The introduction to the document….
The Honorable Lindsey Graham
Chairman Committee on the Judiciary United States Senate Washington, DC 20510
The Honorable Dianne Feinstein
Ranking Member Committee on the Judiciary United States Senate Washington, DC 20510
Dear Chairman Graham and Ranking Member Feinstein:
Enclosed please find responses to Questions for the Record that I received from Ranking Member Feinstein, as well as Senators Grassley, Cornyn, Tillis, Crapo, Kennedy, Leahy, Durbin, Whitehouse, Klobuchar, Coons, Blumenthal, Hirono, Booker, and Harris, following my appearance before the Senate Committee on the Judiciary on January 15, 2019.
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Senator Grassley Questions Pages 6 & 7
9. For nearly fifty years, the University of Mississippi has had the sole contract with the National Institute on Drug Abuse (NIDA) to grow cannabis for research purposes. To expand the number of manufacturers, the Drug Enforcement Administration (DEA) submitted a notice in the Federal Register on August 11, 2016, soliciting applications for licenses to manufacture marijuana for research purposes. However, over two years have passed without any new schedule I marijuana manufacturer registrations. Your predecessor, Attorney General Sessions, testified on April 25, 2018 at the Senate Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies, stating that “[w]e are moving forward and we will add, fairly soon . . . additional suppliers of marijuana under the Controlled [Substances Act].” On July 25, 2018, I sent a letter with other Senators to Attorney General Sessions asking for an update on marijuana manufacturer applications. a. Will you review this letter and assess the status of the pending marijuana manufacturer applications?
RESPONSE: Yes. If confirmed, I will review your letter and the status of the pending applications.
b. Do you intend to support the expansion of marijuana manufacturers for scientific research?
RESPONSE: Yes. I support the expansion of marijuana manufacturers for scientific research consistent with law. If confirmed, I will review the matter and take appropriate steps.
10. Along with Senator Feinstein, I introduced legislation that expands research into a derivative of marijuana known as cannabidiol, or CBD. The Food and Drug Administration (FDA) recently approved Epidiolex, whose main active ingredient is CBD. This FDA-approved drug has since been placed in Schedule V of the Controlled Substances Act. While this is a positive step and will provide a new treatment option for those with two types of intractable epilepsy, it is my understanding that this scheduling action relates only to CBD in an FDA-approved formulation. Senator Feinstein and I wrote to DOJ and Health and Human Services (HHS) on two occasions requesting that a scientific and medical evaluation of CBD be conducted. The first letter was sent on May 13, 2015, and the second letter was sent on November 18, 2018. Both DOJ and HHS agreed to conduct a medical and scientific evaluation of CBD independent of marijuana in 2015.
a. What is the status of this request?
RESPONSE: I am not familiar with the details of this request or with the status of any response from DOJ and HHS. If confirmed, I will look into the matter.
b. What is the anticipated date of completion?
RESPONSE: I am not familiar with the details of this request or with the status of any response from the Department and HHS. I have no insight into the anticipated date of completion for any response from HHS or Department. If confirmed, I will look into the matter.
c. Do you view the substance CBD as in Epidiolex as a separate substance from CBD in marijuana?
RESPONSE: I have not studied this issue closely. I am aware, however, that the FDA has approved the drug Epidiolex, which contains CBD, and that DEA has placed Epidiolex on Schedule V under the Controlled Substances Act. Epidiolex is therefore subject to different legal and regulatory restrictions than marijuana-derived CBD generally, which is listed on Schedule I.
d. Do you believe that marijuana-derived CBD is separate and distinct from hempderived CBD?
RESPONSE: I have not studied this issue closely. I am aware that, as part of the most recent Farm Bill, Congress enacted new provisions that authorize the cultivation of hemp plants and the distribution of hemp-derived products, subject to certain restrictions and limitations. Products derived from hemp, including CBD, are therefore subject to different legal and regulatory restrictions than those derived from non-hemp marijuana plants under certain circumstances.
