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As much as NORML has been in the cannabis spotlight as the preeminent organization fighting to normalize a plant that has helped so many of us so profoundly, a whispered consensus could likely be found that its day has come and gone, thank you for the help, and please don’t let the door hit you on the way out. But that sense of demise might be a tad premature in light of the government’s recent move to recommend through HHS that cannabis be moved to Schedule 3.
Even the briefest inquiry into the history of cannabis scheduling will reveal the fact that for over 50 years, NORML has been at the forefront of the battle to bring sense to the insanity of placing cannabis in Schedule 1, where only the world’s most dangerous drugs presumably reside. That it was insane to place it there in the first place has of course not stopped the DEA from repeatedly preventing changes to cannabis scheduling, which is maddening, but thanks to NORML and its long list of heroic lawyers who offered their services often bro-bono for decades on end, an enduring record exists, with every argument and piece of evidence available, delineating both the legal and medical history of a fight for justice that has seen many ups and downs and continues to this day.
Indeed, as analysis of the HHS recommendation and what it means for the industry becomes more nuanced
as the days progress, it becomes ever clearer the role NORML v DEA has and will continue to play in the resolution of this contentious question whether cannabis should even be scheduled at all. To get a sense of the historical and organizational context of the moment, Cannabis Business Executive spoke yesterday with former NORML Executive Director Allen St. Pierre, whose tenure at the organization extended from a time when the federal government was still hell-bent on jailing as many cannabis users and dealers as possible to the slow but steady development through brave advocacy of state-legal medical cannabis programs and beyond.
Where did your tenure at NORML fall in this decades long fight?
I was there from 1990 to 2016. I came in at the height of the war on drugs and all the bad legislation that was passed under Reagan and Bush 1.0. It took years but at some point forfeiture, drug testing, all this stuff started to come about, and cannabis became very scarce and expensive and very bad quality in the northeast, and the amount of people getting arrested. We only later saw that it was going to crest in 2006 or 2007, but it was on this incredible increase because the government had set up all this apparatus to do so. This is also post-1988, so the Young decision had come in, and we thought, ‘Wow, this looks pretty good.’ We had even drawn what were these amazing three judges, we drew James Buckley, William F. Buckley’s brother, who was a conservative Republican, but like his brother kind of libertarian. We drew Abner Mikva, who had been a former congressman and a lawyer for Hugh Hefner, who was one of the first funders of NORML. And then the other one was Douglas Ginsburg, who was denied access to the Supreme Court because he acknowledged he smoked pot with his graduate students.
The pro-bono NORML lawyers at the time were like, ‘You know what, let’s not object to him being there. Maybe he would be reasonable on this issue.’ Well, as it turned out, only Mikvah voted with us and the other two voted against us. So that was just finishing that massive, long case, but what really started to happen regarding the state-by-state efforts is that they were able to focus on the states like California, which became a major focus because there were many activists there and they were into the issue. As early as 1988, Mrs. Pelosi in her first year in Congress would attend NORML and other related functions for marijuana and AIDS related advocacy in San Francisco, and she was always clear that this makes sense. And even though she’s devoted Catholic, she was like, ‘No, this is nuts. If we can give people pharmaceuticals, how could we possibly deny them this?’
The major mistake the federal government made back then was that they would not recognize – although they had acknowledged it in their papers, behind the scenes in the Bush administration and in their HHS services, as well as in personal meetings with people like me – that marijuana has medical purposes and can be safely used under certain conditions. They had the opportunity to say uncle on medical marijuana and limit it to maybe a few tens or hundreds of thousands of Americans who are epileptic, who have cancer, or who don’t respond while the glaucoma drug. It would be a fairly limited number of people that would have legal access to what the medical patients in the program have been getting for all these years in terms of prescribed access. But they didn’t do it. And by not at least cutting a deal with advocates like us, the ACLU, and these other folks, they intellectually put the government in the corner on this. If they simply agreed, they could have staved off legalization for decades.
What was your immediate reaction to the news of the HHS recommendation?
Immediately, I thought this can only happen because Biden’s in office and he’s had to defer to the issue, even though he is not naturally at all, as a former prosecutor, and because of his age as well, he’s not into this issue at all. He has begrudgingly been dragged to this position largely by the black community, which has a very strong influence on his domestic policy agenda in this country. Along with the fact that there’s been this 50-year effort and a massive body of record that says, ‘Yeah, [cannabis] can be used safely, so what’s the big deal?’
