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It is Legal, or Not? What to Make of All These DEA “Position” Letters

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The Drug Enforcement Administration (DEA) seems happy to respond to public and private parties inquiring about the control status of various substances. DEA answers some of these inquiries more quickly than others, and the response letters are usually short and to the point. The letters typically come from the desk of Terrence L. Boos, Ph.D., Chief of the Drug & Chemical Evaluation Section. They often contain helpful diagrams of the chemical structures at issue, just above the signature blocks.

Last month, my colleague Griffen Thorne touched on one of these letters, which covered THCA. The title of that article was “Bad News for Intoxicating Hemp Products.” As you might infer, the letter concluded that hemp-derived THCA is a schedule I controlled substance, notwithstanding purported “loopholes” of the 2018 Farm Bill.

This blog post will not analyze whether DEA got it right or wrong in any of the recent letters. Instead, I’m going to talk about what the letters mean more generally, and how we should “weight” them. For context, below is a list of the letters I’m talking about, going back three years or so:

I may have forgotten or missed one or two recent letters. If that’s the case, feel free to drop me a line, or give me the business in the comments.

Anyway, the question for today is: “how much weight should we ascribe to these position letters from DEA? What are the legal ramifications of DEA writing these things?” The simplest answer I can give is that DEA’s views should be given significant weight. Relatively speaking, DEA’s pronouncements are a lot more authoritative than the pronouncements of someone like me, but less authoritative than those of a court.

To illustrate:

  • On February 16, 2024, I opined that THCA is not legal under federal law. What I think doesn’t matter, really, because I’m not in charge of anything. I’m just a lawyer who has studied these things. Other professional people (including friends of my law firm) have reached the opposite conclusion on THCA. Doesn’t matter.
  • On May 13, 2024, DEA opined that THCA is not legal under federal law. This is the same conclusion I had reached a few months prior. It doesn’t mean I was “right,” though. This is because DEA could also be wrong (and has been wrong before). Same with yours truly.
  • Someday, DEA might arrest someone for selling THCA products, in accordance with DEA’s position set forth in the May 13, 2024 letter. That person could fight back in court, arguing that DEA is wrong to consider THCA products controlled. A court would probably consider DEA’s views authoritative, to an extent, and grant those views some deference. It’s still possible that a court could rule against DEA, however. It wouldn’t be the first time.

A sort of narrower, more academic question might be: “are these DEA letters more or less authoritative than ‘interpretive rules’ by DEA on similar questions?” (To give you a flavor of what I’m talking about, here’s an interpretive rule from 2001, regarding THC products in schedule I.)

In my view, the answer to that question should be “no, these recent DEA letters aren’t more or less authoritative than interpretive rules.” This is because unlike proposed rules, interpretive rules are not binding. They don’t have the force of law, and they don’t require notice under 5 U.S.C. 553. Instead, interpretive rules are just DEA’s opinions on the record. They are like the spate of letters referenced above, all gussied up.

But, let’s get back to the question of DEA undertaking enforcement action, per its position in one of these letters. That’s what most people really care about!

A long time ago, I wrote a blog post called “Are CBD Food and Drinks Really Not Legal? Really?” In that post, I explored a similar question in the context of another agency, the Food and Drug Administration. The FDA took a position, outside of rulemaking, on the legality of CBD in food and beverages upon the release of the 2018 Farm Bill. I wrote in that post:

Someone could (and might) sue FDA if FDA were to take an enforcement action based solely on the fact that a food or beverage product containing Farm Bill hemp-CBD were sold in commerce. Would they win? I’m guessing not. But the question for the courts would be what level of deference to afford FDA, and the law is somewhat unclear on that today. Some commentators believe that Congress needs to clarify the issue, arising from a line of cases known as Chevron and Mead….

The Chevron and Mead cases have been around forever. Federal courts have used them for nearly 40 years and in more than 18,000 judicial opinions, to defer to an agency’s “reasonable interpretation of an ambiguous statute.” I’m sure agencies like FDA and DEA appreciate Chevron deference quite a lot. Recently, however, the doctrine has been challenged by a pair of pending cases before the U.S. Supreme Court. I don’t mean to be dramatic, but we should get a decision on those cases any day.

If the Supreme Court discards or weakens Chevron deference, the DEA letters would lose a bit of authority in my view. That said, the letters would still serve as valuable industry benchmarks, and remain more authoritative than opinions of someone like me, or anyone short of a federal court.

Things to watch for next are:

  1. what the U.S. Supreme Court does in the above-mentioned cases;
  2. what Congress does in any 2024 Farm Bill; and
  3. what enforcement actions DEA takes, if any, on the substances it believes are controlled.

