Today over 300 million Americans live in states with medical cannabis laws, and over 2 million individuals are legally using medical cannabis under these state programs. However, all of these patients and programs are in violation of federal laws.
Over the past few years, most federal interference has come to halt (more than $500,000,000 dollars of anti-medical cannabis federal enforcement later) due to the the passage of the Rohrabacher-Farr medical cannabis amendment to the CJS appropriations bill in 2014 and 2015 which prohibits federal interference with state medical cannabis programs as well as the August 2013 Department of Justice memo that made clear that state legal medical marijuana is not a top priority for federal enforcement.
Over the last week the nation has turned its attention once again to the federal battle between the states and federal government as it relates to medical cannabis, and all solutions require action by Congress.
On August 10th the Drug Enforcement Administration (DEA) announced they rejected a petition to remove cannabis from the most restrictive Schedule 1 category, stating that the decision was based heavily on the FDA's determination if marijuana is “a safe and effective medicine.” That same day, the DEA issued two other memos, one announced they would be licensing additional entities to grow cannabis for research studies, the second gave guidance to the industrial hemp industry.
The announcements from the DEA may have been a mixed bag, but on August 16th, the federal 9th Circuit, by a three-judge panel, issued an opinion that was a major victory. In the opinion of U.S. vs. McIntosh, written by 9th Circuit Judge Diarmuid F. O’Scannlain, the court held that the Rohrabacher-Farr Amendment prohibits the federal prosecution of conduct that is allowed by state medical cannabis law.
On August 30th, 2016 Americans for Safe Access (ASA) will be issuing a full report on the DEA’s rescheduling response, but in our initial review we can see that the DEA cherry picked the data. Specifically, they focused on outdated information from last century, animal research, surveys, misinterpreted several studies reporting non-serious adverse events, and disregarded dozens of clinical trials that did not fit into their political agenda for regulating medicine. The decision has sparked outrage and calls of DEA hypocrisy from the medical cannabis movement.
When we compared studies used by the DEA to make their determination to the research when we conducted our own independent 8-Factor Analysis, we found that less that 1 percent of the studies the DEA cited were clinical research. Instead, they relied heavily on surveys (33 percent of their citations), and almost completely ignored available studies on safety. On the positive side, it looks like everyone agrees we can put the Gateway Theory to rest.
In an interview with NPR, DEA chief Chuck Rosenberg said "This decision isn't based on danger. This decision is based on whether marijuana, as determined by the FDA, is a safe and effective medicine," he said, "and it's not." The DEA’s response simply stated that cannabis does not fit with current federal regulations for a FDA approved drug. So what the DEA Report really reveals is that their position on medical cannabis is NOT based on cannabis’ medicinal value but rather on how they define “Medicine.”
The process that the DEA and FDA went through for cannabis was actually designed for prescription drugs. This unworkable process for botanical medicine such as cannabis has led 42 States to create their own definitions of medicine and distribution (be it very different from state to state). The medical cannabis movement is not just activists protesting outside doors. We have created safety protocols and standards for both products and employees, product safety standards and new methodologies for testing these standards, labeling requirements, advertising requirements, disease profiles for recommendations, purchasing limits, and consumer and medical professional education. In this process we have created a new definition about medicine and how to distribute it in a safe and regulated manner.
After 20 years of experimentation, the new definition of medicine created by the states includes cannabis as well as robust regulations that address public health and safety issues such as diversion for non-medical use and product safety protocols. Studies on these programs have shown little to no negative impact, and in some areas, positive effects on public health outcomes. In 2014, an article from the Journal of American Medicine found that “States with medical cannabis laws had a 24.8% lower mean annual opioid overdose mortality rate compared with states without medical cannabis laws.” Recently the National Bureau of Economic Research reported “Our findings suggest that providing broader access to medical marijuana may have the potential benefit of reducing abuse of highly addictive painkillers.”
State programs have also reduced the need for prescription drugs while providing cost-savings for taxpayers. A recent study from the University of Georgia found Medicare experienced a savings of $165.2 million on prescription drugs across 17 states and the District of Columbia with medical cannabis laws in 2013. Savings would have reached $468 million if all states had medical cannabis programs. Saving money while saving lives, who can’t get behind that?
Yet while the state programs are providing wellness to patients and alleviating federal health care costs, the thin layer of Congressional protection for these programs may be in jeopardy...
The McIntosh ruling protecting those obeying state medical cannabis laws was made possible by the Rohrabacher-Farr Amendment to appropriations bill that funds the Department of Justice. That means the protection must be renewed annually before the fiscal year ends on September 30th. While the Senate Appropriations Committee approved the amendment back in May by a vote of 21-8, the House has not voted on the amendment yet this year. Worse still, rules issued in June by House leadership have limited amendments to appropriations bills this year, which may block the Rohrabacher-Farr Amendment from ever having a vote this year.
If House leadership prevents the vote, there's still a small chance it could make it into the final bill, but it will be a long shot. Senate Appropriations Ranking Member Barbara Mikulski (D-MD), who sponsored the Senate version of the amendment, could potentially negotiate it into the final bill. She successfully negotiated it into the final bill back in 2014 without a Senate vote on the amendment, but it will be more difficult for her to do so this year now that opponents like House Appropriations Chair Hal Rogers (R-TX) have seen how the amendment works in federal court. If the amendment isn't in the final bill, that would allow federal prosecutions to resume. And if Donald Trump wins in November, there is a strong chance that a medical cannabis opponent like Chris Christie or Rudy Giuliani will be our next U.S. Attorney General. Think about that for a moment.
In 2015, through a bipartisan effort, the Compassionate Access, Research Expansion, and Respect States (CARERS) Act (S. 683, H.R. 1538) was introduced to resolve the state-federal conflict over medical cannabis. The bills are currently stuck in their respective committees awaiting a vote. If Congress passes the CARERS Act, state programs would no longer be in conflict with federal law. Furthermore, federal agencies could better study and inform programs, such as the EPA creating safe pesticide lists or the National Institute of Health studying cannabis as a tool to fight the nation’s opiate crisis.
For millions of Americans medical cannabis is legal under their state law, it is time for the federal government to show leadership and support for the 42 states, the District of Columbia, Puerto Rico, and Guam that are creating medical cannabis programs to address the needs of their residents. Contact your Congressional representatives today to help end this madness and move the national dialogue forward!