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December 8, 2022

Cannabis State-of-Play

Advisory

Introduction

Almost as rapidly as federal prohibitions on the sale and use of cannabis took hold in the United States in the mid-20th century, culminating in adoption of the Controlled Substances Act of 1970 (CSA) and the inclusion of “marijuana” in Schedule I, the country has seen increasingly liberalized laws at the state level during the early 21st century.

Thirty-seven states now allow the medicinal use of cannabis and, with passage of ballot measures in Maryland and Missouri this November, twenty-one states and the District of Columbia have legalized cannabis for adult recreational use, driven by rapidly growing acceptance of cannabis use for medicinal and recreational purposes. Today, nearly half of all Americans live where it is legal — at least at the state level — to consume marijuana, and, as of last year, over five million Americans had registered as medical marijuana patients in those states, territories, and the District of Columbia where medical use is legal. Recent polling conducted by Gallup indicates that a record-high 68% of Americans support marijuana legalization, and such support is robust across nearly all demographic groups.

As state laws have liberalized, Congress has increasingly turned its attention to the challenges faced by the industry. This advisory documents the remarkable increase and diversity of cannabis-related legislation introduced in the 117th Congress. Thirty-six bills were introduced in the House and twelve in the Senate; four passed in the House. In the Senate, a trio of influential Democratic members introduced omnibus legislation, the Cannabis Administration and Opportunity Act (CAOA, S. 4591), to reform cannabis policy across the board. On November 16, Congress sent President Biden the first stand-alone cannabis reform bill to pass both chambers, the Medical Marijuana and Cannabidiol Research Expansion Act (H.R. 8454). We explore the implications of H.R. 8454 on cannabis research in a separate advisory. Many of these bills will not become law on their own, but each illustrates policy choices under active consideration by Congress, and each plays a role in informing the nature of Congress’s eventual legalization of cannabis.

Lame Duck Spotlight

Following the midterm elections, the Republican victory in the House motivated Democratic proponents of cannabis banking to finalize the legislation in the few remaining weeks of session. Early this year, and for its seventh time, Rep. Ed Perlmutter’s (D-CO) Secure and Fair Enforcement (SAFE) Banking Act (H.R. 1996) was included in the House-passed Fiscal Year 2023 National Defense Authorization Act (FY 2023 NDAA). The provisions, however, were not included in the final House-Senate compromise of the FY 2023 NDAA.

While the cannabis advocacy community is generally supportive of the SAFE Banking Act itself, advocates remain concerned that passage of the bill without related social justice and economic development incentives will continue to disadvantage communities hit hard by the war on drugs, even as economic opportunities around cannabis expand. As a result, leading cannabis reformers in the House, such as Reps. Earl Blumenauer (D-OR), Ed Perlmutter (D-CO), and David Joyce (R-OH) and the Senate, such as Sens. Cory Booker (D-NJ), Steve Daines (R-MT), Ron Wyden (D-OR), and Chuck Schumer (D-NY) attempted to craft a path forward that would join the SAFE Banking Act to other provisions, including expungement of certain criminal convictions and prohibiting certain firearm licensing restrictions. This effort, however, was unsuccessful in attaching the measure to the FY 2023 NDAA. It is possible, though unlikely, that these provisions could be attached to any end-of-year omnibus package.

Relevant Legislation

Below is a list of legislation related to cannabis and CBD introduced by the 117th Congress. It reflects legislative efforts from members across the political spectrum and from districts across the country. This list also illustrates the congressional response to the range of challenges faced by cannabis businesses, researchers and consumers, as these stakeholders navigate the widening state-federal gap on cannabis policy.