Now he’s kicked it over to the DEA, which right now, in my view, is headed by probably the most informed person that’s ever run the organization regarding pharmacology and the use and misuse of drugs, as compared to all the narcotics agents or political hacks that have run the organization, like Asa Hutchinson. At least this individual is by any definition more thoughtful than any of them.
But can they get it through the DEA and the law enforcement side that still probably holds massive amounts of sway regarding all of this. I have behind the scenes on many occasions been in meetings where you can basically get the heads of these agencies to say uncle. They really do, except then they turn around and refer it to the International Narcotics Control Board. ‘We can’t do it because of the UN,’ and they kick the can all the way to Vienna, Austria. The last place where there will be reform will be in Vienna, Austria, at the INCB.
Is a takeaway from that that scheduling is about carrying out international obligations?
I’m sure you can appreciate the idea that most marijuana stocks doubled in value in three days, but if you met with the CEOs of these major companies, I think they would basically say, ‘We want 280E reform pronto, because it’s literally the difference between being profitable and not being profitable; they’d also like to see some general banking reform so that they’re in no way shape or form treated as pariahs, and they can take cards, cash, whatever; and lastly, that there be functional bankruptcy for cannabis businesses, which there really isn’t at all. All the rest of it is white noise to them. They’ll probably take a general position on this or that, but they generally would like to see those three things happen, and understand that if marijuana was lowered in schedule, would that be generally a good thing? Yes. But does it really affect them in their day-to-day operations growing cannabis and selling it to people? No, not really.
Don’t these companies also want to see interstate commerce?
Yes, given their druthers, if they could take down the 50-state model and all the LLCs they have had to set up, and actually have something that looks like 99.99 percent of other businesses and how they function, they too would like that ability to have a corporate headquarters somewhere and not have to set up basically 50 LLCs, which they may do on their own anyway for purposes of separating liability, but in terms of functioning and running the company, from a board of directors and upper-management point of view, it’s one of the things that is just one more added expense on all the lawyering and compliance costs they incur.
By the way, when we wrote the California law in 2015, late 2014, the people from Weedmaps were the biggest advocates, and driving Ethan Nadelman and his New York-based DPA crazy, because they were insisting on two things; one, that the farmers’ market model in California could be done lawfully, and two, that we support appellation. Even though the lawyers wanted to cut all that crunchy California stuff out, Weedmaps was like, ‘If we’re going to plop $10 million down, we feel strongly that in California this is the way we want to do it.’
Now that you’ve had a few days to ponder this situation a little bit, what do you think will happen?
I think reform is unlikely given the impetus of Congress in the House and Senate. Democrats are into it, but Republicans across the board clearly are not. The split still remains where about 65 percent of Democrats support reform, and maybe 40 percent of Republicans. That 30 percent gap is still the single biggest problem in marijuana law reform writ large until more Republicans are dragged to that 50 percentile and higher, but at least 50 percentile.
The long and short of it is that Biden and company will be too burdened with reelection to really make this anything strong to push. I think they just want to put this out there as, ‘Yep, we care. We hear you. We know that this is where the show will be going. We’re going to punt over to the DEA.’ And it’s just hard to imagine that even with this particular administrator, that the DEA could divorce themselves from this drug. They are a busy organization, and marijuana is not their only thing or even a primary thing these days, but the idea that 60 plus years of their existence has largely been predicated on putting their heels on the backs of the next marijuana consumers and growers and dealers, it’s hard to see that there isn’t going to be another generation of DEA agents and their managers to flush out the illicit players or whoever.
The fact that cannabis is on Schedule 1 in the first place is so absurd it makes a mockery of the DEA and it’s Catch-22 excuses for denying any changes for years. You can’t do the research if it’s Schedule 1, and you can’t move it from Schedule 1 without the research.
Exactly. It was always a Catch-22, and it was a painful one that people recognized early on. The people who championed the DEA case in its most difficult phases, from 1978 to 1988, would ask themselves, ‘Even if we win, what do we really win? We’re spending a gazillion dollars, lawyers up the wazoo, and yet if we win, what do we win?’ Back then at least it was to make the point that marijuana is not heroin, and marijuana can be used for medicine, and they thought that they could then pivot back towards decriminalization, which had been so popular previously. They thought that as long as the government could keep making this argument, which it successfully had done under Reagan, that marijuana rots your brain, etcetera, that there needed to be a solid legal scientific basis to say, ‘No, it’s not the same, and therefore there should be different laws and standards and mores around it.’ And even though we lost the case, and we lost the battle, I drove to a marijuana dispensary in Wellfleet today, bought legal marijuana in the state, and got 20 percent tax on it.
