A key House committee has released a series reports for spending bills that include a wide range of marijuana-related provisions.
In directing federal agencies to reconsider firing federal workers for state-legal consumption, promote research into cannabis and fund CBD regulations, the reports make clear that marijuana has become a mainstream issue that congressional leadership is becoming more comfortable addressing in high-profile legislative documents.
The House Appropriations Committee directives are attached to spending bills that also contain legislative reform provisions, including previously reported proposals to protect state medical marijuana laws from federal interference and shield banks from being punished for working with cannabis businesses.
Here’s a look at the new report language that’s attached to appropriations legislation:
Marijuana use by federal employees
The Financial Services and General Government spending bill report directs the Office of Personnel Management to “review its policies and guidelines regarding hiring and firing of individuals who use marijuana in States” where cannabis is legal.
“Hiring Guidelines.—The Committee encourages OPM to review its policies and guidelines regarding hiring and firing of individuals who use marijuana in States where that individual’s private use of marijuana is not prohibited under the law of the State. These policies should reflect changes to the law on marijuana usage and clearly state the impact of marijuana usage on Federal employment.”
The report attached to the Labor, Health and Human Services, Education, and Related Agencies funding bill features a number of marijuana research provisions, including calling on the National Institutes of Health (NIH) to develop “a multipronged strategy wherein basic and clinical scientists and public health specialists work together to address the opportunities and challenges of cannabis in a comprehensive manner.”
“Cannabis Research.—NIH currently supports a diverse portfolio of research on cannabinoids and the endocannabinoid system, yet this research support typically relies on narrowly tailored program announcements and grants rather than a multipronged strategy wherein basic and clinical scientists and public health specialists work together to address the opportunities and challenges of cannabis in a comprehensive manner. The Committee encourages NIDA to continue supporting a full range of research on the health effects of marijuana and its components, including research to understand how marijuana policies affect public health, to help inform marijuana policymaking in States.”
Members also made a recommendation to provide protections for universities that conduct research into cannabis, noting the significant public interest in such studies.
“Protecting Scientific Research on Marihuana.—Through scientific research, institutions of higher education advance our understanding and knowledge of various aspects of our world. Moreover, when in the public interest, such institutions should be able to conduct such research without fear of reprisal or loss of Federal funding. This includes research on cannabis, a Schedule I controlled substance under the Controlled Substances Act. As more States and localities move to legalize cannabis, many institutions of higher education are expanding the knowledge-base on this controlled substance. As a result, the Committee notes that such research is in the public interest, and the recommendation includes new bill language prohibiting the Department from penalizing institutions of higher education that conduct scientific research on marihuana.”
The committee directed that $1 million should be appropriated for research into natural alternatives to opioids such as kratom and CBD, noting that the “wide availability and increased use of these substances” makes it “imperative to know more about potential risks or benefits, and whether or not they can have a role in finding new and effective non-opioid methods to treat pain.”
“Kratom.—The Committee notes that little research has been done to date on natural products that are used by many to treat pain in place of opioids. These natural plants and substances include kratom and cannabidiol (CBD). Given the wide availability and increased use of these substances, it is imperative to know more about potential risks or benefits, and whether or not they can have a role in finding new and effective non-opioid methods to treat pain. The Committee recommends $1,000,000 for this research, an increase of $500,000 above the fiscal year 2020 enacted level, and encourages AHRQ to make center-based grants to address research which will lead to clinical trials in geographic regions which are among the hardest hit by the opioid crisis.”
In a section concerning opioid overdose prevention, legislators wrote that the Centers for Disease Control and Prevention (CDC) should continue its work while also investigating misuse of other substances, including stimulants and cannabis.
