Updated March 6, 2023
The Federal Status of Marijuana and the Expanding Policy Gap
with States
Marijuana is a psychoactive drug that generally consists of
State Cannabis Law and Policy Trends
leaves and flowers of the cannabis sativa plant. Marijuana is
It is increasingly common for states to have laws and
a Schedule I controlled substance under the federal
policies allowing for medical and/or recreational use of
Controlled Substances Act (CSA; 21 U.S.C. §801 et seq.),
marijuana—activities that violate the CSA. Evolving state-
and thus is strictly regulated by federal authorities. In
level policies on marijuana also include decriminalization
contrast, over the last several decades, most states and
measures.
territories have deviated from a comprehensive prohibition
of marijuana and have laws and policies allowing for some
Medical Marijuana in States
cultivation, sale, distribution, and possession of marijuana.
In 1996, California became the first state to amend its drug
laws to allow for the medicinal use of marijuana. As of
Marijuana is the most commonly used illicit drug in the
March 1, 2023, 37 states, the District of Columbia (DC),
United States. According to data from the National Survey
Puerto Rico, Guam, and the U.S. Virgin Islands have
on Drug Use and Health, in 2021, an estimated 36.4 million
comprehensive laws and policies allowing for the medicinal
individuals aged 12 or older used marijuana in the past
use of marijuana. Ten additional states allow for “limited-
month. The percentage of individuals 12 or older who
access medical cannabis,” which refers to low-THC
reported using marijuana in the past month gradually
cannabis or cannabidiol (CBD) oil. Idaho, Kansas,
increased from 6.1% in 2008 to 13.0% in 2021—a time
Nebraska, and American Samoa do not allow for the use of
frame during which a majority of states repealed state
medical marijuana or low-THC cannabis.
criminal prohibitions on marijuana and allowed for its
recreational and/or medical use. The rate of past-month
The CSA does not recognize the distinction states are
marijuana use among youth (ages 12-17) initially declined
making between the medical and recreational use of
during this time period—from 7.0% in 2008 to 6.5% in
marijuana. Congress initially placed marijuana in Schedule
2017 and 2018—before rising to 7.4% in 2019 and then
I when it enacted the CSA in 1970. Marijuana’s continued
dropping to 5.8% in 2021, while adult (ages 18 and older)
classification as a Schedule I controlled substance reflects a
use steadily increased—from 6.3% in 2008 to 13.7% in
finding from the Drug Enforcement Administration (DEA)
2021.
and Food and Drug Administration (FDA) that marijuana
has a high potential for abuse and no currently accepted
Marijuana Control Under Federal Law
medical use in the United States.
Due to its status as a Schedule I controlled substance, the
CSA prohibits the manufacture, distribution, dispensation,
Recreational Marijuana in States
and possession of marijuana except in federal government-
Recreational marijuana legalization measures remove all
approved research studies. The CSA definition of marijuana
state-imposed penalties for specified activities involving
changed in 2018, with the removal of hemp (cannabis
marijuana. As of March 1, 2023, 21 states, DC, Guam, and
containing no more than a 0.3% concentration of delta-9-
the Northern Mariana Islands have enacted laws allowing
tetrahydrocannabinol [delta-9-THC]—the psychoactive
the recreational use of marijuana. State recreational
component) from the definition. Otherwise, the status of
marijuana initiatives have legalized the possession of
marijuana as a Schedule I substance has remained
specific quantities of marijuana by individuals aged 21 and
unchanged for more than 50 years. For an overview of the
over, and (with the exception of DC and the states that only
history of marijuana control and a broader discussion of
recently enacted these measures) established state-
current issues, see CRS Report R44782, The Evolution of
administered regulatory schemes for the sale of marijuana.
Marijuana as a Controlled Substance and the Federal-State
Policy Gap.
Decriminalization
Over the last 50 years, many states and municipalities have
Marijuana use may subject an individual to a number of
decriminalized marijuana. Marijuana decriminalization
consequences under federal law in addition to the penalties
differs markedly from legalization. A state or municipality
for a conviction of a marijuana-related offense.
decriminalizes conduct by removing the accompanying
Consequences for marijuana use can include, but are not
criminal penalties or by lowering them (e.g., making
limited to, the inability to purchase and possess a firearm
covered conduct a low-level misdemeanor with no
and being ineligible for federal housing, certain visas, and
possibility of jail time); however, civil penalties may
federal employment and military service.
remain (e.g., someone possessing marijuana may receive a
ticket with a fine).
