Medical Marijuana: A Budgeted Controversy

Written By Jason Adelstone

 

Short-term medical marijuana (MMJ) protections expire with every new federal budget agreement. Consequently, MMJ enforcement and federal protections are currently being debated in states nationwide and in Congress.

Background

Since 1996, states have been enacting statutes to protect the medical use of marijuana. Forty-six states, plus the District of Columbia, currently acknowledge a variety of medical benefits stemming from the use of cannabinoids.  Four states – Kansas, South Dakota, Nebraska, and Idaho – have no form of MMJ protections. Due to this lack of consistency, the United States is a patchwork of various state MMJ laws and protections.

At the federal level, the federal government has not officially endorsed or prohibited MMJ, and Congress has been able to sidestep this type of legislation by introducing budget restrictions. These restrictions prohibit the Justice Department (DOJ) from using funds to assail legal MMJ users and distributors in states where MMJ is legal. With the rapid proliferation of MMJ, however, Congress may soon have to address the conflicting state laws, as well as the fact that the majority of United States citizens approve of MMJ use. This is bolstered by an August 2017 Quinnipiac poll, wherein 94% of respondents (both Democrat and Republican) supported the use of MMJ for adults as prescribed by a doctor.

In consequence, experts and professionals nationwide are exploring their options moving forward. This article highlights three of the long-term solutions Congress can take immediately, without overhauling federal drug policy.

Red Tape

One solution is for Congress to remove the red tape and permit research on cannabis, in addition to permitting broad investigations and testing into the true effects of the cannabis plant. This can be done by either removing marijuana as a Schedule One drug or by regulating protections for states.

In mid-December, U.S. Senator Orrin Hatch (R-UT) argued that the complex application process required to research MMJ is leading to longer wait times for researchers. This, in turn, leads to greater suffering by patients. According to ProjectCBD.org, “Scientific and clinical research—much of it sponsored by the U.S. government—underscores [cannabidiol’s] potential as a treatment for a wide range of conditions, including arthritis, diabetes, alcoholism, MS, chronic pain, schizophrenia, PTSD, depression, antibiotic-resistant infections, epilepsy, and other neurological disorders.”

This year, MMJ supporters, including U.S. Senator Mike Lee (R-UT) and U.S. Senator Kristen Gillibrand (D-NY), re-introduced the “Compassionate Access, Research Expansion, and Respect States Act,” which “would amend federal law to allow states to set their own medical marijuana policies.” The bill also removes the federal prohibition on Department of Veterans Affairs’ doctors from recommending MMJ to veterans for the treatment of serious injuries and chronic conditions.

Opponents in Congress, and U.S. Attorney General Jefferson Sessions (USAG), believe that cannabis is a “danger” and that the DOJ should have no restrictions on how it pursues prosecuting the use and distribution of MMJ. Despite their concerns with the costs associated with overseeing the operations, the USAG and the Drug Enforcement Administration (DEA) have agreed to expand MMJ research.

The Rohrabacher-Blumenauer Amendment

A second option is for Congress to remove the Rohrabacher-Blumenauer Amendment (RBA), which has been included in every federal budget agreement since 2014. The RBA prevents the DOJ from using funds to target patients, providers, and businesses involved in the processes surrounding the implementation and execution of MMJ laws, so long as those parties act within the confines of their state’s MMJ laws.

In December of this year, there was a new bipartisan call to continue protections for MMJ states. Sixty-six members of Congress requested of their colleagues that the RBA be included in the current budget agreement, which will expire January 19th, 2018. However, since the long-term effects of marijuana are still unknown, the USAG is attempting to persuade Congress to remove the RBA, so as not to restrict the DOJ from drug prosecutions during what he has called a “historic drug epidemic.” Until more research is completed on the effects of MMJ, and the DOJ’s authority is restored, it is likely that the USAG will remain cautious regarding the proliferation of MMJ among the states.

Employee Protections

A third solution comes via the Controlled Substances Act (CSA) and the Americans with Disabilities Act (ADA). Courts are split on whether state MMJ laws protect employees from adverse treatment by their employer.

In states like Colorado, Washington, and California, courts have held that the employer is not required to accommodate an employee’s use of medical marijuana outside of work hours. Since these state statutes do not include specific protections for the employee, the courts have held that businesses can choose to either comply with the state law or the federal law when it comes to hiring and firing employees. In other states, such as Arizona and New York, specific protections are in place for employees, wherein employers must treat MMJ usage like any other prescription medication or disability accommodation (with some narrow exceptions).

In contrast, a Connecticut District Court held this year that the CSA was not meant to be an employment act; therefore, an employer may hire someone, knowing that the individual uses MMJ, and it will not constitute a violation of the CSA. Additionally, that court opined that the state can increase protections to persons with disabilities. These legal decisions have created many questions of employer liability that may eventually call for Congress to settle the dispute.

Conclusion

While annual budget prohibitions on the Justice Department help in the short run, MMJ regulation needs a long-term solution, so that states can confidently invest in MMJ’s future or abandon it all together for other alternatives.

•••••••••••••••••••••••••••••••••••••••••••••••

Sources Cited

Aleta Labak, 66 Congress members make plea to extend protection for medical marijuana states, The Cannabist (Nov. 29, 2017).

Ariz. Rev. Stat. Ann. §36-2813(b) (2010).

Barbuto v. Advantage Sales and Mktg., 78 N.E.3d 37 (Mass. 2017).

Callaghan v. Darlington Fabrics Corp., 2017 R.I. Super. LEXIS 88 (May 23, 2017).

Coats v. Dish Network, 350 P.3d 849 (Colo. Ct. App. 2013).

Gonzales v. Raich, 545 U.S. 1 (2005).

Jeremy Berke, Jeff Sessions says it would be ‘healthy’ to have ‘more competition’ among medical marijuana growers for research, Business Insider (Oct. 18, 2017).

Kirsten Gillibrand, Senators Reintroduce Bipartisan Medical Marijuana Bill (June 15, 2017).

KSL.com, Sen. Orrin Hatch Slams ‘Regulatory Acrobatics’ Needed for Cannabis Research (Dec. 19, 2017).

Melina Delik, How Jeff Sessions Plans to End Medical Marijuana Before The Year Is Over, Newsweek, (Nov. 24, 2017).

Mike DeBonis and Erica Werner, Senate passes stopgap spending bill, allowing Congress to avert partial government shutdown, The Washington Post (Dec. 21, 2017).

 Noffsinger v. SSC Niantic Opperating Co., 2017 U.S. Dist. LEXIS 124960, *10-21 (D. Conn. Aug. 8, 2017).

N.Y. Protections for the medical use of marihuana Law §3369(2) (2017).

 ProCon.org, (Sept. 14, 2017).

Richard Wolf and Trevor Hughes, Justices won’t har Nebraska, Oklahoma marijuana dispute with Colorado (March 21, 2016).

Swaw v. Safeway, Inc., 2015 U.S. Dist. LEXIS 159761 (W.D. Wash. Nov. 20, 2015).

Tim Marcin, What Jeff Sessions Has Said About Marijuana, Newsweek (March 19, 2017).

What is CBD?, ProjectCBD.org, (last visited Dec. 21, 2017).

Photo courtesy of CNN.