The year 2023 brought a mixed bag of federal developments in the marijuana space—marked by historic news such as the Biden administration’s rescheduling recommendation and pardon expansion, as well as setbacks on the congressional path to enacting cannabis banking reform.
And with Congress now in recess for the holiday season, advocates and stakeholders are left to reflect on the ups and downs of the past year, with hopes of building on their work in 2024.
While the review into cannabis scheduling that President Joe Biden directed last year is still underway, arguably the biggest news of the year has been the U.S. Department of Health and Human Services’s (HHS) reported recommendation to move marijuana from Schedule I to Schedule III under the Controlled Substances Act (CSA).
Part of Biden’s directive last year also involved issuing a mass pardon for people who’ve committed federal marijuana possession offenses—an act of clemency that he renewed and expanded at the end of 2023.
But these are far from the only major developments of this year, which also saw numerous cannabis bills filed by bipartisan congressional lawmakers—albeit, with limited movement as supporters kept focus on the Secure and Fair Enforcement Regulation (SAFER) Banking Act.
Various federal agencies beyond HHS also addressed marijuana policy issues this year. And as lawmakers sought to reconcile federal prohibition with the ever-expanding state legalization movement, consequential litigation challenged the status quo in federal courthouses across the country, including several landmark cases concerning the ban on gun possession for cannabis consumers.
Here are the top federal marijuana moments of 2023:
HHS recommends moving cannabis to Schedule III
The nation’s top health agency captured the spotlight in marijuana policy this year, with news that it had completed an 11-month scientific review into cannabis under Biden’s 2022 directive and reached the conclusion that the plant should be moved from Schedule I to Schedule III under the CSA.
HHS Secretary Xavier Becerra first signaled that his department’s recommendation to the Drug Enforcement Administration (DEA) was imminent during a June event in Sacramento, where he told Marijuana Moment officials were aiming to wrap up their work “this year.” A leaked HHS letter later confirmed the completion of the review two months later, and DEA is now actively carrying out its part of the administrative process before it reaches a final scheduling decision.
A Schedule III reclassification would be historic, with the federal government formally recognizing that marijuana should no longer be considered a dangerous drug devoid of medical value more than 50 years after the plant was put into Schedule I. The rescheduling action would not legalize cannabis, but it would have significant symbolic and practical impacts; for example, it would remove oft-criticized research barriers and allow state-licensed marijuana businesses to take federal tax deductions that they’re currently barred from under an Internal Revenue Service (IRS) code known as 280E.
The Congressional Research Service (CRS) said in a report that it expects DEA to go along with the HHS recommendation, basing its assessment on past precedent. But while DEA is bound by the scientific findings of the health agency—which has so far declined to disclose its specific findings—the law enforcement agency can still flout the recommendation and propose any scheduling rule, including possibly keeping marijuana in Schedule I.
In any case, as the divided Congress continues to stall on legislative marijuana policy reform, there’s a lot riding on the conclusion of the scheduling review—and eyes will be laser-focused on next steps heading into 2024.
Biden expands federal marijuana pardons
In December 2023, the president signed a new proclamation pardoning people who’ve committed federal marijuana possession offenses, while expanding the relief to cover those possessed cannabis on federal properties.
The clemency action builds on a 2022 mass pardon that Biden granted alongside his scheduling review directive. In the months since, he’s frequently touted the policies—a recurring sign from the administration that it understands, and hopes to leverage, the popularity of cannabis reform heading into an election year.
Biden has at times misstated the scope of his executive achievement, suggesting at points that people who had been incarcerated over marijuana were released by virtue of his clemency and that the relief expunged prior records, when that is not the case.
But the recurring statements from Biden and the White House are nonetheless notable for a president and former drug warrior senator who has maintained steadfast opposition to federal cannabis legalization—despite its overwhelming popularity within his Democratic base. Tellingly, he’s also touted the actions in a seemingly targeted manner, often at events and during special occasions that center around Black and young voters.
