I have heard a lot of excitement and commotion regarding the U.S. Senate’s introduction of the Compassionate Access, Research Expansion, and Respect States (CARERS) Act. From some of the blind support being put forth by the cannabis community and the lobbying efforts by folks to encourage the enactment of this bill you would think that Congress was actually legalizing marijuana or something. But that is far from the fact.
On a macro level, sure… it sounds positive. Congress is going to reschedule cannabis and allow for states to set their own policies. Wooohooo! They are going to allow for banking and provide direct access at the Veterans Administration. Great, right? It is like a dream come true, you might think. But think again. The bill crafted here, while great for headlines, will likely do more harm than good in the long run; and will not really solve any of the problems facing the cannabis industry. The overall effects could range from very little, to actually destroying the fabric of the current cannabis landscape, as well as creating an environment that is much more restrictive and limiting than the programs we see now.
Let’s take a closer look at the CARERS Act and the smoke and mirrors it attempts to put forth.
Supporters of the bill claim that it will “allow states to set their own medical marijuana policies and eliminate federal prosecution of patients, providers, and businesses in states with medical marijuana programs.” The text inserted into the Controlled Substances Act is as follows:
Compliance With State Law.—Notwithstanding any other provision of law, the provisions of this title relating to marihuana shall not apply to any person acting in compliance with State law relating to the production, possession, distribution, dispensation, administration, laboratory testing, or delivery of medical marihuana.
The obvious issue is that this change ONLY applies to “medical marihuana.” Being that four states and D.C. have enacted adult use legalization, the limiting reach of changing the CSA to not apply to persons acting in compliance with state law where medical is concerned shines a spotlight on the still very criminal nature of those operating in the non-medical side of the industry. So while this is definitely the highlight of the CARERS Act, it still leaves a lot to be desired as to where the industry and Country are headed in relation to marijuana.
As a person living in California, it is not very comforting either. California is over 10% of the Country and probably over 50% of the current cannabis industry. Yet no one here really knows who is and who is not “acting in compliance with state law.” Everyone is a collective or cooperative, no matter what they do in the industry. They keep attempting to pass bad laws that will further clarify the industry and establish regulations and licensing, but even those are not set to take place until 2017 at the earliest, even if they were to pass today. So to be clear, really the CARERS Act does not protect anyone in California and just the medical only people in Colorado and Washington; and don’t forget that the State of Washington is also trying to severely limit their medical only industry. So the people protected by this provision to the CSA is very limited.
You can even take it one step further and realize that there is no working definition in this Act or in Federal law for what “medical marihuana” actually is. So it gives added protections to people for something that does not exist. As we have seen from state to state, what is and what is not considered “medical” is a pretty wide range of issues. So what this clause is protecting is really anyone’s guess.
But let’s get to the nitty-gritty…. Rescheduling. I have heard cannabis advocates call for rescheduling a million times, and I just don’t get it. The CARERS Act reschedules cannabis from Schedule 1 to the incredibly restrictive Schedule 2. This is a wolf in sheep’s clothing. This topic came up at my Federal sentencing for providing cannabis edibles. Here is that exchange between the Honorable Judge Claudia Wilken and my attorney Tony Serra:
The judge’s next matter of inquiry focused on documents the defense had filed regarding efforts to change the scheduling of marijuana. It’s currently in schedule I, a category for drugs with a high potential for addiction and no established medical benefit. However, Serra related a recent experience in U.S. District Court in Fresno that spoke against this categorization – after filing a series of affidavits about marijuana’s medical efficacy, the government had been unable to round up any witnesses to counter the claim. “The U.S. Attorney couldn’t find one doctor who could say there’s no medical efficacy,” he announced with pride.
If marijuana were rescheduled, Serra speculated, it would reduce the federal government’s power to harass medical marijuana providers and subject them to civil and criminal litigation. “Schedule I will be dumped,” he said confidently.
It was a change, he noted, that could also be propelled by a shift in the White House. “We’re hopeful Obama will be elected and there will be real change,” Serra suggested. “This is an area that’s crying out for reform.”
