Just a technical point: the Rohrbacher amendment forbids appropriated funds from being used for enforcement, but not all of the DOJ or other agencies budgets come from appropriations, eg DOJ has fines and settlements that it collects that it has discretion on how to spend as I understand it. Realistically, I agree with you that the amendment likely de facto stops any funding but I don’t think this is technically the case de jure. Not sure if you’ve looked into this?
This is a good and fair point. I'm aware of the limits of Rohrbacher-Farr, but I don't think those limits really detract from the logic/force of the proposal I'm describing here. Instead, I think these concerns can/should be dealt with through thoughtful calibration of the scope of the proposed waiver. This is the sort of thing that I'd love to dig into but that is impractical in substack post introducing the idea at a high level.
Start with the patients. 21 U.S.C. 822(d) is about commercial activity. Look at 21 C.F.R. 1307.31, which has two distinct parts. The first part is an exemption for the users, the second part is 21 U.S.C. 822(d). Don't put the cart before the horse. If the case can't be made for excusing the patients, it certainly can't be made for those supplying them.
These businesses are federal continuing criminal enterprises, a necessary evil to supply the patients. There's no sympathy factor for a corrupt racketeering organization that only exists because the patients are not exempt users. The states are causing this, so put the blame on the states for failure to apply for the exemption, 21 C.F.R. 1307.03, or even 21 C.F.R. 1308.43. Then the businesses can apply for the waiver under 21 U.S.C. 822(d) because they will then be consistent with "public health and safety." The users have registration cards, so we know who they are. Congress has identified that class of users in the annual appropriations for the Dept. of Justice for the past 10 years.
If an 822(d) waiver would mean that medical cannabis is no longer "trafficking" regardless of schedule, would such a waiver effectively federally legalize medical only cannabis companies? Is there something that would make them still illegal somehow? If they aren't "trafficking" anymore, that should remove all the issues with federal illegality like access to normal banking/Visa Mastercard rails/insurance/employee mortgages etc, or am I missing something? Even under Schedule 3 it would still be "trafficking" and thus still illegal (but with normal tax treatment).
A waiver along the lines I've described would remove the CSA's restrictions from medical cannabis activity that is legal under state law. It wouldn't automatically make that activity legal under other federal laws. So, for instance, a waiver would not make it legal to market medical cannabis as a drug in interstate commerce because the FDCA bars interstate marketing of any substance as a drug without FDA approval (which cannabis doesn't have). Nor would it automatically amend the FinCEN guidance that is holding up banking. Only FinCEN can change that. Of course, a waiver like this could go a long way toward persuading FinCEN to do so. But it wouldn't be automatic. Nor would it automatically change NASDAQ and NYSE listing restrictions. Again, those restrictions emanate from the exchanges themselves and therefore changing them will require action from the exchanges themselves (or Congress, I suppose). Of course, as with the banking stuff mentioned earlier, a waiver like this one could go a long way toward making a compelling pitch to the exchanges for a loosening of the rules. Hope this helps.
thanks for the reply! the Nasdaq and NYSE seem to be more their own lawyers' risk tolerances than legality, so yes such waivers would probably go a long way.
The question is what the waiver would cover. I can't imagine a waiver that goes beyond a state medical cannabis program, which is why Shane limited the title of his post to "medical-cannabis". There is no federal "medical-cannabis" so it could only mean a state program. I would say for that limited purpose, the waiver would cover 26 U.S.C. 280E, but not much else. The missing piece here is the patients. Why should the patients get left behind? And, if the patients are still considered federal criminals, why waive the the requirements for the suppliers? This 822(d) approach is putting the cart before the horse. The patients are the worthy cause here, not the industry. We don't have to re-invent the wheel here, because we already have the example in 21 C.F.R. 1307.31, that gives an exemption to the users, and a waiver to the suppliers. Just use the model that already exists and don't try to leave out the people being served. 822(d) says consistent with public health and safety, but how is that possible if the users aren't the primary focus?
