A libertarian group, the Reason Foundation, recently suggested in a measured argument that U.S. lawmakers could resolve the ongoing conflict between intoxicating hemp producers and the marijuana industry by removing marijuana from the U.S. Controlled Substances Act (CSA).
Marijuana stakeholders are fighting against “intoxicating hemp” products, which contain synthetic compounds made in the lab (or maybe bathtub) from hemp-derived CBD that give a “high” reminiscent of that produced by smoking pot. Medical and recreational marijuana interests across the country say the illicit hemp products represent unfair competition because they are not regulated while licensed weed operators must meet strict guidelines under expensive permits.
The Reason Foundation argues that removing marijuana and all cannabis-derived compounds from the U.S. Controlled Substances Act (CSA) will level the playing field between intoxicating hemp producers and marijuana interests, eliminate confusion regarding the legal status of intoxicating hemp products, encourage collaboration between the two sectors to develop coherent policies for consumer safety and industry integrity (ha!), and facilitate the establishment of a comprehensive federal regulatory framework for all cannabis products.
Well, on paper, federal delisting of marijuana may seem like a solution to the regulatory and commercial chaos. In reality, it’s highly unlikely that Congress will take such a drastic step. Here’s why.
Gutless politicians
The U.S. political landscape is fraught with divisions, particularly on social issues like drug policy. While public support for marijuana legalization has grown in recent years, it is by no means unanimous. Many conservative lawmakers and constituents still view, or say they view “drug” cannabis – whether it’s marijuana or intoxicating hemp products – as a gateway to the use of other illegal substances.
While there has been uncharacteristic strong bi-partisan support for industrial hemp applications (intoxicating hemp products notwithstanding), removing marijuana from the CSA would require a level of bipartisan support that is currently lacking.
Many lawmakers, particularly those in conservative states, fear the political backlash that could arise if they support removing marijuana from federal drug schedules. The stigma surrounding all cannabis, ingrained in American society for decades, endures, no matter what those of us in the business might think.
Additionally, the notion of completely removing marijuana from the CSA, especially without strict regulatory structures in place, is seen as politically risky. No legislator wants to be held responsible for a potential increase in misuse, addiction, or public health issues tied to an unregulated market.
Safety considerations
Lawmakers are also unlikely to remove marijuana from the CSA due to concerns over public health, particularly the protection of minors. In states where marijuana has been legalized, there have been reports of increased access to cannabis by minors, as well as an uptick in accidental consumption of edibles by children. These incidents serve as cautionary tales, reinforcing the argument that cannabis – especially products that are easy to ingest, like gummies or drinks – poses a risk to younger populations. The emergency of intoxicating hemp products, widely available in common retail outlets, only exacerbates this situation.
If all cannabis were removed from the CSA, intoxicating hemp products and marijuana could become even more widely available, raising concerns about their impact on public health, particularly in states that may lack robust regulatory frameworks. U.S. politicians are keenly aware of these risks, and will be cautious to avoid a situation where the relaxation of federal regulations could lead to greater harm, especially to vulnerable populations like children.
Big Pharma’s influence
Another major reason lawmakers are unlikely to remove all cannabis from the CSA is the powerful influence of the pharmaceutical industry. Cannabis, particularly CBD and THC, has shown promise in treating various medical conditions, from chronic pain to epilepsy. However, Big Pharma has long held a vested interest in controlling the market for therapeutic drugs, and removing cannabis from the CSA would potentially disrupt this lucrative industry.
Pharmaceutical companies invest billions in developing synthetic versions of cannabinoids or other therapeutic alternatives, and they lobby heavily to maintain control over drug approval processes. Descheduling cannabis would open the floodgates for unregulated, plant-based products that could compete with FDA-approved medications. This prospect threatens pharmaceutical profits and the existing regulatory framework, which ensures the safety and efficacy of drugs through clinical trials and federal oversight. Lawmakers, many of whom are beholden to pharmaceutical interests, are unlikely to risk jeopardizing this relationship.
Regulatory complexity
Even if there were the political will to deschedule cannabis, the regulatory complexities involved make it an improbable scenario. Removing cannabis from the CSA would require the establishment of a new, comprehensive regulatory framework for its production, distribution, and sale – one that addresses both marijuana and, as things have developed the whole new category of “intoxicating hemp” products. This is no small feat.
Marijuana, unlike other substances previously removed from the CSA, exists in a complex ecosystem of legal, medical, and recreational markets, each with its own set of stakeholders. Navigating the interests of state governments, which have created a patchwork of laws around cannabis legalization, would be an enormous challenge. Reconciling these differences at a federal level would be a logistical nightmare.
Moreover, the emergence of intoxicating hemp products like delta-8 THC has further complicated the landscape. These products, often synthesized from legal CBD, occupy a gray area in the current legal framework. Descheduling cannabis without clear guidelines for differentiating between non-psychoactive hemp, intoxicating hemp products, and marijuana would likely exacerbate confusion in the marketplace and make it even harder for regulators to enforce product safety standards.
International treaties
The United States is a signatory to several international treaties, including the Single Convention on Narcotic Drugs, which classifies marijuana as a controlled substance. Descheduling at the federal level in the U.S. would put the country, a so-called global leader in drug enforcement and policy, in direct violation of these agreements, risking diplomatic fallout and global pressure.
While some countries have begun to loosen their marijuana regulations and many have freed up hemp, many others remain staunchly opposed to cannabis legalization. China, Russia, Japan, South Korea, Saudi Arabia and many less influential developing countries continue to oppose the legalization of recreational marijuana, and no doubt want to see the U.S. maintain pot as a controlled substance.
Expect slow progress
Given these challenges, continued incremental progress is more likely than full descheduling. The federal government may continue to allow states to chart their own courses on cannabis legalization, while the DEA and FDA may eventually loosen restrictions on research and medical applications of cannabis. Reclassifying cannabis to a lower schedule, such as Schedule II or III, could allow for more scientific study and medical use without the risks associated with full descheduling.
Such an approach would also allow lawmakers to maintain control over cannabis regulation, giving them time to address public health concerns, protect minors, and appease key stakeholders like Big Pharma. While it may not resolve the commercial conflict between intoxicating hemp products and the marijuana industry overnight, it is a far more realistic path forward.
Lawmakers are likely to pursue incremental reforms, if anything.
Whatever the future of cannabis policy, it will only be shaped by careful (fearful), measured (hesitant) incremental reforms. In the best-case scenario, it will be worth the wait and we’ll end up with rules and laws that balance the interests of public health and commerce for all cannabis.
Don’t expect it anytime soon, if ever.