The U.S. Department of Veterans Affairs really wants the military veterans it is charged with serving to know that it isn’t going to do anything to help them access medical marijuana.
While longstanding VA policy has been to disallow government physicians from helping veterans qualify for state medical cannabis programs, a new update to the department’s website sends the message even more clearly — even though it misstates what the law actually is.
“Veterans should know that federal law classifies marijuana – including all derivative products – as a Schedule One controlled substance. This makes it illegal in the eyes of the federal government,” the department’s VA and Medical Marijuana webpage was updated to read this week. “The U.S. Department of Veterans Affairs is required to follow all federal laws including those regarding marijuana. As long as the Food and Drug Administration classifies marijuana as Schedule One VA health care providers may not recommend it or assist Veterans to obtain it.”
That’s not true, at least inasmuch as there is no overarching federal law that prevents V.A. from allowing its doctors to recommend medical cannabis, even though the drug is still considered illegal under federal law.
A leading Congressional champion of veterans’ medical cannabis access told Marijuana Moment that he’s concerned about the new VA website edit.
“This new language is very disturbing, but sadly, comes to no surprise. For years, the VA has been throwing up serious barriers to veterans’ safe access to cannabis,” Congressman Earl Blumenauer (D-OR) said in an emailed statement. “Yet, it’s had no problem prescribing them highly addictive opioids that have killed thousands. It makes no sense. Our veterans deserve better. They deserve equal treatment from the VA doctors who know them best.”
“VA clinicians may not recommend medical marijuana,” the newly update page says. The older version more correctly, though somewhat misleadingly, said, “VA clinicians may not prescribe medical marijuana.” [Italicized emphasis added.]
The distinction between recommendation and prescription is an important one. No physician in the U.S. — government or private — can prescribe marijuana, because prescription is a federally-regulated process and cannabis currently falls under the Controlled Substances Act’s restrictive Schedule I. That category is supposed to be reserved for drugs with a high potential for abuse and no medical value.
That’s why the 29 states with medical cannabis access allow doctors to simply recommend the drug, circumventing the prescription process.
Even with marijuana’s Schedule I status, there is nothing in federal law that prevents V.A. from allowing its doctors to fill out medical cannabis recommendation forms in states where it is legal.
The only thing standing in the way is V.A.’s own internal policy, something that Veterans Affairs Secretary David Shulkin can change at any time.
VA SECRETARY MISSTATES FEDERAL LAW
Shulkin has on a number of occasions indicated that he does see medical potential for marijuana but has consistently falsely claimed that Congressional action is needed before he can do anything to increase veterans’ access. And he has often used the term “prescribe” — intentionally or not — as something of a distraction from the real issue of recommendations. But the new VA website update addresses recommendations, albeit incorrectly.
During a White House briefing earlier this year, Shulkin said that state medical cannabis laws may be providing “some evidence that this is beginning to be helpful, and we’re interested in looking at that and learning from that.” But he added that “until time the federal law changes, we are not able to be able to prescribe medical marijuana for conditions that may be helpful.”
In a separate interview, he said, “From the federal government point of view, right now we are prohibited by law from doing research on it or prescribing it… We are not going to be out there doing that research or prescribing these different medicinal preparations unless the law is changed.”
In another interview, he said that it is “not within our legal scope to study that in formal research programs or to prescribe medical marijuana, even in states where it’s legal.” He added, “if a law change at the federal level is appropriate, that could happen.”
Shulkin, who previously served in the Obama administration as V.A.’s undersecretary of health, wrote in a letter last year that he “wholeheartedly agree[s] that VA should do all it can to foster open communication between Veterans and their VA providers, including discussion about participation in state marijuana programs.” He went so far as to say that he “recognize[s] that the disparity between Federal and state laws regarding the use of marijuana creates considerable uncertainty for patients, providers, and Federal, state, and local law enforcement personnel.”
Under a current internal V.A. administrative directive, the department’s policy is “to prohibit VA providers from completing forms seeking recommendations or opinions regarding a Veteran’s participation in a State marijuana program.” The directive technically expired on January 31, 2016, but remains in force in practice until a new one is instituted to replace it.
In July, Shulkin announced that a new directive is in the final stages of internal review. While he didn’t reveal what it will say, he wrote in a letter to a U.S. House member that it would “maintain the same policy” as the earlier directive.
