The first week of December 2020 will witness two of the most consequential sets of votes on cannabis policy since the 1961 Single Convention on Narcotic Drugs marked the advent of the prohibitionist global drug control regime, which allows for only medical and scientific uses of hundreds of psychoactive substances. Unfolding over the span of just a few days, the voting set to take place at the United Nations and in the U.S. House of Representatives may reverberate for years to come, setting the course of cannabis policy in the United States and globally.
On December 2 in Vienna, Austria, the 53 Member States of the UN Commission on Narcotic Drugs (CND) will vote on a package of six recommendations from the World Health Organization (WHO) regarding the scheduling of cannabis in the UN drug control treaties. Cannabis was originally placed—and remains still—in the strictest control schedules (I and IV) of the 1961 Convention, with even medical uses discouraged.
Later in the week, nearly 4,500 miles away in Washington, DC, the U.S. House of Representatives will take up the Marijuana Opportunities, Reinvestment and Expungement (MORE) Act. The most comprehensive cannabis reform legislation to ever reach the floor of the House, the MORE Act would decriminalize cannabis under federal law. The federal Controlled Substances Act (CSA) of 1970—enacted as the implementing legislation of U.S. obligations under the 1961 Convention—classifies cannabis (“marihuana”) in Schedule I, the most stringent level of federal control. Beyond removing cannabis from the CSA, the MORE Act would expunge prior federal marijuana convictions and impose a federal tax on cannabis sales, with the revenue to be invested in communities most affected by the “war on drugs”.
The UN and the congressional votes were each meant to have taken place earlier but were postponed. The WHO cannabis recommendations were originally meant to be voted upon during the CND’s March 2019 session. But numerous countries, including the United States, requested more time to study the recommendations and define positions, and voting was ultimately pushed back to December 2, 2020, during the CND’s reconvened 63rd session.
In Washington, House Democratic leaders had planned a September floor vote on the MORE Act, but opted to wait until after the U.S. general elections on November 3. Election day saw another four states approve initiatives to legally regulate adult-use cannabis, bringing the current total to 15 states, plus the District of Columbia. Cannabis reform appeals to voters across the ideological spectrum, spanning the country’s sharp partisan divide, with “blue” and “red” states choosing legal regulation of cannabis instead of prohibition.
With these latest state ballot measures now approved by the voters, fully one in three Americans now resides in a jurisdiction opting to legalize adult-use cannabis, even as U.S. federal law continues to criminalize the production, distribution and possession of cannabis, with the narrow exception of federally-approved research studies. State-level adoption of legal regulation of adult-use cannabis, which first began in Colorado and Washington State in 2012, places the U.S. federal government in clear breach of core obligations from both the 1961 Convention and the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. Longtime congressional proponents of cannabis reform, such as Oregon’s Earl Blumenauer and California’s Barbara Lee, hail the latest wave of cannabis reform via state ballot measures and point to surveys that show rising national support for legalization, highlighting the momentum for cannabis reform ahead of the MORE Act vote.
The WHO recommendations, unveiled in January 2019, arose from the first-ever critical review of cannabis undertaken by the world health body and its Expert Committee on Drug Dependence (ECDD). The original placement of cannabis in the 1961 Convention’s strictest schedules (I and IV) lacked a sound scientific basis, instead reflecting prevalent paternalistic and colonialist attitudes among the major powers. Literally decades overdue, the ECDD’s scientific review of the evidence regarding cannabis marked a welcome step forward, and can now provide the foundation for more regular ECDD reviews in the future.
The WHO recommendations were eagerly awaited, and contain some clearly positive points, such as acknowledging the medicinal usefulness of cannabis and clarifying that cannabidiol (CBD) is not under international control. The first WHO recommendation (listed as “5.1” to denote where it falls on the CND’s agenda) recognizes the medical value of cannabis and would remove it from Schedule IV of the 1961 Convention, reserved for substances with “particularly dangerous properties” and little or no therapeutic value. This recommendation deserves the support of all 53 CND members. Passage requires a simple majority, meaning a minimum of 27 votes if all members actually vote; roll call will be taken, so each country’s vote will be public.
