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Former FDA Head Floats Federal Marijuana Regulation ‘Compromise’ To Address Vaping Issue

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Former Food and Drug Administration (FDA) Commissioner Scott Gottlieb seems to propose changing the scheduling status of marijuana under federal law as a “compromise” to provide limited regulations and promote research.

In an op-ed published in The Wall Street Journal on Friday, Gottlieb said the recent spike in vaping-related lung injuries involving contaminated THC cartridges demonstrates the need for federal regulations.

While he expressed frustration over the “federal government’s decade-long refusal to challenge state laws legalizing pot,” he also recognized that enforcing prohibition in legal states isn’t politically practical and floated a “feasible compromise” that would “require Congress to take marijuana out of the existing paradigm for drug scheduling, especially if Congress wants to allow carefully regulated access for uses that fall outside FDA-approved drug indications.”

That language leaves room for interpretation, but he goes on to say that the “ship has probably sailed on legalization for recreational use” and that “regulation of the potency of THC compounds, the forms they take, how they’re manufactured, and who can make purchases ought to be possible.”

Gottlieb stopped short of explicitly backing descheduling, which would represent a formal end to federal prohibition. Still, his recommendation that the government control aspects of legal marijuana markets like THC potency is a more concrete position than he’s taken in recent weeks, where he’s repeatedly bemoaned the lack of regulations and the gap between state and federal cannabis laws as contributing to vaping issues without endorsing a specific policy to correct it.

It’s clear in the editorial that the former commissioner feels Congress has missed its opportunity to prevent the proliferation of state-legal cannabis programs. And he criticized the Obama administration for issuing guidance that offered states some assurances that the Justice Department wouldn’t interfere in their markets, as well as congressional riders barring the department from using its funds to enforce prohibition against medical cannabis patients and providers following state laws.

“The result is an impasse,” he wrote. “Federal agencies exert little oversight, and regulation is left to a patchwork of inadequate state agencies. The weak state bodies sanction the adoption of unsafe practices such as vaping concentrates, while allowing an illegal market in cannabis to flourish.”

One area where FDA might be able to exercise its regulatory authority in this grey space would involve oversight of vaping hardware. Because the agency is able to regulate the “components and parts” of vapes for tobacco use—and because companies generally market those products as being intended for the use of vaporizing herbs and concentrates generally—it could be argued that FDA has jurisdiction over regulating the devices. However, that would still prove challenging “without clear laws and firm political support,” Gottlieb said.

“THC is currently illegal under federal law,” he said. “Right now there’s no middle ground allowing federal agencies to scrutinize these compounds for their manufacturing, marketing and safety.”

Again, it’s not exactly clear what kind of federal regulation Gottlieb is proposing to Congress. He spends part of his op-ed noting the difficulties scientists face in obtaining high quality cannabis for research purposes—an issue that policymakers have indicated rescheduling could resolve—but he also said the government should ensure that any reform move is “backed up with oversight and vigorous enforcement to keep a black market from continuing to flourish and causing these lung injuries.”

That’s led some to assume he’s talking about descheduling and providing for broad regulations, as regulating the market is largely viewed as a primary means of disrupting the illicit market and enforcing safety standards for marijuana products. But the continued ambiguity of his position raises questions about whether he’s actually proposing Congress should go that far.

“The protracted hand-wringing over federal cannabis policy must stop,” he said. “The tragic spate of fatalities related to vaping of pot concentrates means the time has come for Congress and the White House to stop blowing smoke and clear the air.”

Leading Civil Rights Group Calls On Lawmakers To Support Comprehensive Marijuana Legalization Bill

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 Los Angeles-based associate editor. His work has also appeared in High Times, VICE and attn.

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Trade Associations And Civil Rights Groups Send Mixed Messages On Marijuana Banking To Senate

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A coalition of trade associations sent a letter to Senate Banking Committee leadership on Thursday, urging a vote on legislation to protect financial institutions that service state-legal marijuana businesses.

But those senators are also feeling pressure from leading civil rights groups like the ACLU and Human Rights Watch, which sent an earlier letter insisting that they not allow cannabis banking to detract from more comprehensive reform that addresses social equity.

The organizations involved in the latest letter—including the American Bankers Association and Credit Union National Association—said that advancing the Secure and Fair Enforcement (SAFE) Banking Act or similar legislation is pivotal to ensuring that stakeholders receive needed clarity and are shielded from being penalized by federal regulators.

The letter, addressed to Banking Chair Mike Crapo (R-ID) and Ranking Member Sherrod Brown (D-OH), emphasized the bipartisan nature of the House passage of the bill in September and the growing movement at the state level to legalize cannabis for medical or recreational purposes.

“Our organizations support an initial legislative step that allows the legal cannabis industry into the banking system,” the groups, which also include the Council of Insurance Agents and Brokers, International Council of Shopping Centers and National Association of REALTORS, wrote. “Ultimately, protecting law-abiding financial institutions and ancillary businesses from their currently untenable position and addressing increasing public safety concerns.”

As more states reform their marijuana laws, however, “distribution, sale, possession, research, transaction, housing, employment, and a broader landscape of cannabis is becoming increasingly problematic” for stakeholders under federal prohibition.

“Ultimately, this creates more legal and security concerns that impact the operations and safety of businesses and consumers,” they said. “Finally, the lack of an available safe harbor for cannabis will continue to challenge the full adoption and deployment of the legal hemp and CBD products market in the U.S. due to the inextricable link between hemp and cannabis.”

