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Senate Committee Declines To Expand State Marijuana Protections In Spending Bill

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A key Senate committee approved a spending bill on Thursday that again contains a provision preventing the Justice Department from intervening in medical cannabis states—despite objections raised by one senator who ultimately withdrew an amendment he filed to undermine the rider.

But while the House of Representatives passed legislation this summer to extend those protections to all state marijuana programs, no members of the Senate Appropriations Committee attempted to insert similar far-reaching language to shield laws allowing recreational cannabis use and sales from federal interference.

There are several reasons for that, unrelated to the panel’s feelings about broader reform in general. A  primary factor is that congressional appropriators made a “gentleman’s agreement” earlier this year not to add new policy-related riders to spending legislation out of concern that inserting controversial “poison pills” could jeopardize passage of the overall bills.

Sen. Chris Coons (D-DE), a member of the Appropriations Committee, told Marijuana Moment it was because of a “bipartisan agreement to add no new policy into the bill in order to get it out” of committee that he previously voted against a marijuana amendment that he personally supported.

“There were a number of things that I am opposed to that remained in the bill that I would’ve preferred to have out,” he said, highlighting the complicated nature of voting on large-scale bills to fund federal agencies. “There were things that were not in the bill that I would have preferred to have in.”

“I know that this bill is a funding bill. It’s not an authorization bill,” Sen. Jeanne Shaheen (D-NH) said at a Commerce, Justice, Science (CJS) Appropriations Subcommittee markup on Tuesday. “We’ve all tried to refrain from putting poison pill riders in our appropriations bill, and so as a result, we don’t address many of the controversial issues that both Democrats and Republicans would like to confront.”

“The Senate Appropriations Committee isn’t allowing policy riders, so it hasn’t been a priority since language is already in House bill,” Michael Correia, government relations director for the National Cannabis Industry Association, told Marijuana Moment to explain why legalization groups didn’t fight very hard this year to convince senators to push the more far-reaching state protections.

Recognizing the difficulty in overcoming the budget agreement, a lobbyist with the Marijuana Policy Project (MPP) proactively encouraged senators not to push for a cannabis amendment.

Don Murphy, director of federal policies for MPP, told Marijuana Moment that advocates have their “resources spread thin” as they work to advance various pieces of cannabis legislation such as the bipartisan marijuana banking bill that the House passed overwhelmingly on Wednesday. Murphy said “we had few options but to put all our eggs in the conference committee basket.”

In other words, the last chance to get a more expansive marijuana provision in the enacted CJS appropriations bill for Fiscal Year 2020 is for Senate negotiators to agree to merge the House-passed language into the final package sent to the president—a dubious prospect given the overall agreement among lawmakers to not add new policy riders.

Even without that agreement, the prospects of getting the conference committee to adopt a marijuana provision approved by only one chamber would be a far reach.

Last year, for example, an amendment to a Senate-passed spending bill that would’ve prevented the U.S. Department of Veterans Affairs from spending its funds to enforce a policy against having its doctors fill out medical cannabis recommendation was removed in conference because the House didn’t have companion language.

Both the Senate and House passed amendments in 2016 to allow veterans to obtain cannabis recommendations from their doctors at VA but, because the language differed slightly, it was also removed, demonstrating the complications that await any attempt to keep the House-passed cannabis protections measure in the final bicameral negotiated spending bill.

A losing vote in the Senate Appropriations Committee on the broad state protection amendment, advocates feared, could further jeopardize efforts to advance the language in conference.

That said, Sen. Jeff Merkley (D-OR) told Marijuana Moment on Thursday that he “didn’t expect [the amendment] to be raised” in Senate committee and that it’s “going to be raised in conference.” The senator did introduce an amendment last year that would’ve expanded protections to all legal marijuana states, but he withdrew it rather than force a vote he thought he might have lost.

Justin Strekal, political director of NORML, expressed frustration that “the Senate Appropriations Committee refuses to acknowledge their role in the perpetuation of marijuana prohibition.”

“The continued allowance of taxpayer dollars to be used to perpetuate criminalization is a failed public policy,” he said.

What would have happened if a member of the Appropriations Committee had introduced an amendment expanding cannabis protections?

Marijuana Moment spoke to more than a dozen senators, including several appropriators, in recent weeks to get a sense of where the chamber stands on the issue.

