The gap between permissive state laws and a restrictive federal policy has become increasingly untenable in the minds of many doctors, patients, researchers, business owners and legislators.
For instance, last fall, a Brookings Institution report slammed the federal government for "stifling medical research" in the area of marijuana policy. As a Schedule 1 drug, it's much harder for researchers to work with marijuana than with many other controlled substances. The American Academy of Pediatrics has called on the government to move marijuana into Schedule 2 to facilitate more research into medical uses.
The current federal status of marijuana makes it impossible for state-legal marijuana businesses to take the same tax deductions afforded to other business, with some marijuana operations complaining that their effective tax rates are in the range of 60 percent to 90 percent, according to a Denver accountant who works with such businesses, Jordan Cornelius. Federal restrictions also make banks reluctant to work with marijuana businesses, leading many of them to become all-cash operations — with all the risks that entails.
Just this week, the National Conference of State Legislatures, a group representing state lawmakers, called on the federal government to move marijuana from Schedule 1 to Schedule 2. The group criticized federal law for imposing "substantial administrative and operational burdens, compliance risk and regulatory risk that serve as a barrier to banks and credit unions providing banking services to businesses and individuals involved in the cannabis industry."
Despite these concerns, the DEA today denied the petition, initiated by then-governors Lincoln Chafee of Rhode Island and Christine Gregoire of Washington state in 2011, to loosen restrictions on the drug. In a letter to the petitioners, acting DEA Administrator Chuck Rosenberg explained the agency's ruling and offered a full-throated defense of federal marijuana policy.
"The FDA drug approval process for evaluating potential medicines has worked effectively in this country for more than 50 years," he wrote. "It is a thorough, deliberate and exacting process grounded in science, and properly so, because the safety of our citizens relies on it."
Rosenberg went on to point out that according to the Food and Drug Administration, marijuana "does not have a currently accepted medical use in treatment in the United States."
From a strictly legal standpoint, this is correct. The FDA has never approved whole-plant marijuana as a drug. It's also unlikely to do so, since most drugs the FDA approves of are individual chemical compounds, not plants.
Penicillin is an FDA-approved drug, for instance. The mold it's derived from is not.
"If the scientific understanding about marijuana changes — and it could change — then the decision could change," Rosenberg wrote. "But we will remain tethered to science, as we must, and as the statute demands."
Rosenberg also pointed out that marijuana's schedule status isn't a function of the relative "danger" posed by the drug. He explicitly wrote that marijuana is "less dangerous than some substances in other schedules" -- a departure from the official line held as recently as last year.
"That strikes some people as odd, but the criteria for inclusion in Schedule 1 is not relative danger," he wrote. Rather, it lies primarily with the medical designations discussed above.
As the nation's top drug cop, Rosenberg's close, by-the-letter reading of the law makes sense. But it overlooks a wide range of research showing that marijuana, in whole plant form, can be effective at treating a wide array of ailments — chronic pain chief among them. This research is a major reason many states have gone ahead with their own medical marijuana policies in defiance of the federal government.
Doctors generally say that they support giving marijuana to patients if it provides them relief from serious conditions. Many state legislatures — not wanting to stand between doctors and their patients — have enacted state legal frameworks allowing them to do so.
Despite this, the DEA says it cannot change the legal status of marijuana unless the FDA determines it has a medical use. The FDA cannot determine it has a medical use in part because of the highly restrictive legal status of the drug. It's a classic bureaucratic Catch-22.
The only body that can truly resolve this conflict, now, is Congress — by amending the Controlled Substances Act to treat marijuana differently. Most federal lawmakers seem to agree that this needs to happen, but there's disagreement on how to do it.
More conservative approaches — championed even by some of Congress's most strident opponents of marijuana legalization, like Maryland's Rep. Andy Harris (R) -- would create a special carve-out for marijuana within Schedule 1. This would include a number of provisions making it easier for researchers to work with the drug.
Another bill in the Senate would explicitly move marijuana to Schedule 2. Still other lawmakers — Sen. Bernie Sanders (Vt.) most prominent among them — are calling for marijuana to be removed from the Controlled Substances Act completely.
All of this is happening as a number of states — including California, Massachusetts, Nevada and Arizona — will vote on whether to legalize recreational marijuana this fall. If they do so, the gap between state and federal marijuana policy will grow even larger, creating even more confusion and headaches for the doctors, patients, researchers and businesses trying to thread the needle between the two.