For now, I’m happy that DEA is willing to share its positions as a pen pal to industry, eschewing the stuffy rulemaking process for every minor cannabinoid (and magic mushroom spore). I also think that, notwithstanding the fact that people are e.g. selling THCA everywhere, folks should pay close attention to DEA’s reading of the law on these things. The Administration will get it right more often than not.

And even when not, being the test case is no fun at all.



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The One Man Fighting to Keep Weed Illegal in America

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kevin sabet on marijuana reform

Analyzing SAM – Debunking the Latest Drivel from our favorite prohibitionist

As someone who has been closely following the evolving landscape of drug policy, I’ve witnessed the passionate advocacy for cannabis and psychedelic access. But for every step forward, there are those who dig in their heels, desperate to maintain the status quo. If you’re familiar with my work, you know I’ve made it a point to fact-check and challenge the rhetoric of prohibitionists, particularly the organization SAM (Smart Approaches to Marijuana).

In their latest crusade, SAM is raising alarms over the DEA’s potential rescheduling of cannabis to Schedule III. Now, let’s be clear: cannabis doesn’t belong in Schedule III – it should be completely descheduled. However, given the influence of figures like Kevin Sabet, who has financial stakes in keeping cannabis illegal, it’s not surprising that Schedule III is the compromise on the table. I’ve previously written about how Schedule III is a sweet spot for Big Pharma, but Sabet and his crew are having none of it.

In this article, we’re going to dive deep into SAM’s recent statements, separating fact from fiction. It’s crucial to bring truth and reason to this debate, especially when career ideologues are spreading misinformation. The stakes are high, and the public deserves an honest assessment of the situation.

So, let’s roll up our sleeves and get to work. It’s time to debunk the latest drivel from our favorite prohibitionists and shed some light on the real issues at play in this ongoing battle for drug policy reform.

 

Let’s dive into debunking these statements from Kevin Sabet and his colleagues at SAM:

  • “This is something that, you know, you could imagine a legalizer in their basement doing in 1978 based on research then,” he said of the rescheduling recommendation. “This is not 2024. This is not how it’s done. This is not what it is. So there are a lot of things we can do.”

This statement reeks of outdated stereotypes and dismissive rhetoric. Sabet’s characterization of cannabis advocates as “legalizers in their basement” is not only inaccurate but also deeply disrespectful.

 The modern cannabis reform movement includes a diverse array of professionals – doctors, lawyers, researchers, business leaders, and yes, everyday citizens who have seen the benefits of cannabis firsthand.

This kind of language is a cheap attempt to discredit serious, evidence-based advocacy. If similar rhetoric were applied to discussions of race or religion, it would rightly be called out as discriminatory and unacceptable.

  • “If you have any accepted medical use, you cannot be in Schedule I, you have to be in II or lower” he said as the meeting began, noting that despite the dangers of opioids, “fentanyl patches have been used in hospitals for decades.” In terms of marijuana, however, “they’ve totally changed the criteria,” Sabet argued later. “I mean, the studies they use to support medical use are a few very bad studies, basically. Literally a few very bad studies.”

Sabet’s claim about “a few very bad studies” is not just misleading – it’s an outright falsehood. There are over 20,000 studies on cannabis, with a significant portion demonstrating clear medical benefits.

The human body has an endocannabinoid system that interacts with cannabis compounds, regulating various physiological processes. Research has shown cannabis can help with inflammation, depression, appetite stimulation, and more.

Even recreational users may benefit from neuroprotective effects, with studies indicating lower instances of cognitive decline in later life among regular users.

To dismiss this vast body of research as “a few very bad studies” is to ignore the rigorous work of countless scientists and medical professionals. While it’s true that scientific processes aren’t perfect, it’s intellectually dishonest to cherry-pick negative studies while ignoring the overwhelming evidence of medical benefits.

  • Sabet and other panelists warned that the reform would allow the cannabis sector to expand, which they said would lead to more problematic use, more access to marijuana among teens and increased dangers on roadways.

These claims are speculative and contradict available data. Studies in states with legalized cannabis have not shown increases in problematic use.

Teen usage rates have remained stable or even decreased in some areas post-legalization. As for road safety, states like Washington and Colorado have actually seen a decline in traffic accidents since legalization. Sabet’s fearmongering is not supported by real-world evidence.

  • “The big difference is the criminal penalties are generally unchanged,” he said. “This idea that like, ‘People in prison…,’ like, ‘We need to change our failed approach…”—it doesn’t actually do that at all. And that’s probably my biggest pet peeve with this, that it’s being touted as we’ll have fewer penalties. That’s not what scheduling does. At all.”