Generally speaking, senators who were interviewed said they support the intent—that states’ rights should be prioritized and thus their cannabis programs should be protected from federal intervention—but several added that they would need to see the exact language of any proposed amendment before stating how they’d vote.

Sen. Lisa Murkowski (R-AK) said in July that “we want to make sure that whether you support legal marijuana or not, those states that have legalized, when people are operating within the laws of those states, we want to make sure those protections are there.”

But in a follow-up interview on Thursday, the senator, who is a member of the Appropriations Committee, said, “I think they’re trying to take in the bites that they can so I respect that they’ve got differing views within the subcommittee on that. I think they were trying to thread the needle.”

Sen. Jerry Moran (R-KS), chair of the CJS Appropriations Subcommittee, told Marijuana Moment that he has “not reached a conclusion” about how he’d vote if an amendment protecting all state cannabis programs was brought up, and he added that it’s “uncertain” where the full Appropriations Committee would come down on it, which is partly why no such measure was introduced.

“It would ultimately make it difficult for this bill to pass,” he said of the amendment. “The end result, I think, would be that CJS becomes another bill that gets sidelined because of controversial issues in it.”

“I wouldn’t be surprised if this is a topic that arrives in the full Senate,” he said.

Sen. Tim Kaine (D-VA) said he believes “that we should” pass a spending bill that includes the cannabis protections.

“I have sponsored legislation to decriminalize marijuana at the federal level and to allow states to make their own rules, so that’s certainly consistent with the position I’ve taken in the past,” he said. “I don’t think we need federal marijuana laws—at this point, we should leave it up to the states.”

“I do think it’s a states’ rights issue,” Sen. Jon Tester (D-MT), another appropriator, said, though he also clarified he’d still need to look at the specific language.

“We should be looking at that and respecting what states have done,” Sen. Catherine Cortez Masto (D-NV) said, adding that she’d be “likely to support” such a proposal.

Others—including Sens. Susan Collins (R-ME) Sen. Ed Markey (D-MA), John Kennedy (R-LA), John Boozman (R-AR) and John Hoeven (R-ND)—said they didn’t have enough information to weigh in on the proposal.

While an amendment to shield all state marijuana laws was ultimately not produced during the Thursday committee markup, there was discussion about the existing rider for medical cannabis protections, which was first enacted in 2014 and has since been extended for each subsequent fiscal year.

Sen. James Lankford (R-OK) raised concerns about cannabis advertising and stated that the spending legislation contains “an affirmation of marijuana for the states that have approved it.”

Like last year, the senator filed an amendment that would gut the existing rider, which this year was included in the base bill as introduced.

“I would just hope in our conversation about [e-cigarette] vaping flavors in the days ahead that we somehow pay attention to how THC is being targeted to children as well,” he said. “We seem to be ignoring that, and I know I’m going to lose this vote so I’m not going to call for it, but I would love to do a dialogue on these issues to say are we really going to ignore the way THC is targeted to kids.”

Listen to the panel’s marijuana conversation, starting at about 2:05:00 into the audio below:

Sen. Richard Shelby (R-AL), the panel’s chairman, chimed in to say that “this issue is not going to go away and it’s going to get worse.”

Moran said during the debate that “there was a bipartisan agreement” on the medical cannabis rider and that it was part of the base legislation “in an effort to limit possible amendments on this topic that may be ever more controversial.” He added that he’d be “personally and professionally very interested in joining the debate about the goals that Senator Lankford wishes to achieve.”

“I have been one who has said, as a state since we have gone that way [by legalizing marijuana], my job is to make sure that what is now legal” is protected, Murkowski said, adding that she remains concerned about children having access to cannabis.

Sen. Dick Durbin (D-IL) noted that Illinois became the latest state to legalize marijuana for adult use earlier this year and that he’s “glad that we are finally leaving the criminalization of marijuana and the wreckage it’s left behind on many people.”

But, citing research restrictions on marijuana caused by its Schedule I status, he said that “health claims are being made for cannabis and its derivatives that are far beyond anything proven by clinical testing, and that should come to an end.”

In separate spending legislation, the Appropriations Committee approved bills last week that include provisions that continue to prohibit Washington, D.C. from using its tax dollars to establish a legal marijuana program and provide funding to the U.S. Department of Agriculture to implement regulations for hemp.

Aaron Houston contributed reporting from Capitol Hill for this story.

