Medical Cannabis Campaigning with Americans for Safe Access

In light of the Drug Enforcement Administration's (DEA) proposed rulemaking on rescheduling cannabis, what key messages does ASA want the DEA to hear regarding medical cannabis?

Steph Sherer: We want the DEA to clearly recognize the connection between "medical" and "cannabis." After reviewing the Department of Justice’s proposed rule and the questions the DEA posed to legal counsel, it’s clear the DEA isn’t pleased with the conclusions the Department of Health and Human Services (HHS) reached. The DEA asked whether they were obligated to follow the HHS's scheduling recommendation and questioned the approach HHS used to determine that cannabis has accepted medical use. When examining the Department of Justice’s comments on HHS’s findings for each of the eight factors they consider, the DEA repeatedly referred back to documents from 2015 and 2016, which were the basis for the last scheduling denial. Essentially, the DEA kept saying, “We like what HHS said in 2015.”

After reviewing public comments—though I didn’t read all 40,000—ASA decided to focus our comments on the DEA’s apparent fixation with 2015. This perspective was echoed in the media by organizations like Smart Approaches to Marijuana (SAM), which claimed that nothing has changed since the last rescheduling petition, framing the recent findings of accepted medical use as purely political. I find that ironic because cannabis scheduling has always been political.

The DEA’s comments referenced HHS's 2015 “Basis for the Recommendation for Maintaining Marijuana in Schedule I of the Controlled Substances Act” and the DEA’s 2016 “Denial of Petition to Initiate Proceedings to Reschedule Marijuana.” These documents responded to a rescheduling petition filed in 2011 by the governors of Rhode Island and Washington. At that time, there were 16 states and DC with medical cannabis laws, but these laws were not as robust as those we see today. They lacked comprehensive distribution programs, and very few had systems to track patient numbers. In 2011, there were an estimated 280,000 registered patients in these states, with a significant uncertainty about the numbers in California and Washington, where ASA estimated closer to 800,000 to 900,000 patients. Fast forward to today, and there are over 6 million registered patients.

Starting in 2015, we saw states conducting reviews of research to determine the conditions for which physicians should recommend medical cannabis. In the last rescheduling denial, HHS argued that a doctor’s recommendation wasn’t proof of accepted medical use, responding to comments from the petitioners. For this rescheduling petition, ASA worked directly with the FDA, providing them with a database of state review boards and committees responsible for adding conditions to the list of qualifying patients. These committees reviewed available research and made determinations, with significant findings emerging between 2015 and 2022. This was one of the reasons HHS recognized cannabis as having accepted medical use in their recent findings, a consideration that wasn’t even on the table back in 2015.

We also saw medical organizations issuing model guidelines for recommending cannabis. For example, in 2016, the Federation of State Medical Boards provided guidelines to help doctors determine when to recommend cannabis, integrating it into patient care. In 2017, the National Academies of Science, Engineering, and Medicine published a report titled “The Health Effects of Cannabis and Cannabinoids,” which provided conclusive and substantial evidence that cannabis and cannabinoids are effective for treating chronic pain, chemotherapy-induced nausea and vomiting, and multiple sclerosis-related spasticity. Again, this wasn’t a part of the medical cannabis landscape for HHS to review in 2015.

The opioid crisis was also in its early stages in 2015, but it wasn’t declared a public emergency until 2017. The approach to medical cannabis changed significantly during this time. ASA published a report called “Medical Cannabis as a Tool to Combat Pain and Opioid Crisis,” which served as a blueprint for states to adopt or amend legislation allowing physicians to use medical cannabis for pain management and opioid use disorder. As a result, states like Connecticut, Washington DC, Florida, Illinois, New Jersey, and New York added chronic pain and/or opioid use disorder to their list of qualifying conditions between 2017 and 2018.

In 2019, the World Health Organization (WHO) recommended that the United Nations (UN) change the scheduling of cannabis to recognize its medical value. By December 2020, the UN Commission on Narcotic Drugs had rescheduled cannabis at the international level, effectively changing the treaties that the Department of Justice had long used as a basis for keeping cannabis in Schedule I. Arguably, the US is now out of step with these international treaties. In January 2023, the International Narcotics Control Board acknowledged this scheduling change, indicating that member states could move forward with medical cannabis programs without violating international law.

Lastly, we’ve seen states like Minnesota develop really amazing comprehensive guides for doctors on dosing and talking to patients about medical cannabis. This kind of resource wasn’t available to HHS when they made their last determination. The DEA may be clinging to 50 years of political inertia, but the evidence is clear—much has changed since 2011 and 2015. I hope the DEA recognizes this.

How would the Farm Bill 2024 affect medical cannabis, especially in terms of its latest amendment affecting hemp products?

Sherer: If the Farm Bill passes as currently amended, it could create a lot of confusion. The 2018 version of the bill left out a crucial definition—what exactly constitutes a hemp product. I don’t think this was an oversight; it seemed deliberate, but it left a big question mark and a significant loophole regarding what is legal under the hemp bill. On one hand, the 2018 bill descheduled the cannabis plant for products containing less than 0.3% THC, aligning with international hemp markets. Before 2018, products like hemp seeds, hemp milk, and hemp textiles were all imported because they couldn’t be produced domestically. There was a push to establish an agricultural market for hemp in the US, driven by the food and textile industries. Simultaneously, the CBD phenomenon took off, with many viewing CBD as a product of hemp, even though few hemp varieties at the time had high CBD levels. This has resulted in a largely unregulated market.

In an ideal world, if the hemp bill passes as it stands, it could force Congress to finally address the regulation of cannabis and cannabinoids for human consumption. The current quasi-legal market would effectively become illegal, and I don’t think most consumers understand that. Patients in states without medical cannabis programs, who rely on ordering products online, might lose access. However, we haven’t seen much federal enforcement on these issues. The FDA does issue fines for nutraceuticals and dietary supplements, but enforcement is limited.

It’s hard to discuss the Farm Bill without also considering cannabis rescheduling. The FDA has stated that they cannot regulate cannabis or cannabinoids under the Dietary Supplement Health and Education Act or the Federal Food, Drug, and Cosmetic Act—it doesn’t fit into any of these categories.

So, we need to look at this legislation in the broader context of Congress’s failure to address these issues. Beyond the 38 states with medical cannabis programs, there’s an unregulated market selling to every state, and each state is being barred by federal courts from regulating these products. If the bill moves forward as is, it could create a lot of confusion, but it might also prompt existing markets to step up and start producing products for patients in regulated markets, hopefully pushing Congress to take some long-overdue leadership.

I hope people are paying attention to what these laws will mean for individual patients. In states that have introduced recreational cannabis, like Florida, where they’re merging the medical and recreational markets, patients often lose out. ASA has developed the Medical Cannabis Equity Guide, which outlines steps states should take to ensure patients aren’t left behind as they introduce recreational programs.

We want people to understand that cannabis isn't just a recreational choice for millions of patients; it's medicine. It is likely that without a national medical cannabis program, patients are being forced to navigate markets that prioritize novelty and variety of products for recreational consumers over the specific needs of medical patients. The ongoing state-level discussions about medical versus recreational cannabis are symptomatic of the broader issue of inaction on medical cannabis at the federal level. State medical cannabis programs were initially intended as a stopgap, providing patients with access to cannabis while we worked to change federal laws and establish a national medical cannabis program. But as states look to generate revenue from cannabis sales, the focus has shifted away from patients. We suggest that states create incentives for companies to continue producing products specifically for medical cannabis patients.

Most people, when they hear “medical cannabis,” just think about patients going to jail and the criminal justice side of the issue only. But the reality is, is that patients want very different things from cannabis products than adult-use consumers. While the adult-use market is driven by trends and new products, medical cannabis patients need consistency. They want the same product every time, not something new. The reality is that there’s limited shelf space for cannabis products, and patients are often the ones who lose out.

There’s a significant issue with consistency in medical cannabis products, isn’t there?

Sherer: Exactly. It’s one thing if a cannabis product isn’t what you expected when you’re out with friends or at a concert, but it’s a completely different issue when you’re about to start your workday, and the product you took has a different effect than what you anticipated.

What does ASA aim to achieve with its upcoming Lobby Day in Washington, DC?

Sherer: The Validated Voices Summit on September 26 and 27 will be our first Lobby Day following HHS’s confirmation of medical cannabis as having accepted medical use—hence the name Validated Voices. For medical cannabis patients, having the government recognize the value of a product that has changed their lives, whether positively or negatively, is significant. This event is an opportunity for patients to have meaningful conversations with their members of Congress within that framework. Instead of begging them to believe that cannabis is medicine, we’re focusing on how they can help patients access these products.

There are several important issues coming up, like the Hemp Bill (Farm, Food, and Security Act of 2024) and the Justice spending bill (Commerce, Justice, Science, and Related Agencies Appropriations, AKA the CJS Amendment), which are likely to be dealt with in a lame-duck session. We want to ensure that patients’ voices are heard as Congress approaches these issues. We’re also aiming to bring medical cannabis back into the conversation on Capitol Hill. Much of the news coverage around rescheduling has focused on adult-use cannabis, even though the core issue is about accepted medical use. Patients have been left out of that conversation. This Lobby Day is our chance to create space for those conversations and introduce a new approach to medical cannabis advocacy—one that moves away from a defensive stance and towards solutions for the future. We’re also setting the tone for the 119th session of Congress and the 47th presidential administration. We want to ensure that medical cannabis patients have a place on Capitol Hill next year.

Do you have any concluding takeaways or insights for our readers?

Sherer: Absolutely. If you believe that medical cannabis is not just an alternative treatment; that it’s a life-changing medicine for millions, than we hope you also agree that it's time we acknowledge its efficacy and ensure all patients have access to this essential relief. The absence of comprehensive medical cannabis legislation leaves millions without essential federal protections, compelling patients to make an impossible choice: their health or their basic rights. For many, prioritizing health could mean risking their housing, education, and financial stability, underlining the urgent need for federal action.

This is an exciting time in our nation—every member of Congress is applying for their job, the president is applying for their job, and a third of the Senate is applying for theirs. As they campaign for these positions, we have a unique opportunity to find out where they stand on medical cannabis. ASA launched the Compassionate Candidate Campaign, asking candidates to sign a pledge to introduce legislation in the 119th Congress that supports nationwide access to medical cannabis. The campaign provides tools and activities to help people engage with their candidates on this issue.

The most important aspect of this campaign is that it puts the issue back into the hands of the people. Yes, medical cannabis has been sidelined by other topics, and some people feel like the issue is either resolved or they’re burnt out from the lack of progress in DC. But nothing happens in DC just because it should—it happens because the people we elect know that this is an issue they must address. By participating in the Compassionate Candidate Campaign, we can ensure that medical cannabis is on the radar of our elected officials next year. We’re also providing great tools to help people who want to see a national medical cannabis program feel comfortable talking to candidates and the media about this issue. My hope is that everyone who believes in making medical cannabis accessible for all—not just those who can afford it or live in the right state—will get involved. This campaign leads directly into our Validated Voices Summit as well.