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Health Care ‘Cannot Bury its Head in the Sand Regarding Cannabis’ Any Longer
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The U.S. medical establishment has, for the most part, not dealt with cannabis legalization head on, which is unfortunate given the significant trend toward legalization and the increased use of cannabis to treat medical conditions.
All but four U.S. states have legalized cannabis (otherwise known as marijuana) to some extent. Thirty-three states, the District of Columbia, Puerto Rico, Guam and some other territories have legalized cannabis for medical purposes. Illinois recently became the 11th of those states (along with D.C.) to legalize cannabis for all adults as well. Thirteen states have legalized high-tetrahydrocannabinol (THC), low-cannabidiol (CBD) oils for limited patient populations. This trend is not limited to the U.S. Canada has legalized cannabis for adult use, and numerous countries across the globe have legalized it for medical use. Further, in the wake of the U.S. government removing hemp and its extracts from the Controlled Substances Act (CSA), products containing CBD have also proliferated across the country and indeed the world.
Public support for cannabis legalization continues to increase, in large part because many patients have found cannabis helpful, particularly for medical conditions. The most recent Gallup poll found that about 90% of Americans favor legalizing medical cannabis, about 66% favor legalizing it entirely and about 75% prefer that the federal government not interfere in the states’ legalization. In 2018, for the first time, a majority of Democrats, Republicans and Independents favor cannabis legalization.
No one should expect the federal government to intervene and stop this trend. Since 2014, the U.S. government has largely declined to enforce federal prohibition against state law-compliant companies licensed to produce or sell cannabis (licensees). Even when former Attorney General Jeff Sessions rattled the saber and gave U.S. attorneys the discretion to prosecute licensees, none did. Since then, Attorney General William Barr has stated and reiterated that he will not upset “settled expectations” or “investments” arising from the federal government’s past lack of enforcement and that he does not intend to use federal resources to enforce federal cannabis laws in states that have legalized cannabis “to the extent people are complying with the state laws.” Further, a provision in the federal spending bills since 2014 has prohibited the Department of Justice (DOJ), including the Drug Enforcement Agency (DEA), from interfering with state medical cannabis programs, including prosecuting state-compliant medical cannabis licensees.
Additionally, cannabis reform bills in Congress enjoy greater bipartisan support than ever before, and most of the Democratic presidential candidates actively support some level of federal legalization or at least decriminalization.
Indeed, cannabis is now big business in the U.S. and globally. More than $11 billion of state-legal cannabis retail sales were made in 2018. By 2022, licensed sales are projected to reach more than $23 billion in the U.S. and $32 billion globally. Several licensees operate in multiple states, are publicly traded and have market caps of more than $1 billion.
Cannabis legalization and patients’ use of and desire to use medical cannabis are not going away. While many physicians and medical researchers have fostered greater knowledge about cannabis, the U.S. medical establishment as a whole has chosen to bury its head in the sand. For example, many hospitals and groups have prohibited physicians from discussing cannabis with patients or writing certifications for use, both of which are legal even under U.S. law. That is unfortunate. Just as some lawyers have worked to establish the rule of law in the growing cannabis industry, the medical establishment should now view further cannabis legalization and medical cannabis use as inevitable and work to understand better the impact on patients, how to incorporate medical cannabis into their practices and how to speak openly and honestly about the substance with patients and colleagues.
– Eric P. Berlin, JD
Partner
Dentons
Disclosure: Berlin reports no relevant financial disclosures.