Congressional Research Service: DEA “likely” to follow HHS on rescheduling • Regulators push Congress to address “intoxicating hemp” in Farm Bill • Another lawsuit in New York • & more …

Wed, Sep 20
Key Points
  • The Congressional Research Service (CRS) has prepared a report for members of Congress on the potential implications of rescheduling cannabis, indicating that the DEA may likely reschedule marijuana according to the recommendation of the Department of Health and Human Services (HHS).
  • The report suggests that the FDA may need to generate or update technical information regarding medical marijuana and allocate long-term resources to ensure consistency in regulatory standards.
  • If marijuana were removed from Schedule I, Congress could place it in another schedule, create a separate classification for it, or remove it as a controlled substance altogether.
  • The Cannabis Regulators Association (CANNRA) has sent a letter to Congressional agricultural leaders requesting specific language in the 2023 Farm Bill to differentiate hemp grown for food, fiber, and feed from hemp grown for other purposes, establish a federal regulator for cannabinoids and cannabinoid hemp products, and ensure state autonomy in consumer safety and public health policies.

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Of all the takes on rescheduling, this one should bump to the top of your list, as it is prepared explicitly for members of Congress by the CRS.

The report provides a broad look at the potential implications of rescheduling, and also outlines potential next steps for Congress. 

It also tackles, briefly, the question on many minds: what will the DEA do with HHS’s recommendation?

“If past is prologue it could be likely that DEA will reschedule marijuana according to HHS’s recommendation,” the authors write.

As for implications of rescheduling, the authors pay particular attention to the role of the FDA. 

“The scope of and demand for FDA oversight for medical marijuana and related products may grow considerably. In the short term, FDA may need to generate or update a substantial amount of technical information to clarify its regulatory approach to marijuana for relevant stakeholders. Given that marijuana is a complex substance containing various pharmaceutical components and is available to consumers in numerous formats, FDA may also need to consider long-term resource allocation to ensure that marijuana products consistently meet applicable regulatory standards,” they write.

And Congress?

“If Congress removed marijuana from Schedule I, it might (1) place marijuana on one of the other schedules of controlled substances, (2) create another schedule or separate classification for marijuana under the CSA, or (3) remove marijuana as a controlled substance altogether,” they write.

The Cannabis Regulators Association (CANNRA) sent a letter to Congressional ag leaders that called for specific language in the 2023 Farm Bill. 

The 2018 version was “drafted with a focus on agricultural commodities and non-intoxicating hemp products. However, the language of the bill has inadvertently resulted in a thriving market for intoxicating cannabinoid products that are included (or claim to be included) within the definition of ‘hemp,'” regulators wrote. 

The requests: 

•  “Delineate the definition of hemp as an agricultural commodity grown for food, fiber, and feed from adefinition of hemp that is grown for any other purpose, including the extraction of cannabinoids.”

• “Identify, authorize, and fund a federal regulator with a background in public health and consumerprotection to regulate cannabinoids and cannabinoid hemp products.”

• “Ensure that states and territories can go beyond federal policies to protect consumer safety and public health.”

What’s going on with the lawsuits stalling (or, at least putting bumps in the road of) New York’s cannabis rollout? Let’s take a look, starting with the one that has made the most headlines.

 • Carmine Fiore et al v. New York State Cannabis Control Board et al: This suit, brought by a group of veterans, is ongoing, and the CAURD program remains paused. The state is appealing the judge’s order that led to the pause, but there is no timeline for resolution. At this rate, it’s likely that the adult use application window for everyone else will open while these justice-involved individuals promised a head start await clarity on their fate.

 • North Fork Distribution, Inc. et al v. New York State Cannabis Control Board et al: In this one, which was brought forth around the same time as the above suit but moved much more slowly, four hemp companies are pushing back against emergency regulations that impose new limits on the hemp industry. As Cannabis Wire reported in July, under these regulations, the ratio of allowable CBD to THC in a product will be 15:1, with a limit of 10 mg of THC per package. 

The update? Oral arguments took place last week, and, this week, the state submitted additional written arguments, which you can read here. No decision has been made.

 • Cannabis Impact Prevention Coalition, et al. v. Hochul, et al: This one is unlike the others, as it is brought forth by an anti-legalization group. In fact, the group is behind two suits that seek to reverse course on cannabis in the state: one in the Albany County Supreme Court, and one in the United States District Court for the Northern District of New York. The latest is that the state is seeking time (until November) to make its arguments. 

As of this week, there’s a new lawsuit in the mix, this time from Leafly.

 • Leafly argues that the Office of Cannabis Management’s “proposed regulations” for adult use with regard to third-party platforms “would essentially bar its business operations in New York, leaving the many consumers who rely on its services without the information necessary to make informed purchase decisions.”

Related: Leafly references awaiting OCM’s “assessment of public comment” on the adult use rules that were finalized last week, and that assessment has since been released.