Is there anyone who is still in the medical marijuana movement that thinks rescheduling(as opposed to descheduling) is a good thing? Can you explain how a moving cannabis to schedule 3, WOULDN’T, defacto invalidate all (state)medical cannabis? Seeing how medical cannabis will then fall under the FDA, who historically have downplayed and flat out lied about cannabis in the past. It’s like the cali ‘legalization’, where all the legacy growers weren’t prosecuted under the CSA, but fined 10k a day as a lean against their properties.. Only with the FDA they’re require 5 million in equipment and “sterilization” that will defacto degrade or eliminate the medicinal properties. They’ve had pharmaceutical thc for decades(where was the research?), they could careless about anything other than cannabinoids.
47 states have been thumbing their noses at the FDA for the past several years, and nothing is going to change when cannabis is in Schedule III. De-scheduling is the correct choice, for sure. But, Schedule I just had to go. Baby steps.
I firmly disagree with you on that. Rescheduling will result in the complete reworking, if not, the complete dismantling of state medical cannabis laws. They will fund propaganda campaigns decrying “dirty” cannabis, poisoning people with serious conditions. All while ignoring the ways Wall Street has enshrined dirty(pesticides, mold, the lot) cannabis into the rec market. Michigan(was it something like 1.5 million products held for destruction bc the testing company lied about testing for mold/bacteria then a judge ruling all that had to be allowed on the market, plummeting prices to where they are today) and Alaska(they only test for pesticides banned on produce) being prime examples. If your talking about defying the fda via medical cannabis laws, those were mandated by the people(mostly) and capitalist looking at a gold rush.(bc they will have a place in the new ‘pharmaceutical cannabis’, an old tactic from MI) The respective state governments have spent absurd amounts of money and all have nepotistic corruption surrounding their respective agencies. And you don’t think with a mandate of “it’s now a pharmaceutical medicine” they won’t just throw these laws out? It allows them to say fuck you to those pioneers, who floated the law, while saying to the voters, “see now cannabis is medicine”.
who said that? So you stand by what you said based on nothing I’ve said but Instead a proposition that would be valid only the first couple of years? 🤨 interesting
Nobody asked me if it should be in Schedule III. I would have said "not scheduled". How do you stop companies from making pharmaceutical drugs from cannabis plants and getting FDA marketing approval for those products? How would you resolve this? I never said I like it. This plant should never have been included in the Controlled Substances Act in the first place. I could not stop that from happening, and I can't see any possible way to prevent this from happening. What I see is 21 C.F.R. 1307.31, which exists without removing the peyote plant from Schedule I. That provides an immediate solution, while this other distraction is going on.
1. January 1st of 2019 the Iowa Medical Cannabidiol Board recommended the Legislature address the use of medical cannabidiol products in long-term and acute care settings, as well as in schools.
2. January 1st of 2020 the Iowa Medical Cannabidiol Board recommended seeking exemption for Iowa’s program from federal drug laws.
3. January 7th of 2020 the Iowa Department of Public Health refused to seek a federal exemption without a mandate from the Iowa legislature.
4. June 29th of 2020 the Iowa legislature mandated the department request guarantees from the federal government protecting funding to educational and long-term care facilities that allow patients to possess medical cannabidiol at those facilities.
5. September 4th of 2020 the department agreed to seek a federal exemption.
6. April 23rd of 2021 the department requested guarantees from the federal government protecting funding to educational and long-term care facilities.
7. January 1st of 2023 the Iowa Medical Cannabidiol Board recommended a legal task force to assist the department with the application.
8. January 1st of 2024 the Iowa Medical Cannabidiol Board recommended a legal task force to assist the department with the application.
Here is the complete package, get the users certified as a class like the Native American Church, using 21 C.F.R. 1307.03, and the suppliers can register using 21 U.S.C. 822(d), just like the suppliers in 21 C.F.R. 1307.31 (persons supplying peyote to the Native American Church). Give the DEA a reason to grant the waiver, an exempt class of users. And, yes, so much has changed. Congress has suspended enforcement since 2014 continuously in the annual appropriations for the DEA, so the intent of Congress has changed dramatically. The HHS recommendation just added the icing to the cake, the abuse potential just shrunk creating a greater incentive to use 21 U.S.C. 822(d) in the interest of "public health and safety". But, 21 C.F.R. 1307.03 is the key. Get that class of users certified as a worthy cause, so these businesses are serving that population.
