Today on 4-20, we'll be taking a look at The STATES Act! Proposed many times over the last several years, the STATES Act generally aims to amend the Controlled Substances Act to provide for a new rule regarding the application of the Act to marijuana. As a reminder, marijuana is a Schedule I substance under the Controlled Substances Act. A brief look at marijuana policy over the years and what the STATES Act aim to do!
Brief Marijuana Policy Overview over the Years
Over a decade ago, Colorado and Washington became the first two states to legalize the recreational use of cannabis in 2012, following the passages of Amendment 64 and Initiative 502 respectively. Since then, every state has proposed some sort of legislation related the legalization (or continued prohibition) of cannabis. Here at BillTrack50, we have kept a close eye on legalization efforts across the states over the years.
One of the most exciting things we do here is host yearly webinars (check out our most recent one - Marijuana Policy: 2022 Recap and 2023 Predictions) with an expert panel (Tom Angell-Marijuana Moment, Karen O'Keefe-Marijuana Policy Project, and Justin Strekal-The BOWL PAC and formly NORML) who share their knowledge and prognostications related to the most recent marijuana policy. It is always a fascinating conversation about what happened in cannabis policy over the year and where things might go in the future. Our review is around marijuana laws at the state and federal level, including via executive action, legislation, state ballot measures, regulations and court cases.
We also have a lot of blogs from over the years looking at how marijuana policy has been introduced, changed, and passed over the years.
Back in 2012, we looked at the Shifting Stances in Medical Marijuana - just a few months before Colorado and Washington legalized recreational use. Then in 2014, we took a deep dive into the history of the prohibition of marijuana.
In 2015, two bills were proposed to legalize marijuana on a federal level. Marijuana for All? looks into this more, and this blog has an update on a lawsuit discussed in Marijuana for All. Back in December of 2014, Oklahoma and Nebraska filed a lawsuit with the Supreme Court stating that it is difficult for them to enforce a federal ban on marijuana with the substance entering their state because they border Colorado. They claimed, “The state of Colorado has created a dangerous gap in the federal drug control system.” The two main criticisms in the suit are Colorado does not require background checks for buyers and Colorado does not mandate purchasers consume the substance where they purchase it. They also claim Colorado reaps the benefits from the legalization with the tax revenue, while taxpayers in bordering states pay the cost through dealing with cross border "illegal" marijuana.
In 2016, we looked at the differences between recreational and medical cannabis, the effect on the number of bills proposed related to marijuana after Colorado, Washington, Oregon, and other state's legalization, and some ballot measures and bills from 2016. Not surprisingly, legalization efforts have skyrocketed the number of bills introduced across the nation over the last decade. Below are maps depicting the number of bills proposed (darker states have a greater number bills proposed for that year) containing medical or recreational marijuana or cannabis. You can see the number of bills steadily increase overall throughout the years: 221 in 2011, 400 in 2012, 814 in 2014, 1,292 in 2016, 2,222 in 2020, and 867 bills have been proposed so far this year.
We've also taken a look former Attorney General Jeff Sessions' opinions on marijuana legalization and the options he had in front of him while serving under Trump. In May of 2017, Sessions wrote a letter to Congress asking them to undo federal medical-marijuana protections, aka the Rohrabacher-Farr amendment, which have been in place since 2014. If you are not familiar with the Rohrabacher-Farr amendment, it prohibits the Justice Department from using federal funds to impede states “from implementing their own State laws that authorize the use, distribution, possession or cultivation of medical marijuana.” The amendment does not include any protections for recreational marijuana.
In his letter, Sessions states: “I believe it would be unwise for Congress to restrict the discretion of the Department to fund particular prosecutions, particularly in the midst of an historic drug epidemic and potentially long-term uptick in violent crime.” This new direction came after recent national movement attempting to step away from prosecuting small marijuana crimes. We followed up later in 2018 on where the Attorney General’s efforts to repeal the legalization of cannabis in States stood.
