In Hemp 101, we discussed how cannabis came to North America and the importance growing hemp was to the early colonization of the United States. In Hemp 102, we discussed how prejudice, bigotry, and the one man’s quest for power caused cannabis to be made illegal and how the federal government suppressed all research into its medical uses. In Hemp 103, we discussed how hemp farming in America made a comeback during World War II but how prejudice, misinformation, and the failure of our politicians to follow the advice of expert panels led to most of the cannabis plant being classified a Schedule I drug. In Hemp 104, we discuss how marijuana is still illegal under federal law, how medical marijuana is the real thing, how a majority of Americans now believe marijuana should be legal, and how Congress has denied funding for the Department of Justice to prosecute medical marijuana and industrial hemp.
Marijuana is still illegal under federal law.
Marijuana is still illegal under federal law, but President Barack Obama’s administration preferred to take a hands-off approach allowing those states that passed laws legalizing growing, selling, possessing, and using marijuana for medical purposes to enforce their own laws as they see fit. Whether President Donald Trump’s administration will continue to follow Obama’s hands-off approach remains uncertain, but so far and despite some aggressive rhetoric, the Trump administration has taken a hands off approach although the Drug Enforcement Administration has overseen some raids on dispensaries stocking CBD products.
The definition of marijuana found in Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970 signed into law by President Richard Nixon on May 1, 2071, otherwise known as the Controlled Substances Act (“CSA”), now codified in 21 U.S.C. §801, et seq., classifies all parts of the cannabis plant as a Schedule I drug with the exception of “the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.” See 21 U.S.C. § 802(16).
Only mature hemp stalks like these being taken for processing into hemp rope in the 1920's and sterilized cannabis seeds are legal under the Controlled Substances Act.
The Controlled Substances Act controls over state laws pursuant to the Supremacy Clause found in Article VI, Clause 2 of the Constitution. The Supremacy Clause states,
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
The Supremacy Clause and the cases interpreting it set forth a hierarchy of laws to be followed in the United States.
The Controlled Substances Act as it applies to cannabis was significantly modified by Congress passing the Agricultural Act of 2014 (“2014 Farm Bill”) which was signed into law by President Barack Obama on February 7, 2014, the applicable portion of which is codified in 7 U.S.C. §5940 entitled “Legitimacy of Industrial Hemp Research.
Medical marijuana is the real thing.
The American movement to legalize medical marijuana received its first success in 1996 when California passed Proposition 215. The California legislature had initially passed a law legalizing medical marijuana, but when conservative “law and order” Republican Governor Pete Wilson vetoed the measure, voters took matters into their own hands. 433,000 signatures were required to qualify a medical marijuana initiative for inclusion in California's 1996 ballot. A total of 850,000 signatures were collected, the initiative was placed on the ballot, and 55.6 percent of California's voters approved the initiative. Medical marijuana then became legal in California even though it remained illegal under federal law and, technically, still illegal in California pursuant the the Supremacy Clause. Use of medical marijuana in California then became an act of civil disobedience engaged in by millions of people who chose to ignore the federal law.
Peter Barton Wilson, California governor from 1991 to 1999, vetoed medical marijuana, but the voters showed him who's boss.
Numerous anti-marijuana advocates considered medical marijuana a sham and figured state medical marijuana laws were merely being used as an excuse by old hippies to get high when, in fact, cannabis based medical remedies have been around since ancient times. The legendary Chinese Emperor Shen-Nung included the medical benefits of cannabis in a book written in 2737 BCE, and traditional Chinese medicine lists cannabis as one of the 50 "fundamental" herbs. The Ancient Egyptian Ebers Papyrus Egyptologists believe dates from 1550 BCE prescribes cannabis be applied to ease inflammation, and examination of mummies has led to the conclusion that Ancient Egyptians used hemp suppositories to relieve hemorrhoidal pain. In Ancient India, cannabis was used to treat insomnia, gastrointestinal disorders, and pain. In Ancient Greece, cannabis was used to dress wounds.