Pages 50 & 51 Senator Feinstein Questions
56. It is well established that former Attorney General Sessions opposes the legalization of marijuana, regardless of whether it is for medical or recreational purposes. In January of last year, he issued a memorandum to U.S. Attorneys, titled “Marijuana Enforcement.” In this memo, the former Attorney General rescinded what is known as the “Cole Memorandum,” which allowed states to implement their own marijuana laws without fear of federal interference, provided that they were in compliance with eight priority enforcement efforts. In rescinding this memo, the Attorney General maintained that opioids and fentanyl, not marijuana, were the Department’s primary focus. I agree that other drugs of abuse should be prioritized over marijuana, and do not want to see Californians arrested if they are acting in compliance with State law.
51 You discussed this issue with Senator Booker at your confirmation hearing, when you said the following: “I am not going to go after companies that have relied on the Cole Memorand[um]. However, we either should have a Federal law that prohibits marijuana everywhere – which I would support myself because I think it is a mistake to back off on marijuana. However, if we want a Federal approach, if we want States to have their own laws, then let us get there and let us get there the right way.” (Hearing Tr. at 171) To clarify your position, please answer the following questions:
What is your position on the legalization of marijuana, whether for medical or recreational purposes?
RESPONSE: I believe that the Federal Government should address whether to legalize marijuana the right way, which is through the legislative process. An approach based solely on executive discretion fails to provide the certainty and predictability that regulated parties deserve and threatens to undermine the rule of law. If confirmed, I can commit to working with the Committee and the rest of Congress on these issues, including any specific legislative proposals. As I have said, however, I do not support the wholesale legalization of marijuana.
57. In August 2016, the Department of Justice posted a notice in the Federal Register to solicit applications for the bulk manufacture of marijuana, intended to supply legitimate researchers in the United States. I understand that 26 applications, including 3 from California, were submitted in response. It has now been almost 3 years, and the Department has failed to take action on any of these applications. This delay could hinder important research that may lead to the development of FDA-approved drugs. (Applications to Become Registered under the Controlled Substances Act to Manufacture Marijuana to Supply Researchers in the United States, Federal Register (Aug. 12, 2016)) I asked former Attorney General Sessions about this delay on multiple occasions – both in questions for the record and through staff contact – and still have yet to receive a response as to when a final decision will be made on these pending applications. If you are confirmed, will you commit to taking immediate action on these applications?
RESPONSE: I am not familiar with the details of these applications or the status of their review. If confirmed, I can commit to reviewing the matter. As stated above in response to Senator Grassley’s question, I support the expansion of marijuana manufacturers for scientific research consistent with law.
Senator Booker . Question P.217
15. In January 2018, Attorney General Sessions rescinded the Cole Memorandum, which provided guidance to U.S. Attorneys that the federal marijuana prohibition should not be enforced in states that have legalized marijuana in some way or another.34 When I asked you about this issue in your testimony last week, you stated: “My approach to this would be not to upset settled expectations and the reliance interests that have arisen as a result of the Cole Memorandum—and investments have been made, and so there’s been reliance on it, so I don’t think it’s appropriate to upset those interests. However, I think the current situation is untenable and really has to be addressed. It’s almost like a backdoor nullification of federal law. . . . I’m not going to go after companies that have relied on the Cole Memorandum. However, we either should have a federal law that prohibits marijuana everywhere—which I would support myself, because I think it’s a mistake to back off on marijuana. However, if we want a federal approach, if we want states to have their own laws, then let’s get there, and let’s get there the right way.”35 a. Do you intend to rescind Attorney General Sessions’s January 2018 memorandum on marijuana enforcement, either in part or in its entirety? b. Do you intend to reinstate the Cole Memorandum?
RESPONSE: As discussed at my hearing, I do not intend to go after parties who have complied with state law in reliance on the Cole Memorandum. I have not closely considered or determined whether further administrative guidance would be appropriate following the Cole Memorandum and the January 2018 memorandum from Attorney General Sessions, or what such guidance might look like. If confirmed, I will give the matter careful consideration. But I still believe that the legislative process, rather than administrative guidance, is ultimately the right way to resolve whether and how to legalize marijuana.
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