While Biden has characterized the pardons and scheduling directive as evidence of 2020 campaign promises kept, however, they fall far short of what he actually committed to in his 2020 presidential run: federally legalizing medical marijuana, decriminalizing cannabis and ensuring that nobody is in jail over non-violent offenses involving the plant.
Marijuana banking bill stalls in Senate following committee passage
For much of the year, it seemed possible that the Senate could do what the House had done seven times in recent sessions: pass bipartisan marijuana banking legislation. “Soon,” in the oft-stated parlance of Senate Majority Leader Chuck Schumer (D-NY), didn’t come soon enough for 2023, however.
Despite the work of lawmakers in both parties and chambers, the bill that originated in the Senate for the first time only managed to move through the Banking Committee in September, with floor action indefinitely postponed amid lingering disagreements over certain provisions and legislative priorities on an inflexible congressional calendar.
The Senate committee vote left many with the impression of imminency, especially given the majority leader’s routine comments about his intent to expeditiously bring to the floor the revised SAFER Banking Act. But as weeks went by, the measure’s 2023 pathway contracted and complicated, due in no small part to the fall House leadership upheaval that removed Rep. Kevin McCarthy (R-CA) from the speakership and replaced him with an antagonist in the cannabis reform movement, now-Speaker Mike Johnson (R-LA).
In any case, Schumer took to the floor again as his colleagues prepared to recess for this holidays this month and recommitted to prioritizing the cannabis banking bill when members reconvene in 2024. It will require bipartisanship, he emphasized, and it “won’t be easy.” But the Senate leader is again assuring supporters that the byzantine path to passage is still there for the second half of the 118th Congress.
Public support for legalization hits record high
In the backdrop of key presidential and congressional 2023 developments, Gallup released a new poll in November that showed national public support for marijuana legalization hitting a record high of 70 percent—including a sizable majority of Republicans, Democrats and independents
The survey found that support for ending federal prohibition is at its highest level since the firm started tracking public opinion on the issue in 1969, with majorities of each demographic polled in favor of the reform.
Notably, Gallup found “no difference in support for legalization” between people living states that have already enacted the reform and those living in states where cannabis is only medically legal or altogether criminalized. “Seventy percent of adults in both groups are in favor,” the firm said.
Bipartisan congressional lawmakers file over a dozen marijuana bills
The Senate marijuana banking bill no doubt captured the most attention this year in terms of congressional cannabis legislation. But bicameral lawmakers across the aisle didn’t let that outsized spotlight stop them from introducing numerous proposals to change federal marijuana policy during the first half of the 118th Congress.
Here are the major congressional marijuana bills that were filed in 2023:
- Strengthening the Tenth Amendment Through Entrusting States (STATES) 2.0 Act: Rep. Dave Joyce (R-OH) introduced the bill, which would end federal marijuana prohibition in legal states, legalize interstate cannabis commerce, normalize IRS policy for the industry and contemplate a federal tax-and-regulate framework for the industry.
- Marijuana Opportunity, Reinvestment and Expungement (MORE) Act: The legislation from Rep. Jerrold Nadler (D-NY), which has twice passed the House under Democratic control, would federally legalize, tax and regulate marijuana, with provisions to expunge prior cannabis convictions.
- States Reform Act: The legislation from Rep. Nancy Mace (R-SC) would federally legalize marijuana, while taking steps to preserve existing state cannabis markets.
- Harnessing Opportunities by Pursuing Expungement (HOPE) Act: Joyce and Rep. Alexandria Ocasio-Cortez (D-NY) reintroduced the bipartisan bill to encourage state and local governments to expunge marijuana records in their jurisdictions.
- Preparing Regulators Effectively for a Post-Prohibition Adult-Use Regulated Environment Act (PREPARE) Act: Another bill from Joyce, along with House Minority Leader Hakeem Jeffries (D-NY), the proposal would direct the attorney general to create a commission charged with making recommendations on a regulatory system for cannabis that models what’s currently in place for alcohol.
