By: Ben Barlow  [8/10/22]

Cannabis legalization advocates are quick to point out a Catch-22 in current legalization debates. On one hand, Cannabis is a Schedule 1 drug under the Controlled Substances Act. [1]  On the other hand, federal curtailment of research curtails attempts to show medical efficacy.

You could be reading and wondering ‘hey, how can there be both no accepted medical use of cannabis but all these state medical programs?’ If so, you are not alone. Legalization advocates argue that the medical benefits of cannabis are a given. Opponents (and for medical cannabis legalization there are fewer and fewer – check out my post containing polling numbers on the issue) point to the CSA Schedule. Advocates point to studies and patient reports of medical cannabis effectiveness. [2]  Opponents point to the lack of clinical trial data or solid U.S. scientific research on medical effectiveness. Advocates argue that the absence of clinical trials and meaningful research is due to the fact such research is minimal under federal law. Opponents say, ‘because there is no accepted medical use!’ 

A casual observer’s head explodes.

Whether in favor of cannabis legalization or opposed to it, everyone should be able to agree that meaningful scientific research into medical cannabis effectiveness should occur. In fact, to objective observers it can seem that the only reason someone would oppose such research or want to curtail it would be out of a fear that demonstrated effectiveness would make it more likely cannabis is removed from Schedule 1.

Currently, federal law allows limited research – and all of that through the National Institute on Drug Abuse (NIDA). Scientists applying to conduct research often complain that it can take years to get research applications approved, methods of research are constrained, and the cannabis they are eventually allowed to research is inferior to products widely available throughout the country in state-approved medical cannabis dispensaries. On this last point, since 1968, the NIDA has only contracted with Marijuana Project at Ole Miss (University of Mississippi) to provide cannabis for approved research. If this is the first time you are learning this and you are thinking ‘huh?’ Yeah …

Federally approved Cannabis research is all directed by the arm of the NIH whose “mission is to advance science on the causes and consequences of drug use and addiction.” [3]  The NIDA in allowing research into Cannabis along with their other research into drug addiction and its consequences has required any limited research to only study cannabis grown by Ole Miss.

Beyond the obvious problem of an Agency primarily focused on addiction science and the adverse effects caused by Schedule 1 drugs overseeing approving research projects and the idea that scientists would have a ‘lone source’ bumper put on their work from the outset is the Ole Miss product itself. Some studies have shown the Ole Miss product is genetically more like hemp than other cannabis strains. [4]  Many researchers question how anyone can conduct research into the efficacy of a product if not allowed to evaluate that product. I am a history and poly sci major, not a scientist, but that seems to be a reasonable question. If my doctor told me she thought a particular medicine would or would not be effective because researchers had taken a different form of that medicine, diluted it, and used it to fingerpaint, I would be skeptical. 

To be clear, this is not a shot at Ole Miss or their Marijuana Project. [5]  It is a shot at a system that while purporting to support research has contracted with just one state university to provide marijuana for all researchers (and a state that did not legalize medical cannabis until six months ago). 

While the Mississippi legislature did not approve a medical cannabis program until after 36 other states and the District of Columbia had taken action on the issue, their largest state university received money annually (recently approximately $1.5 million per year) to cultivate cannabis. [6]  That is in addition to research funding NIDA has awarded to researchers at the University. [7]  

In 2016, after 48 years of Ole Miss ‘sole source’ contracts, the DEA (who is tasked with licensing cultivators as well as approving applications to research schedule 1 substances) seemed to realize that limiting research to product from one place didn’t scream science and announced it would expand the pool of licensed growers beyond Ole Miss. [8]  In 2021, the Agency announced that it had reached an agreement with a limited number of third parties to provide cannabis to approved research programs. To date, NIDA has not partnered with any other cannabis provider to supply researchers.

Even if NIDA was utilizing the expanded pool of suppliers, there are questions about whether NIDA will expand the types of research approved and ensure that researchers have unfettered access to the types of products necessary for planned research.

In late July, the House of Representatives passed ‘The Medical Marijuana and Cannabidiol Research Expansion Act’ (“MMCREA”) in a bipartisan vote (216 Democrats and 109 Republicans in favor). 

That Bill, introduced by Oregon’s Earl Blumenauer mirrors legislation already advanced in the Senate – meaning that, if you remember your Schoolhouse Rock, the MMCREA will go the Senate and find itself on the President’s desk soon. 

For anyone reading the title of the Act and thinking this whole debate about medical research is over – spoiler alert. 

Not quite.

