- Published on Wednesday, 11 March 2015 17:21
Three senators, two Democrats and a Republican, introduced a bill on Tuesday that would allow patients to use marijuana for medical purposes in states where it is legal, without fear of federal prosecution for violating narcotics laws.
The bill makes a number of important changes to federal marijuana policies — and it deserves to be passed by Congress and enacted into law. Though this legislation would not repeal the broad and destructive federal ban on marijuana, it is a big step in the right direction.
The most important change would reclassify marijuana from a Schedule I drug under the Controlled Substances Act, which is intended for drugs, like heroin, that have no accepted medical use in the United States, and place it instead in Schedule II, the classification for drugs that have a legitimate medical use but also have a “high potential for abuse.”
The Schedule I classification made no sense because there is a medical consensus that patients with AIDS, cancer, epilepsy and serious degenerative conditions can benefit from marijuana. And millions of patients have used marijuana to relieve pain, nausea, appetite loss, insomnia and seizures associated with various illnesses.
The bill, sponsored by Cory Booker of New Jersey (left) and Kirsten Gillibrand of New York (center), both Democrats, and Rand Paul, a Republican of Kentucky (right), would not legalize medical marijuana in all 50 states. But it would amend federal law to allow states to set their own medical marijuana policies and prevent federal law enforcement agencies from prosecuting patients, doctors and caregivers in those states. Currently 35 states and the District of Columbia permit some form of medical marijuana use. States would remain free to ban medical marijuana if they wished.
Other important provisions would allow banks and credit unions to provide financial services to marijuana-related businesses that operate in accord with state law and protect them from federal prosecution or investigation. That is a crucial improvement over the current situation where marijuana business that is legal under state law is conducted in cash because financial institutions fear to step in.
The bill would also allow doctors in the Department of Veterans Affairs to prescribe medical marijuana to veterans, which they are currently prohibited from doing. And it would ease the overly strict procedures for obtaining marijuana for medical research and require the Food and Drug Administration to more readily allow the manufacture of marijuana for research.
An encouraging development last year may bode well for enactment of the legislation this year. A surprisingly strong bipartisan majority in the House voted for a one-year provision barring the Justice Department from using its funds to prevent states from carrying out their own laws authorizing the use, distribution, possession or cultivation of medical marijuana.
The provision was approved by a vote of 219 to 189, with 49 Republicans and 170 Democrats voting in favor. The Senate adopted the same provision and President Obama signed it into law.
Polls show a majority of Americans in favor of legalization of medical marijuana. It is long past time for Congress to recognize the need to change course.
An In-Depth Look at the Senate Bill to Legalize Medical Marijuana
A new bill introduced in the United States Senate seeks to radically alter federal jurisdiction over the manufacture, distribution, sale and use of medical marijuana.
The Compassionate Access, Research Expansion and Respect States (CARERS) Act of 2015, introduced this week by Senators Rand Paul (R-KY), Cory Booker (D-NJ) and Kirsten Gillibrand (D-NY), is a bill to “extend the principle of federalism to State drug policy, provide access to medical marijuana and enable research into the medicinal properties of marijuana.”
The most important part of the CARERS Act effectively allows states to opt out of the Controlled Substances Act with respect to medical marijuana laws – both legitimizing current state medical marijuana policy under federal law and future state action. Section 2 of this bill states that:
Notwithstanding any other provision of law, the provisions of [the Controlled Substances Act] relating to marihuana shall not apply to any person acting in compliance with State law relating to the production, possession, distribution, dispensation, administration, laboratory testing or delivery of medical marihuana.
It is important here to note that this bill addresses the Controlled Substances Act (CSA) and not the Federal Food, Drug and Cosmetic Act – meaning, in effect, that while it eliminates the enforcement authority of the Drug Enforcement Administration (DEA) with respect to state medical marijuana programs, it does nothing to address the jurisdiction and enforcement authority of the Food and Drug Administration (FDA).
Nonetheless, this single provision of the CARERS Act would result in a profound and historic change in federal drug laws. It allows state law to supersede or replace federal law regarding criminal penalties and enforcement authorized by the Controlled Substances Act.
The bill makes other changes to the CSA. Marijuana would be reclassified from Schedule I to Schedule II, effectively recognizing that it has accepted medical use in the United States.
Also, cannabidiol (CBD), a non-psychoactive ingredient produced by cannabis plants with medical use in the treatment of seizures and other ailments, would be exempt from marijuana’s CSA schedule. The bill would remove marijuana grown to produce CBD, with less than .3 percent THC, from the CSA. This provision would expedite the availability of CBD throughout the United States.