Judge Wilken was smiling and nodding conspicuously by this time. She seemed won over, and appeared to have no concerns about Serra crossing the line of campaigning in the courtroom. She did, however, have one point of confusion: if marijuana was moved from schedule I to schedule II, wouldn’t there still be problems with access? “Schedule II drugs can’t be passed around,” she remarked.
Serra looked up at her, shooting her his most charming smile. “We’re going for schedule III,” he said with buoyancy.
So here is a Federal judge looking at sentencing me for cannabis crimes and even she realizes that Schedule 2 would be problematic for access. Why? Because Schedule 2 is reserved for drugs that “have a high potential for abuse which may lead to severe psychological or physical dependence.” There are intense and cost prohibitive restrictions placed on manufacturing and dispensing these drugs, which include morphine and oxycodone. None of the state programs currently in place come anywhere near what is expected from companies that deal in Schedule 2 drugs. Therefore, when it is reclassified here state programs will need to conform to these restrictions to be validated, thus shutting down most all of the industry as we currently know it.
You will not be able to have it both ways. Right now cannabis is a Schedule 1 drug and the US Department of Justice has decided not to enforce the law in states that have enacted cannabis programs. It is not likely that once placed in the hands of the FDA through the rescheduling process that they will simply ignore that most people are not in compliance with Schedule 2 standards. You can also believe that manufacturers of schedule 2 drugs and the pharmacies that have to conform to rigid Schedule 2 standards will not sit idly by while another Schedule 2 drug, marijuana, is ignored and allowed to be produced and distributed under non Schedule 2 standards. No way. In fact, you can be sure they will want in on the deal and that they have the money and resources to meet Schedule 2 requirements. They will work hand in hand with the FDA and DEA to ensure that cannabis is treated as a Schedule 2 and that the same rules that apply to them apply to the entire industry.
Add to that the prescription requirements for a Schedule 2 drug, being that a patient must have a written prescription for it and the physician can not prescribe more that a 90 day supply. It will be interesting to see how rescheduling affects a doctor’s ability to recommend cannabis, and the current get a recommendation for a whole year for unlimited amounts of cannabis. Schedule 2 would in theory require for doctors to specify the amount used by the patient and not allow for them to access more than a 90 day supply based on that figure. Also, does anyone think that they are going to allow for you to grow your own or smoke a Schedule 2 drug. LOL. That is funny. I detal more of these questions in a former piece entitles “Is Rescheduling the Answer We Are Looking For?”
Now rescheduling will allow for some research to be done, but even that research is strictly limited. It will not be like just any researcher will be able to decide to research cannabis for any reason they want to. Researching Schedule 1 and Schedule 2 drugs require special ordering protocols, and can only be accessed through strict DEA registrations. Placing cannabis in Schedule 2 will tie the hands of researchers and what you will likely see is a lot of people researching ways cannabis can harm people, or why it is more ineffective than certain alternatives available.
Rescheduling of any sort without adult use legalization is going to leave the industry very vulnerable. Schedule 2 will be absolute murder. Assigning the definition of a scheduled drug to a quasi-legal and tolerated environment will cause extreme confusion and put defined limitations in place that no one here is ready for. You can all but assume that 90% of what we believe to be medical in today’s market (grow your own, smoking, most edibles, etc.) will not fit into the neat and tidy categories that are expected from the drug schedules. It will create pay to play business structure that will ensure most cannot afford to pay, and those who can will make sure no one else is playing.
The the CARERS Act goes one step further and excludes Cannabidiol (CBD) from the definition of marihuana. Huh? It is obvious that the sponsors of this bill have drank the Stanley Brother’s kool-aid; but differentiating CBD from other cannabinoids will do nothing more than encourage more limiting CBD only legislation in states. Saying that CBD is not even part of the definition of cannabis is dangerous and unnecessary. It puts CBD on a pedestal, while at the same time demonizing THC. There is no evidence that CBD only medicines are effective alternatives for more than a very small sliver of the cannabis population. This bill attempts to make a special place for CBD with ZERO real studies done on its effectiveness or viability as a medicine. It attempts to quantify it with the same standards used for hemp, implying that the arbitrary less that .o3% of THC is somehow a figure of relevance. It is not. It is the evolution of one bad law into another bad law. It is stupid.