 House Bills and Amendments
 Bill    Description  Sponsor Cosponsors   Status
H.R. 365 Marijuana 1-to-3 Act of 2021  Directs the Drug Enforcement Administration to transfer marijuana from schedule I to schedule III under the Controlled Substances Act.  Rep. Steube, W. Gregory (R-FL-17)  0  Introduced
H.R. 430 Veterans Cannabis Use for Safe Healing Act Prohibits the Department of Veterans Affairs from denying a veteran any benefit due to participation in a state-approved marijuana program.  Rep. Steube, W. Gregory (R-FL-17) Introduced
H.R. 841
Hemp and Hemp-Derived CBD Consumer Protection and Market Stabilization Act of 2021 Allows the use of hemp and cannabidiol (CBD) derived from hemp, and allows CBD products to be sold as dietary supplements. Rep. Schrader, Kurt (D-OR-5) 43 Introduced
H.R. 1614
Destigmatizing in Immigration Act Removes immigration-related penalties involving use, possession, or distribution of marijuana.
Rep. Boyle, Brendan F. (D-PA-2) 5 Introduced

H.R. 1996

(S. 910)
SAFE Banking Act of 2021
Prohibits a federal banking regulator from penalizing a depository institution solely because the institution provides financial services to a legitimate cannabis-related business.
Rep. Perlmutter, Ed (D-CO-7) 180 Passed House

H.R. 2068

CLAIM Act
Prohibits agencies from taking adverse action against insurance companies for providing services to cannabis-related legitimate businesses in states where such activity is legal. Directs the Government Accountability Office to report on barriers to marketplace entry for minority-owned and women-owned cannabis-related businesses. Rep. Velazquez, Nydia M. (D-NY-7) 1 Introduced
 

H.R. 2588

(S. 1183)
Veterans Medical Marijuana Safe Harbor Act
Enables the use of medical marijuana by veterans in accordance with applicable state laws, and allows Department of Veterans Affairs (VA) physicians to discuss the use of marijuana as a treatment in states that authorize such treatments. Directs the VA to report on state-approved medical marijuana treatment programs. Rep. Lee, Barbara (D-CA-13) 18 Introduced
H.R. 2649
Homegrown Act of 2021 Removes marijuana from the list of scheduled substances under the Controlled Substances Act and requires the Small Business Administration to establish a grant program supporting the implementation of cannabis licensing programs.
Rep. Evans, Dwight (D-PA-3)
0 Introduced
H.R. 2652
Ensuring Access to Counseling and Training for All Small Businesses Act of 2021
Prohibits a small business development center, women's business center, or Veteran Business Outreach Center from declining to provide services to otherwise eligible cannabis-related businesses.
Rep. Golden, Jared F. (D-ME-2)
1 Introduced
H.R. 2712
Ensuring Safe Capital Access for All Small Businesses Act of 2021
Removes marijuana from the list of scheduled substances under the Controlled Substances Act and prohibits the Small Business Administration from declining financing to otherwise eligible cannabis-related businesses.
Rep. Velazquez, Nydia M. (D-NY-7)
6 Introduced
H.R. 2830
GRAM Act
Removes federal firearms-related restrictions on individuals who use marijuana.
Rep. Young, Don (R-AK-At Large)
3 Introduced

H.R. 2864

(S. 1380)
Clean Slate Act of 2021
Requires federal courts to automatically seal records related to convictions or arrests for nonviolent possession-related charges involving marijuana.
Rep. Blunt Rochester, Lisa (D-DE-At Large)
21 Favorably reported by committee
H.R. 2916 (S. 1467)
H.R.2916 - VA Medicinal Cannabis Research Act of 2021
Directs the Department of Veterans Affairs to conduct clinical trials to determine the effects of medical-grade cannabis for veterans diagnosed with conditions such as chronic pain or post-traumatic stress disorder.
Rep. Correa, J. Luis (D-CA-46)
6 Favorably reported by committee
H.R. 2932
Veterans CARE Act
Directs the Department of Veterans Affairs to conduct research to determine the efficacy and safety of cannabis for veterans diagnosed with conditions such as chronic pain or post-traumatic stress disorder.
Rep. Miller-Meeks, Mariannette (R-IA-2)
2 Introduced
H.R. 3043
Marijuana Data Collection Act
Directs the Department of Health and Human Services, Department of Justice, Department of Labor, and state agencies to enter into an arrangement with the National Academy of Sciences to study the effects of marijuana legalization.
Rep. Garcia, Sylvia R. (D-TX-29)
1 Introduced
H.R. 3105
Common Sense Cannabis Reform for Veterans, Small Businesses, and Medical Professionals Act

Removes marijuana from the list of scheduled substances under the Controlled Substances Act. Directs federal agencies to issue rules to regulate marijuana that are similar to federal rules regulating alcohol. Prohibits a federal banking regulator from penalizing a depository institution solely because the institution provides financial services to a legitimate cannabis-related business. Enables the use of medical marijuana by veterans in accordance with applicable state laws. Directs NIH to study and report on the effects of state-approved medical marijuana treatments.

