SSDP submits comments on Cannabis Administration and Opportunity Act

September 1, 2021

The Honorable Cory Booker

The Honorable Ron Wyden

The Honorable Chuck Schumer

Attn: Cannabis Administration and Opportunity Act Sponsoring Offices

United States Senate 

Washington, D.C. 20515

Submitted via email to Cannabis_Reform@finance.senate.gov.

RE: Cannabis Administration and Opportunity Act — Students for Sensible Drug Policy: U.S. Policy Council Comments

Dear Senators Booker, Wyden, and Schumer:

On behalf of Students for Sensible Drug Policy (SSDP), we thank you for the opportunity to comment on the discussion draft of the Cannabis Administration and Opportunity Act (CAOA) as published on the Senate Democrats website on July 14, 2021. SSDP represents over 100 chapters in the United States spanning 39 states. We are led by and composed of students and youth, many of whom have been directly impacted by the War on Drugs through arrest and incarceration. Below you will find SSDP’s major comments summarized, followed by a series of areas of concern SSDP requests the sponsoring offices maintain awareness of.

Decade after decade, the War on Drugs has inflicted incalculable harm on marginalized communities — particularly communities of color. This war weaponized cannabis over the last 50 years with disgustingly successful results. In 2015, there was one cannabis arrest every 50 seconds, and despite almost equal rates of use across race, arrests were overwhelmingly targeted towards Black and brown communities. More than 1,800 people a day are arrested for cannabis, with Black Americans arrested at 3.6 times the rate of their white counterparts, despite similar use rates. Even though most arrests happen at the state level, the biggest obstacle to state level cannabis reform is federal prohibition. While fueling the public health crisis of mass incarceration, marijuana prohibition targeted the foundation of those communities, leaving countless youth without guidance, an incalculable amount of economic loss, and millions of families suffering the loss of loved ones. The time has long since past to put this nightmare to an end.

SSDP and its members know that sensible cannabis reform necessitates legislation which not only immediately prevents further harm, but also repairs harms caused by federal marijuna prohibition — from individuals to communities, across institutions and nations. To that end, SSDP recommends:

On Youth Access

As a youth-centered, sensible drug policy organization, SSDP firmly believes in harm reduction. We find that harm reduction does not — under any circumstances — involve criminalization for simple drug possession, and therefore strongly support the CAOA in not criminalizing cannabis for persons under the age of 21. National Institute on Drug Abuse (NIDA) Director Nora Volkow stated recently that “she was expecting the use of marijuana among adolescents would go up when states moved to legalize cannabis, but admitted that “overall, it hasn’t.” Study after study has shown that youth use rates have either decreased or held steady following state legalization of cannabis.

SSDP finds the over-21 year old age requirements in current U.S. cannabis laws and the draft version of CAOA are based on an arbitrary standard, and the organization encourages Congress to look at other countries with lower ages of legal adult-use purchasing age (such as Canada, with its 18 year old requirement). However, given that these laws are a standard feature at this point, SSDP urges Congress not to impose a similar age requirement on working in the industry. Allowing persons under 21 to work in the cannabis industry in areas that do not directly touch the plant (for example, administrative positions) can allow for career paths to be explored while gaining valuable work experience.

On Funding and Facilitation of Cannabis Research

Due to the manifest misclassification of cannabis into Schedule I of the Controlled Substances Act (CSA), cannabis-related research has been significantly limited. Currently, in order to research cannabis, a researcher must first obtain approval from the DEA and FDA and then procure cannabis only from federally-approved production facilities through the National Institute on Drug Abuse (NIDA). This arduous and highly-restrictive process poses a significant barrier to productive research into cannabis and its effects on humans.

Accordingly, SSDP recommends the removal of cannabis from the CSA and applauds the sponsoring offices directives to the Comptroller General, Department of Health and Human Services (HHS) and Department of Transportation for research into societal metrics which may be impacted by legalization, human impact of cannabis, and traffic-related cannabis incidents respectively. Rescheduling cannabis elsewhere in the CSA would continue to impose unnecessary burdens on researchers; therefore, removal from the CSA is essential for any legislation that truly seeks to advance the clinical knowledge base around cannabis.

