The first draft of a long-anticipated Senate bill to federally legalize marijuana has been released—and its sponsors are asking for public input to further improve the legislation before it is formally introduced.
Senate Majority Leader Chuck Schumer (D-NY), Senate Finance Committee Chairman Ron Wyden (D-OR) and Sen. Cory Booker (D-NJ) are unveiling the draft at a press conference on Wednesday. It’s an extensive bill, titled the Cannabis Administration and Opportunity Act, that weighs in at 163 pages.
The main features of the legislation largely align with what advocates and stakeholders expected. It would federally deschedule cannabis, expunge prior convictions, allow people to petition for resentencing, maintain the authority of states to set their own marijuana policies and remove collateral consequences like immigration-related penalties for people who’ve been criminalized over the plant.
“Cannabis prohibition, a key pillar of the failed war on drugs, has caused substantial harm to our communities and small businesses, and especially for communities of color,” Wyden said. “It’s as simple as this: Senators Booker, Schumer and I want to bring common sense to the federal government, end prohibition and restore the lives of those hurt most and set them up for opportunity.”
— Ron Wyden (@RonWyden) July 14, 2021
“The War on Drugs has too often been a war on people, and particularly people of color,” Schumer said. “Not only will this legislation remove cannabis from the federal list of controlled substances, but it will also help fix our criminal justice system, ensure restorative justice, protect public health, and implement responsible taxes and regulations.”
It’s our legislative proposal to end the federal prohibition on marijuana and repair damage done by the War on Drugs—especially in communities of color
— Chuck Schumer (@SenSchumer) July 14, 2021
Booker, for his part, said that for decades, “our federal government has waged a War on Drugs that has unfairly impacted low-income communities and communities of color.”
“While red and blue states across the country continue to legalize marijuana, the federal government continues to lag woefully behind,” he said. “It is time for Congress to end the federal marijuana prohibition and reinvest in communities most impacted by the failed War on Drugs.”
A marijuana conviction can mean a lifetime of unjust hardship—trouble getting a job, housing, loans & more in addition to thousands of other collateral consequences. It’s time to legalize marijuana, expunge records & restore justice to communities harmed by the failed drug war. https://t.co/2hexx56LM6
— Sen. Cory Booker (@SenBooker) July 14, 2021
The bill would also impose a federal tax on marijuana products and put some of that revenue toward grant programs meant to support people from communities most impacted by prohibition who want to participate in the industry.
Further, the legislation would transfer regulatory authority over cannabis from the Drug Enforcement Administration (DEA) to the Food and Drug Administration (FDA), the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the Alcohol and Tobacco Tax and Trade Bureau (TTB).
There’s a lot of ground to cover on the proposal. And while the senators are confident that it addresses key concerns from stakeholders, advocates, public health officials and law enforcement alike, they recognize that this is not the final form the bill will take. To that end, a public comment period is open until September 1.
“The War on Drugs has been a war on people—particularly people of color. The Cannabis Administration and Opportunity Act aims to end the decades of harm inflicted on communities of color by removing cannabis from the federal list of controlled substances and empowering states to implement their own cannabis laws,” the senators said in a summary of the bill that was shared with Marijuana Moment. “Descheduling cannabis is a critical step towards achieving justice for those targeted and hard hit by the War on Drugs. But that alone is not enough.”
The bill is multifaceted and deals with a large number of complex issues that have arisen under the umbrella of federal prohibition.
The basic components
Perhaps the most immediately consequential provision would be a requirement that the attorney general to remove marijuana from the Controlled Substances Act within 60 days of the bill’s enactment.
But it’s important to keep in mind that this legislation—like other federal legalization bills moving through Congress—would not make it so marijuana is legal in every state. The proposal specifically preserves the right of states to maintain prohibition if they way. It stipulates, for example, that shipping marijuana into a state where the plant is prohibited would still be federally illegal.
However, the measure would make it clear that states can’t stop businesses from transporting cannabis products across their borders to other states where the plant is permitted.
FDA would be “recognized as the primary federal regulatory authority with respect to the manufacture and marketing of cannabis products, including requirements related to minimum national good manufacturing practice, product standards, registration and listing, and labeling information related to ingredients and directions for use,” according to the summary.
