Cannabis Reform Leaders Predict Major Changes on Horizon

A trio of cannabis advocates who have been lobbying Congress for federal reform expressed optimism that the SAFE Banking Act – which could open the broader banking system to cannabis companies – will be passed by federal lawmakers this year or next.

The three spoke on a panel at MJ Unpacked in New York City this week.

The latest version of the legislation was introduced in both the U.S. House and Senate on Wednesday, with bipartisan support.

“I think we’re getting closer and closer, because people behind closed doors are like, ‘I get it,’” said Toi Hutchinson, the executive director of the Marijuana Policy Project. “Even if they don’t want to do a vote for cannabis, banking becomes a small business issue.”

That political element, Hutchinson said, has allowed cannabis advocates to slowly bring in more GOP support in Congress for SAFE Banking. She said it’s “likely” that the measure will pass this current term.

But, she noted, “We need to get that magic number of 60” to avoid a filibuster and get SAFE through the Senate, which is still a tough hurdle to clear.

The other major reform that all three panelists warned is on the way, for good or ill, is the cannabis rescheduling process that President Joe Biden launched last year when he also issued federal pardons for those federally convicted of nonviolent cannabis crimes.

The process, said cannabis attorney Andrew Kline, is currently ongoing at the Department of Health and Human Services and the U.S. Food and Drug Administration. The outcome could have major consequences. Kline said he expects the review to be completed before the next presidential election in 2024.

Perhaps the biggest possible effect, Kline noted, is if the Biden administration moves cannabis from its current spot as a Schedule 1 narcotic to Schedule 2. That wouldn’t fix the 280E issue in the federal tax code, which means the enormous federal tax burden will remain in place.

But if the administration chooses the slightly less restrictive Schedule 3, that erases 280E as a problem for cannabis companies, Kline said. That could be a game-changer for businesses of all stripes and sizes.

“People need to be paying attention to this rescheduling process, because we have an opportunity to get it to Schedule 3, which will fix 280E, but it is not a certainty,” Kline said. “And if we reschedule to Schedule 2 and we don’t fix 280E, my sense is Congress is going to do nothing for a long time.”

Michael Bronstein, the president of the American Trade Association of Cannabis and Hemp, echoed the importance of the rescheduling review underway, and emphasized that it’s something the industry knows will have an outcome, unlike other attempts to force federal cannabis legalization through court cases, for instance.

Completely descheduling, or legalizing cannabis altogether by removing it from the list of federally controlled substances, isn’t realistically an option, Kline and Hutchinson both said.

“The president doesn’t support descheduling … so it’s not going to happen,” Hutchinson said. “There will be a lot of advocates who will be irritated at fixing the 280E problem without doing criminal justice reform, and that’s where I’m like, we need both/and. It’s not either/or.”

If marijuana was lowered to Schedule 3, that would still let state prohibition and anti-cannabis laws remain in place, Hutchinson further noted.

“What happened to Britney Griner in Russia can happen to you in Texas,” Hutchinson said.

But descheduling completely, Kline said, is almost certainly off the table because the FDA will still assert that marijuana has a “potential for abuse,” which is the standard for putting any drug on the list of controlled substances.