The Ebers Papyrus (c. 1550 BCE) from Ancient Egypt has a prescription for medical marijuana which it says should be applied directly to treat inflammation. Credit: PEbers_c41.jpg: Einsamer Schütze.
In modern times, studies in other parts of the world, mostly Germany and Israel, have documented the benefits of medical marijuana for treating a number of diseases. Meanwhile, in a successful plan to discourage private firms from developing what may be the most important cannabis based remedy, in April 1999, the United States Department of Health and Human Services patented synthetic cannabidiol (“CBD”). CBD along with Delta-9 tetrahydrocannabinol (“THC”) are the most common cannabinoids found in cannabis.
The United States Department of Health and Human Services submitted its patent application for synthetic CBD with the United States Patent Office in April 1999 and was awarded a patent on October 3, 2003. The Unites States patent on synthetic CBD will expire in April 2019.
The abstract to the Department of Health and Human Services patent application (Patent Number US 6630507 B1) filed by scientists from the National Institutes of Health, National Institute of Mental Health, states:
“Cannabinoids have been found to have antioxidant properties, unrelated to [N-Methry-D- aspartate (MNDA)] receptor antagonism. This new found property makes cannabinoids useful in the treatment and prophylaxis of wide variety of oxidation associated diseases, such as ischemic, age-related, inflammatory and autoimmune diseases. The cannabinoids are found to have particular application as neuroprotectants, for example in limiting neurological damage following ischemic insults, such as stroke and trauma, or in the treatment of neurodegenerative diseases, such as Alzheimer’s disease, Parkinson’s disease and HIV dementia. Nonpsychoactive cannabinoids, such as cannabidiol, are particularly advantageous to use because they avoid toxicity that is encountered with psychoactive cannabinoids at high doses useful in the method of the present invention.”
Despite CBD's glowing potential as a medical remedy, the Department of Health and Human Services conducted no clinical trials to prove any of the assertions made in its patent application. In Hemp 105, we will discuss the influence Big Pharma has over the Department of Health and Human Services, and especially its Food and Drug Administration, and the evidence Big Pharma has used the FDA to intentionally suppressed research into cannabis based medical remedies since they would compete with Big Pharma prescription drugs.
The acceptance of marijuana has passed the tipping point.
Twenty-nine states have now legalized medical marijuana. Seven states have legalized recreational marijuana as well. All states where marijuana has been legalized have begun to rely on the tax revenue it raises. In the first month recreational marijuana was legalized in Nevada, $3.68 million in tax revenues were raised from combined medical and recreational marijuana sales. That money helps finance Nevada schools, and the remainder is placed in Nevada’s rainy day fund. According to the investment bankers at Cowen Group, legal marijuana is projected to have $75 billion in sales by 2030 at which time the legal marijuana industry is projected to contribute $17.5 billion in tax revenue.
According to a series of Gallop polls taken over the last fifty years, in 1970, only 12 percent of the American public supported the legalization of marijuana. Americans have learned a lot since then, and most people know someone who has been helped by medical marijuana. A Gallop poll released October 25, 2016, reported 64 percent of the American public support the legalization of marijuana, and that is not just the use of marijuana for medical purposes, that is for all purposes. A more recent Gallop poll of 1,082 American adults conducted from August 4 to August 11, 2017, similarly found 64 percent of American adults favor legalizing marijuana for all purposes. The Gallop polls had a 4 percent margin of error at the 95 percent confidence level.
Gallop Polls taken from 1970 to 2017 demonstrate America’s increasing support for legalizing marijuana. According to the last two Gallop polls, 64 percent of all American adults now favor the complete legalization of marijuana for all purposes.
If the poll question is limited to whether a person should be able to use medical marijuana if prescribed by their physician, then according to a Quinnipiac University poll of 1,062 American voters from across the country conducted from April 12 to April 18, 2017, six months prior to the latest Gallop poll, an incredibly high 94 percent of voting Americans believe a person should be able to use medical marijuana if prescribed by their physician. A Yahoo/Marist pole released a day earlier had the figure at 83 percent. The Quinnipiac University Poll was taken of Americans who said they planned to vote, and the poll had a 3 percent margin of error. The Yahoo/Marist pole was taken from whoever answered the phone and had a 4.1 margin of error. Regardless of which poll is more representative, one thing is for sure, a greater percentage of American voters approve of medical marijuana than have agreed on any other political subject since scientific opinion polls began being taken in the 1940's.
The same Quinnipiac University poll found 60 percent of all American voters believe “the use of marijuana should be made legal in the U.S.,” while only 34 percent of those polled disagreed, and 6 percent remained undecided. 73 percent of those polled believe the federal government should not enforce the federal marijuana law in states that have legalized medical and/or recreational marijuana.
Quinnipiac University is located in Hamden, North Haven, Connecticut. Its Polling Institute employees 10 full time staffers and uses 300 interviewers.
A CBS New poll of 1011 American adults conducted from April 15 to April 17, 2017, found 61 percent of those American adults were in favor of legalizing marijuana for all purposes, and 88 percent thought medical marijuana should be legal. 71 percent opposed the federal government enforcing the federal marijuana law in states where marijuana has been legalized.
A Pew Research Center poll of 1504 American adults conducted from October 25 to October 30, 2017 found 61 percent of those American adults were in favor of legalizing marijuana for all purposes.
An NBC/Wall Street Journal poll of 900 American adults conducted from January 13 to January 17, 2018, found 60 percent of those American adults were in favor of legalizing marijuana for all purposes. The NBC/Wall Street Journal poll had a 3.3 percent margin of error.
A Fox News poll of 1002 registered voters conducted from January 21 to January 23, 2018, found 59 percent of those registered voters were in favor of legalizing marijuana for all purposes.
Taking the average of the six polls conducted from April 12, 2017, to January 23, 2018, shows on average, 60.83 percent of Americans and American voters believe marijuana should be legalized for all purposes. Taking the average of the two polls that also inquired about medical marijuana, on average, 91 percent of Americans and American voters believe marijuana should be legalized for medical purposes.
Even when the polling is sponsored by people with a long history of opposing the legalization of marijuana, the results remained just about the same. Smart Approaches to Marijuana, an anti-marijuana group, bills itself as taking a “health-first approach,” but Smart Approaches was described by Vox as “the country’s most prominent anti-legalization group.” When Smart Approaches to Marijuana paid Mason-Dixon to conduct a poll of 1,000 registered voters containing several alternatives to the complete legalization of marijuana, Smart Approaches was obviously looking for evidence supporting their position marijuana should be kept illegal.
An example of the propaganda put out by Smart Approaches to Marijuana. All the assertions made in this poster have proven to be false.
Smart Approaches' Mason-Dixon poll released January 13, 2018, asked which statement “best describes your preference on national marijuana policy – keep the current policy – keep the current policy, but legalize the use of marijuana for physician-supervised medical use – decriminalize marijuana use by removing the possibility of jail time for possession and also allowing for medical marijuana, but keep the sale of marijuana illegal – legalize the commercial production, use and sale of marijuana for recreational use, as they have done recently in several states.”
One percent of the Smart Approaches' Mason-Dixon polls respondents were unsure, 16 percent wanted to keep the present marijuana policy, 29 percent wanted to legalize medical marijuana, 5 percent wanted to decriminalize marijuana, and 49 percent wanted to legalize all marijuana. If one considers the sum of the percentage of people opting for decriminalization, legalization of medical marijuana, and legalization all marijuana as all agreeing medical marijuana should be legal, a total of 83 percent of the respondents in the Mason-Dixon poll felt medical marijuana should be legal, and even this poll, commissioned by the most prominent anti-marijuana group in the nation, showed 49 percent of all voters want marijuana to be legal for all purposes.
