US president Joe Biden’s appointees to a number of influential positions in the new administration give reason for optimism in the hemp and cannabis sector.
Though Biden himself seemingly remains sceptical about recreational cannabis – having previously stated it should be placed in Schedule II under the Controlled Substances Act category – a wide array of major appointments appear to be solid supporters of hemp and cannabis.
Perhaps the most significant appointment for CBD is the head of the Department of Health and Human Services (HHS). As the government’s principal agency responsible for public health and consumer safety, the HHS is responsible for several influential areas, such as the regulation of food products and new pharmaceutical drugs through the Food and Drug Administration (FDA), implementing the nation’s biggest health care programs (Medicare and Medicaid), and preventing the outbreak and spread of diseases through the Centers for Disease Control and Prevention (CDC).
Xavier Becerra is the Biden nominee to head the HHS. Formerly the attorney general for California, Becerra has a considerable record of support for cannabis reform and working to protect California’s legal program from federal interference.
Becerra was one of 21 state attorneys general who wrote to congressional leaders expressing support for a bipartisan bill to protect state-legal cannabis programs against federal intervention.
And in an interview with the Los Angeles Times, he said: “Just as we allow alcohol to be sold, we’ve come into the 21st century and announced that it’s better to regulate cannabis than criminalise it. There are far more important things to worry about than whether someone’s smoking cannabis for medicinal purposes or not.”
Becerra was also firmly in favour of allowing licensed cannabis businesses to enter the federal banking system. “The continued exclusion of the licensed cannabis industry from the federal banking system is untenable and unwise,” he said, while serving as the California attorney general. “The coronavirus crisis has only exacerbated the economic and investigatory challenges that arise from keeping a $15bn industry in the shadows.
“Congress should move swiftly to pass this common-sense legislation and provide relief to the many local cannabis businesses that are playing by the rules.”
Rachel Levine is nominated for assistant secretary of the HHS and, if confirmed, she will bring a wealth of medical cannabis policy expertise – an essential given the strong support medical cannabis enjoys in the new administration, with even Biden expressing support.
The American Trade Association of Cannabis and Hemp (ATACH) called her “a trailblazer who successfully guided the implementation of Pennsylvania’s medical cannabis program”. It added: “Pennsylvania is now one of the quickest growing and most consequential medical marijuana markets in the country in large part due to Dr Levine’s work.”
Federal policy on medical cannabis will be of concern to a broad swathe of the US population.
Under Levine, the Pennsylvania health department oversaw temporary changes to the state’s medical cannabis program in response to the coronavirus pandemic. That included eliminating restrictions on the number of patients a registered caregiver can work with.
“In the midst of Covid-19, we need to ensure medical marijuana patients have access to medication,” she said. “We want to be sure cardholders in the medical marijuana program can receive medication for one of 23 serious medical conditions during this difficult time.”
Presumably, Levine would carry that enthusiasm into her new role at the federal level.
While the HHS will play a major part in how the Biden administration handles the medical and scientific aspects of policy, the Department of Justice will play a critical role in cannabis and hemp are regulation and enforcement. The Biden nominee to head the department is Merrick Garland, a name familiar as a nominee to the Supreme Court by then president Barack Obama who was notoriously denied a hearing by then Senate majority leader Mitch McConnell.
Biden has tapped Garland to head a demoralised department ravaged by four years of attrition at all levels as well as unprecedented levels of partisanship. Garland has a reputation as a smart and fair-minded manager but has not made his views on cannabis issues specifically clear.
His judicial record indicates that he believes in deference to the Drug Enforcement Administration (DEA) when it comes to drug scheduling, a key aspect of how cannabis will be viewed by the federal government.
Some in the industry have criticised him for this approach and said it is overall a negative for the future of cannabinoid regulation.
The DEA, which resides within the Justice Department, has repeatedly maintained that cannabis should be kept as a Schedule I drug because, it claims, the plant has no proven medical value and a high-risk potential.
Garland’s ruling as an appellate court judge in a 2012 federal lawsuit case over the DEA’s denial of a marijuana rescheduling petition suggests he feels it is the appropriate agency to weigh cannabis science and set scheduling policy.
“Don’t we have to defer to the agency when it comes to evaluations of research into marijuana’s therapeutic value?” Garland asked the attorney representing reform group Americans for Safe Access. “Defer doesn’t mean they win. But defer in the sense of we’re not scientists – they are – to the definition of what is an adequate and well-controlled study.”
But these comments must be taken in context. Garland was asking this of an attorney as a judge during oral arguments. Using the term “deferring” in reference to a federal agency is slightly different to deferring in common parlance.
A judge’s job is to evaluate the evidence presented and determine the credibility and weight it should be given. As a judge evaluating evidence, it would be common to defer to experts presented on a scientific subject. The role of the head of the Justice Department, however, is very different, and Garland will be able to influence, if not dictate, the policies and positions taken by the DEA.
In essence, as head of the department under which the DEA is organised, the attorney general has considerable influence on the agency’s scheduling and enforcement policies. If confirmed, Garland would be in a position to essentially order a rescheduling of cannabis.
And there is stronger potential for reform by those working under him. One of his chief deputies at the Justice Department would be Vanita Gupta, a former prosecutor and civil rights activist, who favours cannabis legalisation and has strongly condemned harsh criminalisation policies for non-violent drug offences.
Gupta is currently president of the Leadership Conference on Civil and Human Rights (LCCHR), and has voiced support for a House-passed bill to federally legalise cannabis. She has also taken a firm stand against the injustices of the drug war.
Meanwhile, in agriculture, much positivity has already been accomplished in the area of hemp. Biden has nominated Tom Vilsack to return to his role as secretary of agriculture, a position he filled for all eight years of the Obama presidency.
It was under Vilsack’s stewardship of the US Department of Agriculture (UDSA) that the 2014 Farm Bill, which included the hemp pilot program, was passed.
Jonathan Miller of the US Hemp Roundtable called Vilsack a “long-time champion of hemp,” adding: “We are incredibly optimistic that he will help provide the leadership and clarity necessary to unlock opportunity in the hemp industry.”
Such a champion leaves open the small possibility of further positive revisions to the USDA final rule for hemp production.
The White House issued a memo at the end of January 2021 asking agencies to withdraw or pause any rules that have not yet been published in the Federal Register to give the incoming administration time to review them.
The USDA told CBD-Intel: “The new administration is taking the opportunity to review new and pending regulatory actions, including the final rule for the Domestic Hemp Production program, to ensure programs are structured and resourced appropriately and also to ensure programs are implemented to best serve their intended stakeholders. Once the review is complete, we will have more information we can share about the way forward for the rule.”
What This Means: Seemingly positive appointments all around, then. Even Merrick Garland’s nomination to head the Department of Justice can be considered a positive for most cannabinoids and even a likely positive for the recreational cannabis end of the market.
Significant medical cannabis and CBD support is likely from the HHS and while key appointments in the FDA and DEA have yet to be made, there is optimistic talk of federal cannabis legalisation during this legislative session.
That still remains in the outer realms of what can be realistically accomplished, but it is nonetheless a far cry from recent uncertainty and pessimism.
It looks like Joe Biden is on a pro-cannabis Democrat train whether he really wants to be or not.
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