Reclassifying marijuana may be a defining point in Biden’s legacy

Opinion by Eric Spitz
Updated: 10:58 AM EDT, Thu June 27, 2024
Source: CNN

Cannabis policy is undergoing a significant transformation in the United States, driven by recent legislative strides and a notable shift in attitude under President Joe Biden’s administration. In this transformative time, and given his re-election campaign’s need to trumpet youthfulness, Biden’s well-crafted cannabis policy maneuvers may become a defining feature of his legacy.

“Far too many lives have been upended because of a failed approach to marijuana, and I’m committed to righting those wrongs. You have my word on it,” Biden stated in a video message to mark the beginning of the 60-day period for public comment on the administration’s proposed regulation to reclassify cannabis under the Controlled Substances Act from Schedule I, which also includes drugs such as LSD and heroin, to Schedule III, which includes substances deemed to have a lower potential for abuse.

Biden’s proactive stance on marijuana policy positions him as the most pro-cannabis president in American history, reflecting a broader societal acknowledgment of the need for a rational and modern approach to cannabis regulation. Most Western democracies have already legalized the medical use of cannabis.

Cannabis is the most commonly used federally illegal drug in the country, according to the Department of Health and Human Services. The number of Americans who consume it has more than doubled since 2013, according to Gallup polling, with 17% of adults saying that they smoked marijuana in 2023.

Despite the devastation that drugs and alcohol have wrought on his own family, Biden is beginning to understand that cannabis use is viewed as more similar to and often less dangerous than alcohol, tobacco, caffeine, sleeping aids and diet pills — and quite unlike harder drugs such as fentanyl and other opioids.

His approach to cannabis balances public health concerns with civil liberties, aiming to rectify the racial injustices associated with the war on drugs. A lifelong teetotaler (like former President Donald Trump), who strongly supported harsh sentencing for drug violations as a senator in the 1990s, Biden presents as an unlikely hero to emerge as a central figure in the shift toward more progressive cannabis policies.

Biden’s newfound perspective harkens to Abraham Lincoln’s observation that “folks who have no vices have very few virtues,” suggesting a pragmatic acknowledgment of the complexity of human behavior, and a recognition of the potential for regulation to support American adults who are making personal choices about their own health and well-being.

Thanks to the Biden administration’s unilateral actions, the historical stigmatization of cannabis is finally being challenged by scientific evidence and economic realities. Largely enacted through statewide citizens’ referenda, recreational marijuana has been legalized in 24 states, while 38 states have voted to allow at least medical marijuana.

According to a recent Pew study, 54% of Americans live in a state that allows recreational use of marijuana, 74% live in a state that allows marijuana for either recreational or medical use and 79% of Americans live in a county with at least one cannabis dispensary.

The proliferation of state-legal cannabis has also allowed for better study of the effects of its use. While clearly a vice for many, the most popular stated use of cannabis is just to get a better night’s sleep.

We are now seeing results from some of the earliest population studies related to cannabis use. Residents of cannabis-legal states consume marijuana 24% more frequently than those living in states where it remains illegal, according to University of Colorado research published in the journal Addiction. And ongoing research suggests that an increase in behavioral problems does not necessarily accompany this increased marijuana use.

And the evidence from Colorado, one of the first states to legalize cannabis in 2014, has showed drops in teen usage since legalization.

“Many social ills that opponents warned about a decade ago have not come to pass,” said Brian Keegan, a professor at the University of Colorado who studies cannabis and the industry. “DUIs and crime did not explode following legalization. And several studies have shown that opioid use and deaths actually decline in states following legalization.”

By advocating for changes that employ a compassionate and pragmatic approach to drug policy, Biden is not just responding to changing public opinion but is actively shaping American culture for generations to come.

The near-term collision of three separate but often conflicting policy initiatives stands to make full deregulation of cannabis virtually inevitable. The intersection of these factors — the potential advancement of the Secure and Fair Enforcement Regulation (SAFER) Banking Act through the Senate, the Biden administration’s recent announcement of the proposed rule to reschedule marijuana and the nuanced treatment of hemp in the 2018 Farm Bill — will determine the future of cannabis in America.

The SAFER Banking Act provides protections for federally regulated financial institutions that serve state-sanctioned cannabis businesses that would enable cannabis businesses to run more efficiently and transparently, by significantly reducing crimes associated with cash-heavy, secretive operations.

The bill could get through the Senate in 2024 because it has strong bipartisan sponsorship, including from Senate Majority Leader Chuck Schumer and the powerful Republican from Montana, Sen. Steve Daines. The House previously passed a similar banking bill by 277-150, indicating that our top elected officials might finally be ready to vote for federally regulated cannabis.

The boldness of Biden’s decision to re-evaluate cannabis’ scheduling cannot be overstated. Historically classified alongside drugs like heroin and LSD, its Schedule I status has made cannabis into a pariah product that cannot be the subject of federally funded research. In addition, Schedule I status still requires state-legal operators to pay an artificial tax burden, based on IRS Section 280(e). And, since institutional capital can’t provide real debt to Schedule I companies, profitability is all but a pipe dream for licensed cannabis business operators.

However, it is the treatment of hemp in the Farm Bill that reveals gaping legislative inconsistencies and portends even broader cannabis deregulation. Since the 2018 Farm Bill legalized hemp and its derivatives, the industry has exploded. Hemp is used to make cannabidiol (CBD) products like pills and drinks, textiles and even biofuels; recently, psychoactive hemp has emerged as an unregulated substitute for cannabis.

The legal distinctions between hemp and marijuana (essentially different strains of the same plant: Cannabis sativa) are tenuous, and within the 2018 Farm Bill they are solely based on the tetrahydrocannabinol (THC) content of each individual plant. This ignores the fact that most modern cannabis products rely on liquified or concentrated THC. Therefore, there’s zero measurable difference between vape cartridges, edibles or drinks made from hemp compared to those made using cannabis.

This regulatory vagueness is viewed by many industry stakeholders as arbitrary, pointing to the need for a re-evaluation of the Farm Bill and other cannabis regulations more broadly. Unfortunately, due to gridlock in Congress and other factors, the chances of near-term changes to the Farm Bill are unrealistic, leaving the current loophole language intact, for the foreseeable future.

Biden’s journey from a staunch drug warrior to a leading advocate for cannabis reform shows the type of leadership that makes him special: his willingness to embrace change head-on, without fear or favor. Then, he has the backroom political savvy to get policy done.

As the Grateful Dead wisely remind us in “Scarlet Begonias,” “Once in a while you get shown the light in the strangest of places if you look at it right.”