Meanwhile, TTB would have jurisdiction over marijuana tax and trade practices. That would include cannabis tax revenue collection, tax law enforcement and tracking and tracing of marijuana products.
“The agencies would have dual jurisdiction related to certain aspects of cannabis product labeling and packaging, advertising, and other consumer information,” the document says.
As promised, the senators are including language into the bill that would promote social justice for those who’ve been disproportionately impacted by the war on drugs.
“Communities that have been most harmed by cannabis prohibition are benefitting the least from the legal marijuana marketplace,” the findings section of the bill says, noting that a “legacy of racial and ethnic injustices, compounded by the disproportionate collateral consequences of 80 years of cannabis prohibition enforcement, now limits participation in the industry.”
“Historically disproportionate arrest and conviction rates make it particularly difficult for people of color to enter the legal cannabis market- place, as most States bar these individuals from participating,” it says.
A key barrier for such individuals is that fact that people from communities of color have been most targeted by cannabis criminalization, despite the fact that use is comparable across races. The bill seeks to repair that harm by mandating each federal district to expunge arrests and convictions for non-violent marijuana offenses within one year, and it also allows people who are still under a criminal sentence for cannabis to obtain a resentencing review hearing.
There would be three grant programs established under the bill.
One would “fund nonprofits that provide services to individuals adversely impacted by the War on Drugs, such as job training, reentry services and legal aid, among other services,” according to the summary. It would be distributed through a new Cannabis Justice Office under the Justice Department.
Another would “provide funding to eligible states and localities to make loans to assist small businesses in the cannabis industry owned by socially and economically disadvantaged individuals” through the Small Business Administration (SBA).
Finally, the Equitable Licensing Grant Program would “provide funding to eligible states and localities to implement cannabis licensing programs that minimize barriers for individuals adversely affected by the War on Drugs.”
“To be eligible for these SBA grants, states and localities must take steps to create an automatic process to expunge criminal records for cannabis offenses and violations for individuals under criminal supervision for cannabis offenses,” the summary says.
People could not be denied federal benefits due to the use or possession of marijuana or for a conviction for a cannabis offense. That includes preventing the revocation of security clearances for federal employees.
However, one component of the new bill that advocates have taken issue with—which has been previously included in past reform legislation—would let agencies “continue to include cannabis for purposes of drug testing of Federal employees.”
Additionally, the measure would authorize physicians with the U.S. Department of Veterans Affairs (VA) to issue recommendations for medical cannabis to veterans. That’s another topic that’s been the focus of separate, standalone legislation in recent sessions.
Marijuana Moment is already tracking more than 1,100 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.
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Taxes and permits
A gradual federal tax rate would be imposed on marijuana sales, starting at 10 percent for the first year after the bill’s enactment and the first, subsequent calendar year. Then it would be increased annually, rising from 15 percent to 20 percent to 25 percent. Starting in the fifth year post-enactment, the tax would be a “per-ounce or per-milligram of THC amount determined by the Secretary of the Treasury equal to 25 percent of the prevailing price of cannabis sold in the United States in the prior year.”
In an effort to support small cannabis enterprises, the legislation says that “small cannabis producers with less than $20 million in sales annually would be eligible for a 50 percent reduction in their tax rate, via a tax credit.”
“Producers with more than $20 million in sales would be eligible for a tax credit on their first $20 million of cannabis sold annually, with sales above that amount subject to tax at the full rate. Similar to the reduced rates for alcohol producers, certain anti-abuse rules would limit the tax benefit only to products produced or substantially modified by the small producer, in order to limit the benefit received by large producers and to prevent a double-benefit.”
The legislation also lays out a structure for how marijuana businesses will be approved and regulated. For example, companies selling taxable marijuana products, or cannabis at the wholesale level, would require Treasury Department approval. Marijuana producers would further need to be registered with FDA.
A cannabis permit “may be denied or revoked if the premises is inadequate to prevent tax evasion or diversion, operation of the premises do not comply with federal or state law, or an applicant fails to disclose material information or makes a false statement,” the summary says. “In addition, a cannabis permit application may be denied if the applicant has been convicted of a disqualifying offense.”