Rep. Joyce, David P. (R-OH-14)

9 Introduced
H.R. 3212
Marijuana in Federally Assisted Housing Parity Act of 2021

Ensures that individuals may not be denied federally assisted housing on the basis of using marijuana in compliance with state law. Prohibits the Department of Housing and Urban Development from prohibiting the use of marijuana in federally assisted housing if use is in compliance with state law.

Del. Norton, Eleanor Holmes (D-DC-At Large)

0 Introduced
H.R. 3253
Impaired Driving Study Act of 2021

Directs the National Highway Traffic Safety Administration to conduct a study on methods to address marijuana, alcohol, and opioid-impaired driving.

Rep. Lesko, Debbie (R-AZ-8)

1 Introduced
H.R. 3601
Fully Informed Veteran Act of 2021

Directs the Department of Veterans Affairs to authorize physicians to provide veterans with information about participating in state-approved medical marijuana programs.

Rep. Lamb, Conor (D-PA-17)

1 Introduced
H.R. 3617
Marijuana Opportunity Reinvestment and Expungement Act

Removes marijuana from the list of scheduled substances under the Controlled Substances Act. Establishes a trust fund to support programs for individuals and business impacted by the war on drugs. Imposes excise tax on cannabis products. Enables cannabis-related legitimate business eligibility for Small Business Administration loans and services. Creates an expungement mechanism for low-level violations of federal marijuana law. Directs the National Highway Traffic Safety Administration to conduct a study on methods to determine marijuana-impaired driving.

Rep. Nadler, Jerrold (D-NY-10)

114

Passed House

H.R. 3675
Drug-Impaired Driving Education Act of 2021

Directs the Department of Transportation to provide grants to states to educate the public on the dangers of drug-impaired driving using strategies recommended by the Congressional Research Service in the publication Marijuana Use and Highway Safety.

Rep. Rice, Kathleen M. (D-NY-4)

1

Introduced

H.R. 4536
Welfare for Needs not Weed Act

Prohibits the use of electronic benefit transfer cards at any store that offers marijuana for sale.

Rep. Rice, Tom (R-SC-7)

1 Introduced
H.R. 5657
Medical Marijuana Research Act

Establishes a new registration process for practitioners to conduct marijuana research and manufacturers to supply marijuana for research.

Rep. Blumenauer, Earl (D-OR-3)

11

Passed House

H.R. 5977
States Reform Act

Removes marijuana from the list of scheduled substances under the Controlled Substances Act. Imposes excise tax on cannabis products. Enables cannabis-related legitimate business eligibility for Small Business Administration loans and services. Directs the Department of Veterans Affairs to authorize physicians to provide veterans with information about participating in state-approved medical marijuana programs.

Rep. Mace, Nancy (R-SC-1)

4 Introduced
H.R. 6129
Harnessing Opportunities by Pursuing Expungement Act of 2021

Directs the Department of Justice to provide grants to state and local governments to reduce the financial and administrative burden of expunging cannabis-related convictions.

Rep. Joyce, David P. (R-OH-14)

6 Introduced
H.R. 6134
CBD Product Safety and Standardization Act of 2021

Directs the Food and Drug Administration to regulate cannabidiol (CBD) derived from hemp as a food additive and ensure that CBD products conform with FDA requirements, including labeling requirements.

Rep. Rice, Kathleen M. (D-NY-4)

11 Introduced
H.R. 6991
To establish the policy of the Department of Veterans Affairs on medicinal cannabis, and for other purposes.

Prohibits the Department of Veterans Affairs from denying a veteran any benefit due to participation in a state-legal program.

Rep. Moulton, Seth (D-MA-6)

3 Introduced
H.R. 7446
REFORM Act

Amends the Uniform Code of Military Justice to align cannabis-related penalties with alcohol-related penalties.

Rep. Brown, Anthony G. (D-MD-4)

1 Introduced
H.R. 7513
(S. 5166)
PREPARE Act of 2022

Establishes a Commission on the Federal Regulation of Cannabis to develop regulatory framework for cannabis.