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Kyle Jaeger is Marijuana Moment's Sacramento-based senior editor. His work has also appeared in High Times, VICE and attn.

Politics

Federal Agency Loosens Marijuana-Related Grant Funding Restrictions For Mental Health Treatment

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The federal Substance Abuse and Mental Health Services Administration (SAMHSA) loosened restrictions this week on grant funding for state health providers and other entities that allow patients to use medical marijuana for mental heath treatment.

The Pennsylvania Department of Drug and Alcohol Programs flagged the new policy change in a notice to SAMHSA grant recipients on Monday. It said that the federal agency has removed language from its terms and conditions that until now has prevented grant funds from going to any institution that “provides or permits marijuana use for the purposes of treating substance use or mental disorders.”

This restriction led the state department to issue a memo in June warning recipients and applicants about the possible withholding of funding.

Despite the recent change, SAMHSA is still continuing a narrower ban that says federal funds themselves “may not be used to purchase, prescribe, or provide marijuana or treatment using marijuana.”

The broader prohibition, which has now been rescinded, prompted a notice last year from Maine’s Education Department, which said is was no longer eligible for certain federal funds to support mental health programs in schools because the state allows students to access medical marijuana.

It seems the federal agency is now being somewhat more permissive.

Here’s how SAMHSA’s updated marijuana restriction reads:

“SAMHSA grant funds may not be used to purchase, prescribe, or provide marijuana or treatment using marijuana. See, e.g., 45 C.F.R. 75.300(a) (requiring HHS to ensure that Federal funding is expended in full accordance with U.S. statutory and public policy requirements); 21 U.S.C. 812(c)(10) and 841 (prohibiting the possession, manufacture, sale, purchase or distribution of marijuana).”

The older, more broad prohibition read:

“Grant funds may not be used, directly or indirectly, to purchase, prescribe, or provide marijuana or treatment using marijuana. Treatment in this context includes the treatment of opioid use disorder. Grant funds also cannot be provided to any individual who or organization that provides or permits marijuana use for the purposes of treating substance use or mental disorders. See, e.g., 45 C.F.R. § 75.300(a) (requiring HHS to “ensure that Federal funding is expended in full accordance with U.S. statutory requirements.”); 21 U.S.C. §§ 812(c)(10) and 841 (prohibiting the possession, manufacture, sale, purchase or distribution of marijuana). This prohibition does not apply to those providing such treatment in the context of clinical research permitted by the DEA and under an FDA-approved investigational new drug application where the article being evaluated is marijuana or a constituent thereof that is otherwise a banned controlled substance under federal law.”

The marijuana restrictions were first added to grant award terms for Fiscal Year 2020. The language was initially carried over to Fiscal Year 2021 but was more recently switched out for the narrower language by the federal agency.

In a January 2020 FAQ that the Pennsylvania department shared from SAMHSA this June, the federal agency responded to a prompt inquiring whether grant recipients can serve patients who are “very clear about their wish to remain on their medical marijuana for their mental or substance use disorder.”

“No. The organization cannot serve a patient who is on medical marijuana for a mental or substance use disorder and wishes to remain on such treatment,” it said. “SAMHSA promotes the use of evidence-based practices and there is no evidence for such a treatment; in fact, there is increasing evidence that marijuana can further exacerbate mental health symptoms.”

While the agency seemed adamant in enforcing that policy at the time, it appears to have had a change of heart and has since loosened the restriction.

A SAMHSA spokesperson told Marijuana Moment that the new rules took effect on Sunday, but played down their significance.

“This Aug. 1 clarification simply made clearer what was already in place: SAMHSA funds should not be used to procure a federally prohibited substance,” he said in an email.

While it is true that the revised provision, as was the case in the prior language, states that federal funds cannot be used to pay for marijuana, the spokesperson avoided commenting on the new deletion of the broader prohibition on grants going to entities that otherwise allow patients to use medical cannabis to treat substance use or mental disorders.

After SAMHSA announced in 2019 that its marijuana policy would impact organizations applying for its two main opioid treatment programs and another that provides funding to combat alcoholism and substance misuse, the Illinois Department of Human Services and Oregon Health Authority issued notices on the impact of the rule.

