Updated December 7, 2022
The Federal Status of Marijuana and the Expanding Policy Gap
with States
Marijuana is a psychoactive drug that generally consists of
level positions on marijuana include decriminalization
leaves and flowers of the cannabis sativa plant and is a
measures as well.
Schedule I controlled substance under the federal
Controlled Substances Act (CSA; P.L. 91-513). Because of
Medical Marijuana in States
that status, marijuana is strictly regulated by federal
In 1996, California became the first state to amend its drug
authorities. Despite such regulation, over the last several
laws to allow for the medicinal use of marijuana. As of
decades, most states and territories have deviated from a
December 1, 2022, 37 states, the District of Columbia
comprehensive prohibition of marijuana and have laws and
(DC), Puerto Rico, Guam, and the U.S. Virgin Islands have
policies allowing for some cultivation, sale, distribution,
comprehensive laws and policies allowing for the medicinal
and possession of marijuana.
use of marijuana. Ten additional states allow for “limited-
access medical cannabis,” which refers to low-THC
Marijuana is the most commonly used illicit drug in the
cannabis or cannabidiol (CBD) oil. Idaho, Kansas,
United States. According to data from the National Survey
Nebraska, and American Samoa do not allow for the use of
on Drug Use and Health, in 2020 an estimated 32.8 million
medical marijuana or low-THC cannabis.
individuals aged 12 or older used marijuana in the past
month. The percentage of past-month users gradually
The CSA does not recognize the distinction states are
increased from 2008 (6.1%) to 2020 (11.8%)—a time frame
making between the medical and recreational use of
during which a majority of states legalized marijuana in
marijuana. Marijuana’s continued classification as a
some form. The rate of past-month marijuana use among
Schedule I controlled substance reflects a finding from the
youth (aged 12-17) during this time period, however,
Drug Enforcement Administration (DEA) and Food and
declined—from 7.0% in 2008 to 6.5% in 2017 and 2018—
Drug Administration (FDA) that marijuana has a high
before rising to 7.4% in 2019 and then dropping to 5.9% in
potential for abuse and no currently accepted medical use in
2020, while adult (aged 18 and older) use steadily
the United States.
increased—from 6.3% in 2008 to 12.4% in 2020.
Recreational Marijuana in States
Marijuana Control Under Federal Law
Recreational marijuana legalization measures remove all
Due to its status as a Schedule I substance, the CSA
state-imposed penalties for specified activities involving
prohibits the manufacture, distribution, dispensation, and
marijuana. As of December 1, 2022, 21 states, DC, Guam,
possession of marijuana except for federal government-
and the Northern Mariana Islands have enacted measures to
approved research studies. While the CSA definition of
allow for the recreational use of marijuana. State
marijuana changed in 2018, which resulted in the removal
recreational marijuana initiatives have legalized the
of hemp (cannabis containing no more than a 0.3%
possession of specific quantities of marijuana by
concentration of delta-9-tetrahydrocannabinol [delta-9-
individuals aged 21 and over, and (with the exception of
THC]—the psychoactive component) from the definition of
DC and the states that only recently enacted these
marijuana, the status of marijuana as a Schedule I substance
measures) have set up state-administered regulatory
has remained unchanged for more than 50 years. For a
schemes for the sale of marijuana.
discussion of the history of marijuana control and a broader
discussion of current issues, see CRS Report R44782, The
Decriminalization
Evolution of Marijuana as a Controlled Substance and the
Since marijuana became a Schedule I controlled substance,
Federal-State Policy Gap.
many states and municipalities have decriminalized
marijuana. Marijuana decriminalization differs markedly
Marijuana use may subject an individual to a number of
from legalization. A state or municipality decriminalizes
consequences under federal law in addition to the penalties
conduct by removing the accompanying criminal penalties
for a conviction of a marijuana-related offense.
or by lowering them (e.g., making it a low-level
Consequences for marijuana use can include, but are not
misdemeanor with no possibility of jail time); however,
limited to, the inability to purchase and possess a firearm
civil penalties may remain (e.g., someone possessing
and being ineligible for federal housing, certain visas, and
marijuana can be issued a ticket with a fine).
federal employment and military service.
Marijuana as Medicine and Federal
State Cannabis Law and Policy Trends
Involvement
It is now increasingly common for states to have laws and
Under federal law, a drug must be approved by FDA before
policies allowing for medical and/or recreational use of
it may be marketed in the United States. To date, FDA has
marijuana—activities that violate the CSA. Evolving state-
not approved a marketing application for marijuana for the
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The Federal Status of Marijuana and the Expanding Policy Gap with States
treatment of any condition; however, FDA has approved
see CRS In Focus IF11373, Financial Services for
one marijuana-derived drug and three marijuana-related
Marijuana Businesses.
