Is Talk About the STATES Act For Real? Or Just More Static?

Judging by a flurry of anxious headlines this month, the U.S. Congress (with President Trump's "probable" blessing) may well be on the verge of ending 81 years of prohibition of marijuana. Unless of course it's not. Welcome to America, 2018.

What is known for certain is that the STATES Act (Strengthening the Tenth Amendment Through Entrusting States), a bill introduced on June 7 by co-sponsoring U.S. senators Cory Gardner (R-Colo.) and Elizabeth Warren (D-Mass.), aims to eliminate risks of federal interference with cannabis in states that respectively have legalized markets.

Under the proposed bill, cannabis would retain its classification under the 1970 Controlled Substances Act (CSA) as a Schedule I dangerous drug, but states would be afforded freedom to regulate a legal cannabis market without risk of federal raids, seizures, and prosecutions. Thus, it would no longer be illegal for people to buy or sell cannabis so long as they followed the laws (e.g., avoiding sales to minors, or cultivation on federal or public lands, etc.) of states, U.S. territories (including Washington, D.C.), or among federally recognized Native American tribes having adopted regulated markets for medical or adult use.

Medical cannabis is legal in 29 states plus Washington, D.C., with another nine states (and D.C.) having legalized adult use, too. The STATES Act would effectively counteract Attorney General Jeff Sessions' rescission last January of the Cole Memo, an action which threw the cannabis market into limbo over possible legal jeopardy to businesses. Despite his attorney general's stance and well-known animus toward cannabis, President Trump told reporters the next day that he "probably will end up supporting" the bill.

Yet, even should the president avoid a pattern for changing his stances, his support would provide no guarantee against a clash with his own party's leaders. While legalization of cannabis now has broad popular support from Republican voters, many GOP lawmakers themselves remain stridently opposed to it. Even as Senate Majority Leader Mitch McConnell himself advocates legalizing industrial hemp, he called cannabis "an illicit cousin which I choose not to embrace." Given that McConnell largely holds sway over which bills get tabbed for discussion in the Senate, any obstruction from his quarters could be a significant obstacle.

As a bipartisan bill that neither outright legalizes cannabis or decriminalizes it, the STATES Act may lead to legal reform. Yet, all public posturing aside, retaining the CSA classification for cannabis may perhaps represent the most critical issue in play. Whereas cannabis proponents might consider descheduling as the best of all possible outcomes, any issues raised by rescheduling from I to II could break the nascent industry open wide for involvement by Big Pharma, as the pending case of GW Pharmaceuticals' approval of its Epidiolex from the FDA potentially represents (more to come in future blogs about those subjects).

J.J. McCoy is Senior Managing Editor for New Frontier Data. A former staff writer for The Washington Post, he is a career journalist having covered emerging technologies among industries including aviation, satellites, transportation, law enforcement, the Smart Grid and professional sports. He has reported from the White House, the U.S. Senate, three continents and counting.

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