“Opioid Abuse and Overdose Prevention.—The Committee commends CDC for its leadership on combating opioid drug overdoses. The Committee encourages the Director to continue to implement these activities based on population-adjusted burden of disease criteria, including mortality data (age adjusted rate), as significant criteria when distributing funds for overdose prevention activities. The Committee recognizes that the substance misuse epidemic is shifting, with an increase in overdoses resulting from stimulants and other substances. The Committee urges for CDC to monitor, prevent, and reduce harms associated with drug use, misuse, and overdose, including opioids, stimulants, cannabis, and other emerging risks. The Committee appreciates efforts by CDC to ensure that funding for opioid abuse and overdose prevention reaches local communities to advance local understanding of the opioid overdose epidemic and to scale-up prevention and response activities as intended by Congress.”
Military veterans and cannabis issues
Like last year, the panel noted in a report attached to the Military Construction, Veterans Affairs and Related Agencies spending bill that veterans have been denied home loan benefits from the U.S. Department of Veterans Affairs (VA) due to their work in the state-legal marijuana market. However, the department told Congress last month that it does not have a policy on the books stipulating that such employment renders veterans ineligible on its own; rather, it blamed conflicting state and federal laws for creating risk that makes it less likely for those in the industry to be eligible under the rules of private lenders.
The committee said it now wants VA to “improve communication with eligible lending institutions to reduce confusion among lenders and borrowers on this matter.”
“Home Loan Income Verification.—The Committee is aware of the Department’s denial of home loan guarantees to Veterans solely on the basis of the Veteran’s documented income being derived from state-legalized cannabis activities, and has previously expressed concern that confusion on this issue hinders Veterans’ ability to fully understand and consider how employment decisions could affect future eligibility for earned benefits. The Committee understands that as directed by House Report 116–63, VA has clarified that nothing in VA statutes or regulations specifically prohibits a Veteran whose income is derived from state-legalized cannabis activities from obtaining a certificate of eligibility for VA home loan benefits. The Committee directs the VA to improve communication with eligible lending institutions to reduce confusion among lenders and borrowers on this matter.”
The spending bill report also requests an update on a congressionally mandated marijuana research project.
“Cannabis Research.—The Committee requests an update on the status of the study on cannabis research, as described in House Report 116–63.”
Hemp research and regulations
In the report attached to the Agriculture, Rural Development, Food and Drug Administration and Related Agencies spending bill, the committee said it’s aware of difficulties hemp farmers face in ensuring their crops do not contain excess concentrations of THC and recognizes “that these challenges are exacerbated by lack of information, best practices, and tools to control the hemp content of THC.” To that end, it directs the U.S. Department of Agriculture (USDA) to issues report to Congress with data on crops having to be destroyed due to excess potency.
“Hemp.—The Committee is aware of the difficulty farmers face in trying to control the legal tetrahydrocannabinol (THC) content of their hemp. The Committee recognizes that these challenges are exacerbated by lack of information, best practices, and tools to control the hemp content of THC. The Committee directs USDA to report to Congress on the number of acres of hemp, by state that have been required to be destroyed because the crop exceeds the limit 0.3 percent THC content; the number of producers, by state, who are found to have a negligent violation of the 0.3 percent limit; and the total number, by state, of producers whose hemp has been tested for THC.”
Another provision of the report states that USDA should conduct “genomics and bioinformatics” studies into hemp in order to identify “the genetic control of key production and product quality traits” of the crop.
“Hemp Whole-Genome Bioinformatics.—The Committee encourages ARS to conduct genomics and bioinformatics research in collaboration with capable institutions to elucidate the genetic control of key production and product quality traits of the hemp plant. In addition, the Committee also encourages ARS to partner with institutions already engaged in such research to conduct hemp genetic improvement research and breeding with new breeding and editing techniques.”
Due to the increasing demand for hemp products, members called for $1.5 million in additional funding “to maintain the hemp germplasm repository.” They’re also seeking to appropriate about $41 million for a variety of initiatives including one concerning cannabis and cannabinoids.
