About Cannabis Policy

Introduction and Background

APIS addresses laws legalizing the cultivation, sale, or use of recreational (non-medical) cannabis, together with laws imposing various prohibitions and restrictions on such practices.

In this context, “legalized" means that no civil or criminal penalties are imposed for the recreational use of cannabis by an adult resident. “Legalized” should not be confused with “decriminalized,” which means that no criminal penalties are imposed for certain activities, although some activities may result in civil penalties. Some States have decriminalized the recreational use of cannabis but have not fully legalized such use.

Here “cannabis” refers to both Cannabis sativa and Cannabis indica, which together are commonly known as marijuana, a member of the Cannabaceae or hemp family of plants, whose product is derived from the dried tops, leaves, stems, and seeds of the plant.

Cannabis contains chemical compounds called cannabinoids. One important cannabinoid is delta-9 tetrahydrocannabinol, or THC, which has a psychoactive effect and is the chemical associated with recreational use. Another cannabinoid is cannabidiol, or CBD, which has a sedative and mildly analgesic effect and is the chemical associated with medicinal use.

 

History of Cannabis Policy in the United States

Between 1840 and 1900, cannabis was legal and used medicinally in the United States. In 1860, based on concern about possible negative effects of use, the first Federal commission to study cannabis was created. By the 1890s, many members of the medical community considered it a narcotic that should be regulated.

Recreational cannabis use in the U.S. started at the beginning of the 20th century, as did the movement to regulate its use. In 1914 the Harrison Act was enacted, which declared drug use a crime. In 1915, California became the first State to make it illegal to possess cannabis. In the 1930s, the then U.S. Federal Bureau of Narcotics warned of the increasing abuse of cannabis, and by 1937, 23 States had criminalized possession. Also, in 1937, the Marijuana Tax Act imposed a tax on cannabis. In 1942, marijuana was removed from the U.S. pharmacopeia. In 1956, cannabis was included in the Federal Narcotics Control Act, leading to strict Federal penalties for its possession. In the Controlled Substances Act of 1970, the Federal government categorized marijuana as a Schedule I substance, meaning it was considered to have no acceptable medical use and was among the class of drugs having the highest potential for abuse. (See below for information regarding the DEA’s 2018 reclassification of the epilepsy drug Epidiolex from Schedule I to Schedule V, and regarding the 2018 Farm Bill’s removal of low-THC hemp from the Controlled Substances Act.)

Not long after the categorization of marijuana as a dangerous drug, Federal and State-level efforts arose to decriminalize the possession of cannabis. President Richard Nixon appointed a commission to review marijuana laws, and in 1972 the commission recommended that cannabis be decriminalized. President Nixon declined to act on that recommendation, although some States moved to liberalize their laws pertaining to cannabis. In 1978, New Mexico was the first State to recognize its legitimate medical use. In 1996, California became the first State to legalize the use of medical marijuana. As of 2019, more than 30 other jurisdictions have done the same for medical marijuana.

With respect to the recreational use of cannabis, efforts at the State level have typically focused first on decriminalization and then on legalization.

Between 1973 and 1979, eleven States decriminalized cannabis possession. Due to public health concerns about underage cannabis use, further efforts to decriminalize were unsuccessful until the 2000s, when several additional States decriminalized possession.

The next level of lawmaking has been to legalize the recreational use of cannabis in specific and limited ways. As of January 1, 2019, ten States and the District of Columbia have legalized recreational use to varying degrees for adults, starting in 2012 with voter referenda in Colorado and Washington.

References regarding History: 

USDA: http://plants.usda.gov/java/ClassificationServlet?source=display&classid=Cannabaceae . Accessed 3/23/16.

The History of the Non-Medical Use of Drugs in the United States. Charles Whitebread, Professor of Law, USC Law School. A Speech to the California Judges Association 1995 annual conference. Drug Library: http://druglibrary.org/schaffer/hemp/history/first12000/1.htm . Accessed 3/23/16.

Huntington’s Outreach Project for Education, at Stanford (hopes). Medical Marijuana Policy in the United States. May 15. 2012. http://web.stanford.edu/group/hopes/cgi-bin/hopes_test/medical-marijuana-policy-in-the-united-states/ . Accessed 3/24/16.

