin therapy that the state is now in the process of implementing.
The new Hawaii bill was introduced by Sens. Stanley Chang, Laura Clint Acasio, Les Ihara Jr. and Maile Shimabukuro, all Democrats. It has not yet been scheduled for a hearing, according to the state legislature’s website.
Marijuana Moment is already tracking more than 400 cannabis, psychedelics and drug policy bills in state legislatures and Congress this year. Patreon supporters pledging at least $25/month get access to our interactive maps, charts and hearing calendar so they don’t miss any developments.
Learn more about our marijuana bill tracker and become a supporter on Patreon to get access.
The Hawaii proposal is one of a growing number of broader reform bills to have been introduced across the country this year as the debate on drug policy moves beyond marijuana. A measure introduced in New York earlier this month would remove criminal penalties for possessing small amounts of any controlled substance, instead imposing a $50 fine. Similar measures are expected to be introduced in California and Washington State this year.
A Florida lawmaker recently announced plans to introduce legislation to legalize psilocybin for therapeutic purposes in the state.
Lawmakers in New Jersey last month sent a bill to Gov. Phil Murphy (D) that would reduce criminal charges for the possession of psilocybin, but so far Murphy hasn’t signed the measure.
Voters, meanwhile, have been broadly supportive of drug reform measures in recent years. In addition to the psilocybin. measure, Oregon voters in November also approved an initiative to decriminalize possession of all drugs. Washington, D.C. voters overwhelmingly enacted a proposal to decriminalize the possession of psychedelics.
Despite the growing discussion of drug reform at statehouses across the country, some high-profile advocates are setting their sights on the 2022 election. Dr. Bronner’s CEO David Bronner, a key financial backer of successful reform efforts in Oregon, told Marijuana Moment last month that he’s expecting both Washington state and Colorado voters will see decriminalization or psilocybin therapy on their 2022 ballots.
Meanwhile, a new advocacy group is pushing Congress to allocate $100 million to support research into the therapeutic potential of psychedelics.
Photo courtesy of Wikimedia/Workman
Minnesota Governor Urges Lawmakers To Pursue Marijuana Legalization Amid Budget Talks
The governor of Minnesota on Tuesday implored the legislature to look into legalizing marijuana as a means to boost the economy and promote racial justice.
During a briefing focused on his budget proposal for the 2022-23 biennium, Gov. Tim Walz (D) was asked whether he is open to allowing sports betting in the state to generate tax revenue. He replied he wasn’t closing the door on that proposal, but said he is more interested in seeing lawmakers “take a look at recreational cannabis.”
Not only would tax revenue from adult-use marijuana “dwarf” those collected through sports betting, he said, but legalization would also help address “the equity issue and, quite honestly, the racial impact of our cannabis laws.”
Watch the governor discuss marijuana legalization below:
“I will say this, I will certainly leave open that possibility. Our neighboring states have done both of those things,” Walz said of legalizing sports gambling and cannabis. “I obviously recognize that that’s not a 100 percent slam dunk for people, and they realize that there’s cost associated with both. But my message would be is, I don’t think this is the time for me to say I’m shutting the door on anything.”
The Minnesota governor did say in 2019, however, that he was directing state agencies to prepare to implement reform in anticipation of legalization passing.
Earlier this month, the House majority leader said he would again introduce a bill to legalize marijuana in the new session. And if Senate Republicans don’t go along with the reform, he said he hopes they will at least let voters decide on cannabis as a 2022 ballot measure.
Heading into the 2020 election, Democrats believed they had a shot of taking control of the Senate, but that didn’t happen. The result appears to be partly due to the fact that candidates from marijuana-focused parties in the state earned a sizable share of votes that may have otherwise gone to Democrats, perhaps inadvertently hurting the chances of reform passing.
House Speaker Melissa Hortman (D) said this month that “Senate Republicans remain the biggest obstacle to progress on this issue.”
“Minnesota’s current cannabis laws are doing more harm than good,” she told The Center Square. “By creating a regulatory framework we can address the harms caused by cannabis and establish a more sensible set of laws to improve our health care and criminal justice systems and ensure better outcomes for communities,” she said.
Senate Majority Leader Paul Gazelka (R), for his part, said that while he would be “open to expanding medical use or hearing criminal justice reforms,” he doesn’t “believe fully legalized marijuana is right for the state.”
“Other states that have legalized marijuana are having issues with public safety,” he argued, “and we are concerned that we haven’t fully seen how this works with employment issues, education outcomes and mental health.”
Last month, the Minnesota House Select Committee On Racial Justice adopted a report that broadly details race-based disparities in criminal enforcement and recommends a series of policy changes, including marijuana decriminalization and expungements.
Another factor that might add pressure on lawmakers to enact the reform is the November vote in neighboring South Dakota to legalize adult-use cannabis.
Also next door, Wisconsin Gov. Tony Evers (D) is pushing lawmakers to enact marijuana reform and recently said that he is considering putting legalization in his upcoming budget request.
Photo courtesy of Philip Steffan.