No one person created America’s war on drugs. No individual is responsible for the accompanying manufactured crises of mass incarceration and impoverishment of working class communities of color. But in the same shamed strata as Richard Nixon and Nancy Reagan, in the view of many, you can find Joe Biden, the wobbly 2020 frontrunner and former vice president.
In his 40 years in the Senate, as is now well known, Biden was a key architect of harsh criminal penalties for nonviolent drug users. Undoing much of his own work was one way to make sense of a large part of the criminal justice plan his presidential campaign recently released. Finding a centrist’s safe-and-happy medium on weed in particular, Biden has not embraced legalization—a.k.a. commercialized, recreational pot use—but has claimed to back decriminalization, or removing at least most pot offenses from the criminal justice system.
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But Biden is actually pushing a policy that could wreck the growing American weed industry and massively disrupt users’ access to the drug, attorneys, consultants, academics, and entrepreneurs well-versed in US cannabis policy say.
“I view Biden’s plan as a ham-fisted handing over of cannabis to the pharmaceutical industry,” said Gavin Kogan, a California-based cannabis executive and attorney who chairs Grupo Flor, a large, vertically-integrated cannabis firm.
Cannabis is currently listed as a Schedule I controlled substance, the classification intended for drugs with a high potential for abuse and no medical value—a designation contradicted by a 2017 National Academies of Sciences, Engineering, and Medicine review, mocked on a daily basis by dozens of states with medical-use laws, and that even Attorney General William Barr apparently believes is untenable.
“It could all come crashing down.”—Jonathan Caulkins
Other than cannabis, there are no major state-legal markets for Schedule I drugs. Would making weed Schedule II—intended only for strictly controlled pharmaceutical drugs, and not recreational nor wellness products, the rubrics under which cannabis is often marketed and sold to Americans—make more sense? It might, but here’s the catch: Drugs listed under Schedule II (which include cocaine and methamphetamine as well as prescription opiates like fentanyl) are available legally but only under strict Food and Drug Administration controls. That is, only with a doctor’s prescription, only after a lengthy FDA-overseen approval process that can include years of clinical trials (and then sold only via a licensed pharmacy), and only for limited applications.
In other words, there are no Schedule II drugs grown, processed, and sold in the way cannabis is brought to market in the United States, either—so that label, too, is probably inadequate. More to the point, if strictly enforced to the letter, Biden’s marijuana policy could rip cannabis away from its current producers and sellers and hand over control of commercial weed to corporate interests instead.
“If the federal government actually enforced the CSA [Controlled Substances Act] Schedule II [on cannabis in a Biden administration], then almost all current state-legal activities would be banned and could be shut down,” said Jonathan Caulkins, a professor at Carnegie Mellon University’s Heinz College who has served as co-director of the nonpartisan RAND Corporation’s Drug Policy Research Center.
In order to continue as normal, the cannabis industry would need to lobby for the same “explicit exemption” enjoyed by alcohol and tobacco—and “it’s not in the bag,” Caulkins said. “So they have a reason to worry. It could all come crashing down.”
Big and small, weed entrepreneurs are worried. Some seemed downright terrified.
“The traditional businesses, many of whom have paved the way on the policy reform side, would be completely left out of the conversation,” said Lindsay Robinson, executive director of the California Cannabis Industry Association, which counts over 500 business members in the country’s largest and oldest legal weed market.
The reality for both producers and consumers “would be substantially different under the purview of the FDA,” she added. “Who knows how long it would take patients and advocates to have access to the cannabis they’re now using?”
It wasn’t just advocates with skin—financial or otherwise—in the game suggesting Biden’s plan would likely amount to a gift to a few key players. Experts said the impact of the policy, if enacted, was pretty cut-and-dried.
“To the extent that FDA regulation always favors bigger companies that can afford to meet the regulations, then, yes, putting cannabis in Schedule II would be a sort of Big Pharma model,” said David Herzberg, a historian at the University at Buffalo who specializes in drug policy and authored Happy Pills in America: From Miltown to Prozac, a review of how prescription drugs have been developed, marketed, and sold.
To date, states have regulated cannabis through health departments, liquor-control boards, or new agencies specifically created to deal with weed. Kogan’s company is based in central California, in a mostly poor, heavily Latinx agricultural county banking on cannabis for an economic boom. Kogan helped cofound multiple brands and Grupo Flor runs massive cannabis cultivation operations in greenhouses previously affiliated with the floral industry.