Historical and Cultural Uses of Cannabis and the Canadian "Marijuana Clash”. Prepared For The Senate Special Committee on Illegal Drugs. Leah Spicer. Law and Government Division. 12 April 2002. Library of Parliament. http://www.parl.gc.ca/content/sen/committee/371/ille/library/spicer-e.htm#A . Accessed 3/25/2016.

 

Issues Treated by Cannabis-Related Law

For a list of cannabis policy areas addressed by APIS in Recreational Use of Cannabis: Volume 1 and Recreational Use of Cannabis: Volume 2, consult the Cannabis Policy Taxonomy.

 

Federal Law

The approach taken by the US government to the use of cannabis by its citizens has a long and varied history. See the Policy Descriptions for Recreational Use of Cannabis: Volume 1 and Recreational Use of Cannabis: Volume 2 generally.

Since 1970, the most significant element of this approach has been the classification of cannabis as a Schedule I substance pursuant to the Controlled Substances Act of 1970. 21 U.S.C. § 801, et seq.

Under the terms of the Act, as a Schedule I drug cannabis has been defined as having “a high potential for abuse,” “no currently accepted medical use in treatment,” and “a lack of accepted safety for use … under medical supervision.” 21 U.S.C. § 812(b)(1).

The classification of cannabis under Federal law has had a number of important consequences. First, the classification as a Schedule I substance involves significant penalties for those who illegally manufacture, distribute or possess the drug (see, e.g., 21 U.S.C. § 841; 21 U.S.C. § 844; 21 U.S.C. § 846).

Second, although numerous States have legalized the use of cannabis for either medicinal or recreational use, the status of cannabis as a controlled substance under Federal law has, for the most part, not changed. (See below for information regarding the DEA’s 2018 reclassification of the epilepsy drug Epidiolex from Schedule I to Schedule V, and regarding the 2018 Farm Bill’s removal of low-THC hemp from the Controlled Substances Act.)

The classification of cannabis under Federal law has led to reports that cannabis businesses operating lawfully under State law have experienced difficulties in obtaining banking services, claiming tax deductions for operating expenses, and using the US mail, among other issues.

In an attempt to address this tension between Federal and State law, the Department of Justice (DOJ) issued a series of memoranda providing guidance with respect to Federal marijuana enforcement policy in the context of State legalization initiatives.

In 2013 the DOJ indicated that it would focus its enforcement efforts on only those cannabis-related activities that threaten the following specified Federal priorities:

1. Preventing the distribution of marijuana to minors;
2. Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
3. Preventing the diversion of marijuana from States where it is legal under State law in some form to other States;
4. Preventing State-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
5. Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
6. Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
7. Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
8. Preventing marijuana possession or use on Federal property.

(See Memorandum from James M. Cole, Deputy Attorney General, Guidance Regarding Marijuana Enforcement, Aug. 29, 2013: https://www.justice.gov/opa/pr/justice-department-announces-update-marijuana-enforcement-policy ; https://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf .)

In a 2014 memorandum the DOJ indicated that investigations and prosecutions of financial institutions or individuals providing banking services to marijuana-related businesses should be subject to the same eight enforcement priorities outlined in the memorandum of August 29, 2013. (See Memorandum for All United States Attorneys from James M. Cole, Deputy Attorney General, Guidance Regarding Marijuana Related Financial Crimes, Feb. 14, 2014: https://www.justice.gov/sites/default/files/usao-wdwa/legacy/2014/02/14/DAG%20Memo%20-%20Guidance%20Regarding%20Marijuana%20Related%20Financial%20Crimes%202%2014%2014%20(2).pdf .)

Another significant consequence of the classification of cannabis under Federal law has been that research institutions have experienced difficulty obtaining cannabis for investigating potential medical applications and treatment efficacy.

