With a congressional committee set to hold a first-ever hearing on ending federal marijuana prohibition on Wednesday, debate among legalization advocates over which piece of cannabis reform legislation would be the most effective and politically achievable is intensifying.
A key part of that conversation concerns the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act, which would amend the Controlled Substances Act (CSA) to exempt state-legal marijuana activity from federal enforcement actions.
Advocates broadly agree that passage of the STATES Act would represent a momentous development in the reform movement, providing protections for many marijuana consumers and businesses in legal states. But questions remain about what specifically the legislation would accomplish and whether it goes far enough.
Moreover, there’s disagreement about whether lawmakers and activists should invest their political capital and efforts into the bill when several others on the table—such as the Marijuana Justice Act (MJA), the Marijuana Freedom and Opportunity Act and others—would make broader changes to federal drug policy and include social equity provisions that are increasingly seen as vital components of any reform agenda.
It’s a complicated situation that will likely spark discussion at Wednesday’s hearing before the House Judiciary Crime, Terrorism and Homeland Security Subcommittee. The panel has released few advance details about the meeting’s scope, but its title alone—”Marijuana Laws in America: Racial Justice and the Need for Reform”—indicates that the debate will go beyond merely whether to legalize and instead delve into specifics on charting the best path beyond prohibition.
A staffer for the committee said in a press advisory on Tuesday that the hearing “will not focus exclusively on any one aspect of marijuana laws or any particular legislative proposal.” Rather, it “will address the breadth of the issue and inform future legislative efforts.”
“For the first time in recent history, the Judiciary Committee is going to be having a candid conversation about what reform should look like and how federal criminalization impacts the existing tension between state-legal programs and what changes in federal policy will impact and influence future reform efforts made at the state level to end the practice of otherwise law-abiding adults being put into handcuffs or discriminated against and treated like second-class citizens,” Justin Strekal, political director of NORML, told Marijuana Moment.
For some advocates, the path to ending prohibition doesn’t lead to the STATES Act. Instead, it leads to more comprehensive reform legislation à la the MJA, a bill introduced by Sen. Cory Booker (D-NJ) that would not only remove cannabis from the CSA altogether—something STATES doesn’t do—but also provide for record expungements and penalize individual states that carry out cannabis prohibition in a discriminatory manner by withholding certain federal funds.
Booker, a 2020 Democratic presidential candidate, cosponsored last year’s version of the STATES Act. But he withheld his signature from this latest version, stating that he would no longer consider marijuana reform proposals that don’t address social equity concerns.
The path could also lead to legislation from Senate Minority Leader Chuck Schumer (D-NY), whose Marijuana Freedom and Opportunity Act would deschedule marijuana and apportion some tax revenue from legal cannabis sales to a grant program aimed at incentivizing participation in the industry by individuals from communities disproportionately impacted by prohibition. It would also set aside funding to support the expungement of cannabis convictions.
A less-talked-about bill from Rep. Tulsi Gabbard (D-HI), another 2020 presidential contender, would also remove cannabis from the CSA—and with Rep. Don Young (R-AK) as an original sponsor, it’s uniquely bipartisan descheduling legislation.
House Judiciary Committee Chairman Jerrold Nadler (D-NY) is also said to be crafting a far-reaching marijuana bill that is expected to include social equity provisions, though details are scarce and advocates expect it will be filed sometime in the wake of this week’s hearing.
The STATES Act, by comparison, is a modest reform proposal that social justice activists have argued is inadequate, especially as momentum builds across the country for wide-ranging measures that place an emphasis on equity.
That momentum was on full display on Tuesday, as 10 leading civil rights and criminal justice reform groups including the ACLU announced that they’d formed a coalition in order to advocate for comprehensive marijuana legislation. Among other things, the Marijuana Justice Coalition said that any reform plan should involve descheduling cannabis, expunging the records of those with past marijuana convictions and investing revenue from legal sales into communities that have been disproportionately impacted by prohibition.
However, proponents of passing the STATES Act—including Cannabis Trade Federation CEO Neal Levine, who will testify as the minority party’s witness at the Judiciary hearing on Wednesday—aren’t arguing that Congress shouldn’t pursue bills like the MJA. Rather, he says, it’s a matter of timing and political calculus about what kind of reform is achievable and can help stop many ongoing harms of prohibition in the short term.
Levine, who previously served as the director of state campaigns and policies at the Marijuana Policy Project, told Marijuana Moment that his organization and its allies have a strategy in place proven to get positive cannabis reform legislation enacted: “We passed as much as we could as fast as we could and we built upon it,” he said, referring to incremental cannabis bills that were passed in states and were later expanded through more far-reaching reforms. “That is our general strategy.”
