With the 2020 presidential election just days away, the future of cannabis legalization will likely rest on the shoulders of whoever is sitting in the Oval Office on January 20, 2021. So where do Donald Trump and Joe Biden stand with respect to the cannabis industry? The Cozen O’Connor Public Strategies team brings you perspectives from both sides of the election spectrum.
With a successful re-election wiping away any concerns about the potential political or electoral advantages of neutrality, President Trump and his political allies in the White House would likely be openly hostile to the cannabis industry and all related ancillary businesses, in terms of both business and public policy.
The DOJ is likely to continue providing restrictive guidance to administration agencies based on its interpretations of existing law.
In April of 2019, the U.S. Citizenship and Immigration Services issued policy guidance to “clarify that violation of federal controlled substance law, including for marijuana,” remained a conditional bar to establishing good moral character for naturalization – even where that conduct would not be an offense under state law. This policy would likely continue under a second Trump administration.
The FDA would likely increase regulatory hurdles associated with both cannabis and cannabis-derived compounds. While the FDA recently issued draft guidance on cannabis-related clinical research and generic oral CBD medications, it has yet to offer a comprehensive framework for CBD’s regulation in consumer products. This lack of regulatory clarity has effectively stymied market research and investment, a strategy that is not likely to change soon.
Should President Trump be reelected, it is likely either one or both chambers of Congress will have Republican majorities. Under this scenario – a Republican majority and an emboldened second-term president no longer beholden to a relatively pro-cannabis electorate (and famously critical of the substance) – there is likely to be little appetite to address cannabis-related legislation.
Notably, Biden has not committed to legalizing marijuana for recreational use at the federal level; instead, his administration would reschedule it from a Schedule I to Schedule II drug under the Controlled Substances Act and allow states to set their own laws vis-à-vis its recreational use. He has, however, vowed to “support [its legalization] for medical purposes.”
Under a Biden administration, the DOJ would “not launch federal prosecution for matters that are legal at the state level,” including the adult use of cannabis for recreational purposes. Additionally, Biden has stated his administration would expunge past federal convictions for cannabis-related offenses; he has instead expressed support for the use of drug courts and treatment diversion programs, working with health and social service agencies to transition cannabis-related crimes out of the criminal justice system and into health care treatment programs, and implementing harm reduction interventions. Moreover, in a departure from Trump administration policy, a Biden administration would likely issue guidance to allow for the increased approval of cannabis research permits.
A Biden administration would remove cannabis possession and use from the list of deportable offenses. Currently, offenses “other than a single offense involving possession for one’s own use of 30 grams or less of marijuana,” is cause for deportation. Moreover, it would likely rescind guidance establishing that a “violation of federal controlled substance law, including for marijuana,” remains a conditional bar to establishing good moral character for naturalization.
While partially contingent upon his choice for FDA Commissioner, a Biden administration would likely increase the frequency of hearings on cannabis and CBD products, paving way for the agency to promulgate actionable guidance.
Should Biden be elected, it is possible either one or both chambers of Congress will have Democratic majorities – prompting an increase in cannabis-related legislative activity.