“To resolve this, we urge the Committee to vote on the SAFE Banking Act or similar measures. Such measures are meant to create a safe harbor for depository institutions that provide a financial product or service to businesses in a state permitting the use of cannabis. A safe harbor will enable law enforcement and states to effectively monitor and regulate businesses while simultaneously bringing billions into the regulated banking sector.”

The letter, also signed by Americans for Prosperity and R Street, recognizes that creating a federal regulatory scheme for marijuana will take time but says that the SAFE Banking Act represents “a critical first step to ensure that legal cannabis marketplaces are safe, legal, and transparent.”

Crapo has said that he’s interested in holding a vote on resolving the cannabis banking issue in his panel before the year’s end, but so far nothing has been scheduled. The chairman told Marijuana Moment in earlier interviews that there are several changes to the House-passed bill that he’d like to see but that he’s worried impeachment proceedings against the president will interfere with plans to hold a vote.

All that said, pressure from civil rights advocacy groups could complicate congressional efforts to get the banking bill approved. In October, several organizations including the ACLU, Drug Policy Alliance, Human Rights Watch and Center for American Progress sent a letter to Senate leadership, as well as Crapo and Brown, demanding that “marijuana legislation considered in the Senate include provisions that will guarantee equity in the industry.”

The letter, which doesn’t appear to have been previously reported and was obtained by Marijuana Moment, states that while the coalition agrees the SAFE Banking Act “is an incremental step toward rolling back the federal prohibition of marijuana, it fails to help communities that have been historically and disproportionately devastated by United States’ punitive drug laws.”

“As the Senate Committee on Banking, Housing, and Urban Affairs considers similar legislation, we insist that the legislation include provisions that ensure equity in the marijuana industry by creating opportunities for individuals who have been prohibited from this growing business either by legal or financial means,” the letter, which was also signed by the Immigrant Legal Resource Center, Leadership Conference on Civil and Human Rights and National Association of Social Workers, states.

“Indeed, this Congress has shown it understands the economic impact of legalization. But while progress on the business side of legalization is promising, it is not sufficient. Federal marijuana legislation must be comprehensive and lead with equity, addressing past and current harms to communities of color and low-income communities who bore the brunt of the failed war on drugs. We demand that any marijuana reform or legalization bill considered by the Senate] include robust provisions addressing equity. More than simply adding equity provisions to bills that address industry concerns, we need comprehensive reform that deschedules marijuana and addresses the inequities and harms continually inflicted by the failed war on drugs.”

In other words, the groups are insisting on broad reform prior to a vote on a bill viewed as largely beneficial to the cannabis industry—similar to a request they made of House members prior to the legislation’s passage in the chamber.

Read the marijuana banking letters from the trade associations and civil rights groups below:

Industry SAFE Senate Bankin… by Marijuana Moment on Scribd

Senate Leadership Letter Re… by Marijuana Moment on Scribd

Senators Demand Update From DEA On Marijuana Growing Applications

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GOP Congressman Knocks His Party For Failing To Pass Marijuana Reform

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A Republican congressman says that whichever party is responsible for passing federal marijuana reform will “instantly” shoot up in the polls, while lamenting the fact that the GOP failed to do so when they controlled the House.

Rep. Thomas Massie (R-KY), a vocal advocate for hemp, was asked by Fox Business host Kennedy on Wednesday whether cannabis should be rescheduled under federal law.

“Absolutely,” he said. “The first party that does this—and I don’t understand why either party won’t do it—is going instantly gain 10 points in the general poll on which party versus the other.”

“We should have done it when we were in the majority,” he added. “The liberals should be asking Pelosi why she hasn’t put it on the floor yet.”

The House Judiciary Committee approved legislation last month to end federal marijuana prohibition, but it hasn’t yet been scheduled for floor action.

Massie made similar points during an interview with Marijuana Moment earlier this year, stating that if Republicans had advanced states’ rights-focused marijuana legislation, “I think we might still be in the majority.”

Of course, while Massie has supported legislation to allow states to set their own cannabis policies without federal intervention, as well as other more modest reform measures such as protecting banks that service marijuana businesses, he’s so far declined to cosponsor any bills that seek to deschedule cannabis.

The congressman has also expressed interest in changing federal gun control laws to allow cannabis consumers to purchase firearms.

Though it’s not clear exactly how much of a boost either party would get by passing a marijuana reform bill, a Pew poll released last month does show that there’s majority support for legalization among those who lean Republican (55 percent) as well those who lean Democratic (78 percent).

Senators Demand Update From DEA On Marijuana Growing Applications

Photo courtesy of YouTube/Rep. Massie.

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.
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State Department Warns Travelers About Flying With Cannabis Oil Internationally

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The U.S. State Department is warning international holiday travelers that while hemp-derived CBD might be legal in the U.S., it can land you in trouble if you take it certain places abroad.

“Make sure your gift isn’t a fa la la la la la la la la fail,” the department said in a tweet on Thursday. “Bringing along gifts like drones, CBD oils, and firearms can land you in trouble in foreign countries. Research what is and isn’t allowed before you travel.”

Please visit Forbes to read the rest of this piece.

(Marijuana Moment’s editor provides some content to Forbes via a temporary exclusive publishing license arrangement.)

MLB Officially Removes Marijuana From Banned Substances List For Baseball Players

Photo courtesy of Flickr/DHS.

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