Just a technical point: the Rohrbacher amendment forbids appropriated funds from being used for enforcement, but not all of the DOJ or other agencies budgets come from appropriations, eg DOJ has fines and settlements that it collects that it has discretion on how to spend as I understand it. Realistically, I agree with you that the amendment likely de facto stops any funding but I don’t think this is technically the case de jure. Not sure if you’ve looked into this?
This is a good and fair point. I'm aware of the limits of Rohrbacher-Farr, but I don't think those limits really detract from the logic/force of the proposal I'm describing here. Instead, I think these concerns can/should be dealt with through thoughtful calibration of the scope of the proposed waiver. This is the sort of thing that I'd love to dig into but that is impractical in substack post introducing the idea at a high level.
Start with the patients. 21 U.S.C. 822(d) is about commercial activity. Look at 21 C.F.R. 1307.31, which has two distinct parts. The first part is an exemption for the users, the second part is 21 U.S.C. 822(d). Don't put the cart before the horse. If the case can't be made for excusing the patients, it certainly can't be made for those supplying them.
These businesses are federal continuing criminal enterprises, a necessary evil to supply the patients. There's no sympathy factor for a corrupt racketeering organization that only exists because the patients are not exempt users. The states are causing this, so put the blame on the states for failure to apply for the exemption, 21 C.F.R. 1307.03, or even 21 C.F.R. 1308.43. Then the businesses can apply for the waiver under 21 U.S.C. 822(d) because they will then be consistent with "public health and safety." The users have registration cards, so we know who they are. Congress has identified that class of users in the annual appropriations for the Dept. of Justice for the past 10 years.
If an 822(d) waiver would mean that medical cannabis is no longer "trafficking" regardless of schedule, would such a waiver effectively federally legalize medical only cannabis companies? Is there something that would make them still illegal somehow? If they aren't "trafficking" anymore, that should remove all the issues with federal illegality like access to normal banking/Visa Mastercard rails/insurance/employee mortgages etc, or am I missing something? Even under Schedule 3 it would still be "trafficking" and thus still illegal (but with normal tax treatment).
A waiver along the lines I've described would remove the CSA's restrictions from medical cannabis activity that is legal under state law. It wouldn't automatically make that activity legal under other federal laws. So, for instance, a waiver would not make it legal to market medical cannabis as a drug in interstate commerce because the FDCA bars interstate marketing of any substance as a drug without FDA approval (which cannabis doesn't have). Nor would it automatically amend the FinCEN guidance that is holding up banking. Only FinCEN can change that. Of course, a waiver like this could go a long way toward persuading FinCEN to do so. But it wouldn't be automatic. Nor would it automatically change NASDAQ and NYSE listing restrictions. Again, those restrictions emanate from the exchanges themselves and therefore changing them will require action from the exchanges themselves (or Congress, I suppose). Of course, as with the banking stuff mentioned earlier, a waiver like this one could go a long way toward making a compelling pitch to the exchanges for a loosening of the rules. Hope this helps.
thanks for the reply! the Nasdaq and NYSE seem to be more their own lawyers' risk tolerances than legality, so yes such waivers would probably go a long way.
The question is what the waiver would cover. I can't imagine a waiver that goes beyond a state medical cannabis program, which is why Shane limited the title of his post to "medical-cannabis". There is no federal "medical-cannabis" so it could only mean a state program. I would say for that limited purpose, the waiver would cover 26 U.S.C. 280E, but not much else. The missing piece here is the patients. Why should the patients get left behind? And, if the patients are still considered federal criminals, why waive the the requirements for the suppliers? This 822(d) approach is putting the cart before the horse. The patients are the worthy cause here, not the industry. We don't have to re-invent the wheel here, because we already have the example in 21 C.F.R. 1307.31, that gives an exemption to the users, and a waiver to the suppliers. Just use the model that already exists and don't try to leave out the people being served. 822(d) says consistent with public health and safety, but how is that possible if the users aren't the primary focus?
Is there anyone who is still in the medical marijuana movement that thinks rescheduling(as opposed to descheduling) is a good thing? Can you explain how a moving cannabis to schedule 3, WOULDN’T, defacto invalidate all (state)medical cannabis? Seeing how medical cannabis will then fall under the FDA, who historically have downplayed and flat out lied about cannabis in the past. It’s like the cali ‘legalization’, where all the legacy growers weren’t prosecuted under the CSA, but fined 10k a day as a lean against their properties.. Only with the FDA they’re require 5 million in equipment and “sterilization” that will defacto degrade or eliminate the medicinal properties. They’ve had pharmaceutical thc for decades(where was the research?), they could careless about anything other than cannabinoids.