“Industrial Hemp Germplasm.—The Committee recognizes the increasing demand for industrial hemp for a variety of uses and its growing importance as a crop for U.S. farmers. The Committee provides an additional $1,500,000 above the fiscal year 2020 level to maintain the hemp germplasm repository.”
“The Committee recommendation includes a net increase of $40,828,000, including increases for the following programs or initiatives: Strengthening Response Capabilities for Foodborne Outbreaks; Cannabis and Cannabis Derivatives; Artificial Intelligence and Other Emerging Technologies; Transform Medical Device Safety, Cybersecurity, Review, and Innovation; Compounding; and Modernizing Influenza Vaccines.”
Further, the report stipulates that USDA should adhere to the intent of Congress and make sure that hemp businesses are eligible for all competitive grant programs that are available to farmers and producers of other crops.
“Industrial Hemp.—The intent of Congress in Public Law 115–334 was for industrial hemp to be eligible for all USDA programs, including Rural Development. Industrial hemp can significantly benefit struggling rural economies. The Committee encourages Rural Development to ensure that industrial hemp is eligible for all competitive grant programs.”
And finally, the panel said that another $5 million should be made available to the Food and Drug Administration (FDA) for CBD enforcement and to develop regulations to permit the substance’s lawful marketing in the food supply or as a dietary supplement.
“Cannabidiol Enforcement.—The Committee provides an increase of $5,000,000 for enforcing the law to protect patients and the public while also providing a potential regulatory pathway for cannabis and cannabis derived products. The Committee maintains its concern about the proliferation of foods and dietary supplements marketed in violation of the Federal Food, Drug and Cosmetic Act (FFDCA), including products containing cannabis and cannabis-derived ingredients. Non-FFDCA-compliant products continue to pose potential health and safety risks to consumers through unsubstantiated and misleading claims such as treating a wide-range of life-threatening diseases and conditions. The Committee expects the FDA to continue to prioritize consumer-safety through application of the law.”
Curbing illegal marijuana grows on public land
Lawmakers again emphasized in the report for the Interior, Environment, and Related Agencies bill that they’re aware of illegal marijuana cultivation on public lands in California and said that these “activities harmfully impact the public, water, soil, and wildlife.”
“MARIJUANA ON PUBLIC LANDS – The Committee is aware that trespassers illegally grow marijuana on public lands in California. These unlawful activities harmfully impact the public, water, soil, and wildlife. The Committee supports Forest Service efforts to develop tools to detect and eradicate grow sites. The Committee directs the Forest Service and Bureau of Land Management to continue to cooperate with state, local and tribal governments on survey, reclamation, and prevention efforts to the maximum extent possible.”
Addressing marijuana-impaired driving
The Commerce, Justice, Science, and Related Agencies report alleges that instances of impaired driving have “spiked” in states that have legalized marijuana and says it wants the Justice Department to “assist states in identifying detection technologies that show promise in identifying drivers impaired by marijuana.”
“Marijuana-Impaired Drivers.—With the proliferation of state laws legalizing recreational and medical marijuana, the incidence rate of impaired driving has spiked. The Committee encourages the Department to assist states in identifying detection technologies that show promise in identifying drivers impaired by marijuana.”
In the Transportation, and Housing and Urban Development, and Related Agencies bill report, the committee also addresses impaired driving issues, saying it remains “concerned with the growing problem of people driving under the influence of one or multiple substances, including marijuana and opioids” and urges federal coordination to develop technologies that can detect active impairment from cannabis. The panel recognizes that doing so will likely not be achievable in the short-term, and so it mandates continued support for drug recognition expert training in the interim.
“Drug-impaired driving.—The Committee remains concerned with the growing problem of people driving under the influence of one or multiple substances, including marijuana and opioids. The Committee supports the goal of developing a reliable standard for all types of impaired driving and urges NHTSA to coordinate research efforts with states and other partners. At the same time, the Committee recognizes that developing a standard measurement of marijuana impairment, similar to blood alcohol concentration (BAC), remains unlikely in the near term. The Committee directs NHTSA to continue to robustly support Drug Recognition Expert (DRE) and Advanced Roadside Impaired Driving Enforcement (ARIDE) training and to prioritize the study and development of a standardized field sobriety test (SFST) to detect marijuana impairment.