On this point, Sabet is actually correct, albeit for the wrong reasons. Schedule III is indeed a sweet spot for pharmaceutical companies, allowing them to benefit while maintaining many aspects of prohibition for everyone else.

This highlights why full descheduling and regulation is necessary for meaningful criminal justice reform.

  • “I can’t imagine FDA’s gonna all of a sudden exercise their administrative power, that they haven’t done, you know, ever on this issue, and go, you know, force pot shops to comply with Schedule III requirements,” Sabet said.

Again, Sabet is inadvertently making a case for full descheduling. The FDA’s limited ability to regulate the existing cannabis marketplace under Schedule III could lead to a confusing and potentially harmful regulatory environment. This underscores the need for a more comprehensive approach to cannabis policy.

  • “The first thing people should do if this ends up being, you know, what happens,” he said during the meeting, “is asking the Biden administration and DOJ to enforce this change, to enforce Schedule III.”

This statement from Sabet’s colleague reveals the true agenda of prohibitionist groups. They see Schedule III as a potential weapon against legal cannabis businesses, aiming to stifle growth and create havoc in the industry.

 It’s a clear indication that their goal isn’t public health or safety, but rather the suppression of the cannabis industry at any cost.

 

As we’ve seen, prohibitionists like SAM aren’t going to quietly fade away. Their ties to rehabilitation clinics that profit from court-mandated treatments, particularly for cannabis-related offenses, reveal the financial motivations behind their opposition. In light of this, it’s crucial that we, as advocates for sensible cannabis policy, take strategic and decisive action. Here’s what you can do:

  1. Contact Your Representatives: Don’t just reach out once – make it a sustained effort. Call, email, and write letters to your local, state, and federal representatives. Make your voice heard so loudly and persistently that they can’t ignore you. Remember, they work for you, and it’s time they feel the pressure to truly represent their constituents’ interests.

  2. Practice Civil Disobedience: If cannabis is rescheduled to Schedule III or II, but still doesn’t reflect the reality of its safety and benefits, consider peaceful civil disobedience. Continue to use, grow, or distribute cannabis as you have been. Unjust laws require resistance, and history has shown that civil disobedience can be a powerful tool for change.

  3. Exercise Jury Nullification: If you find yourself on a jury for a cannabis-related case, remember your power of jury nullification. This means you can vote to acquit, regardless of the evidence, if you believe the law itself is unjust. It’s a powerful, though controversial, tool that citizens can use to challenge unfair laws.

  4. Organize Locally: Don’t underestimate the power of grassroots movements. Form or join local cannabis advocacy groups. Host educational events, participate in town halls, and engage with your community. The more people understand the truth about cannabis, the harder it becomes for prohibitionists to spread misinformation.

  5. Educate Others: Share factual, scientific information about cannabis with friends, family, and your community. Combat the stigma and myths with hard evidence. The more people understand the real benefits and minimal risks of cannabis, the more support we’ll gain.

  6. Support Pro-Cannabis Businesses and Organizations: Put your money where your mouth is. Support businesses and organizations that align with your values on cannabis policy. This could mean buying from local dispensaries, donating to advocacy groups, or investing in cannabis-related startups.

  7. Vote: Perhaps most importantly, make your voice heard at the ballot box. Research candidates’ positions on cannabis and vote for those who support sensible policies. Encourage others to do the same.

Remember, change doesn’t happen by itself. If we want to see a fair and rational approach to cannabis policy, we need to be willing to fight for it. The prohibitionists aren’t going to give up easily, so neither can we. Stay informed, stay active, and keep pushing for progress. The future of cannabis policy depends on our collective efforts.

 

KEVIN SABET ON WEED, READ ON…

WAR ON MARIJUANA BY SABET

ROUND 4 WITH DEBUNKING KEVIN SABET WEED RHETORIC!



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Breaking New Ground: Cannabis at the 2024 California State Fair

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Move aside deep-fried Oreos—this year’s California State Fair is making history with the introduction of cannabis! For the first time in its 170-year history, California is inviting fair-goers to purchase and enjoy cannabis products directly on site. The decision celebrates the state’s vibrant agricultural and cannabis heritage, and showcases winners of the 2024 California State Cannabis Awards. Let’s delve into the backstory of this development and what attendees can expect at the fair this year.

