By: Woosuk Jeong, Elder Law & Disability Law Clinic Student, Spring 2024
During the Oversight of the U.S. Food and Drug Administration (FDA) that took place on April 11, 2024, Commissioner Robert Califf stated, “[T]here is no reason for the DEA to delay [the decision on moving marijuana from Schedule I to Schedule III of the Controlled Substances Act].”[1] This opinion followed (1) President Biden’s October 2022 pardon of all individuals convicted of simple marijuana possession under federal law,[2] which represented the most significant action taken by the White House to date on U.S. drug policy, and (2) the Biden Administration’s year-long federal review of all available marijuana research, including data provided by states on the use and effects of cannabis.[3] Although classifying marijuana as a Schedule III drug,[4] or a substance with a moderate to low potential for physical and psychological dependence alongside Tylenol with codeine and testosterone, it would not “decriminalize cannabis, lawfully permit the existence of the medical and adult-use programs … or rectify decades of injustice.”[5]
Currently, 24 states permit individuals who are at least twenty-one years old to legally possess marijuana. Additionally, 38 have developed medical marijuana programs.[6] Recent studies and statements from the Department of Health and Human Services (HHS) have cautiously concluded that marijuana is less harmful than other dangerous drugs and that there is evidence supporting its medical benefits.[7] Unfortunately, despite these significant shifts in state regulations over the past decade and findings of marijuana’s health benefits, federal legislation has yet to adapt to reflect these changes.[8] This delay in federal recognition of marijuana poses a problem, especially for disabled veterans, a group disproportionately affected by conditions that are often treated with medical cannabis. For example, veterans experience a higher disability rate of post-traumatic stress disorder (PTSD), at 12.9 percent,[9] compared to 6 percent in the general population.[10] Therefore, in addition to the federal reclassification of marijuana as a Schedule III controlled substance, Congress should enact the Veterans Medical Marijuana Safe Harbor Act (VMMSHA).[11]
Because the Veterans Affairs (VA) is a federal agency it adheres to marijuana’s complete illegality as a Schedule 1 controlled substance. In accordance with VHA Directive 1315, the VA cannot recommend or prescribe medical marijuana to disabled veterans under any circumstances.[12] To address this issue, the VMMSHA, which was pending before the 117th Congress, aims to overcome the significant barriers veterans face in accessing medical marijuana as an alternative treatment for conditions such as PTSD and chronic pain.[13] Particularly, medical marijuana has gained widespread support for its use in treating a variety of conditions,[14] offering a safer alternative to opioids and other medicines.[15] Its adoption for medical use reflects a significant shift in public opinion and acknowledges the therapeutic benefits that cannabis can provide, especially for disabled veterans, patients with epilepsy, and veterans suffering from PTSD, chronic ailments, and epilepsy.[16]
The Veteran’s Medical Marijuana Safe Harbor Act seeks to align the federal statue in accordance with the national consensus by providing legal protections for disabled veterans and healthcare providers within the VA system with respect to the use of medical marijuana.[17] Specifically, it would allow veterans to use, possess, and transport medical marijuana in states where it is legal.[18] It also aims to empower VA physicians to discuss, recommend, and assist veterans in obtaining medical marijuana.[19] In addition, the Act calls for the VA to conduct research into the effects of medical marijuana on veterans dealing with pain and to explore the relationship between state approved medical marijuana treatment programs and a reduction in opioid use among veterans.[20] This research component acknowledges the need for data driven policies in finding a safer alternative to opioids for pain management.
Despite the positive potentials the Act represents, it is not without its limitations. The legislation’s scope is limited to states where medical marijuana is already legal, leaving veterans in states with restrictive laws without access to cannabis-based treatments through the VA. Therefore, the VMMSHA should mandate that the VA provide medical marijuana recommendations to disabled veterans irrespective of the state law.
Other potential suggestions for the VMMSHA include (1) strengthening legal protections for disabled veterans and healthcare providers against federal repercussions, ensuring that participants in the program do not face legal or career risks, and (2) providing federal funds to disabled veterans participating in the federally approved medical marijuana program.
In conclusion, the journey toward fully legitimizing medical marijuana faces considerable obstacles, particularly for our nation’s disabled veterans. The Veterans Medical Marijuana Safe Harbor Act provides a crucial pathway by enabling legal access and necessary medical research for disabled veterans. This legislation is an essential step towards aligning federal policy with the therapeutic realities and needs of those who have served.