Wouldn’t removing 280E taxes also be a huge boon for small businesses?
Yes. It would make all the difference in the little company I’m involved with in Shasta County. God, if they could have a standard 40 percent deduction, these guys could actually pay themselves back. That’s the difference right there, the excessive taxes they are giving to the government.
I’m dubious mainly because I’ve seen the idea of rescheduling marijuana floated so many different times in so many different ways, and it’s usually born of some sort of political impetus at the time that something is going on, that’s those who put these out there are doing so to basically be like, ‘We think we should move in this direction. Whether or not we can or not, we don’t know.’ But that is way better than when I came in 1990, before the idea that you could get the government to publicly be doing and saying the things that it’s done. When I think about the Obama and Holder years, even though it was kind of bizarre and oblique, in the end they got the job done of taking the government’s foot off the pedal.
I did this research almost 10 years ago and found that Massachusetts had amended its alcohol laws 230 times from the time it was made legal. And when you looked at all the changes in laws, 90 percent of those laws were changed to make alcohol more available to more people under wider conditions. So, the trend would seem to augur towards the consumer.
So, is it truly possible that Lucy (DEA) is going to pull the football away from Charlie Brown (Cannabis industry) one more time?
Yes. When we have that perfect alignment, which we could again with a president, House, and Senate that each want this kind of reform, then reform can happen. But as long as we’ve got a divided government where one branch is not going to move forward, reform is likely not going to happen.
The idea is to have the federal reform happen, whether through rescheduling or legalization or whatever way it has to be packaged together. That would be the ideal way to move forward and address most of these issues, including all the new cannabinoids coming down the pike. That’s going to take a lot more people under the age of 60 in positions of power, moving this stuff along, and as cannabis commerce keeps taking hold, it really hasn’t been that much of a big deal to go from marijuana being illegal to legal regarding main streets and people using it publicly or people testing positive or driving impaired and getting caught for such.
It’s generally been, as Steve DeAngelo once said, that at some point it’s going to be as easy as literally hitting the switch. He was speaking at a NORML conference in Oakland in 2006 or 2007, and he was making the case that, yes, we have medical and a quasi-gray market in California, and people were making money hand over fist and living the life that sure felt legal, and yet he acknowledged that once that is ensconced and people see that it’s not a big deal, we’ll flip the switch and have legalization, and that has largely happened in these first 23 or so states, which also had decriminalization routes. It’s the other 25 states that are going to be a long slog, and many of those places are going to be recalcitrant for a very long time.
What if DEA comes back and says they agree with the HSS recommendation?
Well, this is the scary part, because if they agreed with it, they’re providing both the political cover and the impetus to then come back and, given their druthers, the easy path of least resistance would be to say that marijuana is now Schedule 2. And none of us are walking into a store like I did today if this stuff is a Schedule 2 drug, so that’s where the rub is. For the well-paid lobbyists that work all these state legislatures and in Washington on the issue, that’s where they’ll now draw the line and be, ‘Listen, whatever you do for medical, we don’t care, but if somehow your scheduling makes it so that Joe or Jane who’s over 21 can’t walk through our door and buy gummies or a joint, we’ll not only not support you on this, we will maybe even fight you on it. And the industry is just getting slightly mature enough to not only realize it’s going to have to spend more money on lawyers and lobbyists, but it’s going to have to hire the right ones. So, if you’ve got a dollar bill give 60 cents of it to the Republicans. You don’t have to convince the Democrats hardly at all, but you have to get the Republicans on board, because it takes two to tango.
Would it be better to stay at Schedule 1 and keep the status quo than move to Schedule 2?
There’ll be those that would say they can live with this if the status quo was to do nothing for 10 years. We would still see a number of these big MSOs either do well or absorb others or start to get into place to be purchased by the bigger players – alcohol, tobacco – which are all lined up. They will also weigh in on this at some point regarding what would be the best model for them. And with the distributors and folks already on the alcohol side, who see themselves someday distributing cannabis products, that’s where you get the unions involved, and others, who say, ‘Wait a minute, we have a say.’ We have more workers in cannabis than we do in the coal industry, which is quite unionized and quite powerful, so why can’t cannabis workers be that same way?
If you were still at NORML, would you be marshaling your forces to man the bulwarks and make sure that it’s not moved to Schedule 2? Is that where your focus would be?