“The Committee directs NHTSA to work with the Department of Justice, the Department of Health and Human Services, and the Department of Commerce to ensure that state highway safety offices and state law enforcement have the most up-to-date information from the Federal government on detecting impaired driving including an inventory of available technologies to detect recent drug use such as oral fluid technologies. In order to increase the safety of the transportation network by reducing drug-impaired driving, the Committee directs NHTSA to work with states to determine their toxicology testing and funding needs and to provide states with flexibility in how they use impaired driving countermeasures grants, including, but not limited to, assistance with state toxicology labs.”
Photo courtesy of Brian Shamblen.
Nine Members Of Congress Tell DEA To Revise Proposed Hemp Rule On THC Content
Nine members of Congress sent a letter to the Drug Enforcement Administration (DEA) on Tuesday, urging the agency to revise its proposed hemp regulations.
DEA released an interim final rule (IFR) for the crop in August, and it said the regulations were simply meant to comply with the 2018 Farm Bill that legalized hemp and its derivatives. But stakeholders and advocates have expressed serious concerns about certain proposals, arguing that they could put processors at risk of violating federal law and hamper the industry’s growth.
Reps. David Joyce (R-OH) and Denver Riggleman (R-VA) led the letter and pointed specifically to a provision of DEA’s IFR that could impact processing hemp extracts. The agency stipulated that “any such material that contains greater than 0.3% of Δ9-THC on a dry weight basis remains controlled in schedule I.”
That’s problematic, the lawmakers said, because in many cases the process of extracting cannabinoids from hemp temporarily causes THC levels to increase beyond that threshold. And so while Congress intended to legalize those extracts, businesses that produce the materials could find themselves inadvertently breaking the law.
I sent a letter to the @DEAHQ asking them to protect hemp producers and clarify hemp regulations.
The DEA must specify their requirements and streamline hemp directives by clarifying the legal means of processing hemp products. Read more here, #VA05:https://t.co/wGabQePrts
— Congressman Denver Riggleman (@RepRiggleman) October 21, 2020
“Our offices have received countless calls from constituents involved in the hemp industry who are extremely fearful that simply following the provisions of the Farm Bill will result in criminal liability under the IFR,” the lawmakers’ letter states. “The IFR will likely have the effect of inhibiting these nascent state hemp programs thereby harming those American companies and workers who chose to pursue careers in the hemp industry and made significant investments to effectuate those aspirations.”
Therefore, the lawmakers are “requesting a resolution to this issue as quickly as possible,” adding that “DEA must revise the IFR to eliminate the ambiguities set forth above and provide peace of mind to all Americans who have chosen to pursue a career in the hemp industry.”
Reps. Rodney Davis (R-IL), Morgan Griffith (R-VA), Glenn Grothman (R-WI), Don Young (R-AK), Anthony Gonzalez (R-OH), Earl Blumenauer (D-OR) and Matt Gaetz (R-FL) also signed the letter.
A public comment period on DEA’s proposed rules closed on Tuesday. It saw more than 3,300 submissions, many of which focused on issues with the “work in progress” hemp THC issue.
“This IFR’s criminalizes work in progress hemp extract, a fundamental component of any consumer hemp/CBD product, and will negatively impact the hemp/CBD industry at a time when financial pressure is already high,” one commenter wrote. “Hemp and subsequent extracts are not controlled substances.”
Another issue identified by more than 1,000 commenters concerns delta-8 THC. The most widely known cannabinoid is delta-9 THC, the main component responsible for creating an intoxicating effect, but delta-8 THC from hemp is also psychoactive and is an object of growing interest within the market.