This arguably makes Kogan “big weed,” and as a white male who wears a business suit, an avatar for the well-capitalized newcomers that old-school and smaller-scale weed businesses view as a mortal threat. But under the terms of Biden’s criminal justice plan, not just “mom and pop” weed operators but people like Kogan, too, would be pushed out of business, he argued.
After all, FDA-approved drugs must survive a battery of clinical trials before they can be marketed and sold. Many cannabis companies don’t have the resources enjoyed by a Merck or a Pfizer to pay for those trials without a revenue stream. And selling cannabis in a pharmacy rather than dispensaries would likely trash both the normal sales model in which Americans legally access weed, as well as the taxation structure set up in those states.
“If it were actually enforced, there could be no recreational marijuana at all.”—David Herzberg
It’s not clear exactly how Biden hit upon Schedule II as the magic solution, or if he took input from drug-policy reform advocates or cannabis industry players—or took cues instead from the anti-legalization activists working against them. A spokesman for Biden’s campaign did not respond to emails, text messages, or a phone call seeking comment.
“There’s no way this [Biden’s plan] will ever go far enough to remedy the damages these communities of color have suffered,” said Solonje Burnett, co-founder of the Brooklyn-based cannabis brand hub Humble Bloom, adding that his was a “half measure” that put him on “the wrong side of history, again.”
Indeed, within hours of the plan’s release, Biden was critiqued—or subtweeted, really—by fellow presidential hopeful Cory Booker, who has proposed full legalization on the federal level. But he’s not just behind his fellow Democrats. According to a bevy of industry players interviewed, Biden’s plan would be worse for weed in America than anything proposed under Donald Trump.
“His stance is to blow up 90 percent of the existing regulated and traditional market,” said Sean Donahoe, an Oakland, California-based cannabis-industry consultant. That could be a disruption worse, even, than any George Bush or Barack Obama-era crackdown—when many businesses and operators suffered raids or received threatening letters.
This “shows [Biden’s] fundamental worldview is framed through a corporate lens with no regard for existing operators, nor good public policy,” Donahoe added.
As absurd as it might be to list cannabis in Schedule I, lumping weed with opiates, coke, and pharmaceuticals in Schedule II is also intellectually dishonest, critics said.
“Cannabis, like anything, has risks, but it doesn’t have those risks,” said the University at Buffalo’s Herzberg.
Fundamentally, though, the problem is that Schedule II “would still present a conflict with the existing state medical and adult-use cannabis programs that are on the books in 47 states,” said Erich Pearson, who owns cannabis dispensaries in San Francisco and in California’s Sonoma County, and sits on the board of the Denver-based National Cannabis Industry Association. (Pearson is also a longtime supporter of Sen. Kamala Harris and recently appeared at a Harris presidential campaign fundraiser, according to his Facebook page and FEC filings.)
Under most existing medical-marijuana laws, cannabis is available to sick people with a “qualifying condition” listed under state law who receive a “recommendation” from a physician to use the drug, which is then acquired from a dispensary or grown by a caregiver.
Most cannabis use “is not medical,” period, Caulkins noted. Further, most medical cannabis use “would not meet standard FDA approval process.”
Whether a Biden-led FDA would have either the ability or the desire to punish every cannabis operator who violated such a policy framework is doubtful. But the takeaway is that Biden’s plan as proposed could destroy established businesses. Then again, it might be good for the likes of Altria, the tobacco-industry giant that invested $1.8 billion in Canadian cannabis company Cronos and has also patented dozens of vaporizer devices.
In his defense, Biden has expressed awareness that the war on drugs as he helped wage it is no longer tenable. Biden “is here saying no one should be in jail because of cannabis use,” a senior Biden campaign aide speaking on condition of anonymity told reporters before the plan’s release. Biden also “very much believes that we need more research and [to] study the positive and negative impact of cannabis use,” added the aide.
But his plan wouldn’t even do that, skeptics said.
The proposal would do for cannabis “the same thing it’s done for meth: Ensure reduced research initiatives, selective prosecution, and a thriving black market,” said Michael Backes, a Southern California-based cannabis industry consultant and author of Cannabis Pharmacy: The Practical Guide to Medical Marijuana.
Selling cannabis like other Schedule II drugs, in “a closed system, only by prescription, only sold by licensed pharmacies, would be massively disruptive,” Herzberg concluded. “It would produce massive changes—and if it were actually enforced, there could be no recreational marijuana at all.”
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