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Turning Water Into Weed And Other Absurdities
A demonstrably counterproductive cannabis research bill is poised to land on Uncle Joe's desk later this week
Word 'round the campfire is that the Medical Marijuana and Cannabidiol Research Expansion Act will head to POTUS’s desk later this week. Having studied it, I can confirm that it very closely resembles S. 253—a bill that, in a previous post, I dubbed “a counterproductive nightmare.”
In the months since, I’ve heard from many of the bill’s defenders. They insist it “is a step forward,” but they uniformly refuse to engage with my objections. Nevertheless, Congress is apparently about to pass the damned thing with only the slightest revisions, none of which addresses any of my concerns. Color me frustrated.
Given how little good my initial critique did, it’s probably pointless for me to spend even more energy on this bill. But a couple of readers said my earlier analysis was too complicated and detailed. So I’ve done my best to break my gripes down to the bare essentials below.
The bill imposes various DEA-registraiton requirements on entities seeking to handle CBD and/or “any [marijuana] derivative, extract, preparation, or compound.” Under current law, however, neither CBD nor any non-marijuana cannabis “derivative, extract, preparation, or compound” qualifies as a "controlled substance.” Thus, as things stand today, you don’t need any special DEA registration to research them. By imposing registration requirements on these otherwise-non-controlled substances, this bill dramatically increases barriers to cannabis research.
An example may help. Countless marijuana-derived compounds contain less than .3% delta-9 THC by dry weight. Take water, for example. You can derive the compound we call “water” from marijuana, and when you do, it doesn’t contain more than .3% delta-9 THC by dry weight (obviously). Therefore, it’s not marijuana and not a controlled substance under federal law, and you don’t need DEA permission to study it. Under this bill, though, because marijuana-derived water is a “derivative, extract, preparation, or compound” of marijuana, you would need to register with DEA to research it. If the absurdity of this state of affairs isn’t apparent to you, you’re simply not paying attention.
To be clear, for you to study marijuana-derived water, somebody would need to extract water from a marijuana plant. And because that person would need to handle marijuana to do so, they would need to register with DEA. That is true under the status quo and under this bill. The difference is that under the statuts quo, once the water is extracted from marijuana, anybody can study it, no DEA registration required. Under this bill, by contrast, you would need to register with DEA to study marijuana-derived water—even if you didn’t manufacture it—simply because it qualifies as a “derivative, extract, preparation, or compound” of marijuana.
I detail the provisions of the bill that cause this problem in my previous post, but offending language appears in Sec. 2(a)(1); Sec. 2(a)(2); Sec. 101; and Sec. 102.
The bill gives DEA (via the AG) unbridled authority to avoid licensing any marijuana manufacturers at all simply by refusing to place a notice in the federal register seeking more applications. See Sec. 103. DEA doesn’t have that sort of power over any application to register under current law. Therefore this is yet another example of this bill imposing additional barriers to research (by giving DEA power to block the supply of federally legal study material).
Many commentators tout the various deadlines the bill supposedly imposes on DEA as its key virtue. And indeed, Secs. 101 and 103 do impose some time constraints on DEA’s processing of applications. On closer inspection, however, those deadlines are worse than useless for two reasons.
First, because the bill fails to specify the consequences of DEA’s failure to meet any of those deadlines, they’ll all be unenforceable in court. See, e.g., Transportation Div. v. Fed. R.R. Admin., 10 F.4th 869, 874 (D.C. Cir. 2021) (“[I]f a statute does not specify a consequence for noncompliance with statutory timing provisions, the federal courts will not in the ordinary course impose their own coercive sanction.”) (quoting Barnhardt v. Peabody Coal, 537 U.S. 149, 159 (2003)).
Second, the bill gives DEA the power to avoid triggering any of the deadlines it imposes simply by refusing to accept any particular application as “complete.” Under current DEA regulations, the agency’s electronic filing system deems any application DEA receives complete automatically or else it will send the applicant an error message to alert them of what they’re missing so they can address the problem and resubmit. See 21 C.F.R. 1301.14. This bill, by contrast, would give DEA unrestrained authority to refuse even to acknowledge an application as complete for filing unless and until the applicant proved to DEA’s unreviewable satisfaction that the applicant had sufficient measures in palce to prevent diversion. The bill’s much-touted deadlines don’t even come into play until DEA blesses an application as meeting this nebulous and highly-subjective standard.
This is yet another way that the bill would make the already arduous process of researching marijuana even harder than it is under current law.
Finally, the bill imposes various limits on who may conduct research (only certain DEA-registered institutions of higher learning, practitioners, or manufacturers), and what research they may pursue (essentially FDA-approved pre-clinical/clinical studies). Not only would these provisions place additional limitations on cannabis research that don’t exist under current law, but they would also reinforce the failed FDA/pharma model on cannabis research. In a future post, I plan to break down why that model doesn’t and can’t work for cannabis regulation. For now, I simply flag these provisions as additional examples how this bill would actually make marijuana research much harder—not easier.
I could go on, but if you’re not convinced by now that this bill is a complete disaster, I doubt additional examples (or anything) would change your mind. Indeed, if you still like this bill after reading these objections carefully, my guess would be that your reasons for supporting have nothing to do with promoting cannabis research at all.