Yesterday the Trump Administration rescinded an Obama era policy that had discouraged federal prosecutors from enforcing federal laws on cannabis in those states where sales of the substance had been legalized by the voters. Sessions issued a statement in which he said the policy had undermined “the rule of law” and the Justice Department’s mission to enforce federal statutes.
Trying to stem the legalization tide
Sessions’ announcement came as full legalization went into effect in California, by far the largest state to have fully legalized trade in and/or recreational personal use of the botanical. Voters in Alaska, Colorado, Oregon, Washington State and Washington DC have already approved similar measures. That brings the total population in the US living under state laws allowing the more or less free use of cannabis to more than 58 million. In addition, 29 states and three districts or territories (Guam, Puerto Rico and DC) have approved medicinal marijuana.
Whether Sessions’ announcement will significantly change the enforcement picture remains to be seen. The move aroused significant pushback from members of his own party. For example, GOP Sen. Cory Gardner of Colorado tweeted that the decision had “has trampled on the will of the voters.” The Denver Post reported that Gardner has threatened to withhold support for Justice Department nominees until the policy dispute was resolved. Part of the issue in Colorado is the more than $200 million in taxes and fees annually that has flowed into state coffers since trade in the botanical was legalized there, funds which have been used to support addiction treatment centers and to build new schools.
A flood or a trickle of cases?
Ivan Wasserman, a partner in the law firm Amin Talati Upadhye, said that the floodgates have been cracked open, but it will be a wait and see game to see how much water comes through.
“I don’t think he necessarily said, ‘Go get ‘em.’ But he is allowing federal prosecutors in those states where it has been legalized more discretion to bring those cases. I think the issue will now be what the reaction will be from state authorities,” he told NutraIngredients-USA.
Mark Blumenthal, president of the American Botanical Council, said the move is regrettable considering the amount of credible evidence that now supports the health properties of various fractions of cannabis, including medicinal marijuana, isolated CBD and full spectrum hemp extracts.
“I think it’s lamentable to say the least given the growing body of scientific research that supports the responsible therapeutic use of various preparations made from Cannabis sativa. The federal government should be helping to appropriately support what consumers and science are showing to a reasonably safe and effective form of therapy,” he said.
Demarcating the hemp/pot line
The used of fractions of the industrial hemp cultivars of cannabis, which are defined as those containing less that 0.3% THC, the narcotic fraction of the plant, occupied a cloudy regulatory niche even before Sessions’ announcement, which can only serve to further muddy these already turbid waters. The US Food and Drug Administration has ruled that CBD is not a legal dietary ingredient, basing this on its investigation as a drug via INDs filed by English company GW Pharmaceuticals. That hasn’t stopped companies from bringing CBD preparations to market or engaging in functional food product development based on hemp’s approval as a food. Cannabis sativa, not individual cultivars thereof, is what appears on the schedule 1 list of controlled substances maintained by the federal Drug Enforcement Administration. Companies playing in this sphere try to draw a bright line between preparations using industrial hemp as a raw material as opposed to THC-containing cultivars, and have some legal underpinning in the approval of industrial hemp production via the 2014 federal farm bill.
Attorney: Evidence on intoxication effects lacking
Attorney Jonathan Emord usually can be counted on as a foe of regulatory overreach, but he’s no fan of marijuana use, either. In his view there is not enough evidence for the effects of marijuana intoxication on the use of machinery or in the operation of motor vehicles for its use without restrictions to be considered safe. Emord saw Session’s announcement as a reasonable expression of federal law enforcement jurisdiction, but also said that the bright line that the CBD players try to draw might have some legal merit, too.
“There are reasonable limitations to be placed on the availability of anything that has a hallucinogenic effect. When the states willy nilly make marijuana available for recreational purposes, they imperil their citizens,” he said.
As far as the industrial hemp delineation goes, Emord said, “I think there’s good science to support that concept. If no one is being injured then the government ought not to use its resources to go after people who are not causing harm. There are plenty of people defrauding consumers and causing injury to go after.”
Status quo on CBD trade?
While companies selling CBD products have had the easiest go in those states where cannabis has been legalized, there has been some nationwide distribution of these products as well. Wasserman said that Sessions’ announcement likely won’t affect that trade much, though the other legal impediments remain.
“Companies selling CBD in states that had not legalized the sale of marijuana had been doing so by taking the position that the CBD in their products was not derived from marijuana as the term is defined in the Controlled Substances Act, rather they were selling CBD derived from hemp. Therefore this current move by the Justice Department would not seem affect that unless DOJ changes its opinion on hemp,” he said.