There is a chance that, by the end of 2022, half of the states in the country will have legalized cannabis for personal adult use. Already, the majority of Americans live in a state where such use is legal. And a majority of Americans want such use to be legal nationwide.
But nationwide, the hard-edged federal law on cannabis reflects the America of fifty years ago, when public support for legalization was around ten percent, and no state had embarked on a path to loosen the rules. In 2019, a bill to change this federal law, known as the Controlled Substances Act, passed out of one chamber of Congress for the first time, but that is as far as national reform efforts have been able to get.
A closer analysis of cannabis activity on the federal level, though, shows agencies already busy laying the groundwork for legal cannabis to come. From the Department of Agriculture (USDA) and the Food and Drug Administration (FDA) to the National Institute of Standards and Technology (NIST), the foundation for federal regulation on everything from cannabis cultivation to quality control is slowly being poured.
It started, in many ways, with the passage of the 2018 Farm Bill. This federal legislation removed cannabis plants containing .3% THC or less, known as hemp, from the Controlled Substances Act. This was not meant to be a pro-cannabis move: then-Senate Majority Leader Mitch McConnell, an outspoken legalization opponent, championed this bill and its hemp provisions as a boost to the nation’s farmers. But, in practice, the bill legalized cannabis plants and the dozens of cannabinoids the plant contains, except for THC.
This had immediate implications for the USDA and the FDA. The USDA, for its part, was in charge of crafting regulations for hemp cultivation, processing, and testing, the first such national blueprint for the plant. The FDA, in turn, was in charge of figuring out what can be done with the compounds in the plant, like the increasingly popular cannabidiol, or CBD, in supplements, cosmetics, foods (for humans and for animals), and every other product type under its purview.
The USDA regulations were finalized in January 2021. This is partly because the Department of Agriculture had a head start. Four years before the 2018 Farm Bill, the 2014 Farm Bill had kicked off a hemp pilot program, so the USDA has years of experience to work with. But the FDA is still collecting safety data and has yet to issue any new regulations, which, alongside the USDA’s rules on growing the plant, would serve as the first such national blueprint on consuming the plant.
The FDA noted in its recent announcement of the “Cannabis-Derived Products Data Acceleration Plan” that cannabis-derived products and “other emerging substances” present unique challenges to one of the FDA’s core responsibilities: “to protect public health by ensuring that products such as human and veterinary drugs, human and animal foods, dietary supplements, and cosmetics meet required safety and quality standards.”
While all of this work on “hemp” (low-THC cannabis) would have implications for the national approach to “marijuana” (high-THC cannabis) on the day it becomes federally legal, it has also also already spurred more direct work around “marijuana.”
Let’s start with the National Institute of Standards and Technology. In 2019, the federal agency launched the Cannabis Quality Assurance (CannaQAP) program “to help laboratories accurately measure key chemical compounds in marijuana, hemp and other cannabis products including oils, edibles, tinctures and balms,” which would “increase accuracy in product labeling and help forensic laboratories distinguish between hemp, which is legal in all states, and marijuana, which is not.”
That year, NIST also began work on a “cannabis breathalyzer.” Today, there is no national definition for cannabis-impaired driving akin to the .08% BAC for alcohol, and there is no reliable way to measure such impairment. States have taken a patchwork approach to this problem, ranging from imposing their own definition of impairment to relying on law enforcement trained to identify impairment. Ultimately, this means that impaired drivers are slipping through the cracks while unimpaired drivers are falsely accused.
Impairment is not measured only on the road, but also on the job. In June 2020, the National Institute for Occupational Safety and Health (NIOSH) marked its formal foray into research on this issue with a blog post authored by its director, John Howard, and entitled “Cannabis and Work: Implications, Impairment, and the Need for Further Research.”
Since then, NIOSH has also published research on the topic. Last fall, workers’ compensation insurance and legal medical cannabis programs was the focus of a review article published in the American Journal of Industrial Medicine, an effort led by NIOSH that also included the International Association of Industrial Accident Boards and Commissions, the Workers Compensation Research Institute, and the National Council on Compensation Insurance.
When it comes to such national standards, the federal government hadn’t even defined a dosage for THC in cannabis research until mid-2021. The National Institute on Drug Abuse (NIDA) finally declared in May that a “standard THC unit is defined as any formulation of cannabis plant material or extract that contains 5 milligrams of THC.”
“Past research has been important, but has limitations,” NIDA director Nora Volkow told Cannabis Wire last May.
A few months later, in September, NIDA announced an unprecedented research push, building upon that new standard.
Much of this federal work is focused on research and regulation, but federal agencies haven’t ignored the business side of the multibillion dollar industry. In September, the Internal Revenue Service (IRS) launched a “Cannabis/Marijuana Initiative.” This marked the first time the federal agency explicitly said, in short: we know what you’re doing is federally illegal, but we want to help you out anyway. IRS Commissioner De Lon Harris wrote of this federal/state divide, “I understand this nuance can be a challenge for some business owners, and I also realize small businesses don’t always have a lot of resources available to them. That’s why I’m making sure the IRS is doing what it can to help businesses with our new Cannabis/Marijuana Initiative.”
While all of this may seem counterintuitive considering federal law remains frozen in time, it is likely the tip of the iceberg. There is little doubt that these federal agencies, and others, are working on yet-to-be-announced cannabis initiatives. And such work is crucial. National legalization is inevitable. And legalization without research and regulation is untenable.