drugs that are available by prescription. Epidiolex, which
contains CBD as its active ingredient, is approved for the
Limiting Federal Enforcement in States: Directives
treatment of seizures associated with two rare and severe
through Federal Appropriations
forms of epilepsy. It is the first (and only) FDA-approved
In each fiscal year since FY2015, Congress has included
drug containing a purified drug substance derived from
provisions in appropriations acts that prohibit DOJ from
marijuana. Following its approval, DEA issued an order
using appropriated funds to prevent certain states,
placing FDA-approved drugs that contain cannabis-derived
territories, and DC from “implementing their own laws that
CBD with no more than 0.1% THC on Schedule V of the
authorize the use, distribution, possession, or cultivation of
CSA.
medical marijuana” (for the most recent provision, see the
Consolidated Appropriations Act, 2022, P.L. 117-103). On
FDA has also approved two drugs containing synthetic
its face, the appropriations rider bars DOJ from taking legal
THC (i.e., Marinol [and its generic versions] and Syndros)
action against the states directly in order to prevent them
and one drug containing a synthetic substance that is
from promulgating or enforcing medical marijuana laws. In
structurally similar to THC but not present in marijuana
addition, federal courts have interpreted the rider to prohibit
(i.e., Cesamet). These products are used to treat nausea and
certain federal prosecutions of private individuals or
vomiting caused by chemotherapy as well as loss of
organizations that produce, distribute, or possess marijuana
appetite for individuals with human immunodeficiency
in accordance with state medical marijuana laws.
virus (HIV). Additional drugs containing marijuana-derived
THC and CBD are reportedly being developed.
Select Issues for Congress
Given the current marijuana law and policy gap between
Federal Regulation of Marijuana Research
the federal government and most states, there are a number
The process for getting approval to conduct research with
of issues that Congress may address. These include, but are
marijuana involves both DEA and FDA. Before conducting
not limited to, marijuana’s designation as a Schedule I
research with marijuana, an investigator must obtain a DEA
controlled substance, financial services for marijuana
registration, FDA review of an investigational new drug
businesses, federal tax issues for these businesses, oversight
application (IND) or research protocol, and marijuana from
of federal law enforcement and its role in enforcing federal
a DEA-registered source.
marijuana laws, and states’ implementation of marijuana
laws. Congress has raised these issues in hearings, through
The Medical Marijuana and Cannabidiol Research
appropriations, and in bills introduced over the last decade.
Expansion Act (P.L. 117-215), among other things, imposes
new requirements on DEA to expedite registration for
In addressing state-level legalization efforts, Congress
marijuana researchers and requires the Department of
could take one of several routes. It could elect to take no
Health and Human Services to report on the therapeutic
action, thereby upholding the federal government’s current
potential of marijuana for various conditions such as
marijuana policy and enforcement priorities and allowing
epilepsy, as well as on marijuana’s effects on adolescent
states to carry on with implementation of recreational and
brains and on users’ ability to operate a motor vehicle.
medical marijuana laws. Or, it may decide that the CSA
must be enforced and push for federal law enforcement to
Federal Response to State Divergence
dismantle state medical and recreational marijuana
Although state laws do not affect the status of marijuana
programs. It could continue to take smaller steps, such as
under federal law or the ability of federal law enforcement
enacting appropriations provisions that temporarily restrict
to enforce it, state legalization initiatives have spurred a
DOJ’s ability to expend funds to enforce federal marijuana
number of questions regarding potential implications for
laws in states with medical marijuana programs, or altering
federal laws and policies, including federal drug regulation
the CSA definition of marijuana. Congress may also decide
and enforcement and banking for marijuana businesses.
to eliminate the gap altogether by de-controlling marijuana
Thus far, the federal response to states’ legalizing or
under the CSA and repealing associated criminal
decriminalizing marijuana largely has been to allow states
provisions. This option would largely eliminate the gap
to implement their own laws. The Department of Justice
with states that have authorized recreational and
(DOJ) has nonetheless reaffirmed that marijuana growth,
comprehensive medical marijuana. Whether Congress
possession, and trafficking remain crimes under federal law
decides to address the inconsistencies between state and
irrespective of states’ marijuana laws. Federal law
federal treatment or not, the states continue to act on
enforcement has generally focused its efforts on criminal
marijuana legalization, further expanding the policy gap.
networks involved in the illicit marijuana trade.
No state has reversed its legalization of either medical or
recreational marijuana at this time.
Federal banking regulators have yet to issue any formal
guidance in response to state and local marijuana
Lisa N. Sacco, Analyst in Illicit Drugs and Crime Policy
legalization efforts; however, in February 2014 the
Joanna R. Lampe, Legislative Attorney
Treasury Department’s Financial Crimes Enforcement
Hassan Z. Sheikh, Analyst in Public Health Emergency
Network issued guidance on financial institutions’
Management
suspicious activity report requirements when serving
marijuana businesses. For broader discussion of this issue,
IF12270
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The Federal Status of Marijuana and the Expanding Policy Gap with States


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https://crsreports.congress.gov | IF12270 · VERSION 2 · UPDATED

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