[1] MJBizDaily Staff, ‘No Reason’ for DEA to Delay Marijuana Rescheduling, FDA Chief Says, MJBiz (Apr. 12, 2024), https://mjbizdaily.com/no-reason-for-dea-to-delay-marijuana-rescheduling-fda-chief-says/.
[2] Eugene Daniels & Natalie Fertig, Biden Pardons Marijuana Offenses, Calls for Review of Federal Law, Politico (Sept. 6, 2022), https://www.politico.com/news/2022/10/06/biden-to-pardon-marijuana-offenses-call-for-review-of-federal-law-00060796.
[3] Natalie Fertig & Paul Demko, Slightly Higher Times: Biden Administration Moves to Loosen Weed Restrictions, Politico (Sept. 6, 2022), https://www.politico.com/news/2023/08/30/marijuana-review-move-to-schedule-iii-00113493; MJBizDaily Staff, FDA Considered State Data in Marijuana Rescheduling, Documents Show, MJBiz (Dec. 11, 2023), https://mjbizdaily.com/fda-considered-state-data-in-marijuana-rescheduling-documents-show/.
[4] U.S. Drug Enf’t Admin., Drug Scheduling, https://www.dea.gov/drug-information/drug-scheduling.
[5] Kaliko Castille, Major Cannabis Reform & Industry Non-Profits: Rescheduling Won’t Achieve Biden Administration’s Campaign Promise or Social Justice Goals, MBCA (Aug. 31, 2023), https://minoritycannabis.org/rescheduling-wont-acheive-biden-admin-campaign-promise/
[6]Alex Leeds Matthews & Christopher Hickey, More US States Are Regulating Marijuana. See Where It’s Legal Across the Country, CNN (Nov. 7, 2023), https://www.cnn.com/us/us-states-where-marijuana-is-legal-dg/index.html#:~:text=While%20some%20states%2C%20including%20North,programs%20or%20functioning%20recreational%20markets.
[7] See Thomas R. Arkell et al., Assessment of Medical Cannabis and Health-Related Quality of Life, JAMA (May 9, 2023), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10170337/; Natalie Fertig, Federal Scientists Conclude There Is Credible Evidence for Certain Medical Uses of Marijuana, Politico (Jan. 12, 2024), https://www.politico.com/news/2024/01/12/hhs-scientists-medical-marijuana-00135433.
[8] Rockefeller Inst. Gov’t, In the Weeds, https://rockinst.org/intheweeds/#:~:text=Marijuana%20remains%20illegal%20at%20the,ways%20and%20was%20mostly%20unregulated.
[9] Jan Müller et al., Risk Factors Associated with Posttraumatic Stress Disorder in US Veterans: A Cohort Study, PLoS (July 25, 2017), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5526531/#pone.0181647.ref002.
[10] U.S. Dep’t of Veterans Aff., PTSD: National Center for PTSD, https://www.ptsd.va.gov/understand/common/common_veterans.asp.
[11] H.R. 2588, 117th Cong. (2021).
[12] Patrick McKnight, Veterans Struggle to Gain Access to Medical Marijuana, Nat’l L. Rev. (Oct. 18, 2019), https://natlawreview.com/article/veterans-struggle-to-gain-access-to-medical-marijuana; U.S. Dep’t of Veterans Aff., VA and Marijuana – What Veterans Need to Know, https://www.publichealth.va.gov/marijuana.asp.
[13] See generally Josh Plummer, “High” Expectations for the Veterans Medical Marijuana Safe Harbor Act, But Not High Enough, 13 Wake Forest L. Rev. Online 14 (2023).
[14] MAYO Clinic, Medical Marijuana, https://www.mayoclinic.org/healthy-lifestyle/consumer-health/in-depth/medical-marijuana/art-20137855.
[15] Sinikka L. Kvamme et al., Exploring the Use of Cannabis as a Substitute for Prescription Drugs in a Convenience Sample, Harm Reduction J. (July 10, 2021), https://harmreductionjournal.biomedcentral.com/articles/10.1186/s12954-021-00520-5.
[16] See Supra note 13 at 14, 25.
[17] See id. at 34-36.
[18] Id.
[19] Id.
[20] See id. at 36-40; see McKnight, supra note 12.