A new era begins: cannabis at the California State Fair

In 2022, the California State Fair debuted an exhibit and awards program dedicated to the cannabis plant. Fast forward to 2024, and the fair is expanding its cannabis offerings again. This year visitors aged 21 and older can use interactive QR codes next to displays of award-winning cannabis items to add products to their online shopping carts. Next, these purchases can be finalized at a dispensary located conveniently just outside the exhibit hall.  For those looking to enjoy their purchases, an outdoor “Oasis” steps away provides a relaxing escape from the Sacramento heat.

Embracing de-stigmatization and cultivating connection

Lauren Carpenter, co-founder of Embarc and the fair’s partner in this initiative, underscores the significance of integrating cannabis into the fair experience: “Hosting cannabis sales and consumption marks a pivotal step in destigmatization, fostering deeper connections between consumers and the dedicated farmers who cultivate these products with meticulous care.” This progressive approach aims to enhance public understanding and appreciation for the cannabis industry’s integral role in California’s agricultural landscape.

Celebrating excellence: the 2024 California State Cannabis Awards

The highly anticipated 2024 California State Cannabis Awards will also be announced at the fair. Similar to the traditional canning and baking competition at the state fair, these awards are a way for California cultivators and manufacturers to show off their skills and earn recognition in the cannabis industry. This year outstanding products across categories such as sun-grown, mixed-light, indoor flowers, edibles, pre-rolls and concentrates will all receive awards. Adding to the excitement is the presentation of the prestigious “Best of California” Golden Bear awards during a grand ceremony on July 27, resembling the glamour of an Oscar-style event.

Embracing progress and celebration

The addition of cannabis at the 2024 California State Fair is a major milestone in its evolution. It celebrates California’s diverse agricultural products, including cannabis, and lets attendees explore, learn, and engage with the cannabis industry. Like deep fried Oreos, cannabis could become a staple at the fair, showing its lasting presence in California.



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$60,000,000 Raised to Legalize Weed in Florida vs. $10,000 Donated to Stop Marijuana Legalization

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florida fundraising for marijuana legalization

In the evolving landscape of cannabis legalization across the United States, Florida stands out as a significant battleground. Despite vehement opposition from Governor Ron DeSantis, the movement to legalize cannabis in Florida has gained unprecedented traction. This is evidenced by the recent shattering of all fundraising records related to the cannabis legalization amendment. This article delves into the dynamics of this historic movement, the factors contributing to its financial success, and the potential implications for the state and beyond.

As Benzinga first reported:

In the ongoing battle over Florida’s constitutional amendments to legalize recreational marijuana and access to abortion, Governor Ron DeSantis is facing a huge fundraising disadvantage. His recently created Florida Freedom Fund, with the stated goal of defeating these two amendments has raised a meager $10,000 — an amount that pales in comparison to the millions amassed by proponents of the cannabis amendment.  

Smart & Safe Florida, the committee leading the initiative, which is the best-funded cannabis legalization amendment in American history, reported it had has raised over $60 million, according to June 10 campaign filings. DeSantis’ Freedom Fund reported having raised $10,000 in the five weeks of fundraising activity ending June 21, according to Florida Politics. Both amendments will be decided in the November 2024 elections. Florida-based Trulieve has reportedly spent more than $40 million to get the measure on the ballot.

 

The Context of Cannabis Legalization in Florida

The push for cannabis legalization in Florida is not a new phenomenon. Over the past decade, the state has seen a gradual shift in public opinion, mirroring national trends. Several key factors have contributed to this changing attitude:

 

  • Medical Marijuana Success: In 2016, Florida voters approved Amendment 2, legalizing medical marijuana. This significant milestone demonstrated widespread support for cannabis reform, laying the groundwork for further legalization efforts.

  • Economic Considerations: The potential economic benefits of legalizing cannabis cannot be overstated. Proponents argue that legalization could generate substantial tax revenue, create jobs, and stimulate local economies.

  • Criminal Justice Reform: Advocates highlight the need for reforming drug laws that disproportionately affect minority communities. Legalization is seen as a step towards rectifying these systemic injustices.

  • Public Health and Safety: With robust regulations, legal cannabis can be safer and more controlled than illicit alternatives, reducing the risks associated with unregulated markets.

 

 Governor Ron DeSantis’ Opposition

Governor Ron DeSantis has been a vocal opponent of cannabis legalization, a stance that aligns with his conservative base. His opposition is rooted in several concerns:

  • Public Health Risks: DeSantis argues that legalization could lead to increased usage, particularly among youth, and associated health risks.

  • Law Enforcement: There is apprehension about the impact of legalization on law enforcement, with concerns about impaired driving and other public safety issues.

  • Regulatory Challenges: Ensuring a well-regulated cannabis market poses significant logistical and administrative challenges, which DeSantis believes the state is not adequately prepared to handle.