“For these purposes, a disqualifying offense is a felony criminal offense that occurred after enactment of this Act and within the preceding three years related to cannabis diversion or cannabis tax evasion. An applicant may apply to the Cannabis Products Advisory Committee for a waiver with respect to a disqualifying offense if the Committee finds that the applicant has established sufficient evidence of mitigation or rehabilitation and fitness to maintain cannabis operations in compliance with state and federal law.”
FDA would have “authority over cannabis products in intrastate commerce,” the summary says. Under the agency, a new Center for Cannabis Products and a Cannabis Products Regulatory Advisory Committee would be created.
Cannabis products would not be regulated as dietary supplements, but the bill would “authorize manufacturers of cannabis products to make claims about the benefits of their products in the same manner that manufacturers of dietary supplements do today.”
It would, however, stipulate the FDA must create a regulatory pathway for CBD to be marketed as a dietary supplement.
The bill would further require “owners and operators of establishments that are engaged in the manufacture, preparation, compounding, or processing of a cannabis product to register their establishments with FDA upon first engaging in such activities and annually thereafter.” The agency would “issue regulations pertaining to distribution of cannabis products and good manufacturing practice.”
Another provision would mandate that FDA create a program to “expedite the development and review of applications for drugs containing cannabis that are manufactured by a small businesses owned and controlled by socially and economically disadvantaged individuals that operate in the cannabis industry.”
Under the legislation, the Treasury secretary would be compelled to establish a track-and-trace regime to prevent illicit distribution of cannabis products. And the official would also be mandated to start a program to facilitate “the lawful delivery of hemp that inadvertently exceeds the permissible THC limitations for hemp to a permitted cannabis enterprise for the proper processing of such products.”
The Consumer Product Safety Commission would be authorized to issue regulations setting standards for special packaging of cannabis products.
Federal law would be amended to explicitly state that SBA programs and services available to marijuana businesses and companies that work with them.
Although the bill does not specifically mention banking, its provisions ending the federal prohibition of marijuana would automatically remove any penalties that financial institutions currently potentially face as a result of working with licensed cannabis businesses because those operations would no longer be federally illegal.
The bill further directs the Government Accountability Office (GAO) to facilitate a number of studies into marijuana policy.
The office must conduct a “review of federal laws, regulations, and policies, to identify additional areas in need of change, including a study on replacing the term ‘marijuana’ and ‘marihuana’ with ‘cannabis’ through the U.S. Code and regulations,” the summary says. It must also study the demographics of those with federal cannabis convictions.
GAO would also have to evaluate the “societal impact of legalization” in states with recreational marijuana laws on the books.
Additionally, the Bureau of Labor Statistics (BLS) would need to compile demographic data on “business owners and employees in the cannabis industry.” Those figures could help inform social justice efforts, as there’s been widespread criticism of the industry over a lack of diversity despite advocates’ push for equity.
The U.S. Department of Health and Human Services (HHS) would be required to work with the National Institutes of Health (NIH) on ways to promote research into cannabis impacts. And meanwhile, HHS would be mandated to collaborate with the U.S. Department of Transportation (DOT) on data collection for marijuana-impaired driving while also supporting research into “an impairment standard for driving under the influence of cannabis.”
The senators’ bill would establish a federal standard to make it so only those 21 and older can purchase recreational marijuana products. Each state that currently allows adult-use cannabis maintains that age restriction.
In order to reduce illegal diversion, the legislation would cap cannabis sales, stating that adults could only buy up to 10 ounces at a time.
Vaping delivery system products that contain added natural or artificial flavors would be banned under the proposal.
A newly created definition of “cannabis” would be created under federal law, but it would retain the exception for hemp that now exists.
The senators want feedback on the draft bill
Here’s an overview of some of the main points that the are seeking comment on:
-Measuring the potency of cannabis products, the overlap of definitions for hemp and marijuana, regulations for synthetic THC, regulatory responsibilities for various federal agencies and FDA funding.
-Coordinating federal and state law enforcement responsibilities for cannabis, state “primacy regarding cannabis regulation” and interstate commerce.
-Balancing efforts to reduce barriers to entry to the marijuana industry while mitigating the influence of illicit cannabis operators.
-Determining whether cannabis products should go through a premarket review before being marketed.
