What was once a crowded Democratic presidential race has winnowed down to two major candidates: Sen. Bernie Sanders (I-VT) and former Vice President Joe Biden. For marijuana reform advocates, the stakes are high.
While the opponents diverge on a variety of issues, cannabis legalization represents one of the clearest examples of their ideological divide.
Put simply, Sanders was one of the earliest proponents of the reform move, becoming the first major presidential candidate to call for federal legalization in 2015 and filing the Senate’s first-ever bill to deschedule cannabis under federal law. In his current campaign, he’s included a legalization plank prominently in his platform with a pledge to take bold executive action early in his administration.
Biden, meanwhile, played a key role in enacting punitive anti-drug laws during his time as a senator, and he’s maintained opposition to legalization even as the vast majority of his party has come to embrace the policy change. That said, at a time when polls show that the vast majority of Democratic voters support ending cannabis prohibition, he has begun to embrace some modest reforms during the course of the campaign.
The issue didn’t come up at the two candidates’ first head-to-head debate on Sunday, but given the significant public interest in marijuana reform, those differences are sure to be highlighted in the weeks to come. For the time being, however, here’s an overview of the Sanders-Biden drug policy divide.
Adult-use marijuana legalization: YES.
For a U.S. senator, Sanders is a long-time supporter of recreational cannabis legalization. After calling for the policy change in 2015, he filed the first-ever Senate bill to federally legalize. He’s since made the policy a core tenet of his platform, repeatedly calling for comprehensive reform on the trail and laying out plans to get it done if elected.
Medical cannabis legalization: YES.
It was more than two decades ago that Sanders cosponsored a House bill to legalize and regulate medical marijuana. He’s argued that the plant can serve as an alternative to prescription opioids, and he’d also made the case that it can be an effective treatment option for those suffering from post-traumatic stress disorder.
Drug possession decriminalization: NO.
Unlike some former candidates, the senator has declined to back decriminalizing drugs beyond cannabis. Pressed on the issue last year, Sanders said he’s “not there yet” on the policy change. That said, Sanders has repeatedly issued vague calls to “end the war on drugs.”
Sanders frequently couples his call for legalization with a pledge to expunge prior marijuana convictions. He’s insisted that it’s not enough to end prohibition but to right the wrongs of prohibition, and expungements are a key part of that restorative justice plan.
Social equity: YES.
The candidate has proposed a series of social equity measures as part of his legalization plan. Part of that involves promoting participation in the market by people from communities harmed by the war on drugs. To ensure that the industry is not controlled by a handful of corporations, he also said tobacco companies should be barred from participating, and he’d encourage cannabis firms to incorporate as cooperatives or nonprofits, while also enacting market and franchise caps.
Administrative action: YES.
Sanders said that on his first day in office, he would issue an executive order to immediately legalize marijuana in all 50 states. An earlier plan he rolled out explained that he would appoint cabinet officials who are friendly to legalization to more systematically enact reform. Legal experts have challenged the idea that a president could unilaterally make cannabis legal across the country on day one, however.
States’ rights to legalize: YES, WITH A CAVEAT.
During his time in the House, Sanders voted four times in favor of amendments to prevent the Justice Department from interfering in local medical cannabis programs and he has since repeatedly backed the idea of letting states legalize despite ongoing federal prohibition. That said, it’s not clear if his new pledge to legalize marijuana across the country means he would try to force states to repeal any criminalization laws they wish to keep on the books.
Descheduling cannabis: YES.
The senator has pledged to immediately remove marijuana from the Controlled Substances Act through executive action. He’s consistently criticized the current status of cannabis as a Schedule I drug under federal law, calling it “insane” that it’s placed in the same restrictive category as heroin.
Safe consumption sites for illegal drugs: YES.
Sanders released a criminal justice reform plan last year that calls for the legalization of safe consumption sites where individuals can use illicit drugs in a medically supervised environment and get assistance going into treatment.
Personal use: YES.
The candidate said he’s consumed cannabis twice decades ago, but he’s said it “didn’t do much for me.”
Adult-use marijuana legalization: NO.
The former vice president has consistently maintained an opposition to recreational legalization. He came under fire from reform advocates last year after suggesting his reasoning was that cannabis may be a gateway to more dangerous drugs—a comment he subsequently walked back. More recently, he’s emphasized that he wouldn’t get on board with the policy change until more research was done to determine whether the plant is harmful.
Medical cannabis legalization: YES.
Biden has recently said he’s in favor of federally legalizing cannabis for medical purposes.
Drug possession decriminalization: UNCLEAR.
While the issue came up in a presidential debate he participated in, Biden was not pressed on the issue, and he hasn’t proactively taken a position in favor of the policy change. That said, while he has called for ending incarceration for drug use he has also coupled that with an insistence that people caught with illegal substances be diverted to treatment. Presumably people who refuse would face some kind of punishment, potentially including incarceration, though the candidate hasn’t specified.
Part of Biden’s criminal justice reform plan does call for automatic expungements. The candidate has said that nobody should be incarcerated for non-violent cannabis offenses, and he’s said those currently behind bars for such crimes should be released.
Social equity: NO.
Biden’s opposition to adult-use legalization means he has not weighed in on the various restorative justice provisions floated by advocates who want to ensure minority participation in an economy that the candidate want to keep illegal.
Administrative action: UNCLEAR.
While Biden supports a modest change in marijuana’s federal classification, it’s not clear if he would enact it administratively or call on Congress to do so.
States’ rights to legalize: YES.
The former vice president said that while he would not push for comprehensive legalization, he would respect the rights of states to implement their own cannabis programs.
Descheduling cannabis: NO.
Biden has rejected fully ending federal marijuana prohibition by descheduling cannabis. Instead, he’s backed modestly rescheduling cannabis to Schedule II in order to free up research into the plant.
Safe consumption sites for illegal drugs: N/A.
The candidate has not proactively offered his stance on safe consumption facilities, nor has he appeared to have been asked about it.
Personal use: NO.
It does not appear that Biden has publicly commented on any personal experience he has had with marijuana or other drugs.
While both candidates have pledged to let states enact their own legalization laws and enact certain federal reforms, only Sanders has said he supports actually ending cannabis prohibition and would take executive action on the issue.
Note: This analysis did not include Rep. Tulsi Gabbard (D-HI), who while still in the race has received just two pledged delegates of the 1,991 required to secure the nomination.
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: