As you may have heard, the Biden administration recently (Oct. 6, 2022) announced one of the most enormous federal drug policy shifts in American history. Given the convoluted history of cannabis policy in the United States, we would like to offer an explanation as to what Biden’s announcement truly means.
First of all, is weed federally legal now?
Unfortunately, Biden’s announcement has no immediate effect on the legality or scheduling of cannabis. Cannabis is still considered a Schedule 1 drug at the federal level and will be for the foreseeable future.
Biden’s announcement did significantly impact approximately 6,500 federal cannabis prisoners, as well as signify a shift in how the federal government will approach cannabis legislation going forward. Up until this executive announcement, the cannabis industry has been operating on vague policy statements stemming from the 2013 Cole Memo and the 2018 Farm Bill.
Here are the four most important takeaways from Biden’s announcement:
1. Biden’s announcement only pardons, and does not expunge, federal possession charges.
2. There is only so much that the Executive branch can do at this time.
3. There is a difference between “Rescheduling” and Descheduling” Cannabis from the Controlled Substance Act.
4. There is no timeline, nor any guarantee, of the outcome of this announcement.
> 1. Biden’s announcement only pardons, and does not expunge federal possession charges.
Let’s break this down. While an expungement clears a charge from one’s criminal record, pardons only remove or decrease the penalty for the charge. There were thousands that were federally pardoned for simple cannabis possession, but those citizens will still have possession on their records. Biden’s announcement also does not expunge those with other cannabis charges- such as distribution or home-grow.
Additionally, it’s important to note that the vast majority of possession charges occur at the state level; over 500,000 people are arrested for cannabis possession annually. While Biden urged governors to follow his lead, he does not have the direct authority to force governors to pardon state cannabis possession charges. In other words, cannabis legalization essentially boils down to another “state’s rights” issue- similar in regard to other controversial topics such as abortion access and gun rights.
> 2. Biden’s announcement only pardons and does not expunge federal possession charges.
In early November 2021, Congressional researchers concluded that, while President Biden cannot directly remove marijuana from control under federal controlled substances laws, he could order executive agencies to consider either moving marijuana to a different schedule so that it could be legally possessed and sold or changing their enforcement approach. However, the report also concluded that the President has no power to change state law or compel the states to adopt federal policies. Biden could direct the treasury department to issue guidance asking the IRS to reinterpret 280E to not apply to businesses licensed and in compliance with state law, but it is on Congress to actually get this done.
This means that there will be no immediate policy change at the state level, and it also means that there will be no immediate change to cannabis banking or cannabis tax reform. The Biden Administration does not have the authority to force Congress to create cannabis reform legislation, but this is a strong sign of support from the executive branch that may serve to catalyze/ support Congressional cannabis initiatives like the SAFE Banking Act and the MORE Act.
> 3. There is a difference between “Rescheduling” and Descheduling” Cannabis from the Controlled Substance Act.
Currently, cannabis is considered a Schedule I Substance under the Controlled Substance Act (CSA). By definition, Schedule I drugs, substances, or chemicals are defined as drugs “with no currently accepted medical use and a high potential for abuse.” This means that cannabis is equated to heroin, methaqualone, and peyote at the federal level.
Because of this harsh scheduling, cannabis research has been difficult to conduct. The lack of existing cannabis research means that it is unlikely cannabis will be fully descheduled (removed from the CSA) and more likely that cannabis will be rescheduled to schedule 2 or 3. For reference, Schedule II substances include morphine, opium, codeine, and hydrocodone; Schedule III Substances include Tylenol with Codeine®, and buprenorphine (Suboxone®).
A move to Schedule II or III will not make cannabis federally legal and accessible, but would instead treat it like restrictive pharma products. This means people could theoretically still face criminal charges for cannabis. It also means that research will still be inhibited and there will be a discrepancy between federal and state policy. The move my also result in more stringent federal regulations of cannabis if the US Food and Drug Administration ends up as the chief regulator of the industry.
> 4. There is no timeline, nor any guarantee, of the outcome of this announcement.
Cannabis legislation is a patchwork of federal and state guidelines; Biden’s announcement indicates an important shift away from the federal prohibition of the past, but there is still much work to be done until cannabis is regulated in a similar way to nicotine and alcohol at the recreational level. Until action is taken at both the Congressional level and the state level, it is unlikely that much will change in the immediate future.
It’s not all doom and gloom. Just because the implications of Biden’s announcement are not yet realized, it does not mean that it is not significant. The history of cannabis is fraught with policy based on xenophobic and unfactual premises, so it is monumental to see the leader of the free world announce that “No One Should Be In Jail For Possessing Marijuana” is not minor by any means.
There is more work to be done. When you walk ten miles into the forest, you still have to walk ten miles to get out. We won’t be out of the woods immediately, but it’s important that we are finally turning back around to correct our mistakes.
ANJA is privileged to be in a space where cannabis is legally and safely sold; as we stand on the shoulders of giants, we ask that you honor their legacy. Next time you use a cannabis product, make sure to think about your friends that still do not have safe and reliable access. It’s never too late to get involved in cannabis activism; if you would like to know more, contact us here at ANJA.
And remember: When you Have Questions, We Have ANJA.