Additional provisions of the CARERS Act would allow marijuana-related businesses operating in accordance with state law to have access to the nation’s financial system. Current federal law prohibits banks from accepting deposits of proceeds from the sale of controlled substances, meaning that medical marijuana businesses currently have nowhere to deposit their funds. While the Justice Department has issued guidelines assuring financial institutions they will not be prosecuted for accepting such deposits, these guidelines represent prosecutorial discretion and do not have the force of law.
So, for example, under the CARERS Act:
A depository institution that provides financial services to a marijuana-related legitimate business shall not be subject to a criminal penalty under any Federal law solely for providing those services or for further investing any income derived from such services.
The Act also seeks to expand research on marijuana’s medical use by simplifying the approval process for research and requiring the government to issue at least three licenses for the production of marijuana for research purposes. Currently proposals to conduct research on marijuana’s medical use are subjected to elaborate scrutiny by the National Institute on Drug Abuse (NIDA), whose professional mission is to study drug abuse rather than medical use, and marijuana grown for research purposes has been limited to a single operation at the University of Mississippi.
The final provision of the CARERS Act provides for military veterans to have access to cannabis in states with medical marijuana programs. Specifically, the bill allows healthcare providers in the Department of Veteran Affairs to provide the recommendations needed for veterans to participate in state medical marijuana programs without jeopardizing their access to treatment and services under federal law.
The proposed bill goes a long way toward addressing the conflict between state and federal law regarding the manufacture, distribution, sale and use of marijuana for medical reasons. Its chances for passage are a different matter. And like any piece of legislation such chances are subject to both partisan priorities as well as the different political environments in the Senate and the House of Representatives. But as a matter of policy this bill isolates and addresses several, but not all, key issues related to medical marijuana legislation passed by the states.
While not comprehensive, it prioritizes many important issues and presents straightforward remedies in the context of the long-accepted political doctrine of federalism – allowing individual states to innovate new public policies according to local needs and local political values. This bill will focus debate and advance the process of holding legislators accountable with respect to public opinion and practical solutions.
There are, however, additional issues of great importance that are not addressed by this bill. They fall into two categories. First, federalism may be a necessary device to advance the medical marijuana issue but it is not a sufficient policy to address the need of providing access to medical marijuana on a national basis. Second, this act does not address the use of medical marijuana in places without state medical laws and it does nothing about the clash between such laws and the jurisdiction and regulations enforced by the Food and Drug Administration (FDA).
For a drug to be sold as medicine in the United States it must be approved by the Food and Drug Administration. This approval requires three phases of controlled studies, involving animal studies, small-scale human studies and large-scale studies. The animal studies establish that the drug produces specific effects, the small-scale studies prove these effects in human subjects and the large-scale studies verify the effects and also indicate the range and scope of possible side effects of the drug. The CARERS Act makes FDA approval feasible by way of its provisions expediting research. Meanwhile, regardless of the provisions of the Controlled Substances Act, medicine in the United States is not medicine unless the FDA certifies it as such.
The controlled studies required for FDA approval of a drug are an expensive process and usually result in a proprietary and patented pharmacological product. Whether this is a viable model for making marijuana available for therapeutic use in the United States is a matter for discussion and debate. In many respects state-level medical marijuana programs make such a model impractical and have rendered it, in this context, obsolete. However, in this area there is a clash between state and federal law and it is a clash that is not addressed by the CARERS Act.
While CARERS would produce many positive outcomes, it is not a comprehensive remedy to address conflicts between state and federal laws regarding the medical use of marijuana. Nor would it end federal attempts, or federal capacity, to circumvent, interfere and otherwise obstruct state medical marijuana programs in the future. In this regard it would shift the agent of such obstruction from the Drug Enforcement Administration to the Food and Drug Administration.
The CARERS Act is good policy and over time will also be seen as good politics. This legislation enhances the durability of state medical marijuana programs. This is good for many patients and as such is good for the country.
However, this legislation benefits patients in states that have authorized medical marijuana. It is not enough. Patients in all states deserve to have access to medical marijuana. Hopefully this legislation will pass Congress, be signed by the president and will encourage more states to provide medical access to cannabis. An even better result is that passage of this legislation and a review of its implementation will encourage Congress to consider and pass more comprehensive legislation to provide access to medical cannabis throughout the United States.
How the Federal Medical-Marijuana Bill could affect Washington
A bipartisan trio of U.S. senators on Tuesday introduced the CARERS Act, a bill that overhauls how the federal government treats marijuana. Sens. Kirsten Gillibrand (D-N.Y.), Rand Paul (R-Kentucky) and Cory Booker (D-New Jersey) outlined the bill in a press conference.
The legislation would:
- Downgrade cannabis from a Schedule 1 substance to Schedule 2, which allows doctors to prescribe it.
- Remove low-THC, high-CBD marijuana from the schedule altogether.