SSDP, being an organization that promotes harm reduction and drug education, also supports the Centers for Disease Control and Prevention (CDC) advancing the study of public health prevention strategies. The NIH may consider utilizing tax revenue from cannabis sales to fund grant opportunities modeled after programs such as the Howard Hughes Medical Institute Gilliam Fellowship. Such programs will allow underrepresented minority groups and/or those affected by the War on Drugs access to fellowship funding for their respective cannabinoid research. 

On Opportunities to Expand Restorative Justice and Access to Capital for Disadvantaged Entrepreneurs

Nobody should be incarcerated for personal possession or use of cannabis. While the CAOA automatically expunges federal non-violent marijuana crimes, it fails to account for the wide-ranging set of circumstances for which a violent crime enhancement could be added to a marijuana charge. For example, many people have been convicted for marijuana with a related charge of weapons possession, despite there being no evidence of actual violent conduct on the part of the convicted individual. Such broad application of the violent crime standard makes it incompatible with legislation that purports to repair the harms of the War on Drugs.

Therefore, SSDP strongly urges the sponsoring offices to remove the “non-violent” language from it’s bill. In addition, the CAOA allows an individual currently serving time in federal prison for non-violent marijuana crimes to petition a court for resentencing. 

SSDP applauds the recognition that people should not be incarcerated for cannabis, and urges the sponsoring offices to provide avenues for funding and resources for assistance to incarcerated individuals during the petition process.

In the spirit of restoring the lives of those incarcerated for cannabis, funding from the Community Reinvestment Grant Program should be able to be used for housing and employment for people reentering from incarceration. Oftentimes, jobs and housing are conditions of release and failing to provide housing and employment for individuals returning from incarceration is essential to making sure they have the support necessary to remain part of the community.

Furthermore, SSDP urges the Congressional leaders to coordinate with indigenous communities to ensure any federal cannabis reforms do not inhibit progress made at the tribal level and ensure funding opportunities are available to these communities.

On Defining Cannabis and Federal Agency Responsibilities in Relation to Cannabis

Against expert scientific advice from it’s own administration, the Nixon Administration labeled cannabis a Schedule I substance, deeming it to have no medical use and a high potential for abuse. SSDP commends the sponsoring offices for the recognition that such a definition was a gross repudiation of established scientific evidence. Further, Marinol, synthetic Δ-9-Tetrahydrocannabinol, has been approved by the FDA since 1985 as a Schedule III drug, for the treatment of nausea and vomiting, as well as appetite loss in cancer and HIV patients. In 2018, the FDA approved Epidiolex, which contains Cannabidiol (CBD), for treatment of Lennox-Gastaut syndrome and Dravet syndrome. These approvals indicate the FDA has acknowledged the therapeutic potential and benefits of cannabinoids, in stark contrast with the DEA’s position.

Due to a history of overly punitive punishments, universities throughout the country have refused to reduce penalties due to a fear of losing federal funding for violating the Drug Free Schools and Communities Act. While it is our opinion that reducing penalties would not and could not jeopardize federal funding, we ask that the sponsoring offices clarify for the Department of Education that universities who receive federal funding will be encouraged to change their penalties to be more in line with the goals of undoing the damage done by the War on Drugs on our youth and transitioning to a post cannabis prohibition student code of conduct.

On Expansion of the Opportunity Trust Fund Programs

A pivotal pillar of restorative cannabis justice is reinvestment into the people and communities most directly impacted by federal cannabis prohibition. The CAOA creates one grant and two programs to help address this: the Community Reinvestment Grant Program, administered by a newly established Cannabis Justice Office within the Office of Justice Programs at the Department of Justice; and the Cannabis Opportunity Program and Equitable Licensing Grant Program, administered by the Small Business Association (SBA). SSDP lauds this move towards helping mend the malfeasance of federal marijuana prohibition. 

