The DOJ’s recent decision to propose a rule for rescheduling marijuana has reopened a debate over state’s rights. Rescheduling will not make marijuana legal, in the same sense as alcohol for example, but it will put marijuana in a class of drugs believed to have medical value despite being regulated. One of the questions people are now asking is how the states will respond.
In all likelihood, there will be little state-level change in the short term. But depending on what rescheduling leads to, the states could start changing how they regulate. That leads to a secondary question: how much control should the states exercise over marijuana?
Marijuana Is Still Not Legal
To fully understand the implications of rescheduling and its impact on the states, it must first be understood that marijuana is still not legal anywhere in the U.S. Those states choosing to give the green light to recreational marijuana and medical cannabis have simply chosen not to pursue marijuana-related crimes. The states do not have the authority to usurp the rules enacted by the federal government by way of the Controlled Substances Act (CSA).
Meanwhile, Congress has neutered the DOJ by banning any and all federal money from marijuana enforcement. So in essence, we have de facto legalization by way of decriminalization. But by the letter of the law, marijuana is still illegal in this country. That will not change with rescheduling.
Rescheduling simply changes the restrictions. It by no means gives federal approval for recreational marijuana. However, it does recognize marijuana’s potential medical benefits and the rights of the states to regulate it accordingly. Therein lies the big question. It will be interesting to see if any of the states change their medical cannabis laws as the result of rescheduling.
Three Kinds of States
In terms of state-legal marijuana, we can put all the states into one of three categories: recreational and medical, medical-only, and prohibitionist. The largest of the three is the medical-only group, the group that Utah belongs to.
Utah has one of the strictest medical cannabis programs in the country. Lawmakers and their regulatory counterparts keep a tight lid on everything. For example, the state legislature has only approved fifteen medical cannabis pharmacies to date. Beehive Farmacy possesses two of those licenses, covering locations in Salt Lake City and Brigham City.
The other end of that spectrum is Oklahoma. In the Sooner state, there are literally thousands of cannabis dispensaries. The market is so saturated that business owners have trouble making money. Dispensaries seem to close as quickly as they open.
California and New York are examples of states in the first category. They have legalized both recreational marijuana and medical cannabis. California has a considerable black market problem that is threatening the health of its legal market. Meanwhile, New York cannot seem to get out of its own way. Regulators seem to be constantly changing course to try to come up with a program everyone is happy with.
Eventually Regulated Like Alcohol
There is a growing consensus that federal rescheduling is the final step before Congress legalizes marijuana across the board. Whether Congress acts this year, or it takes them five years to act, full legalization seems inevitable. Then what?
The most likely scenario would see states regulating marijuana the same way they regulate alcohol. Meanwhile, medical cannabis would move into the traditional pharmaceutical lane as drugmakers began creating THC and CBD drugs capable of gaining FDA approval.
Time will tell if I am wrong. And if so, I will be as curious as anyone else to see what happens.
