As states throughout the country continue to legalize medical and adult-use cannabis, the federal de-scheduling and later legalization of cannabis is likely to come sometime in the near future. But what exactly comes with such a widespread shift in policy?
As we look ahead at the potential for federal legalization, a new report warns lawmakers about taking a thoughtful approach, namely accounting for the potential unintended effects that interstate commerce on the current intrastate cannabis markets could have on social equity and small cannabis businesses.
Report Highlights Unintended Consequences of Federal Reform
While the shift would better align federal policy with state-level reforms and public opinion, “it will also disrupt and force the transformation of existing intrastate cannabis markets,” the report by Parabola Center for Law and Policy opens. “How the nation will shift from dozens of individual state cannabis markets to one national market, and the implications of that shift, is unknown but likely to be dramatic.”
The report continues, “It is also safe to assume that many advocates for federal de-scheduling are not aware of the consequences such a policy change portends for existing and entrenched state cannabis policies.”
The report, titled “How to Federally Legalize Cannabis Without Violating the Constitution or Undermining Equity and Justice,” offers a blueprint for Congress to protect cannabis professionals in the industry, promoting justice with care to avoid undoing the progress states with legal cannabis laws have worked toward through the past decade.
The American cannabis market is worth $33.8 billion, composed primarily of small business owners making up more than 10,000 businesses providing an estimated 400,000 jobs across the U.S.
The report was authored by Tamar Todd, an attorney whose primary experience is drug policy alongside her role as a U.C. Berkeley School of Law lecturer teaching cannabis law and policy.
Protective Recommendations for Federal Cannabis Legalization
The report makes three key constitutional policy recommendations to mitigate the risks of corporate consolidation and monopolization that may come with federal reform. Parabola also includes draft text addressing the potential solutions.
The first recommendation explicitly preserves states’ rights to set their own cannabis laws “as designed and without disruption” in the face of federal reform. The report states that Congress should “specifically state that it does not intend to preempt, prohibit, or otherwise limit any state law, regulation, or requirement regardless of whether the state law affects interstate commerce or favors in state interests.”
The second recommendation deems that small, social equity and worker-owned cannabis businesses should gain priority in interstate cannabis commerce. These guidelines, per the recommendation, would be regulated through a registration system with the federal government, with registrations reserved for state-licensed entities that are involved in promoting industry diversity, that offer support and services to “disadvantaged individuals, veterans, or individuals and communities most affected by cannabis prohibition and enforcement” or protect the rights of workers to organize and co-own businesses.
Parabola also recommended a focus on avoiding U.S. Constitution’s Dormant Commerce clause violations. This clause prohibits states from preventing or restricting interstate commerce, additionally granting Congress the authority to regulate this type of commerce. Should cannabis see federal legalization, the report explains that state regulatory structures could open themselves up to liability under federal legalization should they keep their industries within their respective states.
Still Time to Mitigate Risk
The report warns that, should the government legalize cannabis on a federal level without “explicit federal protections for state-based intrastate markets, everything will change once cannabis is de-scheduled. The world of legal cannabis will look nothing like it does now.”
Without these protections, the report predicts that the end of federal legalization and demise of interstate barriers “will likely lead to consolidation of the cannabis industry and a monopolization of the market by large cannabis companies. Additionally, large corporations currently operating in other areas will enter the cannabis market once the risks and constraints of federal prohibition are removed.”
While there are surely benefits to federal cannabis legalization, the report argues that that market is “unlikely to prioritize the social equity goals that have driven many states’ existing policies.”
Parabola ultimately calls on Congress to protect state-level cannabis equity programs and limit market consolidation and monopolization, otherwise warning that “state efforts to create an equitable and inclusive industry will be wiped out.”
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