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September 27, 2023

A Unified Regulatory Strategy on Marijuana Regulation?

Agency and Congressional Developments

The inconsistencies between state and federal marijuana laws have presented a labyrinth for legal professionals.

The inconsistencies between state and federal marijuana laws have presented a labyrinth for legal professionals.

In a significant move, the Department of Health and Human Services (HHS) has proposed easing restrictions on marijuana by reclassifying it from a Schedule I drug to a Schedule III drug under the Controlled Substances Act. If implemented, this change could mark a turning point in the alignment of state and federal law on marijuana that has long been a matter of contention.

The inconsistencies between state and federal marijuana laws have presented a labyrinth for legal professionals. Many states have decriminalized or legalized marijuana to varying degrees, from medical to recreational use. Yet, the federal government's position has remained staunchly opposed, classifying marijuana as a Schedule I drug under the Controlled Substances Act. This classification has stifled research opportunities and created legal complications for state-compliant marijuana businesses, particularly given the unwillingness of banking institutions to work with them for fear of reprisal from federal regulators.

The implications of the HHS's proposal for the legal profession could be profound. Lawyers advising marijuana businesses might find the once complex compliance landscape becoming more navigable. Additionally, the barriers to legal and scientific research on marijuana's effects and benefits might be lower, offering more comprehensive data to inform state and federal policies.

The ABA supports reform. In 2019, the Criminal Justice Section proposed a resolution adopted as ABA policy that emphasizes the need to allow states the freedom to craft their marijuana policies while maintaining federal oversight to ensure uniformity and safety.

In another major development, the Secure and Fair Enforcement Regulation (SAFER) Banking Act of 2023 (S. 1323) passed the Senate Banking, Housing & Urban Affairs Committee this week with a bipartisan vote of 14-9. The SAFER Banking Act would provide protections for federally regulated financial institutions that serve state-sanctioned marijuana businesses. Other versions of this bill have previously passed the House, but this is the first time it has advanced in the Senate.

Yet, this journey towards cohesive marijuana regulation is not without its critics. Concerns remain about potential risks, including international trafficking and the potential for misuse, especially among younger populations. While the ABA acknowledges these concerns, it remains firm in its stance that robust and comprehensive research is essential to craft policies that address both the benefits and risks associated with marijuana use.

With the HHS's forward-leaning stance on reclassifying marijuana, increased congressional interest in ensuring access to banking services for state-sanctioned businesses, and the ABA's unwavering commitment to a balanced approach to marijuana regulation, we might finally be witnessing the beginnings of a unified regulatory strategy.

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