May 12, 2024

Still much unknown on how marijuana policies would change in states under Biden plan

Posted May 12, 2024 2:00 PM
(Rebecca Rivas/Missouri Independent).
(Rebecca Rivas/Missouri Independent).

BY: JACOB FISCHLER  Kansas Reflector

U.S. Attorney General Merrick Garland has proposed loosening the illegal status of marijuana at the federal level – but that doesn’t mean the federal government now condones recreational or medicinal use in the many states that have legalized the drug.

Moving marijuana from the government’s list of the most dangerous and least useful substances to a less serious category was a clear signal that the federal government, at least under President Joe Biden’s administration, wants to ease restrictions on a drug that’s been legal in an increasing number of states for more than a decade.

For years, the federal government has not pursued enforcement of state-legal marijuana operations, and the recent move appears to solidify that approach.

But it didn’t solve the many thorny issues that have resulted from a split between what is legal in dozens of states and what the federal government allows.

It’s unclear exactly what the rescheduling will mean. The Justice Department has not made public the text of Garland’s proposal — a DOJ spokesman declined States Newsroom’s request this week for a copy and state regulators say it has not been shared with them.

Even if the proposal were public, it would be expected to go through changes over months of rulemaking.

Here are some questions covering what is known at this early stage about what rescheduling would and would not do.

(Rebecca Rivas/Missouri Independent).
(Rebecca Rivas/Missouri Independent).

Q: Is weed legal now?

A: No.

Even in states that have legalized recreational use, the federal government would likely still consider the state system as illegal under federal law.

Other Schedule III drugs, including Tylenol with codeine and anabolic steroids, are tightly regulated and available only by prescription at pharmacies.

State-legal medicinal marijuana dispensaries do not fit that description and recreational-use dispensaries are even further from what the Food and Drug Administration requires of Schedule III drugs.

“This does not make marijuana state operations legal,” Shawn Hauser, a partner at Denver-based marijuana law firm Vicente LLP, said on a May 3 webinar. “They are not selling FDA-approved drugs and they are not licensed or meet the control requirements for Schedule III. So cannabis and state-legal dispensaries will remain in violation of federal law.”

Q: What is the difference between Schedule I and Schedule III?

A: Among the most significant is the recognition that the drug may have some medicinal value.

Under the federal Controlled Substances Act, the Drug Enforcement Administration has five levels of drug classifications.

Schedule I is the most restricted level, comprising the drugs most ripe for abuse that have no medicinal value. Other drugs on the list include heroin and LSD.

Because the definition of Schedule I substances includes no medicinal use, it is illegal to even study substances on the list.

Schedule III is the strictest level that acknowledges some medicinal value, making some hopeful that research on the drug could be improved.

“Moving cannabis to Schedule III would be a big step for recognition of the medical uses of cannabis, what voters here recognized by a wide margin in 1998,” the Washington state Liquor and Cannabis Board said in a May 1 statement. “And it would say very clearly that the federal government no longer considers cannabis among the most dangerous drugs.”

Q: How are states preparing?

A: Until they have more details, state regulators cannot do much, Amanda Borup, the senior policy analyst for the Oregon Liquor and Cannabis Commission, said in an interview.

“We really have to wait and see what they release,” she said, referring to the DEA’s rulemaking.

Other states are considering what the impacts might be.

The statement from Washington’s Liquor and Cannabis Board said rescheduling would “hopefully” ease restrictions on cannabis research, while it is “possible” the move would allow state-legal businesses to take advantage of tax deductions available to other industries.

Q: Why does research matter?

A: Marijuana advocates have had trouble providing evidence of any marijuana benefits because research has been restricted, which in turn made it more difficult to show that the restrictions should be lifted.

It could also help establish industry guidelines for ancillary issues. For example, the restrictions on research contribute to a lack of data on what pesticides are safe for use in marijuana cultivation.

Q: How does this affect policy on taxes, banking and criminal justice?

A: On its own, rescheduling likely won’t address several complaints marijuana industry members and advocates have about federal prohibition.

Some are hopeful, though, that the signal from the Biden administration will spur momentum toward other changes.

Most businesses can deduct their costs from their income and pay taxes on their net income. Marijuana businesses cannot take that deduction, known as 280E, according to the Marijuana Policy Project, an advocacy group.

Schedule I status also makes access to the U.S. banking system difficult.

Others complain that making marijuana legal in some states has not been fair to the communities of color that saw the most active enforcement.

Rescheduling would not fix those issues on its own, but advocates are hopeful it is a sign of momentum toward full legalization.

Senate Majority Leader Chuck Schumer and Democratic Sens. Cory Booker of New Jersey and Ron Wyden of Oregon reintroduced a bill last week to de-schdule the drug altogether. The measure includes expanding the 280E tax break and several provisions meant to address social justice.

Q: Could Trump reverse this if he wins in November?

A: Probably, though there’s no indication that’s on his agenda.

It’s unclear what the status of the rescheduling will be when the next Inauguration Day arrives on Jan. 20.

If former President Donald Trump wins back the presidency and the rescheduling is still pending, he could direct the DEA and DOJ to scrap the change.

Trump has not commented on the issue.