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Today, U.S. Senators Cory Booker (D-NJ), Rand Paul (R-KY), and Kristen Gillibrand (D-NY) introduced the Compassionate Access, Research Expansion, and Respect States (CARERS) Act. The bill is unprecedented in being the first comprehensive piece of medical marijuana legislation to be introduced in the U.S. Senate. ASA was honored to have played a role in shaping direction of the bill, and many of the patient-focused issues brought up in our feedback were addressed in the final legislation introduced today.
The bill's introduction comes just a week after the trial of the remaining Kettle Falls Five defendants, and just a few months after passage of the Rohrabacher-Farr Amendment, which was guided through the conference committee by the leadership of Senator Mikulski (D-MD). The Rohrabacher-Farr Amendment arguably should have defunded the KF5 prosecution, but the denial of their motion to dismiss shows that there is some legal dispute as to whether Rohrabacher-Farr Amendment would end federal prosecutions. There is no question that such prosecutions would end under the CARERS Act, which states:
Notwithstanding any other provision of law, the provisions of this title 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.
The protections created by the CARERS Act are not just limited to protected state-legal medical marijuana conduct. While each of these provisions may not be ideally crafted from the patient perspective, the bill creates an opportunity that never before existed in Senate offices. Previously when patient advocates have tried to bring up the issue of medical marijuana with their Senators, many offices have avoided taking an official position because there was no legislation in the Senate on the issue. Now Senators must confront it.
Patient advocates and other stakeholders have an opportunity to discuss each of the bill's issues in a substantive way. Rather than decry any perceived shortcomings, patient advocates can make strategic use of their time lending support to help get the bill heard before the Senate Health, Education, Labor, and Pensions Committee and offering suggested amendments to improve the bill. To help better understand the bill, below is some section-by-section analysis (skipping Section 1, which is simply the title of the bill):
Sec. 2 – "Federalism in Drug Policy"
This is the section quoted above, and allows all state-legal medical marijuana conduct to continue to exist without any federal interference. Unlike the Department of Justice's August 2013 Cole Memo or the even the Rohrabacher-Farr Amendment to the DOJ budget, this protection is both binding and permanent. ASA was successful in making certain that testing labs were included along with producers and dispensers. The exemption from the CSA does two additional things, 1) it will provide 280e tax relief to medical marijuana businesses (which should result in lower prices for patients) and 2) will allow state programs to go on unimpeded, regardless of where marijuana is placed in the CSA because the CSA will no longer apply in those states for state-legal medical marijuana conduct. Unfortunately, it is unclear whether or not duel-licensed medical/adult-use businesses would be eligible, but it appears they would be eligible for the medical portion of their business. However, this section creates binding and unequivocal legal protections from federal interference for anyone abiding by their state's medical marijuana law.
Sec. 3 – Rescheduling of Marihuana
The rescheduling portion of the bill is probably the section that will get the most criticism from patient advocates and others. While placement in Schedule II does not appear to be appropriate based on its growing medical acceptance and lower abuse potential than other Schedule II substances like cocaine and methamphetamine, it would show that the U.S. government has finally accepted that their is medical use for marijuana. It could also potentially open up health insurance coverage to medical marijuana therapy, but that would not happen automatically. There are some who have expressed concerns that if marijuana were placed in Schedule II that it would mean pharmacies would have to take over distribution and that pharma companies would take over production. However, because of Section 2 of the bill, state programs would completely exempt from the CSA, therefore, state programs would continue to operate independent of any potential implications of Schedule II status.
Sec. 4 – Exclusion of Cannabidiol from Definition of Marihuana
The concept of this section of the bill similar to Rep. Scott Perry's HR 5226 from the 113th Congress, but has been slightly modified. This language would completely remove derivatives of marijuana with less than 0.3% THC content from the CSA, which would help enable transportation of high-CBD extracts across state lines. However, states that have not already passed full medical marijuana laws or CBD-only laws would still need to pass such laws for protections to be complete in those states. Given that marijuana would be rescheduled and CBD would be removed from the schedule, along with the growing trend of more CBD and MMJ states, it is a fairly safe assumption that most, if not all remaining states without CBD protections would adopt such laws in the wake of federal passage.
Sec. 5 – Cannabidiol Determination by States
This section was inspired by a similar provision in the S. 134, Industrial Hemp Farming Act of 2015, which had a safety valve provision for states that allow more than 0.3% THC in their CBD laws. ASA provided the Senate offices with language that will protect the patients in states who allow more than 0.5%-5% THC in their CBD laws, such as AL, FL, IA, MS, SC, TN, and VA, who recently became the 12th CBD-only state.
Sec. 6 – Banking
The banking section of the bill used Rep. Perlmutter's HR 2652, the Marijuana Access to Banking Act of 2013, as its basis. The provision would allow anyone acting in conformity with their state marijuana laws to be able to access banking services. This section would be explicitly forbid the federal government from penalizing marijuana businesses, exempt banks from filing suspicious activity reports on marijuana business, and forbid the federal government from incentivizing banks to discriminate against legal marijuana businesses.
Sec. 7 – Research
ASA urged the Senate sponsors to make sure that the two biggest barriers to medical marijuana research in the United States were addressed, the Public Health Service Review Process and the NIDA monopoly on the supply of available research marijuana. This bill addresses both in a significant way. First, the bill would completely eliminate the PHS Review process, which is a hurdle so difficult to overcome that most researchers do not even bother trying. Dr. Sue Sisley is one of the few researchers to successfully get past the process and it may have delayed her PTSD research by four years. Second, it would end the single source monopoly for federal marijuana made available for FDA-approved research. This will help ensure that a greater variety of marijuana is available to help foster meaningful research in the U.S.
Sec. 8 – Veterans
ASA also urged the bill sponsors to include a section granting access to state medical marijuana programs to veterans who rely on the Veterans Administration for their healthcare. Currently, VA doctors are forbidden from filling out recommendation forms in states that have medical marijuana programs, which makes it costly and time consuming for sick and injured veterans to gain safe and legal access if their state provides it. The provision, which is based on Rep. Earl Blumenauer's HR 667, the Veterans Equal Access Act, and would allow VA doctors to fill out state medical marijuana recommendation forms.
The CARERS Act addresses just about every component in the state-federal conflict of medical marijuana laws. Whatever minor shortcomings it may have, those are outweighed by the both unprecedented nature of the bill, and the opportunity now afforded to patient advocates when trying to get Senators to support safe and legal access to medical marijuana.
Edit: Analysis on Section 4 has been slightly revised since original publication to better reflect this applies to derived forms rather than the entire plant.