On October 6, 2022, President Biden took his first steps to overhaul federal policy on marijuana. In doing so, he pardoned individuals with federal offenses for simple marijuana possession and initiated review as to how the drug is classified.
In his announcement, the President stated that thousands of people with prior federal convictions could be denied housing, education, or employment. His statement is technically true – there are about 6,500 individuals who have been convicted of federal offenses for simple marijuana possession since 1992. The bigger issue is state convictions, as marijuana offenses overwhelmingly occur at the state level. For example, in 2018 – when 33 states had already legalized medical marijuana and 10 states, plus Washington D.C., had legalized adult-use – the ACLU reports that there were nearly 700,000 marijuana arrests in the United States, “the vast majority of which (89.6%) were for possession.”1 While tens of thousands of individuals are estimated to be incarcerated on the basis of state marijuana convictions2, just 149 people were in federal prison for simple possession of marijuana in 2021.3 Notably, President Biden’s pardon only targets those convicted of federal offenses for simple possession.
As the President made clear, while he is pardoning individuals with possession offenses, “[i]mportant limitations on trafficking, marketing, and underage sales should stay in place.” While the continued prohibition on drug trafficking and underage sales makes sense, it is unclear what the President meant when referring to limitations on “marketing.” As marijuana remains an illegal substance at the federal level, there are no federal regulations or statutes targeting the marketing of marijuana. Perhaps the President was referring to various state-specific marketing regulations, many of which outline the method and manner in which retailers and vendors can and cannot advertise marijuana products, including prohibitions on making inflated claims regarding the product’s curative or therapeutic effects, or incorporating creative elements that make the product attractive to children.
Acknowledging the imbalance between state and federal possession convictions, the President also called on the states to mirror this policy and pardon marijuana convictions at the state level. Nearly 40 U.S. states have legalized marijuana in some form, but only 24 of them have enacted pardon programs for past possession convictions. While several states have gone even further, passing “ban-the-box” laws which prohibit an employer from asking an applicant about past marijuana convictions, other states refuse to budge. The same day as the President’s announcement, Texas’ Greg Abbott and Arkansas’ Asa Hutchinson indicated their refusal to even consider such pardons, largely on political and ideological grounds. Other states’ leaders, such as Ohio and Louisiana, declined the President’s request on procedural bases; that is, stating their respective states’ legal and constitutional frameworks do not allow them to take such blanket action, or any action absent a public vote.
Perhaps more importantly, the President indicated he would ask the secretary of Health and Human Services and the attorney general to review how marijuana is scheduled under federal law. Marijuana is currently classified as a Schedule 1 drug under the Controlled Substances Act, alongside other drugs such as cocaine and heroin. As the President reflected in his announcement, “We classify marijuana at the same level as heroin – and more serious than fentanyl. It makes no sense.” Being categorized in Schedule 1 means marijuana possession and use is almost entirely banned and deemed to have no legitimate medical use. Reclassification would allow researchers easier access to marijuana for medical research. Moving marijuana to a lower tier on the Controlled Substances Act schedule could also allow it to be prescribed by doctors. For instance, if marijuana became a Schedule II drug, it could be prescribed for pain management, a prescription controlled by the Drug Enforcement Administration. If marijuana was classified as a Schedule V drug (the lowest tier), there would be minimal control over its prescription and use (along the same lines as cough syrup or Tylenol).
Further, while many industry insiders initially feared that Biden’s statements initiating review of marijuana’s Schedule 1 status would result in very little action, it is possible this “rescheduling” takes place rather quickly. Indeed, after President Biden released his statement, Health and Human Services Secretary Xavier Becarra noted the President expected his agency to work quickly with respect to their review of marijuana’s classification as a Schedule 1 substance: “I think you’re going to find that we’re going to move as quickly as we can but, at the end of the day, science is going to take us to a solution.”
While President Biden’s statements will no doubt have a life-changing impact on the approximately 6,500 people benefitting from his pardon, there is far more to work to be done at the state level to right those same wrongs. Further, the President’s statements regarding “marketing” and “rescheduling” could ultimately be much ado about nothing. It is notable, nonetheless, as it is the first time the Executive Branch of the Federal Government has taken any step to address the social justice impacts of legalizing marijuana, along with urging a wholesale review of marijuana’s classification. Cannabis industry professionals, and the companies they serve, are well-advised to keep a close eye on the progression of these “rescheduling” efforts and to be prepared to both actively participate in making, and predictively responding to, important changes in the federal government’s treatment of cannabis should such de/rescheduling occur.
[1] A Tale of Two Countries. Racially Targeted Arrests in the Era of Marijuana Reform. ACLU RESEARCH REPORT, American Civil Liberties Union 2020.
[2] Exactly How Many People Are Locked Up For Weed? Last Prisoner Project.
[3] Interactive Data Analyzer. United States Sentencing Commission