Later in 2018, Ballotpedia’s Daily Brew covered Oklahoma's passage of State Question of 788, making Oklahoma the 30th to allow medical marijuana. Towards the end of 2018, we took a look at 20 of the top trending bills related to cannabis legalization. In 2019, we had a closer look at KY HB 136 and SB 80 as part of a series shared with us by Forward Kentucky about two Kentucky bills filed to legalize cannabis in the state.
In 2020, we featured a Guest post by NORML, Marijuana Legalization, Criminal Justice Reform, and our Long Overdue Reckoning. Also in 2020, the Colorado Governor was given the power to expunge marijuana crimes, eight years after the state legalized recreational use. In 2021, Florida also took a look at expungement laws. And last year, on April 1st, the US House passed the MORE Act - an attempt to decriminalize cannabis at the federal level. It was never taken up by the Senate.
One thing has been abundantly clear over the years: states are looking at, proposing, and passing legislation related to marijuana. Preemption has been almost completely ignored when it comes to State's takes on marijuana, so it could make sense for something like the STATES Act to finally become law. Let's dig in!
First, Remind Me what the 10th Amendment Says Again?
The Tenth Amendment is: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Essentially, it says that the Federal Government only has those powers delegated in the Constitution. If something is not listed in the Constitution, then powers to regulate something belongs to the states or to the people.
The Many STATES Acts
The First of its Name
The Strengthening the Tenth Amendment Through Entrusting States (STATES) Act was first proposed in 2018 and sponsored by Elizabeth Warren (D)*, Michael Bennet (D), Cory Booker (D), Cory Gardner (R), Amy Klobuchar (D), Rand Paul (R), and others. The bill would have allowed people acting in compliance with State or Tribal law relating to the manufacture, production, possession, distribution, dispensation, administration, or delivery of marijuana to not be in violation of the Controlled Substances Act. The 2018 bill was read twice and referred to the Committee on the Judiciary where it then died.
The 2019 Version
This bill was again introduced in 2019, sponsored by a similar group of Senators (Elizabeth Warren (D)*, Michael Bennet (D), Cory Gardner (R), Amy Klobuchar (D), Rand Paul (R), and others). This version had a few other key provisions, including: transportation safety offenses, distribution to persons under age, and the commision of a study investigating the effects of marijuana legalization on traffic safety by the US Comptroller office. The study conducted would need detailed assessment of traffic crashes, fatalities, and injuries in States that have legalized marijuana use, whether States are able to accurately evaluate marijuana impairment in those incidents, and actions taken by the States to address marijuana-impaired driving (including any challenges faced doing this). It would also have required documentation of testing standards used by the States to evaluate marijuana impairment in traffic crashes, fatalities, and injuries. Finally, any scientific methods used to determine impairment and analysis of data and Federal initiatives aiming to assist States that have legalized marijuana with traffic safety would also be included. The report would be due no later than 1 year after the date of enactment of the Act. This bill was also read twice and referred to the Committee on the Judiciary where it eventually died.
The States Reform Act
In 2021, the bill was introduced yet again! This time around it's title was changed to the States Reform Act. This act differed from past Acts primarily in that it is much more through. This legislation would have effectively removed most federal restrictions against marijuana and state-licensed marijuana businesses. It would have implemented a process allowing marijuana to be regulated at the federal level, like alcohol, opening up an option for an interstate marijuana market among states who chose to participate.
The first section of the Act aims to Federally decriminalize cannabis and fully defer to State powers over prohibition and commercial regulation of cannabis. This ultimately would treat cannabis like alcohol. The second section specifies that the FDA would have the same level of involvement with respect to cannabis than it does with alcohol, except for the State Medical Cannabis Product Safety Act. This Act is outlined in Section Three and grandfathers “designated state medical cannabis products” produced consistent with state law or the official US Pharmacopeia, into interstate commerce. US Pharmacopeia are a set standards for health care products in the US and which also collects and disseminates product use information to providers and consumers. Under this section, the FDA would be allowed to prescribe serving sizes and authorize new drugs or approved news uses of drug applications to create new pharmaceutical grade products. The FDA would not be prohibited the use of cannabis or derivatives in non-drug applications (dietary supplements, cosmetics, cannabis infused foods or beverages, or non-drug topical solutions).