In response to this situation, in July 2015 a group of eight Democratic senators called for the Federal government to “facilitate scientific research on the potential health benefits of marijuana when used for medical purposes” by, among other things, reassessing marijuana’s classification as a Schedule I substance. (See Letter from Senators Warren, Merkley, Wyden, Mikulski, Markey, Boxer, Booker, and Gillibrand to HHS Secretary Burwell, ONDCP Director Botticelli, and DEA Acting Administrator Rosenberg, July 9, 2015: http://www.warren.senate.gov/files/documents/HHS_ONDCP_DEA_Marijuana_letter.pdf .)

In August 2016 the Drug Enforcement Administration (DEA) denied two petitions to reschedule marijuana under the Controlled Substances Act. (See https://www.federalregister.gov/articles/2016/08/12/2016-17954/denial-of-petition-to-initiate-proceedings-to-reschedule-marijuana?utm_campaign=pi+subscription+mailing+list&utm_medium=email&utm_source=federalregister.gov and https://www.federalregister.gov/articles/2016/08/12/2016-17960/denial-of-petition-to-initiate-proceedings-to-reschedule-marijuana?utm_campaign=pi+subscription+mailing+list&utm_medium=email&utm_source=federalregister.gov .) The DEA did, however, announce a policy change designed to foster cannabis research by allowing additional entities to apply to become registered with DEA so that they may grow and distribute marijuana for FDA-authorized research purposes. (See https://www.federalregister.gov/articles/2016/08/12/2016-17955/applications-to-become-registered-under-the-controlled-substances-act-to-manufacture-marijuana-to?utm_campaign=pi+subscription+mailing+list&utm_medium=email&utm_source=federalregister.gov .)

In January 2018, the Justice Department rescinded the Aug. 29, 2013 and Feb. 14, 2014 memoranda referenced above, and directed Federal prosecutors to follow “the well-established principles that govern all federal prosecutions” when deciding which marijuana activities to prosecute under Federal law. (See Memorandum for All United States Attorneys from Jefferson B. Sessions, Attorney General, Marijuana Enforcement, Jan. 4, 2018: https://www.justice.gov/opa/pr/justice-department-issues-memo-marijuana-enforcement ; https://www.justice.gov/opa/press-release/file/1022196/download .)

In June 2018 the Food and Drug Administration (FDA) approved the drug Epidiolex, an oral solution containing cannabidiol (CBD) extracted from the cannabis plant, for the treatment of seizures associated with two rare and severe forms of epilepsy, in patients two years of age and older. (See FDA News Release, June 25, 2018: https://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm611046.htm .) Following this action, the DEA rescheduled the Epidiolex formulation from Schedule I to Schedule V of the Controlled Substances Act. (See DEA Final Order, Sep. 28, 2018: https://www.federalregister.gov/documents/2018/09/28/2018-21121/schedules-of-controlled-substances-placement-in-schedule-v-of-certain-fda-approved-drugs-containing .)

In December 2018, Congress passed and the President signed the 2018 Farm Bill (known as H.R.2, the “Agriculture Improvement Act of 2018”), which included a provision removing low-THC hemp (defined as cannabis with a THC concentration of not more than 0.3 percent on a dry weight basis) from the Controlled Substances Act. (See Public Law 115-334 §§ 10113, 12619: https://www.congress.gov/bill/115th-congress/house-bill/2/text .)

Despite numerous State initiatives legalizing cannabis for either medicinal or recreational use, and with the exception of low-THC hemp and the epilepsy drug Epidiolex noted above, the use of cannabis remains prohibited under Federal law as of December 2019.

 

Citations and Relevant Text Excerpts

21 U.S.C. § 812

§ 812. Schedules of controlled substances

(a) Establishment

There are established five schedules of controlled substances, to be known as schedules I, II, III, IV, and V. Such schedules shall initially consist of the substances listed in this section. * * *

(b) Placement on schedules; findings required

Except where control is required by United States obligations under an international treaty, convention, or protocol, in effect on October 27, 1970, and except in the case of an immediate precursor, a drug or other substance may not be placed in any schedule unless the findings required for such schedule are made with respect to such drug or other substance. The findings required for each of the schedules are as follows:

(1) Schedule I--

(A) The drug or other substance has a high potential for abuse.

(B) The drug or other substance has no currently accepted medical use in treatment in the United States.

(C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.