Successfully removing cannabis from Schedule IV would represent a welcome modernization of the UN drug treaties. As matters stand today, countries can and do allow use of cannabis for medical purposes, but only with grudging tolerance under the 1961 Convention, with Schedule IV placement signifying that the 1961 Convention advises against medical uses of cannabis, but does not require their prohibition. Even if the recommendation to remove cannabis from Schedule IV is rejected by the CND, the WHO’s assessment that scientific evidence supports medical and therapeutic use of cannabis will stand, providing an important justification for countries committed to providing and expanding access to cannabis for medical uses.
The U.S. government, for its part, has already indicated that it favors adopting Recommendation 5.1. But the final tally is likely to be close. Even such a scientifically indisputable recommendation is vulnerable to defeat, with prohibition-minded governments—led by the Russian Federation—flexing their muscles to prevent any reform of UN cannabis scheduling.
However, not all of the WHO’s cannabis scheduling recommendations arise so clearly from the scientific evidence at hand. The other five WHO recommendations (5.2 through 5.6) have raised doubts on the part of numerous countries based on possible economic, social, legal and administrative implications were they to be adopted. Of these five remaining recommendations, the U.S. government has indicated support only for 5.4, to delete from Schedule I of the 1961 Convention reference to “extracts and tinctures” of cannabis, an outdated term that has led to confusion as to whether CBD oil would also fall in that category. Apart from Recommendation 5.1 to remove cannabis from Schedule IV, the only other recommendation with any chance for approval by the CND seems to be 5.4.
The U.S. government’s stances on each of the six WHO recommendations are well-considered—especially the clear U.S. support for Recommendation 5.1, at last recognizing the medical usefulness of cannabis. But the U.S. voting stances on the six recommendations issued by the WHO does not tell the whole story.
The process of considering the WHO cannabis recommendations has proven sharply divisive and controversial in the already polarized context of the CND. In response, the U.S. government has sought to recruit countries to join an “Explanation of Position” (EoP) that would project some apparent unity. The EoP would stitch together a version of the CND’s vaunted “Vienna consensus”—where a premium on achieving a show of unanimity favors least-common-denominator outcomes that advantage those governments determined to prevent modernization of the drug treaty regime. The proposed EoP would look to minimize the controversies that have roiled CND members by emphasizing that cannabis remains “properly subject to the full scope of international controls of the 1961 Single Convention” because of its continued placement in Schedule I—a status now supposedly reaffirmed by a modern scientific review by the WHO.
This would be a deeply problematic outcome for the process overall, and underscores the principal flaw of the WHO recommendations from the beginning. The WHO decision to keep cannabis in Schedule I (for substances considered “highly addictive and liable to abuse”) did not require a vote, because no change in scheduling was being proposed. But the decision to keep cannabis in Schedule I did not arise logically from the ECDD’s critical review, which concluded that cannabis was less harmful by comparison to other substances on the same list, such as heroin and cocaine. Despite that finding, the WHO refrained from recommending that cannabis be moved to the less stringent Schedule II, or perhaps even be deleted from the treaty schedules altogether.
The WHO’s options were also narrowed by the confines of the treaty’s scheduling rules, which require that raw plant materials and extracted psychoactive compounds must be placed under the same level of control (for example, cocaine and the coca leaf, both placed in Schedule I). That logic precludes consideration of more nuanced and suitable options, such as recommending that a category of high potency extracts that pose more significant health risks remain in Schedule I, while moving cannabis and resin to Schedule II or de-listing them entirely.