A bipartisan group of members of the House and Senate has tried over the years to pass legislation forcing the VA’s hand on medical cannabis, but has been consistently blocked by Congressional leadership.
Most recently, Republican-controlled House Rules Committee blocked an amendment on the issue from even being considered on the floor this summer. But a rider preventing VA from spending money to enforce its existing internal ban is in the Senate version of 2018 spending legislation, and so the issue will be decided by a conference committee that later merges both chambers’ bills into a single proposal.
Last year, however, both the House and Senate approved different version of the medical cannabis language but the conference committee removed both of them from the final bill.
VETERANS ADVOCATES PUSH FOR CHANGE
The American Legion, which represents more than 2.4 million military veterans, has been pressuring the federal government to evolve on medical cannabis. Most recently, in August, it adopted a resolution calling on VA to let its doctors write medical marijuana recommendations.
“More than half the states in the union have passed medical marijuana laws to date,” the group’s resolution reads. “The American Legion urge the United States government to permit VA medical providers to be able to discuss with veterans the use of marijuana for medical purposes and recommend it in those states where medical marijuana laws exist.”
The Legion and other medical cannabis advocates have also called for rescheduling and pressed VA to stop blocking federally-approved researchers from recruiting veterans for research on medical cannabis.
One such study on marijuana’s effects on PTSD has been prevented from reaching veterans at the Phoenix, Arizona VA hospital.
“This study needs 50 more participants and the Phoenix VA is in the best possible position to assist by simply allowing principle investigators to brief [VA] medical staff on the progress of the study, and by allowing clinicians to reveal the existence of the study to potential participants,” the Legion wrote to Shulkin last month. “Your immediate attention in this important matter is greatly appreciated. We ask for your direct involvement to ensure this critical research is fully enabled.”
MORE VA WEBSITE CHANGES
Other new changes to the V.A. webpage include the removal of bullet points that read, “VA doctors and clinical teams may advise Veterans who use marijuana of the drug’s impact on other aspects of the Veterans’ care such as pain management, PTSD or substance use disorder treatment” and “VA doctors and clinical staff will record marijuana use in the Veterans VA medical record along with its impact on the Veterans treatment plan.”
In their place, the page now says, “VA health care providers will record marijuana use in the Veterans VA medical record in order to have the information available in treatment planning. As with all clinical information, this is part of the confidential medical record and protected under patient privacy and confidentiality laws and regulations.”
An existing point reading, “The use or possession of marijuana is prohibited at all VA medical centers, locations and grounds,” was followed up with a new clarification that says, “When you are on VA grounds it is federal law that is in force, not the laws of the state.”
The department does make it clear that “veteran participation in State medical marijuana program does not affect eligibility for VA care and services.” That longstanding policy means that patients won’t lose access to their government-provided healthcare just because they use medical cannabis.
But, until Shulkin acts to change the internal prohibition or Congress steps in and forces his hand, the VA isn’t going to do anything to help veterans get medical cannabis.
Photo courtesy of U.S. Air Forces Special Operations Command.
California Governor Says Marijuana Legalization Is A ‘Civil Rights’ Matter Amid Mass Protests Over Racial Injustice
The governor of California discussed systemic racism and injustice that is inspiring mass protests across the country in a Friday speech, and he touted the state’s legalization of marijuana as an example of how it has addressed racial disparities in the criminal justice system.
Gov. Gavin Newsom (D) said at a press conference that he’s “very proud of this state” for going beyond issues such as implicit bias in policing and the “deadly use of force.” California’s leadership helped advance “a conversation about broader criminal justice reform to address the issues of the war on drugs” and “race-based sentencing,” he said.
“That’s why the state was one of the early adopters of a new approach as it relates to cannabis reform. Legalization around adult-use of marijuana,” he said. “It was a civil rights call from our perspective.”
“I was proud to be out in front in those efforts,” he added. “It was about addressing the disparities. It was about addressing incarceration. It was about addressing the ills of this war on drugs.”
Newsom also discussed the racially discriminatory sentencing of crack versus powder cocaine and other mandatory minimum sentencing policies. While the federal disparity was reduced over time since Congress passed the sentencing provision—a policy presumptive Democratic presidential nominee Joe Biden helped enacted during his time in the Senate and later sought to undo—California eliminated the distinction in terms of state sentencing in 2014.