* * *

(c) Initial schedules of controlled substances

Schedules I, II, III, IV, and V shall, unless and until amended1 pursuant to section 811 of this title, consist of the following drugs or other substances, by whatever official name, common or usual name, chemical name, or brand name designated:

Schedule I

* * *

(c) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation, which contains any quantity of the following hallucinogenic substances, or which contains any of their salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:

(1) 3,4-methylenedioxy amphetamine.

(2) 5-methoxy-3,4-methylenedioxy amphetamine.

(3) 3,4,5-trimethoxy amphetamine.

(4) Bufotenine.

(5) Diethyltryptamine.

(6) Dimethyltryptamine.

(7) 4-methyl-2,5-dimethoxyamphetamine.

(8) Ibogaine.

(9) Lysergic acid diethylamide.

(10) Marihuana.

(11) Mescaline.

(12) Peyote.

(13) N-ethyl-3-piperidyl benzilate.

(14) N-methyl-3-piperidyl benzilate.

(15) Psilocybin.

(16) Psilocyn.

(17) Tetrahydrocannabinols, except for tetrahydrocannabinols in hemp (as defined under section 297A of the Agricultural Marketing Act of 1946).

(18) 4-methylmethcathinone (Mephedrone).

(19) 3,4-methylenedioxypyrovalerone (MDPV).

(20) 2-(2,5-Dimethoxy-4-ethylphenyl)ethanamine (2C-E).

(21) 2-(2,5-Dimethoxy-4-methylphenyl)ethanamine (2C-D).

(22) 2-(4-Chloro-2,5-dimethoxyphenyl)ethanamine (2C-C).

(23) 2-(4-Iodo-2,5-dimethoxyphenyl)ethanamine (2C-I).

(24) 2-[4-(Ethylthio)-2,5-dimethoxyphenyl]ethanamine (2C-T-2).

(25) 2-[4-(Isopropylthio)-2,5-dimethoxyphenyl]ethanamine (2C-T-4).

(26) 2-(2,5-Dimethoxyphenyl)ethanamine (2C-H).

(27) 2-(2,5-Dimethoxy-4-nitro-phenyl)ethanamine (2C-N).

(28) 2-(2,5-Dimethoxy-4-(n)-propylphenyl)ethanamine (2C-P).

(d)(1) Unless specifically exempted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of cannabimimetic agents, or which contains their salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation.

(2) In paragraph (1):

(A) The term “cannabimimetic agents” means any substance that is a cannabinoid receptor type 1 (CB1 receptor) agonist as demonstrated by binding studies and functional assays within any of the following structural classes:

(i) 2-(3-hydroxycyclohexyl)phenol with substitution at the 5-position of the phenolic ring by alkyl or alkenyl, whether or not substituted on the cyclohexyl ring to any extent.

(ii) 3-(1-naphthoyl)indole or 3-(1-naphthylmethane)indole by substitution at the nitrogen atom of the indole ring, whether or not further substituted on the indole ring to any extent, whether or not substituted on the naphthoyl or naphthyl ring to any extent.

(iii) 3-(1-naphthoyl)pyrrole by substitution at the nitrogen atom of the pyrrole ring, whether or not further substituted in the pyrrole ring to any extent, whether or not substituted on the naphthoyl ring to any extent.

(iv) 1-(1-naphthylmethylene)indene by substitution of the 3-position of the indene ring, whether or not further substituted in the indene ring to any extent, whether or not substituted on the naphthyl ring to any extent.

(v) 3-phenylacetylindole or 3-benzoylindole by substitution at the nitrogen atom of the indole ring, whether or not further substituted in the indole ring to any extent, whether or not substituted on the phenyl ring to any extent.

