Article: Chris Nani – Part III “The Obstacles to Legalization”

Authored By:

“Chris Nani, law student at Ohio State University, graduating in 2019. He currently is looking to break into the field of cannabis law through blogging and meeting new attorneys. If you’d like to contact Chris about his article or have any comments for him you can reach him at [email protected].”

The biggest obstacle to legalization is opposition from lobbyists.

The pharmaceutical industry is one of the most powerful lobbyist groups in Congress and has consistently banded together to protect its market space. In states that have medical marijuana, the pharmaceutical industry has already seen a significant decrease in prescription pills prescribed per physicians.¹

Physicians dramatically reduced the rate they prescribed pills for pain, anxiety, and nausea because medical marijuana is more effective at treating these common ailments. In total, physicians prescribed less than four-thousand drugs on average because medical marijuana was available.

Physicians tended to prescribe marijuana over traditional drugs because it’s safer to use, cheaper, and does not possess a physically addicting quality such as Fentanyl, a legal pain-killer one hundred times more potent than morphine. Fentanyl on the other hand is a pain-killer that has caused an epidemic in Ohio killing hundreds of people.² Marijuana consumption has never directly killed anyone.

Aside from the pharmaceutical industry heavily lobbying against legalization, Congress would be faced with the additional task of rescheduling marijuana and rewriting any legislation specifically targeting marijuana.

There are two major ways marijuana could be rescheduled. The first and easiest way to reschedule marijuana would be for Congress to amend the Controlled Substances Act. Congress could either place marijuana into schedule III or IV (which would allow marijuana businesses to avoid § 280E) or alternatively remove it entirely from the schedule. However, the biggest obstacle Congress would face here are lobbyists. Assuming lobbyists would be a non-factor, under the current administration, the President could veto the bill or take to the pulpit and bully Congress into rejecting the bill.

The second way involves going through the executive branch in potentially three different ways. First an outside interest group or the Secretary of Health and Human Services (HHS) could file a petition to reschedule marijuana with the Attorney General (additionally the Attorney General could start this process). Once the Attorney General receives the petition, he/she could request the Secretary of HHS to review marijuana for its scientific/medical value. The Secretary would then use the FDA to evaluate marijuana and report back to the Secretary. After receiving the evaluation, the Secretary would then send a recommendation to the Attorney General stating it should still be a controlled substance or it should not be.

The Attorney General would then use the recommendation to schedule marijuana appropriately. However, similar to the first method of going through Congress, the current administration has seemingly shown its disapproval of marijuana and rescheduling it does not look feasible under Trump. Additionally, the Brookings flow chart perfectly illustrates the process.³