Even so, the governor recognized that the reforms the state has enacted to date are “not enough” and more work needs to be done. He’s also not alone in drawing a connection between drug policy reform and racial justice.
Earlier this week, the governor of Virginia said that the passage of marijuana decriminalization legislation this year represents an example of how his state has addressed racial inequities that are inspiring mass protests over recent police killings of black Americans such as George Floyd and Breonna Taylor.
Sen. Cory Booker (D-NJ) also recently said racial disparities in marijuana criminalization is an example of a systemic injustice that underlies the frustration of minority communities.
Last week, 12 House members introduced a resolution condemning police brutality and specifically noting the racial injustices of the war on drugs. It now has 160 cosponsors.
The measure came one week after 44 members of the House sent a letter to the Justice Department, calling for an independent investigation into a fatal police shooting of Taylor in a botched drug raid.
In New York, there’s a renewed push to pass a package of criminal justice reform legislation that includes a bill to legalize marijuana. Sen. Julia Salazar (D) told Marijuana Moment that “in this particular moment, I think what’s the important factor here is that [criminalization] disproportionately impacts black and brown New Yorkers.”
“Because of the criminalization of the use of marijuana, more black and brown New Yorkers have interactions with police than they need to,” she said. “More people end up in the criminal justice system in the first place than is necessary at all.”
Image element courtesy of Gage Skidmore.
American Bar Association Says Firms Working ‘Indirectly’ With Marijuana Industry Should Get COVID Relief
The American Bar Association (ABA) sent a letter to the heads of the Treasury Department and Small Business Administration (SBA) on Friday, urging them to end a current policy preventing law firms that service state-legal marijuana businesses from receiving federal coronavirus relief.
SBA has made clear that cannabis companies are ineligible for its Paycheck Protection Program (PPP) loans—but its policy also bars those that work with marijuana businesses indirectly from getting the aid. ABA, which has nearly 200,000 dues-paying members, said it wants clarification or a formal policy change to make it so indirect businesses are not impacted.
“The ABA supports amending federal law to ensure that lawyers do not face the threat of criminal charges when they represent clients in states that have legalized marijuana,” the organization said. “Even before those changes are made to federal law, lawyers should also not be penalized for providing legal services to cannabis-related businesses that comply with state laws.”
ABA also argued that the policy is excessively broad in that it stipulates that companies that derive any revenue from servicing a cannabis business cannot receive relief during the pandemic. “Thus, a law firm where a single lawyer provided advice to a single marijuana business client on legal issues for a nominal fee would arguably be ineligible under this language for the SBA PPP loan program,” the organization wrote.
ABA’s letter further notes that 78 percent of firms are located in states where marijuana is legal in some form.
“We urge SBA to provide further guidance that it will not treat otherwise eligible businesses, including law firms, as disqualified from the PPP program based solely on having provided legal, financial/accounting, policy, or regulatory advice to a Direct Marijuana Business,” Judy Perry Martinez, ABA’s president, wrote.
Steve Fox, strategic advisor at the Cannabis Trade Federation, told Marijuana Moment that it’s “wonderful to see an organization with the reputation and stature of the ABA engage on this issue.”
“As they note, the SBA guidance is overly broad and unjustly punishes companies and firms all across the country. In fact, in some states, the cannabis industry is so ingrained in the economy, you have many hundreds of companies providing goods or services to cannabis businesses,” he said. “According to the plain language of the SBA guidance, they are all, with very minor exceptions, ineligible for PPP loans.”
“We stand with the ABA in urging the Treasury and Small Business Administration to issue further guidance, clarifying that ‘indirect marijuana businesses’ are eligible for PPP loans. If they fail to do so, Congress should remedy this situation at the earliest possible opportunity,” he added.
In February, ABA’s House of Delegates voted in favor of proposals endorsing pending federal legislation to protect banks that service cannabis businesses and calling for a clarification of rules to ensure that lawyers will not be penalized for representing clients in cases concerning state-legal marijuana activity.
Rep. Earl Blumenauer (D-OR) introduced a bill last month that would fix the COVID-19 relief access problem, calling for SBA eligibility for cannabis businesses and ancillary companies. That came after he led a letter with 34 bipartisan members of the House urging leadership to include the policy change in future coronavirus-related bills.