And for the time being, the bill that stands the best odds of getting enacted into law is the STATES Act, he argues. There’s “not a lot of political will to go far beyond” that bill in the Senate today, and Levine said that if it does pass, it wouldn’t take the wind out of the sails of broader reform legislation—it will add to it.
“What we want to see is the full end of prohibition with full expungements. Period,” Levine said. “If we took a whip count of the U.S. Senate and we found that the Marijuana Justice Act had 60 votes and a credible path, we’d be all in on the Marijuana Justice Act. We want to see prohibition end.”
Levine will make that case on Wednesday. An excerpt of his written testimony that was released on Tuesday reads:
“We have a long way to go with respect to reversing the harms caused by marijuana prohibition and need to begin the process as soon as possible. The question before this Subcommittee and before Congress is whether there is a willingness to advance a bill to the President’s desk that will immediately address nearly all of the issues I have raised. With strong bipartisan support for legislation like the STATES Act, it is possible during the current session of Congress to take major steps toward respecting state cannabis laws, protecting workers, and advancing a more secure, vibrant, and equitable cannabis industry. We hope that Congress will take advantage of the opportunity.”
Other advocates are concerned that with only so much time left on the congressional calendar, and an uncertain Capitol Hill and White House situation going forward after next year’s elections, they may only get one bite at the apple to change federal cannabis laws for the foreseeable future—and the STATES Act isn’t the bite they hope to savor.
The STATES Act is, by most measures, one of the most practical pieces of marijuana reform legislation that stands any chance of being enacted in the 116th Congress. It has a states’ rights focus that has engendered bipartisan support, with notable Republicans signed on as original cosponsors for both the House and Senate versions. Sen. Cory Gardner (R-CO) and Rep. Dave Joyce (R-OH) are behind the bill, and both can exercise influence in their respective chambers to get it out the gate and onto the president’s desk.
That leads into another significant factor: President Donald Trump has said that he “really” supports the STATES Act. Following conversations with Trump on the issue, Gardner said he was left with the impression that there is “an ally in the president on this” and that he’d be inclined to sign the bipartisan bill.
The Colorado senator’s advocacy for the legislation could also open an essential window for advancement in the Senate, which is overseen by Majority Leader Mitch McConnell (R-KY), a vocal proponent of hemp but a staunch opponent to the crop’s “illicit cousin” marijuana. McConnell might be compelled to bring the bill to a floor vote if he’s thinking strategically about how to minimize Gardner’s 2020 reelection risks in Colorado by giving him a win to bring home to voters who want the federal government out of the way of their state’s cannabis laws.
While it is far from certain that McConnell will end up allowing the STATES Act to advance under his watch, it seems much more unlikely that the Senate leader would be willing to give that courtesy to even more wide-ranging legislation focused on social equity.
The STATES Act also received an unexpected tacit endorsement in April: Attorney General William Barr said that while he does not support legalization, he would prefer for the modest reform legislation to pass rather than maintain the status quo of conflicting state and federal laws.
Levine said that getting the STATES Act passed wouldn’t represent the finish line for the reform movement. It would be a critical step forward, to be sure, but not the end game. He’s of the mindset that the bill would be a battle won in the war against prohibition, and it would demonstrate momentum that would bolster efforts to enact further legislation that addresses related issues like social equity.
Strekal said that Wednesday’s historic hearing—and particularly the Republican minority’s choice of Levine as their sole witness—shows “the evolution and the paradigm shift that has been made over just the last few years, where the new floor is the STATES Act and a bipartisan compromise is somewhere between the STATES Act and something along the lines of the Marijuana Justice Act.”
There are some concerns about just how far the STATES Act’s protections would extend, though. Without explicitly descheduling cannabis, the plant would remain a federally controlled substance in any states that haven’t legalized it, potentially resulting in enforcement complications.
Would the legislation offer protections for immigrants seeking citizenship and who work in a state-legal market, which is currently grounds for having naturalization applications rejected under federal immigration policy?
One could argue that it would, as the STATES Act specifies that conduct described in the legislation—including the manufacturing, possession, distribution, dispensation, administration or delivery of marijuana in states where it’s legal—”shall not be unlawful.” But because the federal government would still regard cannabis as illicit under the CSA and the bill doesn’t provide specific protections for immigrants, some question what practical impact, if any, the STATES Act would have.
“The STATES Act will not protect immigrants who work in the legitimate marijuana industry from the current severe immigration penalties,” the Immigrant Legal Resource Center (ILRC) concluded in a May memo. “These penalties also will apply to their spouses and minor children.”
(See the full ILRC memo on the STATES Act embedded below.)
“In contrast, bills that remove marijuana as a Schedule I controlled substance will protect against all the above consequences,” ILRC wrote. “They will remove severe immigration penalties from employees of the legitimate marijuana industry and their families. They will remove those penalties from people who use marijuana in accord with, or in violation of, state law.”
Without specific language addressing the immigration issue, it’s within reason to assume that it may be a matter taken up in court. And considering the difficulties that many immigrants face in securing effective legal representation, there are worries that the STATES Act alone wouldn’t be enough to protect them.
By contrast, CTF’s Steve Fox argued in a call-to-action email in April that the existing language and the protections if offers generally to those working in the state-legal cannabis market demonstrates that lawmakers can “help remedy this problem by passing the STATES Act.”
“We are upset by the suggestion that hard-working cannabis industry employees lack good moral character simply for working in our industry,” Fox wrote in the message urging supporters to contact lawmakers about the STATES Act. “It is even worse that some employees may be denied citizenship for this work.”
Separately, some have raised questions about what the STATES Act would do to resolve banking issues in the cannabis industry.
The bill does note that “proceeds from any transaction in compliance with this Act and the amendments made by this Act shall not be deemed to be the proceeds of an unlawful transaction,” but there are still questions about how it would impact banks that operate in multiple states and transfer cash between branches, including those situated in jurisdictions that still prohibit marijuana.
It’s possible that some of these potential limitations will be discussed at Wednesday’s hearing. But don’t expect the STATES Act to be the only object of legislative interest. Michael Collins, director of national affairs at the Drug Policy Alliance, told Marijuana Moment that all signs point toward a conversation centered on social equity and racial justice—something that the STATES Act doesn’t address.
“I get that impression from the hearing, the way it’s structured, the witnesses they’ve called,” Collins said. “[Democratic] leadership in the House is not open to moving the STATES Act, otherwise the hearing would be different and the witnesses would be different. Some Republicans are open to STATES Act in the House, but it doesn’t have a path” in the Senate.
Levine said he sees the fate of the STATES Act in the Senate differently. The path might be precarious, but it’s achievable, he said.
While the two advocacy camps hold differing views on the best next step toward advancing cannabis reform, one possibility would be to try a dual approach, pushing the STATES Act to a vote in the Senate while the House weighs a broader bill like the MJA. Such activity could open dialogue between the chambers about potential compromises, or at least push social equity provisions closer to the forefront of the conversation.
Collins said that, in his view, “there’s recognition that we can do better than STATES” among Democrats. And if there’s not a clear path for the legislation to get passed and on the president’s desk, it’s in the party’s interest to take up bills that do include provisions focusing on social and racial justice—that do more than protect business interests in legal states and also acknowledge and seek to repair the damages of the war on drugs.
(Full disclosure: CTF, DPA and NORML, or their staffers, have all sponsored or supported Marijuana Moment through Patreon pledges.)
Read the full ILRC memo on marijuana bills and immigration below:
Photo courtesy of Philip Steffan.
White House Completes Review Of CBD Guidance From FDA
The White House recently completed its review of pending Food and Drug Administration (FDA) guidance on marijuana and CBD research—though it remains to be seen whether the draft document will ultimately be released to the public.
FDA submitted its proposed plan—titled “Cannabis and Cannabis-Derived Compounds: Quality Considerations for Clinical Research”—to the Office of Management and Budget (OMB) in May. Few details are known about its contents, but an FDA spokesperson previously told Marijuana Moment that it could inform the agency’s approach to developing regulations for the marketing of CBD.
OMB finished its review last week, as first reported by InsideHealthPolicy. This comes days after a spending bill for FDA was released that includes a provision providing “funding to develop a framework for regulating CBD products.”
Despite the review being finalized, however, an FDA representative told Marijuana Moment on Friday that the agency “cannot provide an update of when (or even if) this guidance will issue.”
“It will be announced via the Federal Register should it move to publication,” they said.
It’s not entirely clear why the guidance wouldn’t be published in the end, but it may take some time for FDA to implement any edits suggested by the White House over the past month, and it’s possible there are additional layers of review beyond OMB that could determine when and whether it will be finalized.
It also remains to be seen whether FDA plans to wait for this specific guidance to be finalized and for the resulting research to be completed before it gets around to issuing final rules for CBD products in general. Stakeholders have been eagerly awaiting those regulations so they can fully take advantage of the legalization of hemp and its derivatives.
Former FDA Commissioner Scott Gottlieb said in May that White House policies requiring OMB to review scientific documents in the first place represent an onerous step that’s delayed the issuance of guidance.