The Second Section also imposes a nationwide limit for cannabis consumption to people 21 years old and older. An exception for medical use consistent with state programs and medical recommendations is outlined. It also states that aiming cannabis product advertising at children is prohibited by law.
Section Four ensures that the Small Business Administration no longer treats cannabis businesses as illegal, but instead like alcohol or similar businesses. Section Five contains the Cannabis Revenue Act. This Act imposes an excise tax of 3% on cannabis products, but imposes a ten-year moratorium on excise tax increases to ensure competitive footing in the market. Section Six makes clear that an armed services veteran may not be discriminated against in federal hiring solely because the veteran has consumed or consumes cannabis.
The bill was referred to many, many committees including: Health - Aviation - Highways and Transit - Railroads, Pipelines, and Hazardous Materials - National Parks, Forests, and Public Lands - Indigenous Peoples of the United States, and others. It eventually died in the Subcommittee on Crime, Terrorism, and Homeland Security.
The Most Recent STATES Act
At the end of last year, a more simplified version of the act was proposed, and the name changed yet again. The Sustaining Tenth Amendment Truths for Every State (STATES) Act of 2022 aims to ensure that within a State, an action of a State agency taken pursuant to State law shall have effect notwithstanding any Federal law to the contrary.
The bill states: "Within a State, an action of a State agency taken pursuant to State law shall have effect notwithstanding any Federal law to the contrary, if the Federal law purports to apply under authority to create such law that is not specifically, unequivocally, and explicitly delegated to the United States Government within the stated words of the United States Constitution." The term "State" is defined in the act to mean each of the several States, the District of Columbia, each commonwealth, territory or possession of the United States, and each federally recognized Indian Tribe.
This version of the bill zooms back out and appears to apply not only to marijuana regulation, but everything that is not included in the Constitution which is governed on a Federal level. The bill was referred to the House Committee on the Judiciary, and has since died.
The Marijuana 1-to-3 Act of 2023
Finally, one other interesting bill from this year related to past STATES Acts is the Marijuana 1-to-3 Act of 2023. This bill would reschedule cannabis to Schedule III of the Controlled Substances Act. Changing cannabis/marijuana from a Schedule I drug to a Schedule III drug would drastically change how it is treated under the Controlled Substances Act.
Schedule I drugs, substances, or chemicals are defined as "drugs with no currently accepted medical use and a high potential for abuse. Some examples of Schedule I drugs are: heroin, lysergic acid diethylamide (LSD), marijuana (cannabis), 3,4-methylenedioxymethamphetamine (ecstasy), methaqualone, and peyote." Schedule III drugs, substances, or chemicals are defined as "drugs with a moderate to low potential for physical and psychological dependence. Schedule III drugs abuse potential is less than Schedule I and Schedule II drugs but more than Schedule IV. Some examples of Schedule III drugs are: products containing less than 90 milligrams of codeine per dosage unit (Tylenol with codeine), ketamine, anabolic steroids, testosterone."
It appears to be pretty clear, in my opinion, that there is adequate and ample evidence that cannabis has been accepted as a substance for medical use. As of April 3, 2023, 38 states, three territories, and the District of Columbia allow the medical use of cannabis products. Rescheduling cannabis to a Schedule III drug would at least allow Americans in the remaining 12 states to access cannabis through prescription.
There has also been over a decade's worth of information about how recreational cannabis has functioned in our society, and I do believe it is time for it to be regulated like alcohol. I guess we'll have to wait and see if the legislature can agree on that.
Cover Photo by CRYSTALWEED cannabis on Unsplash
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