Rescheduling Won’t End Conflict Between Federal and State Marijuana Laws

By Paul Armentano, Guest Columnist 

Ten months after the Biden administration requested the Department of Health and Human Services (HHS) “to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law,” Secretary Xavier Becerra confirmed that the agency has recommended cannabis be removed from its Schedule I classification and placed in a lower schedule.

While the explicit details of HHS’ recommendation are not public, Bloomberg reports that the agency seeks to have cannabis moved to the less restrictive Schedule III of the federal Controlled Substances Act. 

The HHS recommendation now goes to the Drug Enforcement Administration, which will conduct its own scientific review. In the past, the DEA has employed its own five-factor test (which differs from HHS’ criteria) to determine whether or not cannabis ought to be rescheduled. On four prior occasions, most recently in 2016, the agency determined that cannabis failed to meet any of its five criteria.  

While it remains unknown at this time how the DEA will ultimately respond to HHS’ request, many are already speculating about the potential implications of such a policy change. And while some entities, particularly those involved in the commercial cannabis industry, have lauded the proposed change as a “giant” step forward, others – like myself – have been far more restrained.

That’s because reclassifying cannabis from Schedule I to Schedule III is neither intellectually honest, nor does it sufficiently address the widening chasm between state and federal marijuana laws. 

Specifically, reclassifying cannabis to a lower schedule within the CSA continues to misrepresent the plant’s safety relative to other controlled substances such as oxycodone and hydrocodone (Schedule II), codeine and ketamine (Schedule III), benzodiazepines (Schedule IV), or alcohol (unscheduled). More importantly, rescheduling marijuana fails to provide states with the explicit legal authority to regulate it within their borders as best they see fit, free from federal interference.  

To date, 38 states regulate the production and distribution of cannabis products for medical purposes. Twenty-three of these states regulate the possession and use of marijuana for adults. All of the state laws are currently in conflict with federal marijuana laws. Rescheduling cannabis to Schedule III will not change this reality. 

That’s because Schedule III substances are regulated only for prescription use by the federal government. That means legal access to these substances is limited to patients who possess a prescription from a licensed physician and who have obtained the product from a licensed pharmacy.

Currently, no state government regulates cannabis in such a manner – nor is it likely that any state will reconstruct their existing laws and regulations to do so in the future. 

Simply put, if marijuana is rescheduled, state laws authorizing citizens to possess cannabis for either medical or social purposes will continue be in violation of the federal law, as would the thousands of state-licensed dispensaries that currently serve these markets. And the DEA would still possess the same authority it has now under federal law to crack down on these state-regulated markets should it elect to do so. 

Some have suggested that rescheduling the cannabis plant may provide greater opportunities for investigators to conduct clinical research into its eventual drug development, but this result is also unlikely. That is because many of the existing hurdles to clinical cannabis research, such as the limits placed upon scientists’ access to source materials, are marijuana-specific regulations and predate cannabis’ Schedule I classification.

Other impediments, such as requiring the US Attorney General to approve marijuana-specific research protocols are statutory and are not specific to marijuana’s scheduling in the CSA. 

For these reasons, the National Organization for the Reform of Marijuana Laws (NORML) holds the position that the only productive outcome of the current scheduling review would be a recommendation to deschedule cannabis – thereby removing it from the Controlled Substances Act altogether and providing states with greater discretion to establish their own distinct marijuana policies. (A case in point: In 2018 Congress removed from the CSA hemp plants containing no more than 0.3 percent THC, as well as certain cannabinoids derived from them.)

Descheduling would remove the threat of undue federal intrusion in existing state marijuana programs and would respect America’s longstanding federalist principles allowing states to serve as “laboratories of democracy.”

By contrast, rescheduling simply perpetuates the existing contradictions between state and federal cannabis laws, and it fails to provide any necessary legal recognition from the federal government to either the state-licensed cannabis industry or those adults who use the plant responsibly in compliance with state laws.

Paul Armentano is the Deputy Director for NORML, the National Organization for the Reform of Marijuana Laws.

More States Should Require Insurers to Pay for Medical Cannabis

By Paul Armentano, Guest Columnist

Should health insurance programs reimburse patients for their use of medical cannabis products? In a growing number of states, the courts are saying “yes.”

In the most recent example, a Pennsylvania Appellate Court ruled that workers’ compensation plans must cover cannabis-related expenditures when an employee uses it to recover from a workplace-related injury. The court ruled that employees in Pennsylvania possess “a statutory right” to be reimbursed for medical marijuana expenses that are reasonable and necessary to treat a work injury.  

“The MMA (Pennsylvania Medical Marijuana Act) specifically mandates that no medical marijuana patients be denied any rights for (the) lawful use of medical marijuana,” the Court said.

The Pennsylvania Court is not the first to issue an affirmative verdict in this matter. Courts in several states, including Connecticut, New Hampshire, New Jersey, New Mexico and New York, have provided similar opinions – determining that the denial of compensation claims would be antithetical to the legislatures’ express findings that cannabis is a state-legal therapy.