-How to deal with international treaty obligations with respect to marijuana.
Interested parties are encouraged to submit comments on these and other issues to [email protected] by September 1.
The bill has been highly anticipated
Advocates have been anxiously awaiting this legislation, which Schumer has repeatedly said was coming “soon” after he, Wyden and Booker first pledged in February that it would be ready “in the early part of this year.”
The three senators formally started their efforts on the legalization bill by holding a meeting earlier this year with representatives from a variety of advocacy groups to gain feedback on the best approach to the reform.
Schumer made a point in March to say that it will specifically seek to restrict the ability of large alcohol and tobacco companies to overtake the industry. Instead, it will prioritize small businesses, particularly those owned by people from communities most impacted by prohibition, and focus on “justice, justice, justice—as well as freedom,” he said.
He also urged voters to reach out to their congressional representatives and tell them that “this is long overdue.”
Activists are encouraged by the introduction of the lengthy and detailed proposal.
“The days of federal prohibition are numbered,” NORML Executive Director Erik Altieri said in a press release. “These actions by Senate Majority Leader Schumer and Senators Booker and Wyden reflect the fact that the supermajority of Americans are demanding that Congress take action to end the cruel and senseless policy of federal prohibition.”
“It is time for legislators to comport federal law with the laws of the growing number of states that have legalized the plant, and it is time for lawmakers to facilitate a federal structure that allows for cannabis commerce so that responsible consumers can obtain high-quality, low-cost cannabis grown right here in America without fear of arrest and incarceration,” he said.
Shaleen Title, CEO of the Parabola Center, said that the bill’s filing “sends a clear signal to the states to keep making progress on cannabis policy.”
“We’re encouraged by the senators’ inclusive process and intend to join other equity advocates in offering ways for the federal government to protect and build on the states’ progress toward social justice in cannabis policy,” she said. “Millions of people fought for an end to prohibition. We see this as an opportunity to stop the arrests and to shape the national marketplace for legal marijuana to be open to all, not just a wealthy few.”
Meanwhile, a separate House bill to federally legalize marijuana and promote social equity in the industry was reintroduced in May.
The legislation, sponsored by Judiciary Committee Chairman Jerrold Nadler (D-NY), was filed with a number of changes compared to the version that was approved by the chamber last year.
The Marijuana Opportunity, Reinvestment and Expungement (MORE) Act passed the House but did not advance in the Senate under GOP control. But this time around, advocates are optimistic that the policy change could be enacted now that Democrats run both chambers and the White House, and as more states are moving to enact legalization.
President Joe Biden, however, is an outlier within the Democratic Party, maintaining an opposition to adult-use legalization despite the widespread and increasingly bipartisan public popularity of the reform. It remains to be seen whether the president—who campaigned on more modest pledges to decriminalize cannabis possession, expunge prior records and respect state legalization laws—would stand in the way of a comprehensive policy change by threatening to veto the bill that’s ultimately produced.
Wyden, who under the chamber’s new Democratic majority assumed the top spot on the Senate Finance Committee—where the new legislation is likely to be referred once formally introduced—recently said his goal will be to “end the prohibition and come up with sensible tax and regulatory oversight at the federal level.”
He said in February that “it’s not enough in my view to just end cannabis prohibition,” and “I think we need to restore the lives of people who’ve been hurt most by the failed war on drugs and especially black Americans.”
All three senators—Schumer, Wyden and Booker—have in past years introduced marijuana legalization bills that never got hearings or votes.
Separately, a proposal to federally deschedule marijuana that does not include social equity components was recently filed by a pair of Republican congressmen.
Read the full text of the new federal marijuana legalization bill below:
Photo courtesy of Mike Latimer.
Virginia Has Sealed 64,000 Marijuana Distribution Charges Since Legalization Took Effect This Summer
“These aren’t just numbers and there are families attached.”
By Ned Oliver, Virginia Mercury
Virginia has sealed records documenting more than 64,000 misdemeanor marijuana distribution charges since the state legalized the drug in July.
The figure came out Thursday during a meeting of the legislature’s Cannabis Oversight Commission.
Officials said the records were scrubbed from the state’s criminal record database, which is used by employers like school boards, state agencies and local governments to screen employees.