Rep. Joyce, David P. (R-OH-14)

4 Introduced
H.R. 8197
Veterans Equal Access Act

Directs the Department of Veterans Affairs to authorize physicians to provide veterans with information about participating in state-approved medical marijuana programs.

Rep. Blumenauer, Earl (D-OR-3)

24 Introduced
H.R. 8200
CLIMB Act

Allows national stock exchanges to list legitimate cannabis-related businesses, and prohibits adverse action against a businesses or person on the basis of providing assistance or services to a state-legal cannabis-related business.

Rep. Carter, Troy (D-LA-2)

3 Introduced
H.R. 8454
Medical Marijuana and Cannabidiol Research Expansion Act

Establishes a new registration process for practitioners to conduct marijuana research and manufacturers to supply marijuana for research. Directs the Department of Health and Human Services to report on the potential harms and benefits of marijuana and its derivatives.

Rep. Blumenauer, Earl (D-OR-3)

 10

Passed House and Senate

H.R. 8540
Developing and Nationalizing Key Cannabis Research Act of 2022

Allows the NIH director to designate higher education institutions as a Center of Excellence in Cannabis Research and appropriates $50 million annually to the centers for research purposes. Authorizes scientists in research centers to obtain state-legal cannabis products and administer the state-legal products in clinical trials.

Rep. Peters, Scott H. (D-CA-52)

1 Introduced
H.R. 8557
Marijuana Misdemeanor Expungement Act

Creates an expungement mechanism for low-level violations of federal marijuana law and would create a process for clearing pending non-felony federal offenses.

Rep. Carter, Troy (D-LA-2)

1 Introduced
H.R. 8825
Small and Homestead Independent Producers Act of 2022

Provides authority to small cultivators and manufacturers of marijuana to ship and sell their marijuana directly to consumers, including across state lines and using the Postal Service or other carrier.

Rep. Huffman, Jared (D-CA-2)

1 Introduced
H.R. 9119
Targeting and Offsetting Existing Illegal Contaminants Act

Establishes a Forest Services program to remediate environmental damages caused by trespass cannabis cultivation.

Rep. Peters, Scott H. (D-CA-52)

1 Introduced
Amendments
Amendment Description Amends Bill
Sponsor 
Status
H.Amdt. 84
To strike language that allows federal funding to go to institutions of higher education that are conducting research on marijuana.

H.R.4350

Labor, Health and Human Services, Education, Agriculture, Rural Development, Energy and Water Development, Financial Services and General Government, Interior, Environment, Military Construction, Veterans Affairs, Transportation and Housing and Urban Development Appropriations Act, 2022

Rep. Steube, W. Gregory (R-FL-17)

Failed

147 - 276


H.Amdt. 97
To add the bipartisan SAFE Banking Act which allows state-legal cannabis businesses to access the banking system and help improve public safety by reducing the amount of cash at these businesses.

H.R.4350

National Defense Authorization Act for Fiscal Year 2022

Perlmutter, Ed (Rep.-D-CO-7)

Agreed to by voice vote

H.Amdt. 188
To authorize $10 million for the National Highway Traffic Safety Administration to conduct a study on technologies and methods that law enforcement may use to determine whether a driver is impaired by marijuana.

H.R.3617

Marijuana Opportunity Reinvestment and Expungement Act

Gottheimer, Josh (Rep.-D-NJ-5)

Agreed

243 - 172

H.Amdt. 189
To direct the National Institute for Occupational Safety and Health (NIOSH) to conduct a study on the impact of legalization to the workplace, using states that have legalized recreational use of cannabis as a guide; to require NIOSH to develop best practices for employers as companies transition their policies related to cannabis, prioritizing employers engaged in federal infrastructure projects, transportation, public safety and national security; to direct the Department of Education to conduct a study on the impact of legalization to schools and school-aged children, using states that have legalized recreational use of cannabis as a guide; and to require the Department of Education to develop best practices for educators and administrators to protect children from any negative impacts.

H.R.3617

Marijuana Opportunity Reinvestment and Expungement Act

Lamb, Conor (Rep.-D-PA-17)

Agreed

234 - 189

H.Amdt. 190
Clarifying that cannabis use shall not be the reason for denying or rescinding a security clearance.