By contrast, courts in some other states, including Minnesota, have issued contradictory opinions – finding that it would be inappropriate for insurers to reimburse claimants for their use of a federally illegal substance. Federal law still classifies marijuana as a Schedule I controlled substance, placing it in the same legal category as heroin.

In most states, however, the law is largely silent on the issue. But don’t expect that to be the case for much longer. As scientific consensus and public attitudes surrounding the safety and efficacy of medical cannabis continue to evolve, the way insurers approach patients’ use of marijuana is likely to change too.

For example, lawmakers in Massachusetts recently introduced legislation explicitly providing that injured employees be reimbursed for their medical marijuana-related costs. In New York, lawmakers just advanced legislation, A. 4713, requiring public insurance plans to treat medical cannabis like any other medication. 

Thirty-eight states and the District of Columbia currently regulate the production and dispensing of cannabis for medical purposes. No state government has ever repealed or even rolled back these laws. That’s because these policies are widely accepted among both the public and among health professionals.

In fact, according to nationwide survey data recently compiled by the Centers for Disease Control and Prevention, over two-thirds of practicing physicians acknowledge the efficacy of medical cannabis and over one-quarter say that they have recommended it to their patients. 

Tens of millions of Americans are now using cannabis therapeutically. The number has doubled over the past decade, as peer-reviewed data that support the use of medical cannabis for the treatment of pain, multiple sclerosis, and other ailments has continued to grow. In many instances, patients are replacing their use of opioids, benzodiazepines and other prescription medications with cannabis because they find it more effective and with fewer adverse side effects. 

In short, most patients, most physicians, and most state laws view cannabis as a legitimate therapeutic option. Therefore, the millions of Americans who rely upon medical cannabis products ought to be afforded the same entitlements as those who use other conventional medications and therapies. Those privileges should include insurance-provided reimbursement for medical cannabis treatment.  

State legislators ought to see to it that this is a right provided for and protected in jurisdictions where medical marijuana is legally available under the law. 

Paul Armentano is the Deputy Director for NORML, the National Organization for the Reform of Marijuana Laws.

Biden Pardons Thousands Convicted of Marijuana Possession

By Pat Anson, PNN Editor

President Joe Biden is pardoning everyone who has been convicted of simple marijuana possession under federal law and is urging governors to take similar action for those convicted of possession under state laws.

Biden’s blanket pardon will affect over 6,500 people who have been convicted or charged with federal offenses for marijuana possession. If governors join in, it could potentially impact millions of others who have been convicted of possession under state laws and now have criminal records. The pardon does not alter federal or state laws that prohibit marijuana trafficking, marketing and under-age sales.

“Sending people to prison for possessing marijuana has upended too many lives and incarcerated people for conduct that many states no longer prohibit. Criminal records for marijuana possession have also imposed needless barriers to employment, housing, and educational opportunities,” Biden said in a statement. “Just as no one should be in a Federal prison solely due to the possession of marijuana, no one should be in a local jail or state prison for that reason, either.” 

The mass pardon partially fulfills a campaign promise made by Biden during the 2020 election campaign and begins the process of changing marijuana’s status under federal law. Biden said he would ask Attorney General Merrick Garland to “expeditiously” review how marijuana is classified.

Marijuana was classified by the DEA as a Schedule I controlled drug in 1970, on the same level as heroin and LSD, which means it has “no currently accepted medical use.” That classification now makes little sense, with 37 states and the District of Columbia having legalized medical marijuana as a treatment for chronic pain and other health issues.

“We are pleased that today President Biden is following through on this pledge and that he is also encouraging governors to take similar steps to ensure that the tens of millions of Americans with state-level convictions for past marijuana crimes can finally move forward with their lives,” said Erik Altieri, Executive Director of the National Organization for the Reform of Marijuana Laws (NORML).  

Altieri said the DEA should “deschedule” marijuana under the Controlled Substances Act, and not just change its status to a less restrictive Schedule II or III level. Descheduling would amount to full legalization.

“Nearly half of voters now agree that legalizing marijuana ought to be a priority of Congress, and such action can only be taken by descheduling cannabis and repealing it from the US Controlled Substances Act — thereby regulating it in a manner similar to alcohol,” he said.

In 2020, the House passed legislation to decriminalize marijuana at the federal level, but the bill never came to a vote in the Senate, then controlled by Republicans. Legalization would appear unlikely if the 2022 midterm elections result in the GOP taking control of either the House or Senate.

Last week, a House GOP caucus released a “Family Policy Agenda” saying Congress should not legalize marijuana. The report claimed legalization at the state level “led to an explosion of marijuana use among children, which is having a hugely negative impact on their health.”

More Americans are now using marijuana and cannabis-based products to manage their pain than pharmaceutical drugs. A 2021 Harris Poll found that 16% of adults are using cannabis or CBD for pain relief, compared to 8% who use opioid medications and 11% who use non-opioid pain relievers.

Are Cannabis Dispensaries Really Associated with Fewer Opioid Overdoses?

By Roger Chriss, PNN Columnist

A new study published in The BMJ claims that U.S. counties with medical and recreational cannabis dispensaries have fewer opioid-related deaths.