Because DEA’s proposed regulations state that all “synthetically derived tetrahydrocannabinols remain schedule I controlled substances,” some feel that would directly impact the burgeoning cannabinoid, as its converted from CBD through the use of a catalyst—and that could be interpreted as a synthetic production process.
In any case, it’s not clear whether DEA deliberately crafted either of these rules with the intent of criminalizing certain hemp producers—but stakeholders and advocates aren’t taking any chances.
The U.S. Department of Agriculture (USDA) has faced separate criticism over its own proposed hemp rules, though it has been more proactive in addressing them. Following significant pushback from the industry over certain regulations it views as excessively restrictive, the agency reopened a public comment period, which also closed this month.
USDA is also planning to distribute a national survey to gain insights from thousands of hemp businesses that could inform its approach to regulating the market.
Read the congressional coalition’s letter to DEA on its hemp rule below:
Pennsylvania House Votes To Protect Medical Marijuana Patients From DUI Charges
The Pennsylvania House of Representatives approved an amendment on Tuesday that would protect medical marijuana patients from being penalized under the state’s DUI laws for using their legal medicine.
The proposal cleared the chamber as an amendment to a broader piece of legislation concerning motor vehicle policies. It passed in a 109-93 vote.
As it stands, registered medical cannabis patients can be convicted of driving under the influence of a controlled substance if THC metabolites are detected in their blood. That’s despite the fact that marijuana can remain present in the body well after someone is considered impaired.
The House-approved amendment, which is now attached to a bill previously passed by the Senate, exempts “marijuana used lawfully in accordance with” the state’s medical cannabis law from DUI statutes.
“I think that you can ask any veteran or anybody that’s using medical cannabis right now, if they took the prescription on Monday, [on] Wednesday, they’re not high,” Rep. Ed Gainey (D) said in a floor speech before the vote. “And if they got pulled over, they darned shouldn’t be charged for being intoxicated or under the influence of medical marijuana.”
Medical marijuana has helped the people of the Pennsylvania. But even if you have a medical card, you can still get a DUI even if you’re not high – if you have a trace of THC in your system. Today I fought to pass a bill that would end that. pic.twitter.com/uxj8IsuVO9
— Ed Gainey (@RepGainey) October 21, 2020
“I think we’re putting an undue burden on the people of Pennsylvania if we’re saying this is what we want to do after we fought so hard to pass medical marijuana and we know what it’s done to help the people of Pennsylvania,” he said.
The amendment is similar in intent to separate standalone legislation introduced by Sen. Camera Bartolotta (R) in June to end the “zero tolerance” DUI policy for medical marijuana.
While Pennsylvania legalized medical cannabis in 2016, with the first dispensaries opening two years later, the law has not caught up as it concerns impaired driving. A person can test positive for THC for weeks after last consuming marijuana, rendering traditional roadside tests incapable of determining active impairment.
Several legal cannabis states have enacted per se THC limits in blood, similar to blood alcohol requirements. However, evidence isn’t clear on the relationship between THC concentrations in blood and impairment.
A study published last year, for example, concluded that those who drive at the legal THC limit—which is typically between two to five nanograms of THC per milliliter of blood—were not statistically more likely to be involved in an accident compared to people who haven’t used marijuana.
Separately, the Congressional Research Service in 2019 determined that while “marijuana consumption can affect a person’s response times and motor performance… studies of the impact of marijuana consumption on a driver’s risk of being involved in a crash have produced conflicting results, with some studies finding little or no increased risk of a crash from marijuana usage.”
The modest cannabis DUI reform approved by the Pennsylvania House comes amid repeated calls from the state’s leaders to more broadly legalize marijuana for adult use.
Last week, Gov. Tom Wolf (D) in a speech 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.
That marked the third time in three months that the governor has held events focused on making the case for legalization. Last month, 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.