Sens. Jacky Rosen (D-NV) and Ron Wyden (D-OR) made a similar request to Senate leaders in a separate letter.
Separately, the ABA-supported Secure and Fair Enforcement (SAFE) Banking Act was included in a House-passed COVID-19 relief package last month.
A bipartisan coalition of 34 state and territory attorneys general asked Congress to pass the bill with that language, which would protect banks that service marijuana businesses from being penalized by federal regulators.
The head of the Federal Deposit Insurance Corporation said this week that marijuana business banking represents one of the most “challenging issues that I have encountered” at the agency.
Read ABA’s letter to the Treasury and SBA below:
Bermuda Government Releases Marijuana Legalization Bill For Public Feedback
The government of Bermuda released a draft bill on Wednesday to establish a legal marijuana market in the self-governing British overseas territory.
“Surprising for some, public attitudes have evolved apace with global legislative reforms and in recognition that opening up pathways for new economic opportunities and activity is needed,” Attorney General Kathy Simmons said in a video on the proposal.
Under the proposed legislation, adults 21 and older would be able to possess and purchase up to seven grams of cannabis from licensed retailers.
A regulatory body called the Cannabis Advisory Authority would be responsible for issuing licenses and regulating the market. There would be seven types of licenses available: cultivation, retail, research, import, export, transportation and manufacturing.
Individuals with prior marijuana convictions would not be barred from participating in the industry.
Fees for the licenses would be set in a way designed to both stimulate the territory’s economy while also ensuring that they are not prohibitively expensive for “underserved and marginalized communities,” a summary of the bill states.
People with convictions for possessing seven grams or less would be eligible for expungement.
The Attorney-General and Minister of Legal Affairs, Senator the Hon. Kathy Lynn Simmons, JP has announced new regulations by the Government of #Bermuda to reform Cannabis laws.
— Bermuda Government (@BdaGovernment) June 4, 2020
Last year, Bermudan lawmakers unveiled draft legislation to create a medical cannabis program. Public feedback signaled that people felt the bill imposed excessive regulations and that the territory should more broadly legalize marijuana altogether for adult use.
Now that this new draft legislation has been released, the government is again asking for public input up until July 3. On its site, individuals are prompted with seven specific questions that feedback is being sought on. That includes queries about licensing requirements and penalties.
Premier David Burt, who pledged last year to introduce marijuana legalization legislation, also encouraged individuals to weigh in on the proposed regulations.
We want to hear from you! Share your thoughts by July 3rd.https://t.co/kkGtsuQ1ES
— Premier David Burt (@BermudaPremier) June 5, 2020
“The Government has made a commitment to progressively liberalize cannabis laws in Bermuda and to create economic opportunities for citizens wishing to participate in a regulated cannabis scheme,” the site states. “The Government again wishes to ‘take it to the people’ by commencing a one month public consultation exercise on the proposed scheme.”
The attorney general said in her video that the government plans to “move ahead with a more simplified, regulated cannabis scheme, which builds on the strength of the original medicinal cannabis policy and which embraces the public feedback.”
“The revised proposal with provide for a regulated cannabis program which has been hybridized to meet Bermuda’s requirements while modeling the best available legal provisions in Canada, both provincial and federal, and to a lesser degree, examples from the Caribbean,” she said.
Several Caribbean nations have started exploring marijuana reform in recent years. Importantly, in 2018, the heads of 19 Caribbean nations agreed to “review marijuana’s current status with a view to reclassification,” emphasizing “human and religious rights” issues stemming from criminalization as well as “the economic benefits to be derived” from legalization.
Since then, lawmakers in the dual-island nation of St. Kitts and Nevis said they would be introducing legalization legislation. The government of Trinidad and Tobago brought two cannabis reform bills before Parliament last year—one to decriminalize low-level possession and another to legalize cannabis for medical and religious purposes.
Meanwhile, the governor of the U.S. Virgin Islands has been stressing the need to legalize marijuana in order to generate tax revenue for the U.S. territory’s fiscal recovery from the coronavirus pandemic.
The Jamaican government also recently announced that it will be allowing medical cannabis patients to make marijuana purchases online for pickup at “herb houses” as a means to combat the coronavirus pandemic.
Read the draft bill to legalize marijuana in Bermuda below: