The governor of Colorado is applauding President Joe Biden after his administration’s top health agency recommended rescheduling marijuana—but he says the initial move must be followed with more action to address cannabis banking, immigration, criminal justice reform and federal enforcement concerns.
That should include developing Food and Drug Administration (FDA) guidance clarifying that it will not interfere in state-legal marijuana activities, he said.
In a letter sent to Biden on Tuesday, Gov. Jared Polis (D) commended the U.S. Department of Health and Human Services (HHS) for advising the Drug Enforcement Administration (DEA) to move marijuana from Schedule I to Schedule III of the Controlled Substances Act (CSA).
“It’s about time,” the governor said. “This is an historic moment and we owe you and your Administration a debt of gratitude for your leadership on catching up with where the science is.”
Polis was among the first top officials to react to the HHS recommendation last week, with a spokesperson emphasizing that a Schedule III classification would finally allow state-licensed marijuana businesses to take federal tax deductions, for example.
The governor told Biden in the new letter that while he expects DEA will “expeditiously” complete its review and move marijuana to Schedule III, that policy change must be coupled with further administrative and congressional action to promote health, safety and economic growth. He also preemptively argued that DEA should not use international treaty obligations to inform its scheduling decision.
“Our country is already out of compliance by virtue of our state-regulated programs, as is Canada,” he said. “It’s time for us to re-negotiate those treaties, rather than hide behind them.”
Polis also stressed the need to enact legislation protecting banks that work with state-legal marijuana businesses from being penalized by federal regulators. Senate Majority Leader Chuck Schumer (D-NY) recently included that legislation, the Secure and Fair Enforcement (SAFE) Banking Act, in a list of legislative priorities for the remainder of the year.
While states like Colorado have generated billions of dollars in cannabis tax revenue and created tens of thousands of jobs in the sector, Polis said “the state-regulated industry is facing headwinds nationwide.” Reclassifying marijuana as Schedule III would provide significant tax relief from the federal 280E provision that currently disallows many business deductions, but the lack of access to traditional banking services under prohibition is “creating a danger to public safety” because of the industry’s reliance on cash transactions.
“Because of these federal difficulties, the illicit market and unregulated hemp-derived cannabinoid intoxicants continue to remain,” the governor, who separately touted his state’s leadership on marijuana and psychedelics legalization last month, said. “Illegal products are being sold without testing, age verification, or packaging and labeling standards. As public servants who care about the public health and safety of all Americans, we need to put the full weight of our support behind a well-regulated marketplace.”
Polis went on to say that, in order to “protect the sanctity of the well-equipped state markets that we have built over the past decade, we must also develop and publish FDA enforcement guidance to minimize economic disruption, promote state-federal collaboration, and protect the public’s health.”
“To provide clarity, we hope that you will press FDA to develop and publish guidance outlining their enforcement discretion and priorities with respect to the state-regulated cannabis industry,” he wrote. “Specifically, an enforcement discretion policy should articulate that FDA will not bring a compliance action against companies whose products and activities are authorized by state medical and recreational marijuana laws, so long as they are abiding by state law and not making health claims, marketing in interstate commerce, or marketing to children.”
Some have raised concerns that simply moving cannabis to Schedule III could embolden DEA and FDA to crack down on state-legal markets. And Rep. Matt Gaetz (R-FL) said on Monday that he worries rescheduling would lead the pharmaceutical industry to take “control” of cannabis.
But others have sought to temper such concerns. For example, a former top FDA official who chaired the agency’s Marijuana Working Group and predicted that HHS would make a Schedule III recommendation recently said that he doesn’t believe that reclassification would cause FDA to approach marijuana any differently than it does today.
Polis’s recommendation is to codify that hands-off approach with administrative guidance.
The governor acknowledged that a Schedule III classification wouldn’t eliminate federal criminal penalties for marijuana, and so it’s “also necessary to address the criminal penalties associated with cannabis as disparities amongst Americans is prevalent.”
“Most significantly, American cannabis policy choices have resulted in African American males being arrested at nearly four times the rate of their white counterparts despite using cannabis at similar rates. We must do better,” he said, adding that a “signal from you indicating support for criminal justice reform would go a long way toward bringing young people to the polls in 2024.”
Polis went on to cite economic projections about the marijuana sector as the legalization movement spreads. He said that the Biden administration “will soon be credited with saving hundreds of thousands of jobs and significant tax revenue for the states when DEA solidifies FDA’s recommendation.”
Biden hasn’t personally commented on the HHS recommendation, which was submitted to DEA following the health agency’s scientific review into cannabis that the president directed late last year. However, the White House press secretary said inaccurately on Friday that Biden has “always supported” legalizing medical marijuana. As a senator, Biden championed several pieces of legislation that ramped up the war on drugs.
“Let’s celebrate this progress and work together to finish the job,” Polis’s letter to Biden concludes. “We greatly appreciate your leadership, and please come visit Colorado again soon.”
The White House says that it’s not commenting specifically on the rescheduling recommendation because the independent administrative review is ongoing, with DEA now carrying out its own eight-factor analysis to make a final decision.
If DEA goes along with HHS’s Schedule III recommendation, that would represent a major shift in federal marijuana policy, with an acknowledgement that cannabis is not a drug of high abuse potential and no medical utility. It wouldn’t federally legalize marijuana, but it would free up research into the plant and have significant implications for the marijuana industry.
Congressional lawmakers across party lines have applauded the top health agency’s recommendation, though some have described it as an important “step” on the path to federal legalization. Others have claimed credit for the move, pointing to their years of advocacy around marijuana reform.
Politically, moving marijuana from Schedule I to Schedule III would allow the president to say that he’s helped accomplish a major reform, facilitating an administrative review that may result in rescheduling more than 50 years after cannabis was placed in the most restrictive category as the federal government launched a war on drugs. That said, it would not represent fulfillment of his campaign pledge to decriminalize marijuana.
Back in Colorado, Polis has also called on lawmakers to take steps to allow him to issue mass pardons for people with prior psychedelics convictions after he signed legislation to implement regulations for substances like psilocybin and ayahuasca in May.
The governor also signed a bill into law in June that allows online marijuana sales. That reform went into effect last month.
He also recently approved legislation that will bolster marijuana-related protections for working professionals in the state—effectively codifying an executive order he issued last year. (Full Story)