Read the Pennsylvania department’s notice on the SAMHSA marijuana policy change below: 

Pennsylvania SAMHSA marijuana by Marijuana Moment

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Mexican Lawmakers Could Finally Legalize Marijuana Sales Next Month (Op-Ed)

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The legislature missed repeated deadlines, and then the Supreme Court moved to allow homegrow. What’s next?

By Zara Snapp, Filter

Mexico has never seemed so close and yet so far from fully regulating the adult-use cannabis market.

first Supreme Court resolution determined in 2015 that the absolute prohibition of cannabis for personal use was unconstitutional because it violates the right to the free development of personality. To reach jurisprudence in Mexico, five consecutive cases, with the same or more votes each time, must be won before the Supreme Court. This was achieved in October 2018, which detonated a legislative mandate that within 90 days, the Senate should modify the articles in the General Health Law that were deemed unconstitutional.

The first deadline came and went without the Senate modifying the articles; so the Senate requested an extension, which was granted. The second deadline to legislate expired on April 30, 2020—but another extension was provided because of the COVID-19 pandemic.

At first, it looked like the third time was the charm. The Senate overwhelmingly approved the Federal Law to Regulate and Control Cannabis in November 2020 and passed it to the Chamber of Deputies, the lower house, for review and approval. Since the deadline of December 15, 2020, was fast approaching, the Chamber asked for its own extension. The Supreme Court granted it (until April 20, 2021) and the bill underwent significant changes before being approved by the Chamber on March 10, and so sent back to the Senate.

The Senate certainly had enough time to review and either reject or accept the changes made by the lower house. That would have made this a shorter story. However, the Senate had other plans. Rather than approve the bill or request an additional extension, it simply did not do anything. June’s national midterm elections were approaching, and political calculations were made. The legislative process came to a standstill.

Since the Senate did not approve the bill by the deadline, the Supreme Court basically did what it had mandated Congress to do. It activated a mechanism to guarantee rights that had only been undertaken once before in Mexican history: the General Declaration of Unconstitutionality (GDU).

On June 28, the Supreme Court approved, with a qualified majority of eight of the 11 Ministers, that two articles in the General Health Law must be modified to permit adults to cultivate cannabis for personal use in their homes.

These changes were officially published on July 15, with specific instructions to the Health Secretary to approve authorizations for any adult who applies.

The GDU has certain restrictions attached, including that this is only for personal use and cannot be used to justify any commercialization of cannabis or cannabis-derived products. Adults cannot consume in front of minors, or other adults who have not expressly given their permission. Nor can they operate heavy machinery or drive while under the effects.

With the GDU, the judicial process concludes. However, the Supreme Court was clear in its final recommendations: Congress can and should legislate to clear up inconsistencies and generate a legal framework for cannabis users.

Whether the Senate decides to take up the matter again in September when it returns to its legislative session will depend largely on its political whim. The body no longer has a deadline to meet; however, there are growing calls from society to regulate the market beyond home-grow, as well as several legal contradictions that obviously need to be harmonized.

The General Health Law has now been modified and the health secretary must approve permits or authorizations for adults to cultivate in their homes. But the Federal Criminal Code has not changed—it still penalizes those same activities with sanctions ranging from 10 months to three years or more in prison.

The Supreme Court decision ignores the need for a comprehensive regulation that would allow the state to apply taxes to commercial activities, which are currently still criminalized with penal sanctions. It also overlooks the urgency of an amnesty program for the thousands of people currently incarcerated on low-level cannabis charges, or hampered by criminal records for such charges.

The Senate should now revisit the bill it initially passed. It should maintain the positive aspects of the bill, which would improve things well beyond the scope of the Supreme Court decision. These include provision for cannabis associations (permitting up to four plants per person for up to 20 members), for home-grow without the need to request authorization, and for a regulated market with a social justice perspective—allocating 40 percent (or more!) of cultivation licenses to communities harmed by prohibition and imposing restrictions on large companies.

The Senate could also build upon the previous version of the bill by eliminating simple possession as a crime, by allowing the associations to operate immediately and guaranteeing the participation of small and medium companies through strong government support.

During the last three years, and before, civil society has closely accompanied the process of creating this legislation, providing the technical and political inputs needed to move forward in a way that could have great social benefits for Mexico.

By becoming the third country in the world to regulate adult cannabis use, after Uruguay and Canada, Mexico could transition from being one of the largest illegal producers to being the largest legal domestic market in the world. As well as economic benefits, this could have substantial impacts on how criminal justice funds are spent, freeing up law enforcement dollars to focus on high-impact crimes and changing the way the state has shown up in communities that cultivate cannabis.