Researchers at Yale and University of California at Davis found that an increase of just one or two storefront dispensaries in a county was associated with a 17% reduction in all-opioid mortality rates. Deaths involving illicit fentanyl and other synthetic opioids fell by 21 percent.

Although the researchers cautioned that “the associations documented cannot be assumed to be causal,” cannabis supporters were quick to praise the findings.

“The data to date is consistent and persuasive: For many pain patients, cannabis offers a viable alternative to opioids, potentially improving their quality of life while possessing a superior safety profile,” said Paul Armentano, Deputy Director of NORML, a marijuana advocacy group.

While the study findings are interesting, they highlight the importance of considering the complex supply side of legal and illegal drug markets, and how it shapes opioid use and misuse. The study looked at data from over 800 counties with legal dispensaries, and compared them to counts of fatal overdoses between 2015 and 2018.

It turns out many of these counties were on the West Coast, where illicit fentanyl had yet to became as pervasive on the black market as it had in other parts of the country. Since 2018, deaths involving fentanyl have soared on the West Coast. 

“If you were to do the same study with current data, you’d find something different because of the way both opioid deaths and cannabis dispensaries have shifted since then,” Chelsea Shover, PhD, an assistant professor at UCLA School of Medicine told Healthline. 

In general, the opioid overdose crisis has gotten worse in the past couple of years. The CDC recently reported that in the 12 months ending in May 2020, ten western states reported a nearly 100 percent increase in deaths involving illicit fentanyl and other synthetic opioids. The increase was particularly sharp in states that legalized recreational cannabis.  

This is the problem with ecological data and associational findings. If you pick the right time or place, you can get an appealing result. And you may ignore other important issues.  

States that legalized cannabis tend to have better public health and more addiction treatment services. They generally have adopted the Affordable Care Act and Medicaid expansion, and have stronger social safety nets. All of these factors are believed to contribute to rates of substance use disorders and overdose risk.

Ecological data alone never proves anything. It merely suggests associations. If the association holds up over time, then researchers can look into a possible causal relation. If however, the association does not hold up, then claims about causality are pointless.

At this point cannabis does not seem to reliably reduce opioid overdose deaths. Further research will be needed to tease out the effects of cannabis legalization amid all the other factors involved in the overdose crisis.

Roger Chriss lives with Ehlers Danlos syndrome and is a proud member of the Ehlers-Danlos Society. Roger is a technical consultant in Washington state, where he specializes in mathematics and research.

CDC Guidelines Urge Doctors Not to Test for Marijuana

By Pat Anson, Editor

One of the less publicized provisions in the Centers for Disease Control and Prevention’s opioid prescribing guidelines is a recommendation that doctors stop urine drug testing of patients for tetrahyrdocannabinol (THC), the psychoactive ingredient that causes the “high” for some marijuana users. The guidelines also discourage doctors from dropping patients if marijuana is detected.

Urine drug screens are conducted almost routinely by pain management physicians and other opioid prescribers for a variety of drugs, both legal and illegal.

Some doctors use a positive result for THC as an excuse to discharge patients from their practices, even in states where medical marijuana is legal.

While the CDC guidelines encourage physicians to conduct urine drug tests before starting opioid therapy and at least annually afterwards, they draw the line at THC.

“Clinicians should not test for substances for which results would not affect patient management or for which implications for patient management are unclear. For example, experts noted that there might be uncertainty about the clinical implications of a positive urine drug test for tetrahyrdocannabinol (THC).” the guidelines state.

"Clinicians should not dismiss patients from care based on a urine drug test result because this could constitute patient abandonment and could have adverse consequences for patient safety, potentially including the patient obtaining opioids from alternative sources and the clinician missing opportunities to facilitate treatment for substance use disorder."

As Pain News Network has reported, “point-of care” (POC) urine drug tests, the kind widely used in doctor’s offices, frequently giving false positive or false negative results for drugs like marijuana, oxycodone and methadone. One study found that 21% of POC tests for marijuana produced a false positive result. The test was also wrong 21% of the time when marijuana is not detected in a urine sample.

Not mentioned in the CDC guidelines is evidence that opioid overdose rates declined by nearly 25 percent in states where medical marijuana was legalized.

"We applaud the CDC's reasoned approach to the use of urine testing and its drawbacks when used on pain patients," said Ellen Komp, Deputy Director of California NORML. "Considering that opioid overdose deaths are significantly lower in states with medical marijuana programs, we are sorry the agency apparently didn't read the letter Elizabeth Warren recently sent to its chief calling for marijuana legalization as a means of dealing with the problem of opiate overdose."

That letter by Sen. Warren encouraged the CDC to adopt the guidelines and its restrictive approach to opioids “as soon as possible,” but also encouraged the agency to further study the impact legalization of medical and recreational marijuana could have on opioid overdose deaths.

The annual cost of drug testing in pain management is estimated at $2 billion per year. While POC tests are relatively cheap, more expensive laboratory testing can cost thousands of dollars and is often not covered by insurance.