- Small Business Tax Equity Act: Rep. Earl Blumenauer (D-OR), founding co-chair of the Congressional Cannabis Caucus, introduced the measure to amend the IRS 280E code to allow state-legal marijuana businesses to finally take federal tax deductions that are available to companies in other industries.
- Cannabis Users’ Restoration of Eligibility (CURE) Act: The bill, sponsored by Rep. Jamin Raskin (D-MD), would protect people from being denied federal employment or security clearances due to marijuana use—and also provide relief for people who lost opportunities due to cannabis in the past. It cleared committee in September, but it has not yet advanced on the floor.
- Gun Rights and Marijuana (GRAM) Act: Rep. Brian Mast (R-FL), co-chair of the Congressional Cannabis Caucus, filed the bill to protect the Second Amendment rights of people who use marijuana in legal states, allowing them to purchase and possess firearms that they’re currently prohibited from having under federal law.
- Second Amendment Protection Act: The legislation from Rep. Alex Mooney (R-WV) would allow state-registered medical cannabis patients to buy and possess firearms.
- Veterans Equal Access Act: Blumenauer and Mast introduced the bill to allow government doctors at the U.S. Department of Veterans Affairs (VA) to recommend medical marijuana to their patients in states where it’s legal.
- Veterans Medical Marijuana Safe Harbor Act: Rep. Barbara Lee (D-CA), co-chair of the Congressional Cannabis Caucus, filed the measure to temporarily allow veterans to legally possess and use cannabis under federal law, as recommended by doctors in accordance with state law. Physicians with the VA would also be allowed for the first time to issue such recommendations.
- Veterans Cannabis Use for Safe Healing Act: The bill, sponsored by Rep. Greg Steube (R-FL), would protect military veterans from losing government benefits for using medical cannabis in compliance with state law.
- Marijuana 1-to-3 Act: Steube also filed a measure to legislatively move marijuana from Schedule I to the less restrictive Schedule III under federal law.
- Deferring Executive Authority (DEA) Act: Conversely, GOP senators introduced legislation prevent federal agencies from rescheduling cannabis without tacit approval from Congress.
- Clarifying Law Around Insurance of Marijuana (CLAIM) Act: The bipartisan legislation from Reps. Nydia Velázquez (D-NY) and Warren Davidson (R-OH) in the House and Sens. Bob Menendez (D-NJ) and Rand Paul (R-KY) in the Senate would provide a safe harbor to insurance companies that work with state-legal cannabis businesses.
- Higher Education Marijuana Research Act: Reps. Dina Titus (D-NV) and Joe Neguse (D-CO) introduced the measure to provide $150 million in marijuana research funding for universities over five years, while allowing those institutions to obtain cannabis for studies through partnerships with state regulatory agencies and law enforcement.
- Industrial Hemp Act: The bill, sponsored by Reps. Matt Rosendale (R-MT) and Chrissy Houlahan (D-PA), would reduce regulations on farmers that grow industrial hemp for non-extraction purposes.
- Hemp and Hemp-Derived CBD Consumer Protection and Market Stabilization Act: The legislation from Reps. Morgan Griffith (R-VA) and Angie Craig (D-MN) would mandate that hemp, hemp-derived CBD and other derivatives from the federally legal cannabis plant would be made lawful as dietary supplements under the Federal Food, Drug, and Cosmetic Act (FDCA).
- CBD Product Safety and Standardization Act: Griffith and Craig also filed the bill to require FDA to develop rules and hold a public comment period on the maximum amount of hemp-derived CBD that could be added to a food item or beverage per serving, labeling and packaging requirements and the “conditions of intended use.”
- Free to Grow Act: Bipartisan congressional lawmakers introduced the bill that seeks to end what they say is a “discriminatory” federal policy that bars people with prior felony drug convictions from owning or leading legal hemp businesses.
