The Federal Status of Marijuana and the Policy Gap with States

The Federal Status of Marijuana and the Policy Gap with States

Updated May 2, 2024
The Federal Status of Marijuana and the 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 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 May
Marijuana is the most commonly used illicit drug in the
2, 2024, 38 states, the District of Columbia (DC), Puerto
United States. According to data from the National Survey
Rico, Guam, and the U.S. Virgin Islands have
on Drug Use and Health (NSDUH), in 2022, an estimated
comprehensive laws and policies allowing for the medicinal
61.9 million individuals aged 12 or older used marijuana in
use of marijuana. Nine additional states allow for “limited-
the past year, and 42.3 million reported using it in the past
access medical cannabis,” which refers to low-THC
month (NSDUH defines “current use” as past month use).
cannabis or CBD oil. Idaho, Kansas, Nebraska, and
The percentage of individuals 12 or older who reported
American Samoa do not allow for the use of medical
past-month marijuana use gradually increased from 6.1% in
marijuana or low-THC cannabis.
2008 to 15.0% in 2022—a time frame during which a
majority of states repealed state criminal prohibitions on
Current federal law does not recognize the distinction some
marijuana and allowed for its recreational and/or medical
states make between the medical and recreational uses of
use. The rate of past-month marijuana use among youth
marijuana. Marijuana’s classification as a Schedule I
(ages 12-17) has fluctuated during this time—it was 7.0%
controlled substance reflects a finding that marijuana has a
in 2008 and 6.4% in 2022, while adult (ages 18+) use
high potential for abuse and no currently accepted medical
steadily increased—from 6.3% in 2008 to 15.9% in 2022.
use in the United States. Moving marijuana from Schedule I
to Schedule III, without other legal changes, would not
Marijuana Control Under Federal Law
bring the state-legal recreational marijuana industry into
Due to its status as a Schedule I controlled substance,
compliance with the CSA. If marijuana were moved to
currently the CSA prohibits the manufacture, distribution,
Schedule III, it could theoretically be used for medical
dispensation, and possession of marijuana except in federal
purposes consistent with federal law. However, Schedule
government-approved research studies. The CSA definition
III controlled substances may only legally be dispensed
of marijuana was revised in 2018, with the removal of hemp
pursuant to a valid prescription and, as discussed below,
(cannabis containing no more than a 0.3% concentration of
marijuana is not currently a prescription drug approved by
the psychoactive compound delta-9-tetrahydrocannabinol
the Food and Drug Administration (FDA).
[delta-9-THC]) from the definition. Cannabidiol (CBD) is
derived from hemp or manufactured in a laboratory and is
Recreational Marijuana in States
not considered a controlled substance. In April 2024, the
Recreational marijuana legalization measures remove all
Drug Enforcement Administration (DEA) proposed to
state-imposed penalties for specified activities involving
move marijuana from Schedule I to Schedule III under the
marijuana. As of May 2, 2024, 24 states, DC, Guam, and
CSA. For a discussion of the legal consequences of
the Northern Mariana Islands have enacted laws allowing
rescheduling marijuana to Schedule III, see CRS Legal
for the recreational use of marijuana. State recreational
Sidebar LSB11105, Legal Consequences of Rescheduling
marijuana initiatives have legalized the possession of
Marijuana.
specific quantities of marijuana by individuals aged 21 and
over, and (with the exception of DC and the states that only
Marijuana use may subject an individual to a number of
recently enacted these measures) established state-
consequences under federal law in addition to the penalties
administered regulatory schemes for the sale of marijuana.
for a conviction of a marijuana-related offense.
Activities related to recreational marijuana are illegal under
Consequences for marijuana use can include, but are not
the CSA and would remain so if marijuana moves to
limited to, the inability to purchase and possess a firearm
Schedule III.
and being ineligible for federal housing, certain visas, and
federal employment and military service.
Decriminalization
Over the last 50 years, many states and municipalities have
decriminalized marijuana. Marijuana decriminalization
differs markedly from legalization. A state or municipality
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The Federal Status of Marijuana and the Policy Gap with States
decriminalizes conduct by removing the accompanying
Federal banking regulators have yet to issue any formal
criminal penalties or by lowering them (e.g., making
guidance in response to state and local marijuana
covered conduct a low-level misdemeanor with no
legalization efforts; however, in February 2014 the
possibility of jail time). Civil penalties may remain (e.g.,
Treasury Department’s Financial Crimes Enforcement
someone possessing marijuana may receive a ticket with a
Network issued guidance on financial institutions’
fine).
suspicious activity report requirements when serving
marijuana businesses. For broader discussion of this issue,
Marijuana as Medicine and Federal