Beyond sending the draft research plan to the White House for review, FDA is also soliciting public input about the safety and efficacy of CBD in comment period it has decided to keep open indefinitely. The agency said in an update to Congress in March that it has several specific questions it wants answered before deciding whether the cannabidiol can be lawfully marketed. That includes questions about the impact of different methods of consumption and drug interactions.
This week, FDA submitted a report to Congress on the state of the CBD marketplace, and the document outlines studies the agency has performed on the contents and quality of cannabis-derived products that it has tested over the past six years.
In the meantime, FDA is maintaining enforcement discretion when it comes to action against companies that sell CBD products regardless of the lack of regulations and has said it is currently targeting sellers that make especially outlandish or unsanctioned claims about the therapeutic value of their products.
It sent a warning letter to a CBD company owned by a former NFL player after advertisements it displayed suggested its products could treat and prevent a coronavirus infection, for example.
FDA sent a letter warning to a company about its marketing of injectable CBD products that led to a voluntary recall in May.
The agency also publicized a voluntary recall of another CBD product from a different company, notifying consumers about potentially high levels of lead in a batch of tinctures.
FDA has previously issued warnings to other CBD companies that have made unsubstantiated claims about the therapeutic potential of their products.
Photo by Kimzy Nanney.
Veterans Working In Marijuana Industry Aren’t Automatically Blocked From Home Loans, VA Says
The U.S. Department of Veterans Affairs (VA) recently clarified to Congress that it does not have a policy automatically barring veterans from receiving home loans solely because they work in the marijuana industry—and now a key House committee is asking the department to better communicate that to lenders and would-be borrowers.
For the past year, Rep. Katherine Clark (D-MA) and other lawmakers have been pressing VA on difficulties some veterans have faced in securing the benefit, with at least one constituent telling Clark that they were denied a home loan because of their work in the state-legal cannabis market. That prompted the congresswoman to circulate a sign-on letter and introduce an amendment to resolve the problem.
However, in a report submitted to Congress last month that was obtained by Marijuana Moment, VA said there is no policy on the books that calls for home loan denials due to employment at a cannabis business. Instead, the department clarified that conflicting state and federal laws makes it “difficult to prove the stability and reliability of cannabis-derived income,” which are key factors in determining loan eligibility.
“VA is committed to working diligently to serve our Nation’s Veterans by providing eligible Veterans with home loan guaranty benefits,” VA said. “There is nothing in VA statutes or regulations that specifically prohibits a Veteran whose income is derived from state-legalized cannabis activities from obtaining a certificate of eligibility for VA home loan benefits. However, given the disparity between Federal and State laws on cannabis, determining whether such a Veteran is able to obtain a loan has become a complex issue.”
A person’s “reliance on [marijuana-derived] income may hinder a Veteran’s ability to obtain a VA-guaranteed home loan, a result that is consistent with other federal housing programs,” the report states. “VA also notes that many lenders have established their own income thresholds and policies on overlays, which are often more stringent than VA’s requirements, to ensure that the VA-guaranteed loan will be purchased by an investor in the secondary mortgage market.”
In other words, individual lending companies may be denying home loans to veterans because the cannabis industry-derived income they would use to pay back loans isn’t necessarily stable and reliable due to the fact that federal officials could shut down their employers at any time.
If that’s the case, then it doesn’t appear it would be necessary to pass legislation targeting the narrow issue in the way lawmakers did last year. Clark’s amendment to address the problem was approved by the House as part of a defense spending bill—though leaders in the chamber agreed to scrap it after the Senate didn’t include it in its version of the legislation.
The House Appropriations Committee also approved report language last year attached to the bill that funds VA expressing concern that the department “has never publicly stated its position on this matter, hindering Veterans’ ability to fully understand and consider how employment decisions could affect future eligibility for earned benefits.”
The newly released explanation from VA is a result of that provision.
Now, for the next fiscal year, a new report attached to the latest Military Construction, Veterans Affairs, and Related Agencies spending bill acknowledges VA’s recent policy clarification—but lawmakers are asking the department to do more.
“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 report states. “The Committee directs the VA to improve communication with eligible lending institutions to reduce confusion among lenders and borrowers on this matter.”
Clark told Marijuana Moment that “no veteran should be denied benefits simply because they work within the legal cannabis industry.”
“This must be crystal clear in our laws and communicated directly to both borrowers and lenders,” the congresswoman said. “By including this language, we’re eliminating any doubt about the rights of our service members and protecting their ability to access what they’ve rightfully earned.”