That’s a great question, because I can just imagine the blood spilled at the board table over that one. We’d have advocates who’d be dyed-in-the-wool hempsters, and we’d have dyed-in-the-wool medical folks that are patients, and we would have libertarians, and hedonist libertines who also would have been wanting something quite different. But I’m politically pragmatic, and I would certainly caution against going to Schedule 2 now that we’ve got so many states that have already moved to this model. And I have for years advocated that there is simply no way you can take the square peg of cannabinoids and fit them into the round holes, and the ultimate bureaucratic Catch-22, as you observed, is the scheduling of cannabis. So much of my hair is gray because of trying to work through that early on intellectually. If we succeed, what did we succeed in doing, and why is it even like this? It’s crazy.
I’m just glad that Californians were able to look the other way and allow cannabis commerce to take place and demonstrate that all those horrific, terrible, bizarre things that DARE was warning about were totally beyond the pale. It didn’t make society any safer and didn’t keep a kid from using cannabis any more than before and was just mean towards that small group of people that would actually use cannabis as a medicine successfully. Most people get plenty of relief from pharmaceuticals with no problem, but those who don’t at least would have cannabinoids within that regimen that they could have safe access to.
It’s an incredible situation because the recommendation alone threw a bomb into the industry, and now there’s a lot of paranoia that Schedule 3 would be a boon for the pharmaceutical industry and big business, and you can see these divisions opening up.
If you’re Sue Sisley and a contingent of the International Cannabinoid Research Society, those men and women have been laboring in the fields of nothing for like 35 or 40 years, and this change would put them into business immediately to be able to do research and do all the kinds of stuff that they wanted to do for years and complained about. And because they hold such sway, if we’re on CNN sitting next to each other, the folks from the International Cannabinoid Research Society can make a strong case morally and intellectually that rescheduling has to happen yesterday.
Aren’t these significant upsides to moving to Schedule 3?
They are, and that’s why, when I got involved in this industry early on, I could see what needed to be done structurally to allow some group of people to use it, and that it needed to have some foundation. Thankfully, NORML and others, and then later the DPF, formed this triumphant that really made the case. If you ever have to spend a week or two in the hospital, you should read the entire NORML v DEA. It is such a great instruction on not only the history of cannabis and its legislative history and political history, but at the time as it moved through the courts, what research was available at the time,. And it was so informative, to just simply say, ‘Okay, maybe marijuana shouldn’t be legal’ was a perfectly good argument, but the idea that it shouldn’t be medicalized in any way, shape, or form just seemed utterly malevolent, and the other takeaway was that decriminalization was the half-baked pie that everybody, myself included, would have signed off on back in the worst times of this in the early 90s, saying, ‘Okay, we can have a policy where you can grow our own and we can trade it to each other and all that, but no MSOs and no taxation.
A great woman named Lynn Zimmer wrote a book with John Morgan called Marijuana Myths Marijuana Facts: A Review Of The Scientific Evidence, published by the DP. When she was ready to pass from cancer, I met with her in New York City, and she said, ‘Don’t tell anybody, I’m about to die, but I’m not a legalizer.’ I was like, ‘What?!’ She was on NORML’s board, I had gone to many conferences with her, and she said, ‘You know, the more I just get to think about it, if I could just pick exactly what the policy is going to be, I’m just going to call it depenalization, decriminalization. Legalization will take all the fun out of it, with corporate America and the liabilities. She knew all the angles about what it was going to actually come to be, and she was largely right about all of it.
I am for legalization in general in principle, but I am sad to see that predictably this MSO model has become the predominant one in terms of capital formation, et cetera, et cetera, and, and I would love to have seen that stay within the ranks of basically small regional crafters.
So, if there are upsides to schedule 3, what are the downsides?
The risk is that cannabis goes from being a quasi-legal adult recreant similar to alcohol to one that falls under the pharmaceutical model where you have to have a third party, which brings us right back to that Prop 215 period, when there was a secondary cottage industry of medical marijuana ID cards and the recommendations from the doctors. So, now you have that third party get between you and this commerce where you otherwise as an adult would just walk in the door and say, ‘I think I’ll buy some of this, and I’ll buy in this amount.’
What about home grows?
If you had somebody who’s conservative who says, ‘If I have to live with marijuana, here’s my proposition,’ and they come up with highly restricted proposals one of which would be, ‘We don’t let people make their own fentanyl.’ I can just hear the arguments now.
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Editor’s note: Allen St.Pierre is the Author of Fifty Years: How Marijuana Became Re-Legalized In America, a 12 part series published in Cannabis Business Executive.
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