47 states have been thumbing their noses at the FDA for the past several years, and nothing is going to change when cannabis is in Schedule III. De-scheduling is the correct choice, for sure. But, Schedule I just had to go. Baby steps.
I firmly disagree with you on that. Rescheduling will result in the complete reworking, if not, the complete dismantling of state medical cannabis laws. They will fund propaganda campaigns decrying “dirty” cannabis, poisoning people with serious conditions. All while ignoring the ways Wall Street has enshrined dirty(pesticides, mold, the lot) cannabis into the rec market. Michigan(was it something like 1.5 million products held for destruction bc the testing company lied about testing for mold/bacteria then a judge ruling all that had to be allowed on the market, plummeting prices to where they are today) and Alaska(they only test for pesticides banned on produce) being prime examples. If your talking about defying the fda via medical cannabis laws, those were mandated by the people(mostly) and capitalist looking at a gold rush.(bc they will have a place in the new ‘pharmaceutical cannabis’, an old tactic from MI) The respective state governments have spent absurd amounts of money and all have nepotistic corruption surrounding their respective agencies. And you don’t think with a mandate of “it’s now a pharmaceutical medicine” they won’t just throw these laws out? It allows them to say fuck you to those pioneers, who floated the law, while saying to the voters, “see now cannabis is medicine”.
Placing a plant in Schedule III does not create a "prescription" so I stand firm on what I said.
who said that? So you stand by what you said based on nothing I’ve said but Instead a proposition that would be valid only the first couple of years? 🤨 interesting
Nobody asked me if it should be in Schedule III. I would have said "not scheduled". How do you stop companies from making pharmaceutical drugs from cannabis plants and getting FDA marketing approval for those products? How would you resolve this? I never said I like it. This plant should never have been included in the Controlled Substances Act in the first place. I could not stop that from happening, and I can't see any possible way to prevent this from happening. What I see is 21 C.F.R. 1307.31, which exists without removing the peyote plant from Schedule I. That provides an immediate solution, while this other distraction is going on.
1. January 1st of 2019 the Iowa Medical Cannabidiol Board recommended the Legislature address the use of medical cannabidiol products in long-term and acute care settings, as well as in schools.
2. January 1st of 2020 the Iowa Medical Cannabidiol Board recommended seeking exemption for Iowa’s program from federal drug laws.
3. January 7th of 2020 the Iowa Department of Public Health refused to seek a federal exemption without a mandate from the Iowa legislature.
4. June 29th of 2020 the Iowa legislature mandated the department request guarantees from the federal government protecting funding to educational and long-term care facilities that allow patients to possess medical cannabidiol at those facilities.
5. September 4th of 2020 the department agreed to seek a federal exemption.
6. April 23rd of 2021 the department requested guarantees from the federal government protecting funding to educational and long-term care facilities.
7. January 1st of 2023 the Iowa Medical Cannabidiol Board recommended a legal task force to assist the department with the application.
8. January 1st of 2024 the Iowa Medical Cannabidiol Board recommended a legal task force to assist the department with the application.
And, here is the bill to create that legal task force:
https://www.legis.iowa.gov/legislation/BillBook?ga=90&ba=sf69
Here is the complete package, get the users certified as a class like the Native American Church, using 21 C.F.R. 1307.03, and the suppliers can register using 21 U.S.C. 822(d), just like the suppliers in 21 C.F.R. 1307.31 (persons supplying peyote to the Native American Church). Give the DEA a reason to grant the waiver, an exempt class of users. And, yes, so much has changed. Congress has suspended enforcement since 2014 continuously in the annual appropriations for the DEA, so the intent of Congress has changed dramatically. The HHS recommendation just added the icing to the cake, the abuse potential just shrunk creating a greater incentive to use 21 U.S.C. 822(d) in the interest of "public health and safety". But, 21 C.F.R. 1307.03 is the key. Get that class of users certified as a worthy cause, so these businesses are serving that population.