Politics
DEA Should Coordinate With State Officials To Ensure Marijuana Rescheduling Is Successfully Implemented (Op-Ed)
“States need federal guidance on planned implementation to give them time to adjust laws and regulations and to give operators time to adjust their operations to meet federal requirements.”
By Gillian Schauer, Cannabis Regulators Association
The federal government’s successful implementation of a final rule rescheduling medical marijuana will depend heavily on state regulatory systems. Yet the Drug Enforcement Administration’s (DEA) headquarters has not meaningfully engaged the state regulators responsible for those systems—or the organization that represents them—despite offers to help address unresolved questions, identify conflicts between federal and state requirements and promote consistent implementation across the country.
That engagement is especially important because the rescheduling rule itself relies extensively on state medical marijuana programs. Issued by the U.S. attorney general in April, the rule immediately moved U.S. Food and Drug Administration-approved products containing marijuana, as well as cannabis “in any form covered by a state medical marijuana license,” from Schedule I to Schedule III of the Controlled Substances Act (CSA).
State programs are cited in the rule as being central to compliance with international drug laws and treaties.
It says that state licensing systems “demonstrate a sustained capacity to achieve the public-interest objectives that underlie the CSA’s registration framework.” The attorney general further determined that incorporating those systems into the federal framework represents “the most effective and efficient means of achieving the CSA’s objectives” while promoting marijuana’s medical benefits and minimizing disruption for patients and existing state systems.
State Officials And CANNRA Are A Resource To Aid In Policy Implementation
As a nonpartisan, nonprofit association of state and territorial governments that regulate medical marijuana—the very regulatory regimes referenced throughout the rescheduling rule—the Cannabis Regulators Association (CANNRA) reached out to DEA following publication of the final rule in the Federal Register to assist with its implementation across states.
CANNRA has continued to offer itself as a resource to DEA to share insight from governments with varied regulatory schemes. While DEA acknowledged our initial outreach, as well as some of our subsequent outreach, it has not met with or engaged with CANNRA, nor has DEA convened states to share information about the cannabis rescheduling rule.
CANNRA is not an advocacy group and does not lobby for any particular policy. Our members are regulatory implementers, ensuring that policies passed into law are enacted on the ground. This uniquely positions CANNRA and our members to assist any federal agency seeking to implement cannabis-related policies and programs across states.
CANNRA serves as a conduit of information to state regulators and continues to engage in efforts to educate regulators on rescheduling and foster information sharing across state and territorial governments, even without engagement from DEA.
Fundamental Questions About Implementation Of The Rescheduling Rule Remain Unanswered
In one letter CANNRA sent to DEA leadership, we shared a list of unanswered questions compiled from our members and requested a meeting to talk through them, even if they could not yet be answered. These include questions about how DEA will communicate and engage with states, what federal and state data sharing will be needed, how DEA is reviewing and interpreting differences among state laws in implementing the rescheduling and several core questions about the final rule itself.
For example, will licensees in states with dual medical and recreational marijuana licenses be able to obtain DEA registration? Will DEA register licensees that have owners or employees with past criminal convictions, which several state programs allow by design? How will the federal purchase-and-resale mechanism work with state statutes governing product transfers and sales? What will DEA enforcement entail, and what will happen to state-legal, licensed operators that are not DEA-registered?
Questions also remain about how to resolve areas where the final rule and state statutes conflict. For example, it states that documents certifying medical use—such as patient medical marijuana cards—must contain the name of the recommending practitioner, yet very few state statutes require that information, and some states have regulations or laws that could prevent compliance with such a requirement.
The final rule also requires warning labels to comply with 21 U.S.C. 825(c), stating that it is a crime to transfer the drug to any person other than the patient. However, some state laws expressly allow designated caregivers, providers or dispensing agents who are not the patient to purchase, transport and grow cannabis on behalf of a patient.
States need federal guidance on planned implementation to give them time to adjust laws and regulations and to give operators time to adjust their operations to meet federal requirements.
DEA Regional Field Divisions Are Engaging With States
While DEA headquarters has not engaged with CANNRA, a number of DEA field divisions have engaged productively with states.
State regulators generally empathize with the task given to division offices, since regulators are no strangers to implementing brand-new marijuana regulatory programs. Communication between state regulatory agencies and DEA division offices has been welcomed and is essential to effective policy implementation.
However, not all states have heard from their regional DEA division offices, including some states that have only medical marijuana programs.
Information And Implementation Have Varied Across Regions
Perhaps because fundamental implementation questions remain unanswered, information provided about the final rule, as well as approaches to its implementation have varied across regions.
For example, state regulators across the country have received different answers about whether licensees holding both state medical and state recreational licenses or licensees with criminal records can become DEA registrants. Variation in information, implementation and communication creates confusion among licensees—many of whom operate across different states and DEA regions.
It can also create enforcement challenges for state regulators. For example, if DEA requires alternate packaging or labeling and a state regulator is not aware that the federal agency has imposed a requirement that differs from state statutes, compliance and enforcement of existing state laws become increasingly complex.
Varied approaches to implementation can also create uncertainty for patients and clinicians involved in state-regulated programs.
DEA headquarters has reached out to most states to request data related to each state’s medical marijuana program. While the same data have been requested across states, state regulatory context and statutes vary widely. Understanding this variation in state regulatory policy and markets is imperative when interpreting any data and makes data aggregation across states difficult.
This is another area where CANNRA can, and would like to, provide assistance. Without appropriate context, data could lead to policies that do not work in practice or cannot be implemented in all states.
What Could Improve Implementation On The Ground?
Cannabis regulators across the country have learned through their own state regulatory work that successful implementation depends on coordination across all levels of government, consistent implementation across licensees and license types and regular, clear communication both internally with government partners and externally with stakeholders and the public.
Accordingly, implementation of the final rule could be greatly strengthened if DEA headquarters worked with state regulators and CANNRA to:
(1) discuss variation in state policy and areas where federal policy may conflict with state statutes, or vice versa;
(2) hear about regional variation in implementation of the final rule to inform a more consistent approach across the country; and
(3) discuss ways to strengthen implementation of, and communication about, the final rule in collaboration with state government officials.
As a nonpartisan, government-only association composed of the very state medical marijuana regulatory programs named in the final rule, CANNRA continues to stand ready to provide technical support to any federal government agency responsible for implementing marijuana rescheduling.
Gillian Schauer is the executive director of the Cannabis Regulators Association, a nonpartisan, nonprofit association of state, territorial and international governments that regulate marijuana, cannabinoids and hemp.