- Remove federal penalties for production, possession and distribution of medical marijuana when state laws are followed.
- Facilitate marijuana research.
- Allow doctors at the Department of Veterans Affairs to prescribe marijuana to veterans.
- Prevent banks from rejecting marijuana businesses.
Booker said the “federal government has overstepped the boundaries of common sense” with its marijuana policies and the bill “seeks to right decades of wrong.”
Added Gillibrand: “These laws ignore the health benefits of medical marijuana. This is clearly ideology getting in the way of scientific progress.”
Paul said the legislation will give “more freedom to states and individuals” and give “ease to people in states who want this.”
What does this mean for Washington?
Marijuana has been legal in Washington for recreational purposes since 2012 and since 1998 for medical purposes. The state has been regulating the production, distribution and sale of recreational marijuana since last summer.
Still, this could be important for Washington. Here’s why:
Marijuana remains illegal at the federal level, but enforcement is not a priority — for now.
Marijuana has flourished during President Obama’s term because of prosecutorial discretion at the federal level. Twice, the Justice Department has indicated it would allow states to experiment with new marijuana regulations that don’t align with federal laws.
In 2009, the Justice Department issued a nonbinding guidance memo that discouraged prosecution of medical-marijuana operations that follow state laws.
In 2012, when Washington and Colorado passed initiatives legalizing marijuana, the states did not have assurances that the federal government would allow them to proceed.
Washington Gov. Jay Inslee even sent a letter promising the federal government that Washington would be mindful and careful in creating a pot system.
Months later, the feds sent out a second memo that said they would not interfere with Colorado and Washington’s legalization policies if the states were attentive to guidelines from the Justice Department.
Still, the Justice Department reserved the ability to step in at any point or change its mind.
“This memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion. This memorandum does not alter in any way the Department’s authority to enforce federal law, including federal laws relating to marijuana, regardless of state law.”
Simply put, the feds reserve the right to shut things down whenever they want. In theory, the Drug Enforcement Administration (DEA) could raid legal, recreational stores under federal law. The legalization of medical marijuana would provide concrete protection for the state’s medical-marijuana program.
The political winds could change
Loretta Lynch, who is President Obama’s choice to succeed Eric Holder as attorney general, told the Senate Judiciary Committee during her confirmation hearing she did not support legalization. Lynch also said she did not agree with the president’s characterization of marijuana as “not more dangerous than alcohol.”
Holder has allowed marijuana to flourish, but it’s not clear, if appointed, how Lynch would handle the issues. This legislation would prevent a legal challenge to states’ marijuana regulation.
Moreover, the 2016 presidential candidates are all over the map on marijuana. A new administration could roll back states’ marijuana-regulation implementations.
Jeb Bush, who classmates said “smoked a notable amount of pot,” in his prep-school days, opposed Florida’s medical-marijuana ballot initiative. He later said legalization was “a bad idea, but states ought to have the right to do it.”
Like Bush, Marco Rubio opposed his state’s medical-marijuana initiative.
In 2014, Rubio told the Tampa Bay Times, “I don’t think legalizing marijuana or even decriminalizing it is the right decision for our country.”
Hillary Clinton seems to be still forming her opinion. According to CNN, she called marijuana a “gateway drug” and said she wants to “wait and see” what happens with legalization at the state level.
Reclassifying pot allows more research
Marijuana advocates have long been frustrated with marijuana’s Schedule 1 designation. Cocaine, methamphetamine and methadone are all Schedule 2 drugs, meaning they are classified as having “less abuse potential” than marijuana, according to the DEA.
The bill would move marijuana to a Schedule 2 drug, acknowledging that it has some medical benefit and cut down some red tape around actually acquiring marijuana for research. Right now, the National Institute on Drug Abuse (NIDA) and the DEA have a monopoly on marijuana supply for legal, federally funded research.
Marijuana advocates argue the DEA impedes and obstructs research on marijuana. This bill would reform the NIDA and allow more research on marijuana.
As a biotech state with progressive marijuana policies, Washington could be the beneficiary of research funding.
The state Senate recently passed a bill that would bolster cannabis research in Washington. Washington could have a head start if universities were comfortable seeking federal funding for cannabis research.
Paul said the bill would give marijuana businesses access to traditional banking services. A few credit unions have provided limited services to the marijuana industry, but some business owners have paid their taxes in cash, which they say is a security risk. In fact, the Washington Liquor Control Board had to retrofit its agency headquarters and build a secure cash room to protect its cash haul.
The new legislation would allow doctors providing care through the Veterans Health Administration to authorize marijuana for patients. According to the Department of Veterans Affairs, more than 600,000 veterans live in Washington state.
Current Legal Status of Cannabis in the United States