  • Political Ideology: As a conservative leader, DeSantis’ stance reflects broader ideological opposition to drug legalization, rooted in traditional views on morality and public order.

Record-Breaking Fundraising Efforts

Despite DeSantis’ opposition, the campaign for cannabis legalization has shattered all previous fundraising records. Several factors have driven this unprecedented financial support:

  • Grassroots Support: The movement has galvanized widespread grassroots support, with small donations pouring in from individuals across the state who are passionate about the cause.

  • Big Donors and Advocacy Groups: Major contributions from pro-legalization advocacy groups and wealthy donors have significantly bolstered the campaign’s coffers.

  • Corporate Interest: The potential for a lucrative cannabis market has attracted investments from businesses and entrepreneurs eager to capitalize on the emerging industry.

  • Public Relations Campaigns: Effective public relations strategies have mobilized public opinion and driven fundraising efforts, highlighting the benefits of legalization and countering opposition narratives.

Key Players in the Fundraising Campaign

The success of the fundraising campaign can be attributed to the concerted efforts of various key players:

  • Advocacy Groups: Organizations such as NORML (National Organization for the Reform of Marijuana Laws) and the Marijuana Policy Project have been instrumental in mobilizing support and resources.

  • Political Action Committees (PACs): Pro-cannabis PACs have played a crucial role in coordinating fundraising efforts and channeling funds into strategic initiatives.

  • Celebrities and Influencers: High-profile endorsements from celebrities and social media influencers have amplified the campaign’s reach and appeal.

  • Local Activists: Grassroots activists and community organizers have been at the forefront of the movement, engaging with local communities and driving grassroots fundraising efforts.

 The Path to Legalization: Legislative and Electoral Processes

The road to cannabis legalization in Florida involves navigating complex legislative and electoral processes. Key steps in this journey include:

  • Drafting the Amendment: Legal experts and advocacy groups collaborate to draft a comprehensive amendment that addresses regulatory, economic, and social justice concerns.

  • Gathering Signatures: To qualify for the ballot, supporters must gather a substantial number of signatures from registered voters across the state.

  • Public Campaigning: Proponents launch extensive public awareness campaigns to educate voters on the benefits of legalization and counter opposition arguments.

  • Legislative Hurdles: The amendment must clear various legislative hurdles, including approval by the Florida Supreme Court to ensure it meets legal requirements.

  • Voter Approval: Finally, the amendment is put to a vote during a general election, requiring a supermajority (60%) for approval.

Potential Implications of Legalization

If the cannabis legalization amendment is approved, it will have far-reaching implications for Florida:

  • Economic Impact: The legal cannabis market could generate significant tax revenue, create jobs, and attract investment, providing a substantial boost to the state economy.

  • Public Health and Safety: Proper regulation can ensure the safety and quality of cannabis products, reducing the risks associated with the unregulated market.

  • Criminal Justice Reform: Legalization could lead to a reduction in drug-related arrests and convictions, alleviating the burden on the criminal justice system and addressing social justice concerns.

  • Political Landscape: The success of the legalization movement in a traditionally conservative state like Florida could influence the broader national conversation on cannabis reform.

Challenges and Future Outlook

Despite the record-breaking fundraising success, the path to legalization is fraught with challenges:

  • Political Opposition: Governor DeSantis and other conservative leaders are likely to continue their opposition, potentially influencing public opinion and legislative actions.

  • Regulatory Framework: Developing a robust regulatory framework to govern the legal cannabis market will require careful planning and coordination among various stakeholders.

  • Public Health Concerns: Addressing concerns about increased usage, especially among youth, and ensuring public safety will be critical to the success of legalization efforts.

  • Federal Uncertainty: The federal legal status of cannabis remains uncertain, creating potential challenges for state-level legalization efforts.

Conclusion

Florida’s cannabis legalization amendment represents a pivotal moment in the state’s political and social landscape. Despite fierce opposition from Governor Ron DeSantis, the movement has achieved unprecedented fundraising success, reflecting widespread public support and the potential for significant economic and social benefits. As the state moves closer to a potential vote, the outcome will not only shape Florida’s future but could also have a profound impact on the national dialogue surrounding cannabis legalization. The journey ahead is complex and challenging, but the record-breaking fundraising efforts signify a powerful and determined movement poised to make history.

 

DESANTIS PLAYS A CHESS GAME IN FLORIDA HEMP, READ ON…

DESANTIS VETOES HEMP BILL

DESANTIS VETOES HEMP BILL, PROVOKING MARIJUANA INFIGHTING?



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