On the Cannabis Opportunity Program and Equitable Licensing Grant Program, SSDP strongly urges that individuals directly impacted by federal marijuana prohibition, including individuals who were incarcerated, their immediate family and dependents be granted priority. 

On Tax Status of Medical Marijuana

A consistent theme of medicine sales throughout many states including Colorado and Texas exempt prescription drugs from sales tax. Furthermore, several states, including Texas, Conneticicut, and South Carolina have exempted over-the-counter medicines from sales tax as well. It has been estimated that there are approximately 5.4 million medical marijuana patients in the USA. Therefore, it is necessary to ensure that medical marijuana patients are exempt from taxes related to their medical cannabis expenses to maintain consistency with other medicines. At a minimum, patients should be able to deduct their medical cannabis expenses from their income taxes. Additionally, Congress should consider providing coverage for medical cannabis expenses through Medicare and Medicaid. 

On Reducing Barriers to Entry into the Legal Cannabis industry

Explicitly allow states to maintain their home cultivation laws and maintain the provisions in the draft version of CAOA that do not subject home cultivation to taxation or fees. In addition to strong protections on the right to grow at home, we also suggest the following;

  • Eliminate any criminal history barriers (with an exception for financial crimes or fraud) to employment and ownership 
  • Limit license fees to $1,000 for any operational license needed to begin operations
  • The draft version of CAOA wisely includes a 50% reduced tax rate on the first $20M of revenue. To better help small businesses, either lower the rate to 25% of the full tax rate for the first $20M, or, include an additional tier for a further 50% reduction for the first $10M of sales. Lower tax rates for small businesses will be essential for the success of “micro” and “craft cultivator” licenses that are emerging in state cannabis programs. 
  • Prohibit requiring real estate or excess capital as a licensing requirement. 
  • Prevent large multi-state operators and traditional Big Tobacco, Big Alcohol, and Big Retail from having outsized control of the cannabis market by limiting participation from these entities. This may be accomplished through a number of potential avenues, such as limiting the total cultivation canopy any corporation (or its subsidiaries) may own or control, exploring the use of existing federal antitrust laws and regulations, preventing tobacco and alcohol retailers from selling cannabis, and other novel approaches. 
    • Failure to proactively limit large corporations from dominating the market will result in these entities overtaking large segments of the cannabis economy and will destroy many of the economic opportunities that are being created for social equity entrepreneurs and other small business owners seeking to enter and thrive in this market.
    • One approach Congress should consider is authorizing states to limit interstate commerce such that small and medium-sized cultivators and producers can access every legal state cannabis market while at the same time preventing large corporations from dominating the market. We encourage the sponsoring offices to reach out to the Parabola Center for a pathway on how to do this effectively and legally. 
    • Notably, the 95%-100% rate of ID-check and underage sale refusal at regulated cannabis retailers is superior to both alcohol (~65%) and tobacco (~90%). This means requiring cannabis to be sold in dedicated stores could have the dual benefit of preventing underage access while also preventing Big Retail from destroying economic opportunities for social equity entrepreneurs and other small retail operations.

On Environmental and Labor Considerations

Any federal oversight of the industry should include input from the Environmental Protection Agency to ensure that cannabis production and distribution is done so in an environmentally responsible manner. Congress should provide tax incentives and grants for cannabis businesses (particularly small businesses) to reduce or offset carbon emissions and other potentially adverse environmental considerations. 

While outdoor cultivation is the least energy intensive way to produce cannabis, outdoor agriculture working conditions tend to be harsher and with fewer benefits than similar positions in greenhouse facilities. Good environmental policy must not come at the expense of subjecting workers to more exploitative conditions. Therefore, worker protections are an essential part of the dialog around environmentally appropriate cannabis production. We urge the sponsoring senators to coordinate with labor organizations, such as United Food and Commercial Workers, to ensure the balance is met.