The state had already sealed 333,000 records detailing charges of simple possession last year after the state reduced the offense to a civil infraction on par with a traffic offense, said Shawn G. Talmadge, the Deputy Secretary of Public Safety and Homeland Security.
Lawmakers directed the state to expand that effort when they voted to broadly legalize recreational use of marijuana earlier this year.
The legislature also agreed to a broader expungement reform that will automatically seal other misdemeanor charges, including underage possession of alcohol, use of a fake ID, petit larceny, trespassing and disorderly conduct. Talmadge said those charges will remain in the system until the state finishes updating the software it uses to track criminal records.
“As of right now, the process is proceeding,” he said.
The Virginia Joint Commission on Cannabis Oversight is meeting now. You can find the agenda and links to livestream and to provide public comment at https://t.co/f1wsPn7SV7
— Jennifer McClellan (@JennMcClellanVA) October 14, 2021
Members of the oversight commission also heard from two advocates who urged them to move fast to address people currently imprisoned for marijuana offenses—a category of people the legalization legislation passed this year did not address.
Chelsea Higgs Wise, the leader of the advocacy group Marijuana Justice, and Gracie Burger, with the Last Prisoner Project, said Department of Corrections data suggests there are currently 10 people being held solely on serious marijuana charges.
They said it remains unknown how many more are being held because of marijuana related probation violations.
“These aren’t just numbers and there are families attached,” Burger said.
DEA Proposes Dramatic Increase In Marijuana And Psychedelic Production In 2022, Calling For 6,300 Percent More MDMA Alone
The Drug Enforcement Administration (DEA) is proposing a dramatic increase in the legal production of marijuana and psychedelics like psilocybin, LSD, MDMA and DMT to be used in research next year.
In a notice scheduled to be published in the Federal Register on Monday, the agency said there’s been a “significant increase in the use of schedule I hallucinogenic controlled substances for research and clinical trial purposes,” and it wants authorized manufacturers to meet that growing demand.
DEA had already massively upped its proposed 2021 quota for cannabis and psilocybin last month, but now it’s calling for significantly larger quantities of research-grade marijuana and a broader array of psychedelics to be manufactured in 2022.
It wants to double the amount of marijuana extracts, psilocybin and psilocyn, quadruple mescaline and quintuple DMT. What especially stands out in the notice is MDMA. The agency is proposing an enormous 6,300 percent boost in the production of that drug—from just 50 grams in 2021 to 3,200 grams in the coming year—as research into its therapeutic potential continues to expand.
LSD would see a 1,150 percent increase, up to 500 grams of the potent psychedelic.
Marijuana itself would get a 60 percent boost under DEA’s proposal, up to 3.2 million grams in 2022 from the 2 million grams last year.
Here’s a visualization of the proposed quota increase from 2021 to 2022 for marijuana and cannabis extracts:
For all other THC, psilocybin, psilocyn and MDMA:
And for other psychedelic substances like LSD, mescaline and DMT:
DEA said in the Federal Register notice that it has been receiving and approving additional applications to “grow, synthesize, extract, and manufacture dosage forms containing specific schedule I hallucinogenic substances for clinical trial purposes” to achieve these ambitious quotas.
“DEA supports regulated research with schedule I controlled substances, as evidenced by increases proposed for 2022 as compared with aggregate production quotas for these substances in 2021,” the agency said, adding that it working “diligently” to process and approve marijuana manufacturers applications in particular, as there’s currently only one farm at the University of Mississippi that’s permitted to cultivate the plant for research.
“Based on the increase in research and clinical trial applications, DEA has proposed increases in 3,4- Methylenedioxyamphetamine (MDA), 3,4-Methylenedioxymethamphetamine (MDMA), 5-Methoxy-N,N-dimethyltryptamine, Dimethyltryptamine, Lysergic acid diethylamide (LSD), Marihuana, Marihuana Extract, Mescaline, Psilocybin, Psilocyn, and All Other Tetrahydrocannabinols to support manufacturing activities related to the increased level of research and clinical trials with these schedule I controlled substances.”
Here are the exact numbers for the proposed 2021 and 2022 quotas:
|All other tetrahydrocannabinol||1,000||2,000|
A 30-day public comment period will be open after the notice is formally published on Monday.
