With a new majority in the House of Representatives, congressional Democrats are feeling emboldened to pursue far-reaching changes to federal marijuana laws.
But in doing so, they are largely setting aside the one legislative avenue that has previously been successfully used to achieve cannabis reform—at least so far.
As a result of House rules that generally allow more open amendment procedures on annual spending bills—a process known as appropriations—marijuana reform supporters have often pushed to attach cannabis proposals to such legislation while standalone proposals on the issue have been stalled without hearings or votes. Since 2014, for example, Congress has enacted riders blocking the Justice Department from interfering with state medical cannabis laws.
But now that Democrats—who generally back marijuana legalization more strongly than most of their Republican colleagues do—control one of the two congressional chambers, they so far seem to be setting aside the appropriations path and are instead focusing on taking up individual cannabis reform bills in various authorizing committees.
Despite a request last week from a bipartisan group of lawmakers to include language protecting universities that study cannabis from federal penalties, Democratic leaders did not include the provision in a Fiscal Year 2020 education spending bill released this week.
Similarly, long-sought language that would allow doctors at the U.S. Department of Veterans Affairs (VA) to recommend cannabis to military veterans is absent from appropriations legislation to fund the VA that was approved by a subcommittee on Wednesday.
But is ignoring appropriations—the only avenue through which lawmakers have changed federal cannabis policy to date—prudent? There are some mixed feelings among reform advocates.
On the one hand, passing standalone marijuana legislation would represent a permanent fix that wouldn’t need to be renewed year after year. Cannabis-related riders in appropriations legislation expire annually, creating consistent uncertainty for the industry, consumers and other stakeholders.
And as Rep. Earl Blumenauer (D-OR) told Marijuana Moment in a phone interview on Tuesday, the Democratic majority this Congress is positioned to move bold marijuana reforms through authorizing committees and then onto the floor for votes.
The House Financial Services Committee, for example, has already approved a bipartisan cannabis banking bill that would protect financial institutions that service cannabis businesses from being penalized by federal regulators. Historically, advocates have pursued appropriations amendments on the topic—though both the House and Senate Appropriations Committees rejected those efforts last year.
Blumenauer also repeatedly tried getting VA medical cannabis language passed through appropriations, but while its language has been approved by the Senate Appropriations Committee in the past, it ultimately failed to make it into law. An earlier version approved by the House was also nixed from final legislation.
However, a standalone proposal on the topic was one of three veterans-focused marijuana bills taken up on Tuesday by the House Veterans’ Affairs Subcommittee on Health.
Blumenauer pointed to the hearing as evidence that pursuing progress through authorizing committees is where the focus should be now.
Attaching riders to spending bills is “a strategy for being in the minority,” the congressman said. “I think the Democratic majority, we can do better, and we always knew that even if we were able to be successful and hold it [in appropriations legislation], it’s only temporary.”
The congressman said that his personal approach has evolved and he will focus on following a process he laid out in a “blueprint” to end federal marijuana prohibition last year. That means putting pressure on individual committees to hold hearings and votes on relevant cannabis bills, advancing them to the floor and incrementally affecting permanent change as part of a build up to eventually passing legislation to end federal marijuana prohibition.
But Blumenauer said he has no problem if “people pick up the banner and want to run parallel efforts” through appropriations.
After all, that process delivered the rider protecting medical marijuana states each year since 2014, and advocates could use the 2020 version of Commerce-Justice-Science spending legislation that the measure is attached to for the purposes of pursuing broader protections for state laws allowing recreational marijuana use and sales. That bill, and several others that have in the past been targets for cannabis amendments, have yet to be drafted and will be released in the coming weeks.
The medical cannabis language itself is seen as nearly certain to be included going forward, because appropriations riders, once approved, have a tendency to be continued into future years.
On that note, in the education funding bill released this week, Democrats included a section that dates back to 1996 that prohibits universities from using federal dollars to promote “the legalization of any drug or other substance” in Schedule I of the Controlled Substances Act.
Legalization advocates say they want the Democratic majority to simultaneously pursue achievable appropriations wins while at the same time seeking broader, permanent reforms.
“While the appropriations process is not the preferred method of governing, the fact that increased protections for state-legal cannabis consumers and patients were not included in the bills released so far is concerning,” Justin Strekal, political director for NORML, told Marijuana Moment. “Especially when it comes to protecting veterans, who are increasingly turning to medical cannabis as an alternative to opioids to mitigate their chronic pain, PTSD and other combat-related conditions.”
Michael Collins, director of national affairs a at the Drug Policy Alliance, told Marijuana Moment that it’s “disappointing that Dems didn’t take the opportunity to advance these issues in the base bill.”
“I hope Committee members will take steps to rectify these issues as the bills move through the legislative process,” he said.
