In this third and final installment of our blog series on cannabinoids, we examine the current legal status of cannabis and products derived from the plant. Click to read the other articles in this series: The Role of the Endocannabinoid System in the Human Body and Exploring the Entourage Effect.
With Canada poised to legalize marijuana on Wednesday, October 17 2018, cannabis is in the spotlight more than ever. As more and more people worldwide turn to this ancient plant for the treatment of various ailments, cannabis is experiencing a flood of scientific interest and laws around its use are being reexamined by legal entities all over the world.
The laws around the possession, distribution, and cultivation and consumption of cannabis vary widely by country, with most countries following the policies set forth by the United Nations Single Convention on Narcotic Drugs (1961), as well as the 1971 Convention on Psychotropic Substances and the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotro pic Substances.
When considering legality of cannabis, there are two main categories of cannabis products: medical cannabis and recreational cannabis. There is also a distinction between decriminalization and legalization. Decriminalization relaxes the criminal penalties associated with personal marijuana use, while legalization allows individual possession and the legal production and sale of marijuana. In addition, legalization has another layer of complexity, as there is a distinction between the legality of medical versus recreational cannabis.
CANNABIS LEGALITY IN THE UNITED STATES
The U.S Drug Enforcement Administration (DEA) has five schedules for drugs. Each schedule takes into account the drug’s acceptable medical use and the potential for abuse or dependency. The more acceptable the drug and lower the potential for abuse or dependency, the less restrictive the scheduling is. Drugs scheduled as a Schedule I have no accepted medical use and have the highest potential for abuse. Schedule V drugs are those with the lowest potential for abuse.
You can read the DEA schedule descriptions here.
Cannabis is classified as a Schedule I drug, making it federally illegal. However, things get tricky when considered on the state level. All but four U.S. states have some form of medical marijuana law. Sixteen states only allow legal use of cannabidiol (CBD) or medical cannabis that has a low tetrahydrocannabinol (THC) content, while 31 states, the District of Columbia, and the territories of Guam and Puerto Rico allow broad access to marijuana for medical purposes for patients. Of these, nine states and the District of Columbia have legalized sales and consumption for medical and recreational use. Despite this state-level approval, the U.S. Supreme Court has ruled that the federal government can prosecute violations of applicable federal laws even in states that have legalized marijuana. However, this is made even more complicated because of another law: the Rohrabacher–Farr amendment, which prohibits federal prosecution of individuals complying with state medical cannabis laws.
IMPORTANT STATE LAWS ALONG THE WAY
The journey towards cannabis legalization in the United States has been bolstered by shifting public sentiment about the benefits of the plant, and the battle towards legalization mostly won at the ballot box on the state level. The following five state laws had significant impact on the legal status of cannabis in the United States:
- California’s Proposition 215 (1996): California became the first state to legalize medical use of cannabis with this ballot initiative.
- Colorado’s Amendment 64 (2012): With this ballot initiative, Colorado made history in the United States by becoming one of the first states to legalize recreational cannabis.
- Washington’s Initiative 502 (2012): Washington State legalized recreational cannabis at the same time Colorado did, also through ballot initiative.
- California’s Proposition 64 (2016): Although the first to legalize cannabis for medical use in 1996, California did not allow legal recreational use till this ballot initiative passed 10 years later.
- Vermont’s H. 511 (2018):Vermont is the first state to legalize recreational marijuana by way of the state legislature rather than through a ballot initiative. However, while the use of recreational marijuana up to an ounce is allowed, the sale of recreational marijuana is still illegal in the state.
EPIDIOLEX BREAKS NEW GROUND
Although the use of cannabis remains federally illegal, some of its derivative compounds have been approved by the Food and Drug Administration for prescription use. For instance, cannabidiol (CBD) products derived from industrial hemp are sold legally nationwide. Hemp and marijuana both come from the cannabis sativa plant but hemp contains less than 0.03-percent tetrahydrocannabinol (THC) – the psychoactive compound that earns marijuana its status as a controlled substance.
Cannabinoid drugs which have received FDA approval are Marinol, Syndros, and Cesamet – whose active ingredient is chemically synthesized THC. In June 25, 2018, the U.S. Food and Drug Administration (FDA) announced approval for Epidiolex, an antiepileptic drug manufactured by U.K. company GW Pharmaceutical. Epidiolex is a first-of-its-kind drug, because its active ingredient is 99% pure CBD extracted from the marijuana plant. This groundbreaking decision by the FDA created an interesting tension between the legal status of cannabis and the now federally approved marijuana-derived medication, prompting industry speculation that the U.S. Drug Enforcement Administration (DEA) would have to address the scheduling of cannabis in order to allow the sale and use of Epidiolex in the U.S.
The DEA responded and on September 28, 2018 the agency reclassified prescription cannabidiol (CBD) drugs with a THC content below .01% to Schedule V, provided the drug has been approved by the FDA. This move allowed the sale of Epidiolex as the first non-synthetic, cannabis-derived medicine to win federal approval. (Read: What the FDA’s first approval of a marijuana-based drug could mean for medical cannabis.)
THE FUTURE OF CANNABIS LEGALIZATION IN THE UNITED STATES
Although the public support for legalizing cannabis is at an all-time high, the rescheduling of Epidiolex was a fairly limited move by the DEA, and signaled that the DEA prefers to follow the FDA’s lead on cannabis.
The U.S. Senate is currently considering legislation that will move the needle towards the future legalization of cannabis in all its forms.
THE 2018 FARM BILL
The Hemp Farming Act of 2018 is a proposed law to remove hemp from Schedule I controlled substances and make it an ordinary agricultural commodity. The bill includes language inserted by U.S. Senator Mitch McConnell that allows states to regulate the production, commerce and research of the plant. Hemp is a major source of non-psychoactive cannabidiol (CBD) that is widely used medicinally. While this bill is a positive step in towards the future legalization of cannabis, there are still obstacles involved in moving forward. For instance, the primary differentiator between hemp and marijuana is THC content, but although state agriculture commissioners are working together to develop one, there is currently no national standard for how to test hemp for THC. In addition, hemp-derived CBD falls victim to conflicting state rules governing its use.
THE STATES ACT
On June 7 2018, a bipartisan bill in the U.S. Senate called the STATES Act (Strengthening the Tenth Amendment Through Entrusting States) was introduced by Senators Cory Gardner of Colorado and Elizabeth Warren of Massachusetts. The proposal is designed to eliminate the possibility of federal interference in states that have legalized marijuana on any level. This bill differs from previous bills addressing cannabis because it does not eliminate the cannabis plant from the DEA’s Controlled Substances Act. Instead, the STATES Act leaves cannabis as a Schedule I drug but grants states the freedom to engage in the legal cannabis trade without the risk of raids and prosecutions. The proposal covers both medical and recreational cannabis. This bill has generated increased confidence surrounding the possibility of legal cannabis on a federal level. However, there have been previous attempts at federal cannabis legislation before the STATES act and most proposals linger or die on the Senate floor, never to be passed. With plenty of opposition in Congress that can prevent this bill from passing, it is still be too early to be truly optimistic about the possibility of nationwide marijuana legalization. Only time will tell.