Lt. Gov. John Fetterman (D), a longstanding legalization advocate, has been similarly vocal about his position. In speeches and on social media, the official has expressed frustration that Pennsylvania has yet to enact the policy change, especially as neighboring like New Jersey are moving in that direction.
He said last month that farmers in his state can grow better marijuana than people in New Jersey—and that’s one reason why Pennsylvania should expeditiously legalize cannabis before voters next door in the Garden State enact the policy change this November.
Fetterman also recently 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.
While Wolf initially opposed adult-use legalization, he came out in support of the reform last year after Fetterman led a statewide listening tour last year to solicit public input on the issue.
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.
Montana Supreme Court Rejects Challenge To Marijuana Legalization Initiative
The Montana Supreme Court on Wednesday rejected a lawsuit seeking to invalidate a marijuana legalization initiative that will appear on the state’s November ballot.
With weeks before the election, opponents asked the court to quash the measure, arguing that because it involves appropriating funds, it violates state statute on citizen initiatives.
The court didn’t weigh in on the merits of the challenge; rather, it said the petitioners with the campaign Wrong for Montana (WFM) failed to demonstrate “urgency or emergency factors” that would justify moving the case into its jurisdiction instead of going through trial and appeals courts first.
It left the door open for the opponents to take its challenge through the traditional process. Brian Thompson, the attorney representing the plaintiffs, told Marijuana Moment that they now intend to file the suit in district court “soon,” but he wasn’t able to provide an exact timeline.
“We express no opinion on the merits of WFM’s constitutional challenge, nor to its right to pursue this challenge in district court,” the justices wrote. “However, WFM’s claim does not present an appropriate basis on which to invoke this Court’s original jurisdiction. Even if it did, WFM has wholly failed to establish that urgency or emergency factors make litigation in the trial courts and the normal appeal process inadequate.”
Dave Lewis, policy advisor to the pro-legalization New Approach Montana, said in a press release that this “was an easy decision for the Montana Supreme Court.”
“At best, this lawsuit was a frivolous longshot,” he said. “At worst, it was an intentional effort to create confusion right before the election.”
The measure in question would establish that adult-use marijuana system. The lawsuit did not target a separate, complementary initiative that would specify that only those 21 and older could participate in the legal market.
It is the case that state statute says citizens “may enact laws by initiative on all matters except appropriations of money and local or special laws” and that the initiative does allocate cannabis tax revenue to certain programs. But prior measures that have appeared on the state’s ballot have done so as well.
Under the proposal, half of the public revenue generated from marijuana sales would go toward environmental conservation programs—a provision that earned the campaign key endorsements last month.
The initiative is already on the ballot and voting has started, so presumably if the court had sided with the plaintiffs, the votes simply wouldn’t have been counted or implementation would have been prevented. It is also possible that a court could rule that monies raised by legal cannabis sales under the initiative would simply into the state’s general fund instead of toward the specific programs delineated in its current text.
“We’re receiving strong support from voters across the state,” Lewis, who is a former Republican state senator and former budget director for three Montana governors, said. “Instead of making a coherent argument against the initiatives, our opponents tried to deprive Montanans of their constitutional right to a citizen initiative process.”
“Our opponents are desperately throwing everything at the wall in the hope that something sticks,” he added. “They’re resorting to fear tactics and misinformation because they know that a majority of Montana voters are ready to vote yes on legalizing, regulating, and taxing marijuana for adults 21 and over.”
In neighboring Nebraska, the state Supreme Court did rule last month that a measure to legalize medical cannabis that had qualified for the November ballot could not proceed because it violated the state’s single-subject rule for ballot initiatives.
Recent polling indicates that Montana voters are positioned to approve the legalization proposal. Forty-nine percent of respondents in a survey released last week said they support the policy change, with 39 percent opposed and 10 percent remaining undecided.
This story has been updated to include comment from Thompson.
Read the Montana Supreme Court’s ruling on the marijuana challenge and the original lawsuit below: