With the passage of the Compassionate Use Act in 1996, California became the first state to permit legal access to cannabis for medicinal purposes. Today, 38 US states regulate and allow for the consumption of medical cannabis products, with tens of millions of Americans using cannabis therapeutically and around 90 percent of voters endorsing medical cannabis legalization. With nearly three decades having passed since California’s landmark movement to legalize medical cannabis, where is the industry now? This article explores the exciting legal and commercial movements that have taken place since medical cannabis first became a market in 1996 to move the legal medical cannabis community to where it is today.
California’s Proposition 215, also known as the Compassionate Use Act of 1996, allowed patients with certain qualifying conditions to cultivate and possess cannabis for medical purposes as prescribed by a medical professional. Soon thereafter, California was followed by a number of other states, such as Alaska, Oregon, Washington, Maine, and Hawaii, whose voters chose to enact similar policies between 1998 and 2000.
However, medical cannabis use was still limited in the first few years after legalization. First, intimidation efforts from law enforcement made many physicians unwilling to recommend therapeutic cannabis to their patients. Soon after Prop 215’s passage, the Drug Enforcement Administration (DEA) threatened to revoke the DEA license (the official registration giving medical practitioners legal authority to prescribe controlled substances in the US) of any physician prescribing cannabis. Although physicians were able to secure a victorious injunction against these threats in federal court, citing that DEA action would violate physicians’ 1st Amendment protections, many physicians fear writing prescriptions for medical cannabis to this day.
The other obstacle for caregivers and patients in securing medical cannabis was the substance’s availability. Many medical professionals and individual users in the 90s lacked the skills or resources to cultivate cannabis plants, and the dispensary system wasn’t established like it is today. This meant that it was overall more difficult for patients with legitimate prescriptions to obtain medical-grade cannabis.
Former President Barack Obama, during his 2008 presidential campaign, stated his intention to reduce the aggressive anti-cannabis legal action promoted during the Bush era. In 2009, upon Obama’s taking office, Deputy Attorney General James Ogden released the Ogden Memo, which declared that the Department of Justice and the DEA would deprioritize enforcement of the federal ban on cannabis in states that legalized the plant’s medical therapeutic use. The memo and other similar memos produced in 2011 and 2013 instruct federal prosecutors to pursue national cannabis policy enforcement in only certain cases (often those involving violence or other illegal activity), rather than targeting individual patients.
Unfortunately, in 2018, US Attorney General Jeff Sessions decided to rescind these Obama administration guidelines. Sessions instead stated that decisions about how aggressively to pursue cannabis-related violations of federal law would be up to individual US attorneys within their jurisdictions. Essentially, this movement gave federal prosecutors around the country the volition to enforce federal law in cases involving cannabis, even in the states where the plant and its derivatives are legal.
The 2018 U.S. Farm Bill made a major step forward for patients receiving cannabidiol (CBD) treatment by removing industrial hemp from the list of controlled substances scheduled under the Controlled Substances Act (CSA), essentially legalizing the plant’s cultivation and trade in the country.
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This legislation distinguished hemp as a variant of the cannabis sativa plant producing low concentrations of the psychoactive compound in cannabis, tetrahydrocannabinol (THC). The 2018 Farm Bill defines hemp as a cannabis plant with THC concentrations of no more than 0.3% contained in any of the plant’s parts or derivatives. Before the Farm Bill, all cannabis plants and their products were defined as “marijuana” under the CSA, effectively banning all uses of the plant. The new definition of “hemp” removed these low-THC variants of the cannabis plant from the list of controlled substances under federal law.
Consequently, farmers gained the legal framework to cultivate hemp, a primary source of CBD. This facilitated a surge in the availability of hemp-derived CBD products, contributing to a burgeoning market for therapeutic applications. Without strict federal legal complexities involved, medical cannabis patients, therefore, were allowed increased freedom to obtain more accessible and diverse options for CBD products that provide potential relief for various health conditions. That same year, the first pharmaceutical-grade hemp-derived CBD medication treating certain seizure disorders, Epidiolex, was approved for therapeutic use in the United States.
In December of 2022, President Joe Biden signed a new law known as The Medical Marijuana and Cannabidiol Research Expansion Act (MMCREA), which aims to facilitate efficiency in research concerning the benefits of cannabis. The regulatory shifts entailed by the act relax various federal restrictions on cannabis availability for research purposes, with the primary focus being the increased cultivation and availability of research-grade medical cannabis.
Under the MMCREA, the government is required to maintain an “adequate and uninterrupted supply of marijuana” for research uses. For over 50 years, the US federal government has contracted the National Center for Natural Products Research at the University of Mississippi as the sole developer and supplier of all of the nation’s research-grade medical cannabis for scientific study. Now, multiple approved manufacturers are permitted to develop and distribute research-grade cannabis for clinical research trials. This movement helps ensure the availability of these products for commercial production or drug development research.
The law also is intended to streamline the approval process for cannabis research. The MMCREA promotes expedited DEA licensing approval processes for researchers looking to obtain cannabis for clinical study as well as for companies looking to supply cannabis products for the purposes of medical research.
Overall, the aim is that, over time, these provisions will facilitate more research into potential healthcare uses, risks, and benefits associated with cannabis use. Moreover, the improved research could ultimately even provide medical providers with better information to advise their patients about more precise dosing approaches and potential interactions between cannabis products and other medications.
The successes of the medical cannabis legalization effort have opened a market where hundreds of legitimate collectives are able to produce safe, quality, and accessible cannabis for patients’ therapeutic needs. Because of these breakthroughs in legalization, many individuals across the nation can purchase cannabis without turning to black-market products and risking arrest.
Nevertheless, the black market for cannabis still thrives and has even been recently gaining increased prominence in states where medical cannabis is legal. For example, data indicates that California produces nearly five times as much cannabis as the amount that is legally consumed, and around 75% of Massachusetts’ cannabis sales were projected to take place through the illicit market in 2019.
One highly significant advantage of illegal operations is that black market dealers can sell their products at far lower prices. Because of significant taxes and fees imposed upon purveyors and recreational consumers of cannabis in states like California, Massachusetts, Oregon, Colorado, and Washington, many people turn to selling and purchasing cannabis through illegal means for better prices.
Tracing the trajectory of medical cannabis from the inception of California’s 1996 Compassionate Use Act to the present resurgence of black-market activity, we see that the landscape of cannabis regulation is complex and continually evolving. Today, even in states where medical cannabis is legal and more accessible, the system is still imperfect, and we must keep on adapting new approaches to cannabis regulation. The ongoing story of medical cannabis in America puts us in exciting times where cannabis community collaboration and forward-thinking policies will be crucial for navigating the road ahead.
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