- Clean Slate Act: Rep. Lisa Blunt Rochester (D-DE) and Mace filed the legislation to mandate the automatic sealing of criminal records for certain non-violent federal marijuana convictions.
There were also numerous attempts to enact cannabis policy changes through large-scale appropriations legislation this year. A longstanding rider was kept intact to prevent Justice Department interference in medical cannabis states, for example, but to the disappointment of advocates, so was another rider blocking Washington, D.C. from using its local tax dollars to regulate cannabis sales despite voters approving legalization in 2014.
GOP House blocks numerous drug policy reform amendments to spending bills
Multiple drug policy reform amendments to spending bills were blocked from advancing to the House floor by the GOP-controlled Rules Committee this year.
For example, in November the committee declined to make in order a bipartisan proposal to protect all state cannabis programs from federal interference.
It also blocked numerous versions of an amendment from Rep. Robert Garcia (D-CA) that would have prevented the use of department funds to drug test federal job applicants for cannabis.
The committee quashed a separate amendment to another spending bill that would have freed up D.C. to legalize marijuana sales in the nation’s capital.
The Rules Committee did make in order an amendment to allow VA doctors to issue medical cannabis recommendations to veterans that ultimately passed the House, but it was not included in the final deal follow bicameral conference.
More than a dozen reform amendments were blocked by the panel as part of the National Defense Authorization Act (NDAA), including a measure introduced by Garcia that would have prevented security clearance denials for federal workers over prior cannabis use.
However, a GOP-led NDAA amendment was adopted to provide $10 million in funding for the Department of Defense (DOD) to facilitate clinical trials into the therapeutic potential of certain psychedelics. And that proposal was incorporated into the final product that Biden signed in December.
Federal agencies weigh in on cannabis issues
As the state legalization movement expanded, several federal agencies looked into their own cannabis policies throughout the year, with several notable updates beyond the HHS rescheduling recommendation.
DEA
The agency announced in November that it is looking to substantially build up domestic production of delta-9 THC and other cannabinoids for research purposes next year, while also maintaining high levels of psychedelics production as scientific interest continues to grow.
As DEA continues to carry out its marijuana scheduling review, meanwhile, it again proposed federally banning two psychedelic compounds, prompting pushback from the research and advocacy communities.
At a House Judiciary subcommittee hearing in July, DEA Administrator Anne Milgram told lawmakers that she “will keep an open mind” and “look at all the research” as her agency conducts its cannabis review.
DEA has also faced criticism from advocates and state government officials after warning Georgia pharmacies that dispensing medical cannabis under the state’s legalization law is illegal under federal statute.
FDA
Early in the year, FDA stirred controversy after announcing that it would not be issuing regulations to allow for the marketing of hemp-derived CBD in the food supply or as dietary supplements despite the federal legalization of the cannabinoid under the 2018 Farm Bill.
The agency said, however, that it is willing to work with Congress to come up with a solution to what it described as administrative barriers to necessary rulemaking. FDA’s inaction was also the subject of a congressional committee hearing in July.
FDA, as well as the Federal Trade Commission (FTC), separately teamed up to send warning letters to six companies that the agencies said were unlawfully selling “copycat” delta-8 THC products that were misleadingly packaged to mimic popular brands like Doritos, Cheetos and Jolly Ranchers.
VA
In August, VA released an updated directive that reaffirms its doctors are prohibited from issuing medical cannabis recommendations to their military veterans patients. The document also noted the revised federal definition of marijuana that went into effect with the legalization of hemp.
U.S. Department of Agriculture (USDA)
It was reported in November that USDA is revoking hemp licenses for farmers who are simultaneously growing marijuana under state-approved programs, underscoring yet another policy conflict stemming from the ongoing federal prohibition of some forms of the cannabis plant.
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)
The agency told Arkansas officials in October that the state’s law permitting medical cannabis patients to obtain concealed carry gun licenses “creates an unacceptable risk,” and could jeopardize the state’s federally approved alternative firearm licensing policy.
Also, shortly after Minnesota’s governor signed a legalization bill into law in May, ATF issued a reminder emphasizing that people who use cannabis are barred from possessing and purchases guns and ammunition “until” federal prohibition ends.
Federal cannabis employment policy
Several federal agencies notified workers and prospective applicants about cannabis employment policies throughout the year.
The Substance Abuse and Mental Health Services Administration (SAMHSA), for instance, formally revised federal workplace drug testing guidelines to clarify that using medical marijuana under a doctor’s recommendation in a legal state is not a valid excuse for a positive THC test.
Agencies that updated employees about the risks or rules around using marijuana, or even federally legal hemp-derived products, included USDA, ATF, the Department of Transportation (DOT), Customs and Border Protection (CBP) and U.S. Secret Service.
Justice Department on defense in lawsuits over prohibition, harm reduction and guns
The Justice Department faced a series of lawsuits in 2023, including several cases where it has been forced to defend a federal ban preventing marijuana consumers from buying or possessing firearms.
In November, for example, DOJ told the U.S. Court of Appeals for the Third Circuit that historical precedent “comfortably” supports the restriction. Cannabis consumers with guns pose a unique danger to society, the Biden administration claimed, in part because they’re “unlikely” to store their weapon properly.
In a brief submitted in that case, attorneys for the Justice Department argued the firearm ban for marijuana consumers is further justified based on historical analogues to restrictions on the mentally ill and habitually drunk that were imposed during the time of the Second Amendment’s ratification in 1791.
The federal government has repeatedly claimed that those analogues provide clear support for limiting gun rights for cannabis users. But several federal courts have separately deemed the marijuana-related ban unconstitutional, leading DOJ to appeal in several ongoing cases.
The Justice Department asserted similar points during oral arguments in a separate but related case before the U.S. Court of Appeals for the Eleventh Circuit in October. That case focuses on the Second Amendment rights of medical cannabis patients in Florida.
Attorneys in both cases have also touched on a U.S. Court of Appeals for the Fifth Circuit ruling from August, Daniels v. United States, that found the ban preventing people who use marijuana from possessing firearms is unconstitutional, even if they consume cannabis for non-medical reasons.
DOJ had already advised the Eleventh Circuit court that it felt the ruling was “incorrectly decided,” and the department’s attorney reiterated that it’s the government’s belief that “there are some reasons to be uncertain about the foundations” of the appeals court decision.
The U.S. District Court for the Western District of Oklahoma also ruled in February that the ban prohibiting people who use marijuana from possessing firearms is unconstitutional, with the judge stating that the federal government’s justification for upholding the law is “concerning.”
In U.S. District Court for the Western District of Texas, a judge ruled in April that banning people who use marijuana from possessing firearms is unconstitutional—and it said the same legal principle also applies to the sale and transfer of guns.
Meanwhile, several leading marijuana businesses and stakeholders banded together to sue the federal government over what they believe to be unconstitutional policies impeding their operations. And plaintiffs have retained a prominent law firm led by an attorney who has been involved in numerous high-profile federal cases.
In December, DOJ and the cannabis companies jointly agreed to request a deadline extension for the filing of initial briefs in 2024.
The Justice Department has separately been involved in federal litigation over the proposed establishment of a safe drug consumption site in Philadelphia, with the government seeking the case’s dismissal as it asserts federal statute prohibits the operation of such harm reduction centers.
Advocates and stakeholders turn to 2024
It remains to be seen what the New Year holds for federal cannabis policy. DEA’s marijuana scheduling decision will surely be front of mind, as will the Senate cannabis banking bill. Considering that 2024 is a presidential election year, it also seems plausible that Biden will continue to promote his cannabis pardon actions, though it remains to be seen whether he will go any further to leverage the popularity of broader legalization.
In any case, the past year has again underscored that advocates and stakeholders continue to have one key factor on their side: momentum. (Full Story)