Biden Administration Facing Renewed Pressure to Legalize Cannabis

At least one public interest group and several members of Congress remain frustrated with the Biden Administration’s failure to take action to legalize cannabis.  Within the last month, the Cannabis Regulators of Color Coalition (“CRCC”) and handful of Democratic Senators have separately reached out to Biden Administration officials, including Attorney General Merrick Garland, requesting action to mitigate or eliminate federal prohibition on the use of cannabis.

As a reminder, cannabis remains a schedule I substance under the federal Controlled Substances Act (“CSA”), which by definition means it does not have an accepted medical use in treatment in the United States and thus cannot be legally sold or marketed for any purpose.  21 U.S.C. § 812(b)(1).  In contrast, as noted by both the public interest groups and members of Congress, 37 states have legalized cannabis for medical use, and almost 20 states and the District of Columbia have legalized cannabis for adult recreational use.

Cannabis Regulators of Color Request

The CRCC is an organization of cannabis regulators from jurisdictions where cannabis use is legal.  The Current and former CRCC officials submitted a letter on July 5th to the President, Vice President and Attorney General, opining on the necessity of restoring guidance embodied in the now infamous 2013 “Cole Memo,” and an earlier 2009  “Ogden Memo,” by providing clarity restricting the United States Department of Justice (“DOJ”) from “interfering with state-legal cannabis activity” in states that have legalized cannabis activity and have adopted “strong and effective regulatory and enforcement systems.”  Letter from Cannabis Regulators of Color Coalition to President Biden et al., 3 (July 5, 2022) [hereinafter CRCC Letter].

The “Cole Memo” was a memorandum from General James M. Cole providing guidance to U.S. Attorneys in August 2013 advising that DOJ would not take enforcement action against marijuana-related businesses operating in compliance with state law unless the businesses implicated one of eight specified enforcement priorities.  James M. Cole, Deputy Attorney General, Memorandum for All United States Attorneys (Aug. 29, 2013).  The guidance rested on the expectation that states that legalized marijuana would implement strong and effective regulatory systems to control cultivation, distribution, sale and possession.  However, in January 2018,  then-Attorney General Jeff Sessions rescinded the Cole and Ogden Memos.

The CRCC request comes in response to the less than clear guidance from  Attorney General Garland in testimony before Congress in April 2022, who, when asked whether he intended to reinstate the Cole guidance during a Senate subcommittee hearing, replied that the position taken and expressed during his confirmation had not changed.  Merrick Garland, Testimony Before the Senate Subcommittee on Appropriations, (01:06:35) (Apr. 26, 2022).  AG Garland stated during his confirmation that he did not “think it the best use of the Department’s limited resources to pursue prosecutions of those who are complying with the laws in states that have legalized and are effectively regulating marijuana.”  Merrick Garland, Responses to Questions for the Record to Judge Merrick Garland, Nominee to be United States Attorney General, 24.

The CRCC asserts that DOJ should “prioritize enforcement against federal offenses that pose a clear and legitimate threat to the public safety, health, equity, or the environment” and enforcement efforts “must not disproportionately target people of color.”  CRCC Letter, 3.  CRCC also requests such guidance should explicitly protect patients using cannabis for medical treatment.  The CRCC also states that clarifying that DOJ will refrain from prosecuting cannabis stakeholders whose activities are legal under state law and do not implicate a federal enforcement priority would provide needed assurance for individuals and companies who have heavily invested in the cannabis industry.  Such clarification is required so long as cannabis remains a federally-controlled schedule I controlled substance and not is similarly controlled or non-controlled under state law.   

Democratic Senators’ Request

An unrelated letter from six Democratic Senators, written a day after the CRCC letter and , presses the Administration to federally decontrol cannabis.  The July 6th letter, signed by Senators Elizabeth Warren, Cory Booker, Bernie Sanders, Edward Markey, Kirsten Gillibrand and Ron Wyden, follows an October 6, 2021, letter to the Attorney General from Warren and Booker and was written after receiving an “extraordinarily disappointing” DOJ response on April 13th “noting the Department of Health and Human Services’ (HHS) determination that ‘cannabis has not been proven in scientific studies to be a safe and effective treatment for any disease or condition’” as the reason DOJ has not begun the descheduling process.  Letter to President Joseph Biden, et al. from Senator Elizabeth Warren, et al., 1 (July 6, 2022).

The group of Democratic Senators argue that DOJ and the Drug Enforcement Administration (“DEA”) can begin descheduling and act independently of HHS’ determination.  The letter reiterates the point made in Warren’s and Booker’s October 2021 letter that the CSA authorizes the Attorney General to initiate rescheduling or descheduling proceedings separately or at the request of the HHS or any interested party.  Essentially, the Democratic Senators are advocating that DOJ should move forward with a rescheduling or descheduling regardless of whether HHS recommends such action or, more critically in this case, whether HHS determines that cannabis has a legitimate medical use for treatment in the United States.  The latter presents an interesting conundrum where DOJ would likely be disagreeing with the current medical and scientific findings of HHS.  It is worth noting that the CSA provides that HHS medical and scientific findings on drugs are controlling.

The Senators boldly assert that “it is obvious that cannabis has widely accepted medical benefits, affirmed by medical and scientific communities” in the U.S. and around the world, including treatment of chronic pain, seizure disorders, cancer, multiple sclerosis and others.  Id. at 2.  They further note that the tetrahydrocannabinol-alpha (“THC”) and cannabidiol (“CBD”) of cannabis “make it an excellent alternative to highly addictive opiates for pain relief.”  Id.  The letter states that there have also been economic, racial justice, public safety and health benefits where cannabis has been legalized.

The Senators remind the Administration of the President’s campaign commitment to decriminalize cannabis and expunge prior non-violent cannabis convictions but most importantly, that then-Candidate Biden “also acknowledged the importance of removing cannabis from its current classification under the CSA as a Schedule I substance.”  Id. at 3.

Lastly, the Senators observe that they had asked the President in November 2021 to pardon all individuals convicted of non-violent cannabis offenses, and while not receiving response, commend his pardon and commutation of nine people convicted of non-violent cannabis offenses.

The Senators conclude that “[t]he Administration’s failure to coordinate a timely review of its cannabis policy is harming thousands of Americans, slowing research, and depriving Americans of their ability to use marijuana for medical or other purposes.”  Id. at 4.  They ask the Administration to act swiftly “to rectify this decade long injustice harming individuals, especially Black and Brown communities.”  Id.

In a related action, Senator Booker introduced, with several Senators who signed the July 6th letter sponsoring, the Cannabis Administration and Opportunity Act (S. 4591) on July 21st.  this appears to be a bill directed at decriminalization of cannabis.  We will weigh in on the bill when its text is publicly available.

Finally, we note, that the CSA also provides that Congress has the authority to reschedule or decontrol any drug or substance through the legislative process.  With a majority of the states having passed some cannabis legislation, we wonder about the potential for Congress to amend the CSA to take such action.