The Smart Approaches' Mason-Dixon poll claimed a 3.2 percent margin of error. Southern white men over 50 years of age were the ones most likely to want to keep the present federal marijuana policy. Smart Approaches' Mason-Dixon poll was skewed by having 32 percent of the respondents from Southern states and 49 percent of the respondents over the age of 50, both demographics being more likely than the general public to want to retain the present federal marijuana policy.
Old Southern white men were over represented in the in the Smart Approaches' Mason-Dixon poll to skew the results against the legalization of marijuana.
The number of Americans favoring the legalization of marijuana is on the rise.
The younger the generation, the more likely they are to support the legalization of marijuana. According to the Pew Research Center poll, 70 percent of those polled who were classified as Millennials favored legalization, 66 percent of Generation Xers favored legalization, and 56 percent of the Baby Boomers favored legalization. Only those who were members of Richard Nixon’s silent majority, meaning those people born before 1945, and now at least 73 years old, were opposed to the legalization of marijuana 58 percent to 35 percent, and they are reaching the end of their life expectancy. The path is clear. The only question is if 60.83 percent of the American public already favors the complete legalization of marijuana, then why is that not already the case?
Building congressional resistance to the federal regulation of marijuana has led to restrictions being put on how the Department of Justice can spend its money.
In 2001, House Representative Maurice Hinchey (D-NY) introduced an Amendment to the budget bill prohibiting the Department of Justice from spending any funds to interfere with the implementation of a state’s medical marijuana laws. The amendment was withdrawn before it was brought to a vote. In 2001, only 32 percent of the American public favored the complete legalization of marijuana.
House of Representative member from New York, Maurice Hinchey, came up with the idea to of cutting off the Department of Justice's funding to prosecute growers, distributors, and users of medical marijuana in states where medical marijuana had been legalized.
In 2003, Dana Rohrabacher (R-CA) joined Hinchey as a co-sponsor of the Amendment, and when voted on by the House of Representatives in 2003, the Amendment failed by a vote of 152–273. The Hinchey-Rohrabacher Amendment was rejected in the House of Representatives five more times over the next nine years until Hinchey retired in 2012. Sam Farr (D-CA) then replaced Hinchey as the Amendment’s co-sponsor.
Dana Rohrabacher (R-CA) was the Republican co-sponsor of the Amendment when it was successfully attached to the budget bill cutting off Department of Justice funds spent to enforce the federal marijuana law in states where medical marijuana had been legalized.
After Maurice Hinchey's retirement, Senator Sam Farr (D-CA) replaced Hinchey as the Democrat co-sponsor of the Amendment cutting off Department of Justice funding to prosecute medical marijuana growers, distributors, and patients in states that legalized medical marijuana.
In 2012, a tipping point had been reached, and more Americans than not favored the complete legalization of marijuana. On May 30, 2014, the United States House of Representatives finally passed the Rohrabacher-Farr Amendment by a vote of 219 to 189. The Amendment then passed the Senate by a voice vote, and on December 16, 2014, President Barack Obama signed the budget to which the Rohrabacher-Farr Amendment was attached, and it finally became law. A form of the Rohrabacher-Farrr Amendment has managed to be attached to all succeeding budget bills and is now part of the Consolidated Appropriations Act of 2018 which will not expire until September 30, 2018. A similar Amendment protects growers, distributors, and users of industrial hemp products.
Representative Earl Blumenauer (D-OR) became Representative Dana Rohrabacher's co-sponsor of the Amendment after Representative Sam Farr retired from Congress in January, 2017.
Attaching the Amendment to the present budget was no easy task. Sam Farr retired from Congress in January, 2017, and Representative Earl Blumenauer (D-OR) became Rohrabacher’s new House co-sponsor of the Rohrabacher-Farr, now the Rohrabacher-Blumenauer Amendment. Passage of the Amendment by the Republican controlled House of Representatives was not assured, and ultra-conservative Texas Republican prohibitionist, Pete Sessions (no relation to Jeff Sessions although both are Southern white men with pale complexions), who chairs the House Rules Committee, blocked the Amendment from coming to a vote as he has done with any measure to ease marijuana restrictions, so the Amendment was not made part of the House budget plan. According to Representative Duncan Hunter (R-CA.), the Republican leadership claimed “it splits the conference too much so we’re not going to have a vote on it.”
