Let's Start with the good news: Florida’s Amendment 2 has been passed by voters and become law of the State. For Florida’s citizens, Amendment 2 will provide much needed access to cannabis related medical treatments. While there is some concern on how the implementation of Amendment 2 will be rolled out, most Floridians agree that Amendment 2 is a big step in the right direction and will significantly increase the quality of life for thousands of patients.
Here’s the bad news: As we mentioned in our previous article on the rollout of Amendment 2, Cannabis remains a Schedule I drug under Controlled Substances Act. In layman’s terms, this means that Cannabis (and hemp) are still highly illegal under federal law.
The Controlled Substances Act, 21 U.S.C. §812(b)(1) defines Schedule I drugs as having three characteristics:
The drug or other substance has a high potential for abuse.
The drug or other substance has no currently accepted medical use in treatment in the United States; and
There is a lack of accepted safety for use of the drug or other substance under medical supervision.
In layman’s terms, in the eyes of the United States government Cannabis is just as dangerous as heroin, GHB and ecstasy; and in fact less dangerous than Schedule II drugs which include cocaine, Oxycontin, Percocet, Vicodin, methamphetamine, adderall and ritalin.
Without belaboring the point, the current state of the federal drug law is absurd. Many hoped that the Obama administration would take the critical step to reschedule cannabis in August, 2016. Sadly, Obama’s DEA failed to take action and the current status of cannabis as Schedule I drug remains unchanged.
Yet, despite cannabis’ status as a schedule I drug 28 states and the District of Columbia have legalized medical marijuana in some form, with an additional 16 states having extremely restrictive medical programs.
But how are states able to proceed with state-based marijuana legalization when cannabis remains illegal under federal law? In light of the marijuana legalization efforts by Colorado and Washington, in 2013 the Department of Justice issued guidance memorandum to all U.S. Attorneys regarding marijuana enforcement priorities. This memorandum, dubbed the “Cole Memo”, citing limited resources set forth the marijuana federal law enforcement priorities based on eight factors. In short, if states who have legalized marijuana can maintain compliance with the eight Cole Factors, the enforcement of the federal marijuana laws will not be a priority. The Cole Memo has created the playing field for state legalized marijuana that currently exists.
However, nothing has changed as to the federal status of cannabis as a Schedule I drug. It is critical to remember that despite what steps Florida (or any other state for that matter) has taken to legalize marijuana, as far as the federal government is concerned -- cannabis is still highly illegal and dangerous.
Perhaps as important -- is critical to note that the Cole Memo under which states currently operate cannabis programs is merely a guidance memorandum to U.S. Attorneys and could be revoked instantly. This is where the incoming Trump administration and his pick for Attorney General, Alabama Senator Jeff Sessions could stop Florida’s Amendment 2 dead in its tracks.
As with many issues, Trump’s position on marijuana legalization is unclear. However, during the 2016 campaign, Trump seemed to indicate that legalization of marijuana should be a state’s rights decision. But no one knows what Trump actually believes or will do as president.
However, Senator Jeff Sessions’ anti-marijuana position is very clear. A recently as April 5, 2016, Senator Jeff Sessions in a Senate hearing is on record as saying “Good people don’t smoke marijuana.”
Naturally, there is widespread concern amongst cannabis advocates that Senator’s Sessions uninformed opinion on marijuana could harbinger of change of federal marijuana law enforcement priorities once he becomes Attorney General. Instant revocation of the Cole Memo would certainly be within the power of the new Attorney General.
Nevertheless, with the national public support for cannabis legalization at an all time high and states who have legalized marijuana raking in massive tax revenue there is a significant chance that altering the status quo would be too much political liability even for the Trump administration. Let's hope this keeps the new Trump administration at bay for the time being.