H.R.3617

Marijuana Opportunity Reinvestment and Expungement Act

Raskin, Jamie (Rep.-D-MD-8)

 

Failed

209 - 214

Senate Bills
Bill
Description Sponsor Cosponsor Status

S. 253

Cannabidiol and Marihuana Research Expansion Act
Establishes a new registration process for practitioners to conduct marijuana research and manufacturers to supply marijuana for research. Sen. Feinstein, Dianne (D-CA) 10 Passed Senate

S. 862

(H.R. 2068)

Clarifying Law Around Insurance of Marijuana Act
Prohibits agencies from taking adverse action against insurance companies for providing services to cannabis-related legitimate businesses in states where such activity is legal. Sen. Menendez, Robert (D-NJ) 3 Introduced

S. 910

(H.R. 1996)

SAFE Banking Act of 2021
Prohibits a federal banking regulator from penalizing a depository institution solely because the institution provides financial services to a legitimate cannabis-related business.  Sen. Merkley, Jeff (D-OR) 42 Introduced

S. 1005

HEMP Act of 2021
Modifies the definition of hemp to raise the tetrahydrocannabinol (THC) limit from 0.3% to 1%, and requires hemp shipments to contain a valid license from the Department of Agriculture, a state or tribal government, or a laboratory certification showing a THC concentration below 1%. Sen. Paul, Rand (R-KY) 0 Introduced

S. 1183

(H.R. 2588)

Veterans Medical Marijuana Safe Harbor Act
Enables the use of medical marijuana by veterans in accordance with applicable state laws, and allows Department of Veterans Affairs physicians to discuss the use of marijuana as a treatment in states that authorize such treatments. Directs the VA to report on state-approved medical marijuana treatment programs. Sen. Schatz, Brian (D-HI) 10 Introduced

S. 1380 (H.R. 2864)

Clean Slate Act of 2021
Requires federal courts to automatically seal records related to convictions or arrests for nonviolent possession-related charges involving marijuana. Sen. Casey, Robert P., Jr. (D-PA) 1 Introduced

S. 1456 (H.R. 3043)

Marijuana Data Collection Act
Directs the Department of Health and Human Services, Department of Justice, Department of Labor, and state agencies to enter into an arrangement with the National Academy of Sciences to study the effects of marijuana legalization. Sen. Menendez, Robert (D-NJ) 1 Introduced

S. 1467 (H.R. 2916)

VA Medicinal Cannabis Research Act of 2021
Directs the Department of Veterans Affairs to conduct clinical trials to determine the effects of medical-grade cannabis for veterans diagnosed with conditions such as chronic pain or post-traumatic stress disorder. Sen. Tester, Jon (D-MT) 4 Introduced

S. 1698

Hemp Access and Consumer Safety Act
Enables the sale of food and dietary supplements containing hemp and hemp-derived ingredients, such as hemp-derived CBD, and allows the Food and Drug Administration to establish labeling and packaging requirements for such products. Sen. Wyden, Ron (D-OR) 4 Introduced

S. 4591

Cannabis Administration and Opportunity Act
Removes marijuana from the list of scheduled substances under the Controlled Substances Act. Directs federal agencies to issue rules to regulate marijuana that are similar to federal rules regulating alcohol, and implements an excise tax on cannabis products. Requires federal courts to automatically seal records related to convictions or arrests for nonviolent possession-related charges involving marijuana. Sen. Booker, Cory A. (D-NJ) 4 Introduced

S. 4622

SAFE Advertising Act of 2022
Prohibits the Federal Communications Commission from penalizing radio and television stations solely on the basis of providing advertising services to cannabis-related legitimate businesses. Sen. Lujan, Ben Ray (D-NM) 1 Introduced

S. 5131

Fair Access for Cannabis Small Businesses Act
Ensures that state-legal cannabis small businesses have access to Small Business Administration programs and loans. Sen. Rosen, Jacky (D-NV) 0 Introduced

S. 5166

(H.R. 7513)

PREPARE Act of 2022
Establishes a Commission on the Federal Regulation of Cannabis to develop a regulatory framework for cannabis. Sen. Hickenlooper, John (D-CO) Introduced

© Arnold & Porter Kaye Scholer LLP 2022 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.