Representative Pete Sessions (R-TX) is a prohibitionist who The Atlantic described as "the dumbest member of Congress" and "widely regarded as one of the dimmer bulbs on the Christmas tree." Pete Sessions illegally exercised his first congressional vote before being sworn in as a congressman because he failed to show up for the swearing in ceremony after being elected (on his third try) requiring a do-over of an entire day of House business.
A replica of the Rohrabacher-Blumenauer Amendment was made part of the Senate’s budget plan.
Riding in to the rescue was Senator Patrick Leahy (D-VT.). In July 2017 before the Senate Appropriations Committee, Leahy (D-VT.) introduced the Amendment which was added to the Commerce, Justice, Science, and Related Agencies fiscal year 2018 budget. The Senate Appropriations Committee approved the Amendment’s inclusion by a voice vote, and after the budget bill was considered by the Senate-House conference committee (assuming any of them actually read the 2400+ page document), the Amendment became part of the budget and was passed into law.
Senator Patrick Leahy (D-VT) was President pro tempore of the Senate from December 17, 2012, to January 6, 2015.
According to a January 12, 2018 post on The Cannabist, 70 members of Congress were pushing for inclusion of the Amendment in the budget bill, causing Representative Jared Polis (D-CO), one of the founding members of the bi-partisan Congressional Cannabis Caucus, to tell The Cannabist, "In the last week there's been a groundswell of support to include this amendment in appropriations legislation."
When the Rohrabacher-Farr Amendment was first passed in 2015, it was more heavily favored by Democrats than Republicans by a margin of two to one. Three years later, six percent more American now think marijuana should be legal, and more Republicans are accepting of marijuana and hemp based medical remedies. Nine years ago, former Republican House Speaker John Boehner said he was "unalterably opposed" to legislation descheduling marijuana. On April 11, 2018, Boehner announced he was joining the board of #AcreageHoldings, a major player in the marijuana industry that produces and sells cannabis products in 11 states. Boehner tweeted, "I’m joining the board of #AcreageHoldings because my thinking on cannabis has evolved. I’m convinced de-scheduling the drug is needed so we can do research, help our veterans, and reverse the opioid epidemic ravaging our communities." Boehner also told the press, "While the Tenth Amendment has allowed much to occur at the state level, there are still many negative implications of the Federal policy to schedule cannabis as a Class One drug: Most notably the lack of research, the ambiguity around financial services, and the refusal of the [Veterans Administration] to offer it as an alternative to the harmful opioids that are ravishing our communities." Boehner told Bloomberg News, “When you look at the number of people in our state and federal penitentiaries, who are there for possession of small amounts of cannabis, you begin to really scratch your head. We have literally filled up our jails with people who are nonviolent and frankly do not belong there.”
Former Republican Speaker of the House John Boehner said his "perspective" changed after seeing how cannabis helped a close friend of his manage severe chronic back pain. According to Quartz, 420,000 people were arrested for selling marijuana when Boehner was Speaker of the House.
The provision that protects medical marijuana is codified in Section 538 of the Consolidated Appropriations Act of 2018 which states,
"None of the funds made available under this Act to the Department of Justice may be used, with respect to any of the States of Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming, or with respect to the District of Columbia, Guam, or Puerto Rico, to prevent any of them from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana."
The four states missing from the list are Idaho, Kansas, Nebraska, and South Dakota whose conservative delegations did not want to be listed until and unless medical marijuana was legalized in their state. Those four states are definitely behind the times.
In Idaho, on February 28, 2018, the Idaho House of Representatives approved medical marijuana by a vote of 59-11, and the bill now needs to be approved by the Idaho Senate. Idaho Governor Butch Otter has indicated he will veto medical marijuana legislation.
