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Status of Federal Law and Cannabis
Cannabis is illegal at the federal level. The federal government regulates drugs and medicines through the Controlled Substances Act (CSA) (21 U.S.C. § 811) placing substances deemed potentially addictive or harmful in a schedule, according to its relative potential for abuse and medicinal value. Under the CSA, cannabis is classified as a Schedule I drug, which means that the federal government views cannabis as highly addictive and having no currently accepted medical use.
Advocates and members of Congress have attempted to change that federal designation through citizen rescheduling petitions and legislation introduced in every Congress – all without success.
In 1996, patient advocates successfully brought their case to the voters in California and Arizona, passing medical cannabis laws in defiance of federal law. From the start, the federal government attempted to undermine state medical cannabis laws with tactics of interference and intimidation. This included threats to doctors and prosecution of patients and those providing medical cannabis to patients. Between 1996 and 2014 the US government spent nearly a billion dollars on raiding, arresting, persecuting and jailing medical cannabis patients and their providers. (See ASA’s What is the Cost Report for more details)
In 2014, Congress called a ceasefire in the federal war on medical cannabis. In the first change in federal law affecting patients since 1970, when it classified cannabis as a dangerous drug with no acceptable medical use, Congress approved a budget amendment that prohibits Justice Department funds from being used to prevent states from implementing medical cannabis laws. This restriction on federal enforcement continues to be a part of the funding bill for the Commerce-Justice-Science (CJS) budgets and expires at the end of each fiscal year, without additional action by Congress.
In 2018 the U.S. House of Representatives and Senate passed legislation to regulate industrial hemp production. The Agricultural Improvement Act of 2018, also known as the Farm Bill, defined as cannabis varieties with less than 0.3% THC by dry weight. Under the law, state departments of agriculture submit plans for hemp cultivation to the U.S. Department of Agriculture (USDA) for approval, then cultivators can obtain USDA licenses. If a state does not submit a plan, individual farmers may apply to the USDA directly. As of 2022, USDA-licensed hemp is being cultivated in all 50 states; 44 states have approved hemp programs and the other 6 states have directly licensed farmers. The law allows for interstate commerce in hemp products and extracts such as CBD, though the FDA has yet to release rules for hemp-derived CBD products.
In October 2022, Biden issued a statement announcing that he is pardoning individuals with federal cannabis possession convictions, calling on Governors to do the same, and called on HHS to look into the scheduling of cannabis. This action did not change the legal status of cannabis but is another example of asking agencies to work around the illegal status of cannabis.
To date, several federal agencies have issued guidelines and policy memorandums to manage the conflict between federal and state laws as they pertain to medical cannabis. While these are legitimate efforts to manage the emerging issues within medical cannabis, they are examples of why federal legislation is needed rather than forcing agencies to create “work around” polices.
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