Don Murphy of the Marijuana Policy Project suggested that “there may be a beneficial reason” to have the appropriations bills free of cannabis language from the outset, referring to the fact that it could lead to proactive votes to insert the provisions in committee or on the House floor. Doing so would publicly demonstrate momentum for reform.
“You can do it in the back room or in the light of day,” he said. “A win is a win.”
Of course, no matter what strategy Democrats ultimately employ, any House-passed marijuana legislation will still have to win the support of the Senate, which is controlled by Republicans. The prospect of passing cannabis legislation in that chamber is less certain, though advocates are hopeful that at least some amount of reform could survive the conference committee process through which the chambers’ differing versions of bills are merged into final proposals to send to the president.
Photo courtesy of Chris Wallis // Side Pocket Images.
Bernie Sanders Asks Campaign Rally Audience To Share Stories About Marijuana Arrests
Sen. Bernie Sanders (I-VT) asked an audience in South Carolina to share stories about marijuana possession convictions and then argued that those anecdotes help to demonstrate the case for national legalization.
During a campaign stop in the early primary state on Sunday, the 2020 Democratic presidential candidate asked people to raise their hands if they knew someone who’d been arrested for possessing cannabis. There was no shortage of hands raised.
“Holy God, whoa. That’s a lot of people,” Sanders said before asking for volunteers to go into detail.
“I got caught with about a joint and they took my license for a year and I lost my job,” an audience member said. “Ended up losing my house, and it went worse from there.”
The War on Drugs has been a disaster. It is time to legalize marijuana nationwide. pic.twitter.com/tehuM7xjxx
— Bernie Sanders (@BernieSanders) September 17, 2019
“Wow, this is for smoking a joint?” Sanders asked.
“Yeah, I had a little—like a dime bag in my car,” the person said.
Another person in attendance who appeared in the campaign video Sanders released on Tuesday said that she visited a guilty plea court and witnessed “three different men get put in at least two years of prison just for anywhere from two grams to eight grams of marijuana found on them.”
“That’s why all over this country states are doing the right thing and either decriminalizing or legalizing the possession of marijuana,” Sanders said to applause.
Since becoming the first major party presidential candidate to call for cannabis legalization in 2015, Sanders has continued to place an emphasis on the need for marijuana reform, with a focus on the racial injustices of prohibition.
Last month, he released a criminal justice reform plan that included proposals to legalize cannabis federally and also provide for safe injection sites to curb opioid overdoses.
But while Sanders has been a leading voice in the drug policy reform movement, he’s said twice in recent weeks that he’s not ready to embrace decriminalizing possession of drugs beside marijuana.
Photo courtesy of Lorie Shaull.
New York Gov. Cuomo Hints Marijuana Smoking Ban Could Be Part Of Next Legalization Push
New York Gov. Andrew Cuomo (D) seemed to suggest that he might want a ban on smoking marijuana included in legalization legislation when lawmakers take up the issue again next year.
During an interview with MSNBC on Sunday, the governor was asked whether the spike in apparent vaping-related lung injuries and deaths, which experts attribute to altered nicotine and cannabis oils primarily purchased on the illicit market, has made him reconsider pursuing legalization in the state.
“No,” he said, adding that his administration is “not in favor of smoking marijuana” and that there are “ways to get THC without smoking marijuana.”
“People are vaping THC, yes that is true,” Cuomo said. “We think that from a public health point of view, that is not something that we recommend and we think it’s dangerous—smoking of any kind.”
“You can legalize marijuana and sell THC in compounds that do not require you to smoke the marijuana, and we do not support smoking of marijuana,” he said. “There are compounds that have the THC, which is a compound in marijuana, that you don’t smoke.”
It’s not entirely clear if Cuomo plans to ask for a smoking ban the next time a legalization bill emerges or if he was simply outlining an administrative position advising against smoking. A spokesperson for his office did not respond to Marijuana Moment’s request for comment by the time of publication.
But while there was no ban on marijuana smoking included in legalization legislation that he worked to pass earlier this year, it wouldn’t be entirely out of character given that he pushed for such a restriction as part of New York’s medical cannabis program in legislation enacted in 2014.
The logic behind that policy, according to Cuomo, was that it would prevent people from abusing the program. If he moved to incorporate a ban for adult-use legalization, however, it would presumably be a public health decision.
That could create problems when lawmakers return to the negotiating table. In California, flower and concentrates represent about 70 percent of the marijuana market, meaning any attempt to ban smokeable cannabis will likely be met with pushback from consumers, industry stakeholders and civil liberties-minded reform advocates.
Industry players seemed to have influence when Cuomo included a ban on home cultivation for personal use in his prior legalization proposal—something a major medical cannabis association recommended in a policy statement submitted to the governor.
For the time being, however, there don’t seem to be tangible plans to include a smoking ban in future cannabis legislation and it could be that the governor simply ends up pushing for public education campaigns discouraging the activity rather than keeping it illegal.