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The Federal Status of Marijuana and the Expanding Policy Gap with States
Marijuana as Medicine and Federal
see CRS In Focus IF11373, Financial Services for
Involvement
Marijuana Businesses.
Under federal law, a drug must be approved by FDA before
it may be marketed in the United States. To date, FDA has
Limiting Federal Enforcement in States: Directives
not approved a marketing application for marijuana for the
through Federal Appropriations
treatment of any condition; however, FDA has approved
In each fiscal year since FY2015, Congress has included
one marijuana-derived drug and three marijuana-related
provisions in appropriations acts that prohibit DOJ from
drugs that are available by prescription. Epidiolex, which
using appropriated funds to prevent certain states,
contains CBD as its active ingredient, is approved for the
territories, and DC from “implementing their own laws that
treatment of seizures associated with two rare and severe
authorize the use, distribution, possession, or cultivation of
forms of epilepsy.
medical marijuana” (for the most recent provision, see the
Consolidated Appropriations Act, 2023 [P.L. 117-328]). On
FDA has also approved two drugs containing synthetic
its face, the appropriations rider bars DOJ from taking legal
THC (Marinol [and its generic versions] and Syndros) and
action against the states directly in order to prevent them
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
(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.
Selected 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 topics include,
marijuana involves both DEA and FDA. Before conducting
but are not limited to, marijuana’s designation as a
research with marijuana, an investigator must obtain a DEA
Schedule I controlled substance, financial services for
registration, FDA review of an investigational new drug
marijuana businesses, federal tax issues for these
application (IND) or research protocol, and marijuana from
businesses, oversight of federal law enforcement and its
a DEA-registered source.
role in enforcing federal marijuana laws, and states’
implementation of marijuana laws. Congress has raised
The Medical Marijuana and Cannabidiol Research
these issues in hearings, through appropriations, and in bills
Expansion Act (P.L. 117-215), among other things, imposes
introduced over the last decade.
new requirements on DEA to expedite registration for
marijuana researchers and requires the Department of
In addressing state-level legalization efforts, Congress
Health and Human Services to report on the therapeutic
could take one of several routes. It could elect to take no
potential of marijuana for various conditions such as
action, thereby maintaining the federal government’s
epilepsy, as well as on marijuana’s effects on adolescent
current marijuana policy and enforcement priorities and
brains and on users’ ability to operate a motor vehicle.
allowing states to carry on with implementation of
recreational and medical marijuana laws. In the alternative,
Federal Response to State Divergence
Congress could decide that the CSA must be enforced and
Although state laws do not affect the status of marijuana
push for federal law enforcement to dismantle state medical
under federal law or the ability of the federal government to
and recreational marijuana programs. Or, it could continue
enforce it, state legalization initiatives have spurred a
to take smaller steps, such as enacting appropriations
number of questions regarding potential implications for
provisions that temporarily restrict DOJ’s ability to expend
federal laws and policies, including federal drug regulation,
funds to enforce federal marijuana laws in states with
and access to banking and other services for marijuana
medical marijuana programs, or altering the CSA definition
businesses. Thus far, the federal response to states’
of marijuana. Congress may also decide to eliminate the
legalizing or decriminalizing marijuana largely has been to
gap altogether by de-controlling marijuana under the CSA
allow states to implement their own laws. The Department
and repealing associated criminal provisions. This option
of Justice (DOJ) has nonetheless reaffirmed that marijuana
would largely eliminate the gap with states that have
growth, possession, and trafficking remain crimes under
authorized recreational and comprehensive medical
federal law irrespective of states’ marijuana laws. Federal
marijuana. As Congress considers these questions, the
law enforcement has generally focused its efforts on
states continue to act on marijuana legalization, further
criminal networks involved in the illicit marijuana trade.
expanding the policy gap. No state has reversed its
legalization of either medical or recreational marijuana at
Federal banking regulators have yet to issue any formal
this time.
guidance in response to state and local marijuana
legalization efforts; however, in February 2014 the
Lisa N. Sacco, Analyst in Illicit Drugs and Crime Policy
Treasury Department’s Financial Crimes Enforcement
Joanna R. Lampe, Legislative Attorney
Network issued guidance on financial institutions’
Hassan Z. Sheikh, Analyst in Health Policy
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 5 · UPDATED

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