(Editor’s note: This story is part of a recurring series of commentaries from professionals connected to the cannabis industry. Andrew Freedman is executive director of the Coalition for Cannabis Policy, Education, and Regulation. Shanita Penny is an adviser to the Coalition for Cannabis Policy, Education, and Regulation and a member of its Center of Excellence.)
Around 140 million Americans live in states with regulated adult-use cannabis.
An increasingly bipartisan majority of voters support legalization, and in 2020 alone, voters approved ballot measures for adult-use cannabis in five states.
States from California to Missouri have already answered the question of if we should legalize cannabis.
Cannabis legalization is a standard conversation topic for state governments looking for new revenue streams, representing a monumental shift in how our society feels about cannabis.
But as states forge ahead, federal action has been absent. We must now turn our attention to answering how to regulate legalized cannabis at the federal level.
Crafting a federal framework
A comprehensive federal framework that adequately protects public safety, upholds public health and prevents youth use would provide the harmonization that is missing from today’s state patchwork of cannabis policy.
We have seen firsthand how hard state regulators have worked to create first-in-the-world cannabis regulatory systems.
We can attest to the great work done by communities, legislators and state employees who want to carry out the will of the voters in a manner that protects public health, maintains public safety and provides economic opportunity to communities most hurt by the war on drugs.
But we can also attest to the fact that without comprehensive federal cannabis reform, states will be significantly hampered in their attempts to achieve these goals.
Some in the U.S. Senate have already committed to comprehensive cannabis reform, and with a new administration and Congress, it’s time policymakers in Washington DC approach a public-policy solution that centers on science and data to create space for an equitable and safe industry.
Previous attempts at federal legalization have largely centered on addressing a single aspect of cannabis policy.
As such, those efforts have not secured the comprehensive support necessary to advance from a bill to a law.
Often, the proposals were criticized for not thoroughly answering critical questions on issues such as preventing youth access, state preemption, social equity and criminal justice reform.
While there is bipartisan support from voters for legalization, some policymakers still have concerns.
With cannabis legalization a reality for more and more Americans across red and blue states, Congress must move beyond symbolic and limited efforts and fully address legalization.
Continued state-by-state expansion without federal oversight and coordination creates intractable problems for consumers, patients, regulators, law enforcement and the public.
Fifty states with 50 different rules for cannabis means no standardization on critical issues such as product format, testing, taxation, driving under the influence or workplace safety.
It risks a regulatory race to the bottom, will not eliminate the illicit market and will not properly protect public safety and public health.
Use existing federal regulatory agencies
A federal regulatory framework for legal cannabis should build on existing regulatory channels when it makes sense and innovate to meet the needs of a regulated cannabis market where necessary.
Because so much of regulation relies on state and local enforcement, we should look to utilize and respect state regulatory systems to the furthest extent possible.
Similarly, three primary pathways make sense for regulation at the federal level.
Products with a significant amount of THC or other intoxicating cannabinoids ought to be regulated in a manner consistent with other highly regulated substances such as alcohol.
Another preexisting regulatory pathway exists for dietary supplements, which should be applied to products without significant levels of intoxicating cannabinoids.
If a cannabis product makes medical or health claims, the traditional pathway for regulation should be through the U.S. Food and Drug Administration.
Across these pathways, multiple departments often are involved, ranging from the U.S. Department of Agriculture to the Environmental Protection Agency and the Bureau of Alcohol, Tobacco, Firearms and Explosives to the Alcohol and Tobacco Tax and Trade Bureau.
The goal should not be to create an entirely new bureaucracy but, rather, to encourage good governance via experienced regulatory institutions that can safeguard public health.
To create a safe and equitable cannabis industry across the United States, a federal legalization framework must be realized.
Input from alcohol and tobacco companies
Gaining the bipartisan support necessary to pass such a framework will require input from a diverse array of stakeholders.
While the cannabis industry has matured greatly in its advocacy to end the federal prohibition, building a comprehensive framework that answers the tough questions facing lawmakers navigating this discussion necessitates a broader swath of voices.
The specter of highly regulated businesses, including alcohol and tobacco, getting involved in the cannabis industry has caused plenty of anxiety among grassroots organizers.
Some of this concern is warranted. Fear over the conglomerate takeover of an industry is not unique to the cannabis space.
But we should not let alarmism bias us against the fact that highly regulated businesses bring a lot of experience to the table in terms of regulatory compliance, product safety and reliability as well as job creation.
There is only one piece to this complicated puzzle, but advocates, activists and regulators alike should acknowledge that the puzzle will be incomplete without them.
There is room in the cannabis industry for everyone. Craft spirits and microbreweries are flourishing across the United States alongside flagship spirit and beer companies with household names.
To succeed, a federal cannabis framework will need to foster a symbiotic relationship between multinational corporations and mom-and-pop operations.
An evidence-based approach
Beyond the cannabis industry and regulated businesses, there are plenty of independent issue experts who can help provide an evidence-based approach to legalization that would help get the federal government on board while tackling tricky issues such as impaired driving and criminal justice reform.
And, quite frankly, the federal government must get involved as soon as possible.
Federal agencies need to be involved to ensure product safety, proper health-claim marketing and rigorous regulatory oversight.
Federal agencies need sufficient resources derived from cannabis tax revenue to enforce regulations in a fair way across the country.
Any federal law needs to represent significant progress on criminal justice and minority economic development programs such as access to expungement, significant policy changes to increase minority-owned business access to capital and reinvestment in people and communities most harmed by cannabis criminalization.
These are not easy things to accomplish, but bringing all voices to the table to address these problems is the only way to establish a federal framework that truly protects the public and cannabis consumers.
2021 can be the year when we finally answer the tough questions on federal cannabis legalization.
Andrew Freedman is executive director of the Washington DC-based Coalition for Cannabis Policy, Education, and Regulation. He was Colorado’s first director of marijuana coordination when the state became the first in the nation to legalize adult- and medical-use cannabis and has helped more than a dozen governments implement new cannabis laws. He can be reached at Andrew@CPEAR.org.
Shanita Penny is an adviser to the Coalition for Cannabis Policy, Education, and Regulation and a member of its Center of Excellence. She is the founder and principal of Baltimore-based Budding Solutions and a former president of the Minority Cannabis Business Association. She can be reached at Shanita@CPEAR.org.
The previous installment of this series is available here.
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