In July, he signed legislation broadening New York’s decriminalization law and creating a pathway for expungements for individuals with prior cannabis convictions.
Photo courtesy of MSNBC.
Mitch McConnell Tells FDA To Clear A Path For CBD Products Though Spending Bill Directive
Senate Majority Leader Mitch McConnell (R-KY) is moving to insert language into a congressional spending report that calls on the Food and Drug Administration (FDA) to clear a path for the lawful marketing of hemp-derived CBD products.
FDA has said that allowing CBD to be sold as food items or dietary supplements would require it to develop alternative regulations that could take years to complete without congressional action. But McConnell, who was the chief proponent of a hemp legalization provision of the 2018 Farm Bill, isn’t interested in waiting around.
In draft language shared by the U.S. Hemp Roundtable on Tuesday, the senator is asking FDA to “issue a policy of enforcement discretion with regard to certain products containing CBD” within 120 days—a move that industry stakeholders say will clarify rules so that banks are more willing to service CBD companies.
🚨 BREAKING FDA UPDATE 🚨 After close work with the U.S. Hemp Roundtable, @senatemajldr Mitch McConnell submitted legislation urging the FDA to take action on CBD. Visit the link in bio to take action! pic.twitter.com/zMohlD3NiS
— US Hemp Roundtable (@HempRoundtable) September 17, 2019
The provision of the spending report was marked up in the Senate Appropriations Subcommittee on Agriculture on Tuesday. It will go before the full Appropriations Committee on Thursday.
Prior to issuing its enforcement discretion policy under McConnell’s report language, FDA would have to submit a report to the committee within 90 days detailing its “progress toward obtaining and analyzing data to help determine a policy of enforcement discretion, and the process in which CBD meeting the definition of hemp will be evaluated for use in products.”
Once those provisional enforcement guidelines are established, they would remain in place until FDA finalizes the regulatory process.
“FDA is encouraged to consider existing and ongoing medical research related to CBD that is being undertaken pursuant to an Investigation New Drug (IND) application in the development of a regulatory pathway for CBD in products under the jurisdiction of FDA and to ensure that any future regulatory activity does not discourage the development of new drugs,” the report states.
Outside of McConnell’s proposal, the FDA and U.S. Department of Agriculture (USDA) appropriations legislation already sets aside $2 million to support research and regulatory activities surrounding hemp-derived CBD products and $16.5 million for the broader hemp production program.
During the subcommittee meeting on Thursday, Sen. Jeff Merkley (D-OR) praised the bill’s support for hemp legalization implementation.
“You might note that this year in Oregon, the hemp industry may well be a billion dollar crop, and that is an incredible addition to income for our agricultural community,” he said.
The legalization of hemp and its derivatives has been met with intense interest from manufacturers and lawmakers alike, but limitations on the marketability of CBD has been an ongoing source of frustration.
Last week, a bipartisan pair of lawmakers asked fellow House members to join them in signing a letter to the head of FDA that similarly asks for enforcement discretion guidelines allowing companies to sell CBD products.
The House, which approved its version of appropriations legislation for the upcoming fiscal year prior to the summer recess, included a separate amendment that would require FDA to establish rules providing for the lawful marketing of CBD in food and dietary supplements.
Meanwhile, USDA is expected to soon release its broader hemp regulations soon.
Read McConnell’s full CBD report language below:
“As previously mentioned, the Committee provides $2,000,000 for research, policy evaluation, market surveillance, issuance of an enforcement discretion policy, and appropriate regulatory activities with respect to products under the jurisdiction of the Food and Drug Administration which contain cannabidiol (CBD) and meet the definition of hemp, as set forth in section 297A of the Agricultural Marketing Act of 1946 (7 U.S.C. 1639o). Within 90 days, FDA shall provide the Committee with a report regarding the Agency’s progress toward obtaining and analyzing data to help determine a policy of enforcement discretion, and the process in which CBD meeting the definition of hemp will be evaluated for use in products. Within 120 days, FDA shall issue a policy of enforcement discretion with regard to certain products containing CBD meeting the definition of hemp as defined by section 297A of the Agricultural Marketing Act of 1964 (7 U.S.C. 1639). Such enforcement discretion shall be in effect until FDA establishes a process for stakeholders to notify FDA for use of CBD in products that include safety studies for intended use per product, and makes a determination about such product. FDA is encouraged to consider existing and ongoing medical research related to CBD that is being undertaken pursuant to an Investigation New Drug (IND) application in the development of a regulatory pathway for CBD in products under the jurisdiction of FDA and to ensure that any future regulatory activity does not discourage the development of new drugs.”
This story was updated to include comment from Merkley.
Photo courtesy of Senate Majority Leader Mitch McConnell.