It’s difficult to overstate just how significant the proposed 2022 increases are, but it’s certainly true that scientific and public interest in marijuana and psychedelics has rapidly increased, with early clinical trials signaling that such substances show significant therapeutic potential.
National Institute on Drug Abuse (NIDA) Director Nora Volkow told Marijuana Moment in a recent interview that she was encouraged by DEA’s previous proposed increase in drug production quota. She also said that studies demonstrating the therapeutic benefits of psychedelics could be leading more people to experiment with substances like psilocybin.
Advocates and experts remain frustrated that these plants and fungi remain in the strictest federal drug category in the first place, especially considering the existing research that shows their medical value for certain conditions.
A federal appeals court in August dismissed a petition to require the DEA to reevaluate cannabis’s scheduling under the Controlled Substances Act. However, one judge did say in a concurring opinion that the agency may soon be forced to consider a policy change anyway based on a misinterpretation of the therapeutic value of marijuana.
Separately, the Washington State attorney general’s office and lawyers representing cancer patients recently urged a federal appeals panel to push for a DEA policy change to allow people in end-of-life care to access psilocybin under state and federal right-to-try laws.
Image element courtesy of Kristie Gianopulos.
Supreme Court Won’t Hear Case On Legalizing Safe Drug Consumption Sites, But Activists Are Undeterred
The U.S. Supreme Court (SCOTUS) has rejected a request to hear a case on the legality of establishing safe injection sites where people can use illicit drugs in a medically supervised environment.
The justices announced on Tuesday that they decided against taking up the case raised by the nonprofit Safehouse, despite the pleas of attorneys general from 10 states and D.C. who recently filed amici briefs urging the court’s involvement.
Representatives from 14 cities and counties, as well as the mayor of Philadelphia, which is at the center of the current case, also filed briefs in support of the case in recent days.
Safehouse was set to launch a safe consumption site in Philadelphia before being blocked by a legal challenge from the Trump administration. It filed a petition with the nation’s highest court in August to hear the case.
But while the Supreme Court declined to take action—and the Biden administration passed up its voluntary opportunity to weigh in at this stage, which may well have influenced the justices’ decision—activists say the battle will continue at a lower federal court level, where the administration will have to file briefs revealing its position on the issue.
Disappointed but not surprised U.S. Supreme Court declined to hear our case. We’re pursuing our claims in federal court. As that litigation proceeds, Biden administration will have to take a position, which it avoided by waiving its right to respond to our Supreme Court petition.
— Safehouse (@SafehousePhilly) October 13, 2021
“We were disappointed that the government chose not to respond to our petition,” Safehouse Vice President Ronda Goldfein told Filter. “They said, ‘We’re going to waive our right to respond,’ [and] the Supreme Court declined to review our case. Ordinarily that sounds like the end of the road—but in our case we are still pursuing our claims in a different venue.”
That venue will be the the federal district court in Philadelphia, where activists plan to submit multiple arguments related to religious freedom and interstate commerce protections. The Biden administration will be compelled to file a response in that court by November 5.
“If they don’t respond, they lose,” Goldfein said.
A coalition of 80 current and former prosecutors and law enforcement officials—including one who is President Joe Biden’s pick for U.S. attorney of Massachusetts—previously filed a brief urging the Supreme Court to take up Safehouse’s safe injection case.
Fair and Justice Prosecution, the group that coordinated the amicus brief, also organized a tour of Portugal for 20 top prosecutors in 2019 so they could learn about the successful implementation of the country’s drug decriminalization law.
If the Supreme Court were to have taken the case and rule in favor of Safehouse, it could have emboldened advocates and lawmakers across the country to pursue the harm reduction policy.
The governor of Rhode Island signed a bill in July to establish a safe consumption site pilot program where people could test and use currently illicit drugs in a medically supervised environment. It became the first state in the country to legalize the harm reduction centers. It’s not clear whether the Department of Justice will seek to intervene to prevent the opening of such facilities in that state.
Massachusetts lawmakers advanced similar legislation last year, but it was not ultimately enacted.
A similar harm reduction bill in California, sponsored by Sen. Scott Wiener (D), was approved in the state Senate in April, but further action has been delayed until 2022.