Why are we still policing cannabis?

The nation-wide movement to defund the police has given voice to advocates urging for the elimination of police departments or suggesting ways to replace policing with different responders. But how do we do that? For starters, we need to take a closer look at the way we identify and solve problems. When you define all your problems as nails, you end up with hammers. When your only tool is a hammer, your default solution is to hit everything. 

When we criminalize social behavior, we look to social control and policing as the only solution. We see this with the federal government’s failed war on cannabis. Fifty years ago, the Nixon Administration proposed, and Congress passed, the Controlled Substances Act, placing all substances regulated by federal law into five schedules based on their medical use and the likelihood of abuse. Cannabis was categorized as a Schedule 1 drug, meaning it had no medical use and a high potential for abuse. The categorization was meant to be temporary, while a presidential commission examined the issue.

President Nixon appointed Raymond Shafer, the former governor of Pennsylvania, to chair a commission to study and make recommendations concerning cannabis. The Commission concluded that cannabis was not as dangerous as claimed by the propaganda and even suggested decriminalizing its use. However, the Administration, intent on discrediting the anti-war and African American communities, ignored the Shafer Commission’s recommendations. Congress also ignored its representatives on the Commission, and cannabis remained a Schedule 1 drug. 

Having defined cannabis as a nail, we needed a hammer, and the United States Drug Enforcement Administration (DEA), a law-enforcement agency in charge of enforcing the CSA, was precisely that.

Federal government agencies know this makes no sense. The Food and Drug Administration (FDA) website states it “is committed to protecting the public health while also taking steps to improve the efficiency of regulatory pathways for the lawful marketing of appropriate cannabis and cannabis-derived products.” In other words, the FDA considers possible medicinal uses of cannabis while the DEA enforces the CSA, which states that no such use exists. 

The FDA has approved one cannabis-derived and three cannabis-related drugs, all available by prescription. Epidiolex, which contains the cannabis constituent cannabidiol, was approved in June 2018 to treat certain epileptic seizures and placed in the least restricted of the CSA schedules, Schedule 5.

At the time of approval, then-FDA Chairman Scott Gottlieb, M.D., said, “This approval serves as a reminder that advancing sound development programs that properly evaluate active ingredients contained in marijuana can lead to important medical therapies. And, the FDA is committed to this kind of careful scientific research and drug development”. Although it has been two years since Epidiolex entered clinical use, federal policy has not changed, and the sound approach taken by the FDA remains an outlier in a regime where cannabis continues to be administered by the DEA, subject to serious criminal penalties, and treated as having no medical value.

The conservative Cato Foundation and liberal Center for American Progress disagree on many social policy issues. They do agree on assessing the 50 war on drugs under the CSA as a massive failure. 

The CSA is out of touch with the forty states that have enacted laws that liberalize or legalize cannabis for certain medical indications, placing each of these states in direct conflict with federal law. By permitting cannabis for medical use, these states undermine the CSA’s founding principle that negates, without fact-based evidence, all medicinal value to cannabis.

In criminalizing cannabis, the federal government has limited and tightly controlled research since 1937. This not only impedes progress on identifying the potential medicinal benefits of cannabis but also, paradoxically, of its inherent risks. People living with chronic pain and veterans dealing with the consequences of trauma could benefit from cannabis-based medications but have nowhere to turn for advice and guidance. Teenagers and expecting mothers worried about the risk of cannabis use must rely on pseudo-science and marketing hype from the internet.

It’s time to move from the DEA’s law enforcement hammer to FDA’s evidence-based investigative approach. Relying on old myths does not work. Placing cannabis fully under the jurisdiction of the FDA would enable scientific research and eventually provide the evidence we need for a real understanding of the issues at hand and the development of safe and effective policies.

Robert Solomon is a clinical professor of law and co-chair of the Center for the Study of Cannabis at the University of California, Irvine. Daniele Piomelli is a professor of anatomy and neurobiology and director of the Center for the Study of Cannabis at the University of California, Irvine.