In other veterans and cannabis news this year, the Congressional Budget Office released an analysis on a marijuana research bill for veterans and determined that it would have no fiscal impact. And a federal commission issued recommendations to promote research into the therapeutic potential of both cannabis and psychedelics such as psilocybin mushrooms and MDMA.
Read VA’s report on its home loan policy for veterans working in the marijuana industry below:
Photo courtesy of Mike Latimer.
Idaho Medical Marijuana Activists Ask State For Electronic Signature Gathering Option Following Court Ruling
Idaho activists have formally requested that the state allow them to collect signatures electronically for a medical cannabis legalization initiative following a series of federal court rulings on the issue in a case filed by a separate campaign.
While the signature submission deadline passed in May, advocates for an education funding campaign filed a suit against the secretary of state, arguing that social distancing restrictions that were put in place due to the coronavirus pandemic meant the state should give them more time to digitally petition. The judge agreed and ordered the state to allow them to do so for 48 days starting Thursday.
The marijuana reform campaign feels that the same relief should be extended to them as well, and an attorney representing the group sent a letter to the secretary of state this week, asking that the Elections Division also provide cannabis activists with the digital petitioning and deadline extension concessions that the federal judge granted to the education funding group.
In one of the latest developments, the state’s request to the U.S. Court of Appeals for the Ninth Circuit to temporarily force the suspension of electronic signature gathering was denied on Thursday, though the appeal on the broader case is ongoing. That’s given the cannabis activists more hope as they pursue legal routes to have the lower court’s ruling apply to them.
BREAKING: State of Idaho's request to block our e-signature drive for K-12 funding DENIED by the Ninth Circuit Court of Appeals. It's time to give Idaho voters a chance to do what those in power refuse to do: Save our schools from deep budget cuts & invest in our children. #idpol
— Luke Mayville (@lukemayville) July 9, 2020
Russ Belville, campaign spokesperson for the Idaho Cannabis Coalition, told Marijuana Moment that the group was “thrilled” to see the appeals court refuse to stay the electronic signature gathering decision.
“Our attorneys are working to convince the state to provide our Idaho Medical Marijuana Act petition the same electronic signature gathering relief, as we have suffered the same infringement of our petitioning rights,” he said. “It’s a shame it takes a pandemic to even consider allowing electronic signatures on petitions. Idaho should make every effort to make exercising our rights as easy as possible, especially for sick, disabled, elderly, infirm and rural folks without easy access to an in-person petitioner.”
In the new letter to Idaho Secretary of State Lawerence Denney, attorney Bradley Dixon said his client “has standing to pursue a remedy given the impact that the COVID-19 restrictions have had upon it.” The campaign “can show (1) they have suffered an injury in fact, which is both concrete and particularized, and actual or imminent; (2) their injury is fairly traceable; and (3) their injury will likely be redressed by a favorable outcome.”
“Moreover, just like Reclaim Idaho, as illustrated above, our client can show that it was diligent in collecting signatures and had adopted a thorough plan to achieve ballot success in advance of the unforeseeable coronavirus outbreak. Considering the merits of a possible case, our client’s First and Fourteenth Amendments rights have been harmed because the State of Idaho and its agents did not provide an alternative means to signature collection during the stay at home order, or during any of the phased reopening stages.”
The state’s stay-at-home order “made it impossible to retrieve all statutorily-required signatures because of both the reduction in time to collect such signatures, and the deadline date to obtain signatures falling on the same day as the end of the stay at home order,” the attorney said.
If the campaign is ultimately allowed to proceed with signature gathering, they will need 55,057 valid signatures to qualify for the November ballot. Activists said they have about 45,000 unverified signatures on hand at this point, and they’re confident that can fill the gap if they get the deadline extension and electronic petitioning option.
The group has indicated it is prepared to seek relief directly from the courts if the secretary of state does not comply with their request to his office.
Under the proposed ballot measure, patients with qualifying conditions could receive medical cannabis recommendations from physicians and then possess up to four ounces of marijuana and grow up to six plants.
Advocates say that passing medical cannabis in one of the remaining states without such policies on the books would be a significant victory for patients in its own right—but it could also have outsized federal implications. A House-passed bill to protect banks that service state-legal cannabis businesses from being penalized by federal regulators is currently pending action in a Senate committee chaired by a senator who represents the state.
Creating a medical marijuana program in Idaho, which is one of small handful of states that don’t yet even have limited CBD laws, could put additional pressure on Senate Banking Committee Chairman Mike Crapo (R-ID) to move the financial services legislation in Congress.
Read the letter to the secretary state on allowing electronic signature gathering for medical marijuana below: