Recreational marijuana is now legal in 19 states and the District of Columbia, putting it within reach of 40 percent of the nation’s population. Medical marijuana is available in 38 states. And that raises the entirely sensible question: When will federal law catch up?
Ever wonder why you can’t use a credit card at a pot shop? Thank the federal banking laws.
Even in states where marijuana sales are legal and regulated — Massachusetts for instance — sales are in cash (or debit card) and bank loans to marijuana businesses are difficult if not totally impossible to come by simply. That’s because at the national level marijuana is still a Schedule I drug under the Controlled Substances Act. That puts it in the same category as heroin and LSD and in a higher category than fentanyl and methamphetamine — which as President Biden said in a tweet, “makes no sense.”
So in addition to pardoning more than 6,500 people with federal criminal records for simple marijuana possession and urging governors to do the same, Biden last week also set in motion a review by the attorney general and the secretary of Health and Human Services of how marijuana is scheduled under federal law.
And while Biden called for an “expedited” review, that’s easier said than done — especially the medical piece of it. Medical research has been severely limited by the fact that marijuana is still a Schedule 1 substance, although some drugs containing cannabinoids have been studied and approved by the US Food and Drug Administration for use in treating certain diseases.
The review Biden just ordered up is expected to focus on the drug’s potential for abuse and for fostering addiction. Is it really a “gateway drug,” so feared during the ’80s War on Drugs that it merits being in the same category as heroin?
In ordering up the FDA review, Biden has likely taken the long way around to answering that question at a time when most of the public has already made up its mind. A 2021 Gallup poll found public support for legalizing marijuana had reached a record 68 percent, compared to 34 percent a decade earlier. Even among Republicans in that 2021 survey, 50 percent were ready to legalize marijuana.
A wide-ranging bill to legalize marijuana under federal law — the Cannabis Administration and Opportunity Act — has solid Democratic backing from Senate majority leader Chuck Schumer, Senate Finance Committee Chair Ron Wyden, and Senator Cory Booker. It wouldn’t impose marijuana sales on those states that have not legalized it, and it would continue prohibitions on trafficking in violation of state laws. It would also help ensure cannabis products are as safe as possible for the adults who consume them.
Federal regulation would transfer from the Drug Enforcement Agency to the FDA and the Alcohol and Tobacco Tax and Trade Bureau within the Treasury Department. It would also not merely allow but encourage (with new grant programs) investigations into the effects of cannabis on brain function and its impact on various health conditions, about which little scientifically sound research has been conducted.
And it would bring an industry that, according to the bill’s sponsors, employs nearly 430,000 workers and generates more than $25 billion in sales into the financial light of day, removing current banking restrictions.
A less ambitious bill, dealing strictly with the financial aspects of marijuana sales — the Secure and Fair Enforcement (SAFE) Banking Act — passed the House in 2019 with solid bipartisan support but has not come up for a vote in the Senate. It would at least lift the current prohibitions on banks from offering services or loans to marijuana businesses.
One state after another has recognized that regulating the sale and use of marijuana to adults has relieved law enforcement of the burden of enforcing largely ignored prohibitions, while creating a source of tax revenue and jobs. But inaction at the federal level has presented needless difficulties for owners of what in a preponderance of states are legitimate businesses.
Biden has now raised the profile of that issue, but raising the issue isn’t solving it. Given the bipartisan nature of the spread of legal marijuana businesses — Alabama authorized medical marijuana this year, and recreational marijuana was backed by voters in Montana, Arizona, and South Dakota in 2020 — certainly it’s time legalization became a cause for bipartisan cooperation on Capitol Hill.
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