Idaho Governor C.L. “Butch” Otter previously vetoed a bill that would allow children with a sever form of epilepsy to be treated with cannabis oil He said at the time passage of medical marijuana would be the “camel’s nose under the tent” and would represent a “cultural shift.”
In Kansas, Rep. Gail Finney (D-Wichita) and Sen. David Haley (D-Kansas City) have sought passage of medical marijuana legislation multiple times, but even though a 2017 Fort Hays State University poll found 50 percent of Kansans support legalizing recreation marijuana and 76 percent favor legalizing medical marijuana, the legislation has been stalled.
In Nebraska, Sen. Anna Wishart (D-Lincoln) introduced a state constitutional amendment legalizing medical marijuana hoping to place the amendment initiative up for a vote on the 2018 ballot. In mid-March 2018, the Marijuana Policy Project in Washington, D.C., which helps finance the collection of signatures to place such initiatives on state ballots, withdrew its support confessing it was too late in the year to mount an effective campaign, instead deciding to push for the initiative to be placed on the Nebraska ballot in 2020.
In South Dakota, medical marijuana is becoming a hard sell. The CannaLaw Blog declared South Dakota the worst state in the country in terms of treatment of cannabis and those who consume it. A petition to have placed on the 2018 ballot an initiative legalizing medical marijuana is still “being examined” by the legislature.
Below is a map showing the legal status of marijuana in all 50 states as of 2017 according to the Georgia CARE Project. In the green states, both medical and recreational marijuana are legal. In the yellow states, medical marijuana is legal. In the orange states, hemp and CBD oil is legal. In the red states, marijuana is illegal.
Updating the above map, in Wisconsin and Indiana, there has been a modest effort to allow the use of CBD to fight seizures. In West Virginia, medical marijuana cards will begin being issued in July 2019. As for Idaho, South Dakota, Nebraska, and Kansas, it may be best to move out-of-state.
The red states rely on an interpretation of the definition of marijuana that would arguably including hemp, and marijuana is still classified a Schedule I drug by the Food and Drug Administration. However, according to the case of Hemp Industries Association, et al. v. Drug Enforcement Administration, 357 F.3d 1012 (9th Cir. 2004) (Hemp II), the United States Court of Appeals for the Ninth Circuit ruled THC naturally-occurring within non-psychoactive hemp products does not fall under the DEA’s regulation because the DEA scheduled non-psychoactive hemp without following required procedures and, therefore, Congress did not regulate non-psychoactive hemp as a Schedule I drug.
At the request of the Drug Enforcement Administration, in 2014, the Food and Drug Administration began conducting an analysis with the goal in mind of making a recommendation of whether marijuana should be downgraded and removed from Schedule I. In 2016, the FDA maintained its position that marijuana should be kept a Schedule I drug but finally announced an end to restrictions on researchers and drug companies who had trouble gaining access to government grown marijuana for testing and clinical trials.
From the passage of the Marihuana Tax Act in 1937, to the FDA’s announcement in 2016, a total of 78 years were wasted when, otherwise, the medical benefits of cannabis derived products could have been explored for the betterment of mankind. This unconscionable delay was caused by prejudice, ignorance, and sensationalized stories designed to sell newspapers and sway voters. Politicians on both sides of the isle were to blame because they feared coming out in favor of marijuana in any way, even for purposes of medical research, would cost them votes because of the many years of false but effective anti-marijuana propaganda which needed to be overcome.
Industrial hemp is used to make CBD, and industrial hemp, defined as cannabis with a Delta-9 THC percentage not exceeding 0.3 percent (which cannot produce a euphoric high) is also protected from Department of Justice interference. Section 729 of the Consolidated Appropriations Act of 2018 states,
None of the funds made available by this Act or any other Act may be used –
“(1) in contravention of section 7606 of the Agricultural Act of 2014 (7 U.S.C. 5904); or
“(2) to prohibit the transportation, processing, sale, or use of industrial hemp, or seeds of such plant, that is grown or cultivated in accordance with subsection section 7606 of the Agricultural Act of 2014, within or outside the State in which the industrial hemp is grown or cultivated."