Congress starts considering marijuana legalization

Interstate commerce raises questions for Massachusetts

IN EARLY OCTOBER, President Biden called for a review of whether marijuana should continue to be classified federally among the most dangerous drugs. That review heightened calls for Congress to decriminalize marijuana. Advocates argue that the continuing criminalization of marijuana is nonsensical since 37 states and Washington, DC allow medical marijuana and 19 states and Washington, DC, allow its recreational use.

On Tuesday, a congressional subcommittee on civil rights and civil liberties held a hearing “to examine the many benefits of cannabis decriminalization at the federal level, including addressing racial disparities in the criminal justice system, improving treatment options for veterans, and allowing marijuana companies to access traditional banking services.”  While none of the witnesses had direct ties to Massachusetts, their testimony gave some insight into potential ramifications for the state should marijuana be federally legalized.

Already, state regulators have been talking about the implications of legalization. As CommonWealth reported, legalization would open up opportunities for research, potentially poising Massachusetts to become a national cannabis research hub.

But Cannabis Control Commission executive director Shawn Collins at a recent meeting pointed to possible pitfalls related to market disruption. For example, Massachusetts has strict laws governing cultivation and regulating pesticide use, an area where federal environmental regulators may set rules if cannabis is legalized. Massachusetts has a strict seed-to-sale tracking system. Collins questioned what will happen if there is interstate commerce. “We have high standards. Would products from out of state be obligated to meet those standards?” Collins asked.

The Boston Globe reported in January 2021 that the potential market disruption could be massive if there is an influx of cheaper, outdoor grown marijuana from the West Coast, where there is a production surplus. Some local cultivators worry that if huge Midwest farms can grow and export thousands of acres of marijuana, there would be no market for the smaller, indoor grows that characterize the Massachusetts market.

One issue raised at the congressional hearing was veterans who get health care at the VA. Veterans Affairs doctors not only can’t recommend marijuana (most primary care doctors don’t), but some veterans fear reporting medical cannabis use, worrying that their doctor will take them off other medications.

Eric Goepel, founder of the Veterans Cannabis Coalition, argued in written testimony that providing easier access to cannabis would be a harm-reduction technique for wounded veterans, many of whom struggle with addictive opioid pain medication and harmful legal behaviors, like alcohol abuse.

Amber Littlejohn, senior policy advisor for the Global Alliance for Cannabis Commerce, a marijuana industry trade association, said legalization would lower the barrier for entry for marijuana businesses, including small and minority-owned businesses, by reducing costs. State-legal marijuana businesses today pay high federal taxes – sometimes over 80 percent – because they cannot deduct business expenses. Growers lack access to federal crop insurance. Manufacturers can’t trademark marijuana products. Federal small business loans and technical support programs are unavailable, and basic banking services are expensive because of the heightened risk of federal enforcement.

Andrew Freeman, executive director of the Coalition for Cannabis Policy, Education, and Regulation, which seeks to advance a regulatory framework for cannabis, said federal funding could address some of the problems inherent in legalization, by fast tracking research on technology to detect marijuana impairment in drivers or establishing a national purchase age of 21. The federal government could create national standards for testing, labeling, serving sizes, and product safety, as federal agencies typically do for food and medicine.

Rep. Ayanna Pressley, a Massachusetts Democrat who sits on the subcommittee, used the hearing to question witnesses about prioritizing equity in the industry for Black and Latino individuals, touting Massachusetts’ social equity program. “The failed war on drugs has sustained a mass incarceration crisis that has ravaged Black and brown communities, destabilized our families, and inflicted a truly intergenerational trauma,” Pressley said.

Whether Congress or the president actually move toward legalization is an open question. Public support for legalizing marijuana has been steadily increasing over the past decades, but the issue has gotten limited political traction. A Brookings Institution review of congressional candidates’ stances on reform in September found that most candidates were largely silent. Among those who did take a position, Democrats tended to support reform and Republicans opposed it.

Procedurally, Congress can remove marijuana from the Controlled Substances Act or change how it is classified. According to the Congressional Research Service, President Biden does not have authority to legalize marijuana by executive order, but his administrative agencies could reschedule the drug after a rulemaking process. That decision would be subject to judicial review.