(B) Such term includes--

(i) 5-(1,1-dimethylheptyl)-2-[(1R,3S)-3-hydroxycyclohexyl]-phenol (CP-47,497);

(ii) 5-(1,1-dimethyloctyl)-2-[(1R,3S)-3-hydroxycyclohexyl]-phenol (cannabicyclohexanol or CP-47,497 C8-homolog);

(iii) 1-pentyl-3-(1-naphthoyl)indole (JWH-018 and AM678);

(iv) 1-butyl-3-(1-naphthoyl)indole (JWH-073);

(v) 1-hexyl-3-(1-naphthoyl)indole (JWH-019);

(vi) 1-[2-(4-morpholinyl)ethyl]-3-(1-naphthoyl)indole (JWH-200);

(vii) 1-pentyl-3-(2-methoxyphenylacetyl)indole (JWH-250);

(viii) 1-pentyl-3-[1-(4-methoxynaphthoyl)]indole (JWH-081);

(ix) 1-pentyl-3-(4-methyl-1-naphthoyl)indole (JWH-122);

(x) 1-pentyl-3-(4-chloro-1-naphthoyl)indole (JWH-398);

(xi) 1-(5-fluoropentyl)-3-(1-naphthoyl)indole (AM2201);

(xii) 1-(5-fluoropentyl)-3-(2-iodobenzoyl)indole (AM694);

(xiii) 1-pentyl-3-[(4-methoxy)-benzoyl]indole (SR-19 and RCS-4);

(xiv) 1-cyclohexylethyl-3-(2-methoxyphenylacetyl)indole (SR-18 and RCS-8); and

(xv) 1-pentyl-3-(2-chlorophenylacetyl)indole (JWH-203).

* * *

21 U.S.C. § 841

§ 841. Prohibited acts A

(a) Unlawful acts

Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally--

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or

(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.

(b) Penalties

Except as otherwise provided in section 849, 859, 860, or 861 of this title, any person who violates subsection (a) of this section shall be sentenced as follows:

(1)(A) In the case of a violation of subsection (a) of this section involving--

* * *

(vii) 1000 kilograms or more of a mixture or substance containing a detectable amount of marihuana, or 1,000 or more marihuana plants regardless of weight;

* * *

such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18 or $10,000,000 if the defendant is an individual or $50,000,000 if the defendant is other than an individual, or both. If any person commits such a violation after a prior conviction for a serious drug felony or serious violent felony has become final, such person shall be sentenced to a term of imprisonment of not less than 15 years and not more than life imprisonment and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment, a fine not to exceed the greater of twice that authorized in accordance with the provisions of Title 18 or $20,000,000 if the defendant is an individual or $75,000,000 if the defendant is other than an individual, or both. If any person commits a violation of this subparagraph or of section 849, 859, 860, or 861 of this title after 2 or more prior convictions for a serious drug felony or serious violent felony have become final, such person shall be sentenced to a term of imprisonment of not less than 25 years and fined in accordance with the preceding sentence. * * *

(B) In the case of a violation of subsection (a) of this section involving--

* * *

(vii) 100 kilograms or more of a mixture or substance containing a detectable amount of marihuana, or 100 or more marihuana plants regardless of weight;

* * *

such person shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18 or $5,000,000 if the defendant is an individual or $25,000,000 if the defendant is other than an individual, or both. If any person commits such a violation after a prior conviction for a serious drug felony or serious violent felony has become final, such person shall be sentenced to a term of imprisonment which may not be less than 10 years and not more than life imprisonment and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment, a fine not to exceed the greater of twice that authorized in accordance with the provisions of Title 18 or $8,000,000 if the defendant is an individual or $50,000,000 if the defendant is other than an individual, or both. * * *

* * *

(D) In the case of less than 50 kilograms of marihuana, except in the case of 50 or more marihuana plants regardless of weight, 10 kilograms of hashish, or one kilogram of hashish oil, such person shall, except as provided in paragraphs (4) and (5) of this subsection, be sentenced to a term of imprisonment of not more than 5 years, a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18 or $250,000 if the defendant is an individual or $1,000,000 if the defendant is other than an individual, or both. If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not more than 10 years, a fine not to exceed the greater of twice that authorized in accordance with the provisions of Title 18 or $500,000 if the defendant is an individual or $2,000,000 if the defendant is other than an individual, or both. * * *

* * *

21 U.S.C. § 844

§ 844. Penalties for simple possession

(a) Unlawful acts; penalties

It shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by this subchapter or subchapter II of this chapter. * * *

* * *

21 U.S.C. § 846

§ 846. Attempt and conspiracy

Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

 

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