Rather than eradicating crops, the government could accompany communities in gaining legal licenses, provide technical assistance and improve basic services. These positive externalities of regulation could signal a shift from a militarized state of war to a focus on rights, development and social justice.

Of course, this all depends on key political actors recognizing the benefits—and that requires political will. Mexico deserves better; however, it remains to be seen whether legislators will act.

This article was originally published by Filter, an online magazine covering drug use, drug policy and human rights through a harm reduction lens. Follow Filter on Facebook or Twitter, or sign up for its newsletter.

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Oregon Governor Plans To Veto Bill To Regulate Kratom Sales That Advocates Say Would Protect Consumers

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The governor of Oregon has announced her intent to veto a bill that’s meant to create a regulatory framework for the sale and use of kratom for adults.

The Oregon Kratom Consumer Protection Act is bipartisan legislation that would make it so only people 21 and older could purchase the plant-based substance, which some use for its stimulating effects and which others found useful in treating opioid withdrawals.

Vendors would have to register with the state Department of Agriculture to sell kratom. The agency would be responsible for developing regulations on testing standards and labeling requirements. The bill would further prohibit the sale of contaminated or adulterated kratom products.

But while the House and Senate approved the legislation in June, Gov. Kate Brown (D) said on Sunday that she plans to veto it, in large part because she feels the federal Food and Drug Administration (FDA) is better suited to regulate the products.

“Given there is currently no FDA-approved use for this product and there continues to be concern about the impacts of its use, I would entertain further legislation to limit youth access without the state agency regulatory function included in this bill,” the governor said.

This comes as a disappointment to advocates and regulators who share concerns about the risks of adulterated kratom but feel a regulatory framework could help mitigate those dangers and provide adults with a safe supply of products that have helped some overcome opioid addiction.

“Kratom has been consumed safely for centuries in Southeast Asia and Americans use it in the same way that coffee is used for increased focus and energy boosts. Many use kratom for pain management without the opioid side effects,” Rep. Bill Post (R), sponsor of the bill, wrote in an op-ed published in June. “The problem in Oregon is that adulterated products are being sold.”

“Kratom in its pure form is a natural product,” he said. “Adulterated kratom is a potentially dangerous product.”

Pete Candland, executive director of the American Kratom Association, said in written testimony on the bill in February that four other states—Utah, Georgia, Arizona and Nevada—have enacted similar legislation with positive results.

He said that “the number of adulterated kratom products spiked with dangerous drugs like heroin, fentanyl, and morphine in those states has significantly decreased” in those states.

Meanwhile, six states—Vermont, Alabama, Indiana, Wisconsin, Arkansas and Rhode Island—have banned kratom sales altogether.

Candland said that number is actually a testament to the noncontroversial nature of the plant, as prohibition is only in effect in six states despite “a full-throated disinformation campaign on kratom by the FDA with outrageously untrue claims about kratom being the cause of hundreds of deaths.”

After failing to get kratom prohibited domestically, FDA recently opened a public comment period that’s meant to inform the U.S. position on how the substance should be scheduled under international statute.

“Kratom is abused for its ability to produce opioid-like effects,” FDA wrote in the notice. “Kratom is available in several different forms to include dried/crushed leaves, powder, capsules, tablets, liquids, and gum/ resin. Kratom is an increasingly popular drug of abuse and readily available on the recreational drug market in the United States.”

Responses to the notice will help inform the federal government’s stance on kratom scheduling in advance of an October meeting of the World Health Organization’s (WHO) Expert Committee on Drug Dependence, where international officials will discuss whether to recommend the substance be globally scheduled.

Last week, the U.S. House of Representatives approved a report to spending legislation that says federal health agencies have “contributed to the continued understanding of the health impacts of kratom, including its constituent compounds, mitragynine and 7-hydroxymitragynine.”

It also directed the Health and Human Services secretary to continue to refrain from recommending that kratom be controlled in Schedule I.

Late last year, the Agency for Healthcare Research and Quality (AHRQ) asked the public to help identify research that specifically looks at the risks and benefits of cannabinoids and kratom.

The Centers for Disease Control and Prevention (CDC) last year separately received more than one thousand comments concerning kratom as part of another public solicitation.

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