see CRS Legal Sidebar LSB11076, Marijuana Banking:
Involvement
Legal Issues and the SAFE(R) Banking Acts.
Under federal law, a drug must be approved by FDA before
it may be marketed or prescribed in the United States. To
Limiting Federal Enforcement in States: Directives
date, FDA has not approved a marketing application for
Through Federal Appropriations
marijuana for the treatment of any condition (as it remains a
In each fiscal year since FY2015, Congress has included
Schedule I substance); however, FDA has approved one
provisions in appropriations acts that prohibit DOJ from
cannabis-derived drug and three marijuana-related drugs
using appropriated funds to prevent certain states,
that are available by prescription. Epidiolex, which contains
territories, and DC from “implementing their own laws that
CBD as its active ingredient, is approved for the treatment
authorize the use, distribution, possession, or cultivation of
of seizures associated with two rare and severe forms of
medical marijuana” (for the most recent provision, see the
epilepsy.
Consolidated Appropriations Act, 2024, P.L. 118-42). On
its face, the appropriations rider bars DOJ from taking legal
FDA has also approved two drugs containing synthetic
action against the states directly in order to prevent them
THC (Marinol [and its generic versions] and Syndros) and
from promulgating or enforcing medical marijuana laws.
one drug containing a synthetic substance that is
(However, it poses no bar to federal prosecution of
structurally similar to THC but not present in marijuana
activities involving recreational marijuana.) In addition,
(Cesamet). These products are used to treat nausea and
federal courts have interpreted the rider to prohibit certain
vomiting caused by chemotherapy as well as loss of
federal prosecutions of private individuals or organizations
appetite for individuals with human immunodeficiency
that produce, distribute, or possess marijuana in accordance
virus (HIV). Additional drugs containing marijuana-derived
with state medical marijuana laws.
THC and CBD are reportedly being developed.
Selected Issues for Congress
Federal Regulation of Marijuana Research
Given the current marijuana law and policy gap between
The process for getting approval to conduct research with
the federal government and most states, there are a number
marijuana involves both DEA and FDA. Before conducting
of issues that Congress may address. These topics include,
research with marijuana, an investigator must obtain a DEA
but are not limited to, marijuana’s designation under the
registration, FDA review of an investigational new drug
CSA, financial services for marijuana businesses, federal
application (IND) or research protocol, and marijuana from
tax issues for these businesses, oversight of federal law
a DEA-registered source.
enforcement and its role in enforcing federal marijuana
laws, and states’ implementation of marijuana laws.
The Medical Marijuana and Cannabidiol Research
Congress has raised these issues in hearings, through
Expansion Act (P.L. 117-215), among other things,
appropriations, and in bills introduced over the last decade.
imposed 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 several routes. It could take no action, in which
potential of marijuana for various conditions such as
case it appears likely DEA will move marijuana from
epilepsy, as well as on marijuana’s effects on adolescent
Schedule I to Schedule III. Congress could also enact
brains and on users’ ability to operate a motor vehicle.
marijuana legislation before or after DEA acts on
rescheduling. Such legislation might take the form of more
Federal Response to State Divergence
or less stringent marijuana control, ranging from pushing
Although state laws do not affect the status of marijuana
for federal law enforcement to dismantle state medical and
under federal law or the ability of the federal government to
recreational marijuana programs to limiting federal
enforce it, state legalization initiatives have spurred a
marijuana regulation through means such as appropriations
number of questions regarding potential implications for
provisions, to rescheduling or de-controlling marijuana
federal laws and policies, including federal drug regulation,
under the CSA. This last option would largely eliminate the
and access to banking and other services for marijuana
gap with states that have authorized recreational and
businesses. Thus far, the federal response to states’
comprehensive medical marijuana. As Congress considers
legalizing marijuana largely has been to allow states to
these questions, states may continue to act on marijuana
implement their own laws. The Department of Justice
legalization. No state has reversed its legalization of either
(DOJ) has nonetheless reaffirmed that marijuana growth,
medical or recreational marijuana at this time.
possession, and trafficking remain crimes under federal law
irrespective of states’ marijuana laws. Federal law
Lisa N. Sacco, Analyst in Illicit Drugs and Crime Policy
enforcement has generally focused its efforts on criminal
Joanna R. Lampe, Legislative Attorney
networks involved in the illicit marijuana trade.
Hassan Z. Sheikh, Analyst in Health Policy
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The Federal Status of Marijuana and the Policy Gap with States

IF12270

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