I was relieved to learn that Albert Einstein never actually said that “[i]nsanity is doing the same thing over and over again and expecting different results,” because it seems like a really bad idea to start a blog post disagreeing with Albert Einstein.

Insanity, it turns out, is American cannabis policy.

Let me say this at the outset: This is not about partisan politics or blame. Rather, it is about how Americans ended up with a cannabis policy that is so irrational and inconsistently applied that it makes the targeting rule in college football seem like old-fashioned common sense.

I’ll happily admit that it would not be insane for the federal government to prohibit cannabis and enforce that prohibition. It would not be insane for the federal government to make cannabis legal nationwide. It would not be insane for the federal government to leave the issue to the states to decide.

What is insane, however, is the following series of policies:

  • The United States Congress mandates that marijuana is a Schedule I controlled substance under the Controlled Substances Act.
  • The United States Congress defunds any effort by the Department of Justice to prosecute state-legal marijuana operations.
  • The Department of Justice issues and rescinds opinions opining on whether federal prosecutors should take action against state-legal marijuana operations.
  • The United States Congress mandates that banking marijuana proceeds is money laundering.
  • The Financial Crimes Enforcement Network (FinCEN) of the Department of Treasury states that the banking of state-legal marijuana operations is not an enforcement priority.
  • Thirty-seven states mandate that marijuana is legal under state law, while Congress keeps in place a law mandating that marijuana is a Schedule I controlled substance under the Controlled Substances Act.

This is insane but it’s the reality. And the policies that flow from it are, almost by definition, equally insane. For example, the war on drugs is insane in light of these policies. Again, not partisan, but how is it the case that people are being arrested for selling marijuana when others are receiving licenses from the government to do so? How is it the case that we are spending millions to incarcerate Americans for marijuana crimes while other Americans are selling marijuana licenses for millions?

And it’s insane that policymakers will not act on common-sense proposals currently on the table that might make things a little less crazy. I’ve written twice before about how Congress has the votes to help treat this insanity. The SAFE Act is the most obvious such reform. The act would allow the cannabis industry access to an array of financial services such as commercial loans, checking accounts and credit-card processing. It would take cash off the streets, reducing the possibility for criminal opportunity and allowing more patients to access medical cannabis. Most recently, I wrote:

I believe there are sufficient votes in both houses of Congress – including Republican votes – to pass cannabis reform efforts. In particular, the SAFE Act and legislation allowing increased research could become law if they receive a straight-up vote. The harder question is whether those leading the charge will allow for the proposal to proceed to a vote in a piecemeal fashion or if they will insist that lawmakers vote on the entire reform package as a whole. If the latter, I think Republicans may balk at some of the more progressive provisions []. If that happens, we will see whether the most strident supporters of cannabis reform are willing to take a narrower victory or if they will insist on an all-or-nothing approach.

Despite what appears to be bipartisan support (including nine Republican sponsors in the Senate!), there has not been a vote in the Senate on the SAFE Act or any other piece of meaningful marijuana reform. If they can’t agree on this, what hope do we have that they’ll agree on any marijuana reform?

And the insanity doesn’t stop with marijuana – hemp is caught up in it, too. It is insane that a consumer can purchase an unlimited amount of cannabidiol (CBD) and pour it into a glass of water, but FDA makes it unlawful to put any amount of CBD into a bottle of water. It is insane that marijuana is illegal in approximately a dozen states, while those states allow for Delta-8 THC – which can provide a euphoric effect that largely mirrors traditional Delta-9 THC marijuana – to be sold without meaningful regulation.

So what is the solution?

Let’s start with what might not be obvious to many. A lot of people are completely fine with the current state of play, no matter how insane it may be. There is money to be made in a market with uncertain laws and/or lax enforcement. Perhaps the marijuana industry and those in the gray areas of the hemp industry are comfortable with the status quo; they may prefer asking for forgiveness rather than permission.

For those who value sanity and consistency, the only refuge appears to be the federal government. Congress can pass the SAFE Act or the Department of Health and Human Services can adopt President Biden’s recent suggestion that it consider rescheduling or de-scheduling marijuana from the Controlled Substances Act.

As for hemp, Congress is scheduled to enact a new Farm Bill next year. That gives Congress wide latitude to allow, deny, or regulate hemp-derived products currently accessible to millions of Americans.

How does this all play out?  I’d have to be insane to make a prediction.

Photo of Whitt Steineker Whitt Steineker

As co-chair of Bradley’s Cannabis Industry team, Whitt represents clients in a wide range of cannabis issues. In addition to providing a full suite of legal services to cannabis companies, Whitt and the Cannabis Industry team advise non-cannabis clients – from banks to…

As co-chair of Bradley’s Cannabis Industry team, Whitt represents clients in a wide range of cannabis issues. In addition to providing a full suite of legal services to cannabis companies, Whitt and the Cannabis Industry team advise non-cannabis clients – from banks to commercial real estate companies to insurance companies and high net worth individuals – on best practices for interacting with cannabis companies.

Whitt is one of the leading voices in the cannabis bar – recognized as a “Go-To Thought Leader” by the National Law Review. He has presented on cannabis issues at conferences around the country.  His work has been featured in the National Law JournalLaw360, and the Westlaw Journal. And he has been quoted in an array of legal and mainstream publications from Law360 and Super Lawyers to the Atlanta Journal-Constitution and the Associated Press.