This summer may be a big moment in the national conversation about marijuana. With a decision possibly coming by July 1, the U.S. Drug Enforcement Administration could partially legalize medical marijuana, and the federal government could usher in a new era with a comprehensive and multi-structural approach to pot policy. Just don’t expect to fill a marijuana brownie prescription at your local drug store any time soon.
Marijuana has been a Schedule I narcotic since 1970. That means, in the eyes of the federal government, marijuana has no medicinal value and is highly addictive. It is illegal under federal law to grow, possess or sell it. To put this in perspective, cocaine is a Schedule II narcotic — legally available under highly restrictive circumstances.
The DEA’s options are to keep marijuana as Schedule I or to reschedule or de-schedule it. De-scheduling would allow use for non-medical, recreational purposes like alcohol. Rescheduling would allow use like a regular prescription issued by a physician and filled by a pharmacy under a DEA license, like Codeine. If this happened, marijuana prescriptions would almost certainly be allowed only in traditional medicinal forms, such as pills and extract drops and perhaps topical lotions and nebulizers. It’s unlikely that the DEA and the Food and Drug Administration would allow prescriptions for smokable marijuana or pot brownies and other edibles.
Although legal under state law in more than half the states, marijuana is still illegal federally, and federal law trumps. Since 2009, the federal government has followed a policy of non-enforcement. In short, the federal government is not enforcing federal marijuana laws, as long as anyone involved is in compliance with state marijuana laws. It is akin to the non-enforcement of traffic laws, for speeding a few miles per hour over the limit.
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If the DEA keeps marijuana on Schedule I, the federal government risks continued suffering by those with true medical ailments and continued lack of scientific study. The DEA would be wildly out of step with rapidly changing public opinion. If the DEA de-schedules marijuana, big tobacco companies could take over, and the fears of many anti-marijuana advocates would be realized.
Rescheduling marijuana for medical/prescription use, but shutting down the state recreational side, would result in unintended negative consequences. Because prescriptions are not taxed, state and local jurisdictions would lose millions of dollars in tax revenues. Colorado collected nearly $135 million in medical and recreational marijuana taxes and license fees in 2015 on a combined medical and recreational market of nearly $1 billion. With a prescription-only industry, states would lose their current marijuana-related jobs to existing pill-manufacturing companies.
With rescheduling to a prescription-only federal system, the residual state systems will continue to grow. More states will legalize medical and recreational marijuana, and only a small piece of the consumer market would be siphoned off by the marijuana prescriptions allowed through rescheduling. Therefore, the federal government will need a comprehensive approach to a new dual-system era.
All relevant goals and concerns can be addressed with a three-part approach:
1. Reschedule marijuana from Schedule I (completely illegal) to Schedule III (legal for medical purposes, allowed only by prescription).
This would only address a small percentage of the current market, as most marijuana in Colorado and other legal states is consumed by smoking, vaping and edibles. Rescheduling would legalize marijuana testing and patient studies for universities.
2. Continue the federal non-enforcement policy for recreational marijuana.
Rescheduling for medical purposes would align with the federal government’s current stance towards state-legal recreational structures. Under a dual system, the recreational market would increase rapidly with customer demand for non-prescription smokable marijuana and edibles. Jurisdictions with excise taxes on recreational marijuana would bring in additional revenues for regulation based on federal enforcement priorities.
3. Create a coalition of states to adopt uniform, comprehensive regulation and enforcement for recreational marijuana to address public safety concerns.
A coalition of states could create model laws and regulations to create uniformity in packaging, labeling, portion size, marijuana oil extraction safety standards, pesticide use, testing, etc., as well as joint enforcement. The federal government could add its support for public safety and consumer protection by: 1) amending banking laws to allow marijuana businesses to have checking accounts and receive loans, and reduce the crime associated with cash-only businesses; 2) allowing the U.S. Patent and Trademark Office to award patents and trademarks; and 3) amending the IRS Code to allow marijuana businesses to take standard business deductions.
These reasonable steps address both public safety and public opinion with a reality-based approach to marijuana regulation. This is regulation that works for the people.
Tom Downey is a regulatory attorney in the Colorado law firm Ireland Stapleton Pryor & Pascoe. He is the past director of the Denver Department of Excise and Licenses. The views expressed in this commentary do not necessarily reflect the views of Ireland Stapleton Pryor & Pascoe, PC.