Wednesday, July 24, 2013

Reforming Federal Marijuana Law

Reforming Federal Marijuana Law


More and more congressmen seem willing to discuss the issue of some move toward relaxing marijuana Prohibition, and the House version of this year’s farm bill even has a provision allowing universities to do research on industrial hemp.  The time is ripe to consider what the best restructuring of federal marijuana law would be.  At least four broad possibilities (each of which could have wide variations in detail) come to mind.  In addition, many other statutes only indirectly related to marijuana would need to be conformed to the overall reform.

The four basic approaches to reform are 1) recognize and accept state law reforms, 2) move marijuana from the Controlled Substances Act to the Dietary Supplement Health and Education Act, 3) enact a specific federal marijuana act, and 4) amend and restructure the Controlled Substances Act.  Any of the four could be reasonably effective, but each has its own particular benefits, limitations, and costs.  Each will be discussed in turn.

Additionally, many federal statutes and programs have either explicit or implicit consequences for marijuana use or distribution.  Only a few of these can be highlighted here, but all federal statutes will have to be nit-combed to remove or mitigate these consequences.

Simply recognizing state actions in passing their own marijuana laws would be the least controversial and the simplest way for the federal government to disengage from criminalizing marijuana.  However, this approach still leaves a major obstacle on the road to open, full medical use.  The FDA would still remain a formidable, almost impassable block to routine use by doctors and patients; and no clear, affordable path to FDA approval – necessary for sale or prescription for medical use – seems possible.  Any effective statute recognizing state laws must have an explicit exemption from FDA regulation so long as the product does not leave the state.

A better approach, and almost as politically safe for congress members, would be simply to move marijuana from the Controlled Substances Act to the Dietary Supplements Health and Education Act ( see my earlier “Marijuana: Drug or Herb?” posting).  This change would allow marijuana to be sold like other botanical preparations and replace pre-marketing FDA approval with FDA after-sales policing of deceptive marketing practices.  States would still be allowed to regulate subsidiary issues like sales to youths and impaired driving.  Since some controls would still exist, this approach would arguably satisfy United States treaty obligations.

Congress could write a separate marijuana statute, removing oversight of it from the DEA and NIDA and bypassing some of the more stringent FDA requirements.  The difficulty with this approach is the political near-impossibility of getting congress to do anything substantial.  However, a separate act could accomplish several things that less drastic forms will not do.  One of the most beneficial would be to protect various strains and cross-breeds developed by growers, similar to the way the Plant Protection Act protects developers of new strains of food, fiber, and ornamental plants.  A buyer selecting a BubblegumKushDeiselSkank would know exactly what she was getting.  Hemp could be supervised and encouraged by the Department of Agriculture just like cotton is and hemp oil could get the same kind of encouragement as a fuel as ethanol does.  The list could go on and on.

Drastically amending the CSA, or even repealing it, is an ultimate goal of drug law reform, but as a method of taking the first step of uncriminalizing[1] marijuana, it is problematic.  The approach so far has been to reschedule marijuana under the Act, probably moving it to Schedule II, but that move would only place marijuana in the same legal status as morphine, methadone, OxyCotin, cocaine, and methamphetamine.  Even if it were moved to Schedule V, where it probably belongs, and where it could sold (if it could be sold at all) without a prescription, lack of FDA approval and DEA regulations on manufacturing, distribution, inventory, and security would still block effective use.  Simply removing marijuana from the definition of drugs covered by the CSA would then require that congress take some further action like those described above.

Massive reform of the CSA is needed, but whether that should be coupled with immediate marijuana legalization is questionable.  The most important reform should be to impose separation of power and checks on balances on the act by separating rule-making and enforcement powers.  This kind of separation has already been effectively applied to both the old Atomic Energy Commission and to the FAA and the old ICC, with separate regulators and enforcers established.  The rule-making (including scheduling decisions) so be removed from the DEA and the Justice Department and transferred to the Institutes of Health, under Health and Human Services.  The DEA would remain as strictly a police agency.  At the same time, NIDA should be dissolved and its duties distributed among the other, and more appropriate, NIH institutes.

Additionally, the CSA schedules should be redone.  Schedule I should be eliminated and all the drugs currently in it moved to Sched. II. This consolidation would allow experiments and experimental use, not just of marijuana, but also heroin, MDMA, LSD, and many of the other psychedelics.  Schedules III and IV should be combined, as they were in the original draft of the Act, since no real distinctions between these schedules exist.

Whatever method of marijuana law reform is chosen, much clean-up work will be necessary.  Mountains of federal laws contain myriads of marijuana restrictions.  A partial list would include the tax code, banking regulation, asset forfeiture, employment drug testing, public housing restrictions, aid to college students, limitations on colleges and universities receiving grants, loans, and research contracts, … .  The list goes on and on.  Some of these may be rectified simply by making marijuana legal to possess, but many will have to be explicitly rewritten.

Marijuana law reform is rapidly becoming inevitable, but the form it takes is as important as the action of repeal itself.  Unless all concerned concentrate on what the future will be, few of them will like the outcome.  Now is the time for serious discussion and planning.  The future is at stake.

[1] I’m using this ungrammatical neologism because recent usage has limited “decriminalization” to the removal of criminal penalties only from the personal possession of small amounts of marijuana while allowing strong criminal sanctions to all other marijuana activity.


  1. Changing the law is a great idea, but not very likely to happen soon. I think the better approach is to remove marijuana from schedule I because it now has accepted medical use in treatment in 19 states (in the United States), and then move it right down the schedules for its extremely safety profile.

  2. Buford - excellent analysis. I think the key is eliminating the DEA - in other words, taking drug control authority out of the Department of Justice.

    1. I'd like to know what steps are being take to remove authority from the Department of Justice.