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.
Senate Schedules Second Cannabis Hearing For Next Week
A key Senate committee will hold a hearing next week to discuss hemp production, featuring witnesses from the U.S. Department of Agriculture (USDA), the Food and Drug Administration (FDA) and the Environmental Protection Agency (EPA).
In the months since hemp and its derivatives were federally legalized under the 2018 Farm Bill, there’s been strong interest in developing USDA and FDA regulations for the crop and its compounds such as CBD, and lawmakers have repeatedly pressed the agencies to speed up the rulemaking process to unlock the industry’s potential.
While the hearing notice doesn’t go into detail about what will be discussed, the meeting’s title—”Hemp Production and the 2018 Farm Bill”—and list of witnesses indicate that the conversation will revolve around the development of federal guidelines for hemp businesses.
— Sen. Ag Republicans (@SenateAgGOP) July 17, 2019
USDA Marketing and Regulatory Programs Under Secretary Greg Ibach, USDA General Counsel Stephen Vaden, FDA Principal Deputy Commissioner Amy Abernethy and EPA Assistant Administrator of Chemical Safety and Pollution Prevention Alexandra Dunn will appear before the Senate Committee on Agriculture, Nutrition, and Forestry on July 25.
I am honored to be called by the Senate Committee on Agriculture, Nutrition, & Forestry to testify next week (7/25) on “Hemp Production and the 2018 Farm Bill.” As FDA, we recognize how important the topics of hemp and cannabidiol (CBD) are to Americans. https://t.co/bHMBGth1bL
— Dr. Amy Abernethy (@DrAbernethyFDA) July 18, 2019
Other invited witnesses include Kentucky farmer Brian Furnish, National Hemp Association Executive Director Erica Stark and Red Lake Band of Chippewa Indians Tribal Chairman Darrell Seki.
The Senate Agriculture Committee meeting will mark the chamber’s second cannabis-related hearing of the week. The Committee on Banking, Housing and Urban Affairs announced on Tuesday that it will meet to discuss marijuana banking issues on July 23.
FDA and USDA have both recently signaled that they were cognizant of widespread interest in creating regulatory pathways for hemp and its derivatives, with USDA stating that it planned to release an interim final rule on the products in August and FDA’s Abernethy writing that the agency is “expediting” its rulemaking process. FDA added that it hoped to release a report on its progress by early fall.
That said, heads of the departments have also tried to temper expectations. Agriculture Secretary Sonny Perdue said that USDA wouldn’t be expediting regulatory developments but that he expected them to be issued ahead of the 2020 planting seasons.
Former FDA Commissioner Scott Gottlieb, meanwhile, cited policy complications that would make it difficult for the agency to create an alternative regulatory pathway for hemp-derived CBD products to be lawfully marketed as food items or dietary supplements. He said that without congressional action, it may take FDA years to establish those rules.
Photo courtesy of Brendan Cleak.
As More States Legalize, DEA Chops Down Fewer Marijuana Plants, Federal Data Shows
The Drug Enforcement Administration (DEA) seized far fewer marijuana plants in 2018 compared to the previous year but made significantly more cannabis-related arrests, according to federal data released this month.
More than 2.8 million indoor and outdoor marijuana plants were seized last year as part of the DEA’s Domestic Cannabis Eradication/Suppression Program. That marks a 17 percent decline from 2017 levels.
NORML first noted the DEA report, which also shows that marijuana-related arrests the agency was involved with increased by about 20 percent in a year. And while the overall number of plants that were seized dropped, DEA said that the value of the assets totaled about $52 million—more than twice as much as it reported the previous year.
State-level legalization efforts appear to have played a role in the declining number of plant seizures, particularly those cultivated outdoors. In the same year that retail cannabis sales started in California, DEA confiscated almost 40 percent fewer outdoor plants in the state compared to 2017.
That data point is consistent with recent research showing that legalization is associated with a decrease in the number of illicit cannabis grows in national forests, which are often targets for DEA enforcement action.
It’s not clear why there was a significant uptick in marijuana-related arrests, but those increases generally did not occur in states where legal cannabis systems were recently implemented.
For example, arrests in Kansas, where marijuana is strictly prohibited, increased by more than 3,500 percent—from 15 to 544—from 2017 to 2018. Louisiana likewise experienced a 168 percent increase in cannabis arrests.
The data covers federal law enforcement actions and does not include those of local police agencies that did not partner with the agency.
Year-over-year decreases in cannabis seizures through DEA’s eradication program have been viewed by advocates as evidence that state-level legalization systems effectively displace the illicit market, removing the incentive to illegally cultivate cannabis.
Similarly, a separate recent report from the U.S. Sentencing Commission showed that federal prosecutions for marijuana trafficking dropped precipitously in 2018—another sign demonstrating that state-level legalization is disrupting the illicit market, advocates argue.
NORML Deputy Director Paul Armentano told Marijuana Moment that “federal eradication programs are a holdover from a bygone era.”
“At a time when roughly one-quarter of the country resides in a jurisdiction where adult marijuana use is legal, and when members of Congress are openly discussing removing cannabis from the federal Controlled Substances Act, it is time for these federal anti-marijuana efforts to be put out to pasture and for federal agencies to take positions that more closely comport with cannabis’ rapidly changing cultural status in America,” he said.
DEA has also faced criticism of its cannabis eradication efforts from a non-partisan federal watchdog agency last year for failing to adequately collect documentation from state and local law enforcement partners funded through the program.
The Government Accountability Office said in a report that DEA “has not clearly documented all of its program goals or developed performance measures to assess progress toward those goals.”
At the same time that DEA is seizing fewer plants grown illicitly, it’s also setting higher goals for federally authorized cannabis cultivation for research purposes. In 2019, the agency said it hoped to grow approximately 5,400 pounds of marijuana to meet research demand, which is more than double its quota for 2018.
Senate Schedules Hearing On Marijuana Business Banking Access
In one of the clearest signs of marijuana reform’s growing momentum on Capitol Hill, a Republican-controlled Senate committee has scheduled a hearing for next week that will examine cannabis businesses’ lack of access to banking services.
The formal discussion in the Senate Committee on Banking, Housing and Urban Affairs on Tuesday comes as legislation aimed at resolving the marijuana industry’s financial services problems is gaining momentum. A House cannabis banking bill that cleared that chamber’s Financial Services Committee with a bipartisan vote in March now has 206 cosponsors—nearly half the body—while companion Senate legislation has 32 out of 100 senators signed on.
(Marijuana Moment’s editor provides some content to Forbes via a temporary exclusive publishing license arrangement.)