For cannabis research advocates, the MMCREA checks some boxes. But the Act focuses on the management of medical cannabis research applications. For example, under the MMCREA:

  • The Attorney General would have 60 days to approve or deny applications from scientists wanting to begin clinical trials on human subjects. This decision by the Attorney General would follow the approval of trial protocols by the Department of Health and Human Services (HHS) and the National Institutes of Health (NIH).
  • The Act tasks Federal agencies with reporting on the “potential therapeutic effects of cannabidiol [CBD] or marijuana on serious medical conditions.”  
  • The Act mandates the Attorney General to seek applications from those seeking to grow cannabis for potential drug development or research.

The MMCREA; however, does nothing to expand research sourcing – the Scylla to the Charybdis of research control – leaving the ship of science without much chance of getting anywhere. Paul Armentano, Deputy Director of the National Organization for the Reform of Marijuana Laws summed up the problem:

“Currently, the limited variety of cannabis cultivars accessible to federally licensed researchers does not represent the type or quality of cannabis products currently available in legal, statewide markets,” he said. “The fact that nearly one-half of US adults have legal access to these multitude of cannabis products, but our nation’s top scientists do not, is the height of absurdity and it is an indictment of the current system. This proposal misses the opportunity to change that reality.” [9]

Others in Congress are attempting to expand on the MMCREA’s expansion. Last week, Arizona’s Rep. Scott Peters (D) and Ohio’s Rep. David Joyce (R) introduced the Developing and Nationalizing Key Cannabis Research Act. [10]  As opposed to the MMCREA, the Joyce bill (avoiding what some have already coined the DANK Act) mandates that agencies create a unified federal approach to Cannabis research. Agencies would have one year to develop that unified research approach and it would center on six specific objectives centering on the safety and therapeutic efficacy of cannabis as related to epilepsy, multiple sclerosis, acute or chronic pain, PTSD, anxiety, Tourette syndrome, and a catch-all ‘any other condition deemed appropriate.’ The Joyce bill would appropriate funds for the creation of cannabis-dedicated research centers.

In addition to research into therapeutic efficacy, the Joyce bill would direct the collection of data on adult use, including long-term use and use by at-risk populations.

Given the painstaking incremental approach favored thus far on the federal level (see banking, for example), it is unlikely Joyce and Peter’s bill sees much movement while the MMCREA will become law. But even a casual read of the Joyce bill shows a neon sign humming ‘Enough. It is time to be intellectually honest, do the research, and let the chips fall where they may.’ It is hard to disagree. Current federal cannabis prohibition is built on the pillars of harm and no medical efficacy. Unless the science used to study those pillars is unfettered, the circular reasoning in other cannabis debates will continue. Most debates associated with cannabis, from safe banking to intellectual property protection, begin and end with the CSA schedule.  

Unfortunately, rather than support actual research that would indicate whether Cannabis is properly scheduled, many elected leaders seem more interested in keeping the schedule as a bulwark against cannabis legalization. 

For more information on how Dunlap Bennett & Ludwig can help you with your legal needs, contact us by calling 800-747-9354 or emailing clientservices@dbllawyers.com.


[1] “Schedule I drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse. Some examples of Schedule I drugs are: heroin, lysergic acid diethylamide (LSD), marijuana (cannabis), [ecstasy], methaqualone, and peyote.” https://www.dea.gov/drug-information/drug-scheduling

[2] https://www.ncbi.nlm.nih.gov/books/NBK425767/

[3] https://nida.nih.gov/about-nida

[4] https://www.marijuanamoment.net/government-grown-marijuana-is-genetically-closer- to-hemp-than- cannabis-sold-in-dispensaries-another-study-finds/

[5] Ole Miss produces what NIDA tells it to produce, with the potency NIDA dictates. Ole Miss is very good at that and there is no reason to doubt, given their 54 years of expertise, that they could produce whatever any researcher might need. The simple fact seems to be that what many researchers would like to study is probably found throughout the rest of the Ole Miss campus, just not in the official sourcing through the Marijuana Project.

[6 https://pharmacy.olemiss.edu/marijuana/nida-contract/

[7] https://news.olemiss.edu/researchers-study-cannabis-pain-relief-with-1-37-million-grant/

[8] https://norml.org/news/2021/05/27/dea-announces-intent-to-license-marijuana-growing- applicants/ – all 

[9] https://www.law360.com/articles/1516479/cannabis-bill-roundup-congress-kicks-off-reform-agenda

[10] https://www.marijuanamoment.net/bipartisan-dank-cannabis-research-bill-filed-in-congress-really/


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