Creating a path for CBD hucksters to virtually go unregulated is a recipe for failure. It is a part of a law that is written to appease those who continue to push the CBD dream at the expense of THC and other cannabinoids. We already see a great deal of policy created allowing only for CBD, and differentiating it from THC in an effort to say “CBD is the medical part of marijuana and THC is evil.” It is an extension of the misinformation campaigns against marijuana that have fueled prohibition for decades. It is a bad idea, and this law cements it into Federal law as if it were a valid scientific fact. It stinks, and I am fairly appalled to see it in the CARERS Act at all.
Then there are the banking provisions. As a person who has been denied several bank accounts and had even more closed, I am all for new banking regulations for cannabis businesses. The current situation is absurd. Even a cannabis trade school that sells nothing more than books and classes is unable to get banking. Dispensaries and producers have to transport and store large quantities of cash. It is a safety nightmare, and it is surprising that there have not been more issues.
But the issues I see with how the CARERS Act goes about the banking issue is with the term “marijuana-related legitimate business.” The term “legitimate” already assumes that there are illegitimate businesses. Banks were already given the go ahead to do banking with “legitimate” cannabis businesses that did not violate the USDOJ’s eight enforcement triggers. The banks scoffed at the memo released, as it forced them to decide who is “legitimate” and who is not. That is not a risk they were willing to take in early 2013, and I don’t think they will be much more inclined to jump at this Act’s definition of what is legitimate. Maybe they will, but my guess would be that as long as the lines as to what is and is not legitimate are shifting banks will still choose to not risk their money on a maybe. It is just not worth it to them.
Then it goes into the research aspect…. it states:
Not later than 1 year after the date of enactment of this Act, the Attorney General, acting through the Drug Enforcement Administration, shall issue not less than 3 licenses under section 303 of the Controlled Substances Act (21 U.S.C. 823) to manufacture marijuana and marijuana-derivatives for research approved by the Food and Drug Administration.
So those three manufacturers of marijuana are the ones you will have to order from, after your DEA registration for Schedule 2 drugs as discussed above. Then you can get into where these firms will get their seeds to grow their cannabis, and what the requirements will be for researchers to access the cannabis, if it is even worth studying. If the bill passed this year it is still a year from them issuing licenses and the companies have to develop their facilities and actually grow the cannabis. Then the researchers have to go through the application process and if they are awarded the right to research Schedule 2 cannabis then they might get it somewhere in 2018 or 2019. LOL. Even then, as pointed out above, they are most likely to study the harmful effects of cannabis or why other medical options are better. Because it is Schedule 2, it will make researching it difficult and not likely to be available to small research firms focused on its benefits. But maybe I am just cynical about the medical and pharmaceutical industries. Who knows?
The one saving grace may be the allowance of Veterans Affairs doctors to recommend cannabis for those in states that allow for it. But even that will have special forms that doctors have to fill out, and which will likely be tracked to ensure the doctors are not too pot friendly. But it is hopeful that Veterans would have access to cannabis more easily, especially for its benefits where PTSD is concerned. These dudes have killed people for American freedom… can we get them a joint already?
The big reality is that I probably wasted my time and energy writing this entire article because the CARERS Act likely has ZERO chance of passing in our current do-nothing Congress. It is naive to think that lawmakers could come together on something as complex as this, but then again…. stranger things have happened. I just don’t see it. I think outright marijuana legalization would have a better shot at passing than this bill.
I am not a big fan of the Act. I understand people’s willingness to be excited over any legitimization of cannabis at the Federal level; but this bill will likely not help and could certainly hurt our efforts. I am not thrilled to have to oppose it, but nonetheless I do. Take it for what it is, not for what you want it to be.