To be sure, even a recommendation to move cannabis to Schedule II would have had no chance of approval by the CND, where even removal from Schedule IV faces vehement opposition and may fall short of the votes needed to pass. But the disconnect between the WHO’s evidence and the dubious logic behind its decision to stick with Schedule I suggests that political calculations prevailed over purely scientific assessments.
As the U.S. government rallies countries in Vienna to affirm a supposed global consensus that cannabis should be subject to the “full scope of international controls,” the House of Representatives is preparing to vote on legislation that would remove cannabis from the substances placed under the federal Controlled Substances Act.
Even assuming a strong House vote in favor of the MORE Act, the road to comprehensive federal cannabis reform is still likely to be a winding one. With Senate majority control still undetermined (pending Georgia’s January 5 run-off elections), the Democrats’ House majority having been narrowed, and an incoming Biden-Harris administration facing the tremendous challenges of tackling COVID-19 and rescuing the economy, federal cannabis reform may end up taking a backseat to other legislative priorities. And even if the new administration is determined to advance federal cannabis reform legislation, Senate Republicans may ultimately use their clout to block progress.
But even with twists and turns and setbacks to come, it seems clearer than ever that U.S. federal cannabis reform will be achieved. Among the 15 states that have now legalized medical and adult-use cannabis, and the 20 others that have legalized cannabis for medical uses, none are reversing course. As both a practical enforcement matter and as a political matter, the federal government is in no position to force the issue. What only a decade ago may have seemed unthinkable today seems inevitable. Citizens are still ahead of elected officials at the federal level, but Congress is catching up and will eventually act to close the widening gap between state-level legalization and federal prohibition, which has clearly become untenable.
This week’s House vote on the MORE Act thus points toward the future direction of U.S. cannabis policy—jettisoning a failed prohibitionist and punitive framework in favor of regulatory models to provide cannabis users safe access to products of known provenance and quality, while shrinking illicit markets, creating jobs, generating revenues and at least starting to repair the vast harms caused by cannabis criminalization, especially among Black and Brown communities that have borne the brunt of the drug war.
Meanwhile, a U.S.-led “Explanation of Position” at the CND to affirm the placement of cannabis under the very strict international controls of Schedule I in the 1961 Convention would reinforce the prohibitionist drug treaty logic, even as Congress takes a significant step toward dismantling cannabis prohibition within the United States. To be sure, the classification of cannabis as Schedule I under the 1961 Convention is consistent with current and historic U.S. policy. But it is also clearly at odds with the direction the United States and many other countries are heading. The backwards-looking approach being promoted by the U.S. government in Vienna is out of step with the changes underway domestically and major cannabis reforms taking place elsewhere in the Americas and around the world.
Uruguay led the way, regulating adult-use cannabis in 2013, followed by Canada in 2018. Mexico is now on the brink of approving a new law to regulate cannabis nationally. In the Caribbean, CARICOM’s Regional Commission on Marijuana concluded in 2018 that the prohibitionist regime “is not fit for purpose,” recommending “significant changes to the laws of the region to enable the dismantling of this regime […] that has proven to be ineffective, unjust, and caused more harm than it sought to prevent.” Israel’s government recently announced plans to regulate cannabis during 2021. In Europe, Luxembourg’s government is also drafting regulatory plans. Meanwhile, the Dutch government is launching local experiments in regulated cannabis production to supply the ‘coffeeshops’ where purchase and use is tolerated. Similar policy experiments are expected to take place in Switzerland.
With a new U.S. administration preparing to take office and Congress building momentum to pass the MORE Act and other reforms, the U.S. will be entering a new era of cannabis policy, abandoning a punitive prohibitionist regime in favor of sensible, responsible regulation. Congress and the Biden-Harris administration now have the opportunity to identify areas in common with other countries that are proceeding with cannabis regulatory regimes.
A coalition of like-minded countries can seek further reviews by the WHO. Scientific evidence about cannabis continues to accumulate, and the first WHO review on cannabis cannot also be the last—especially given the serious questions surrounding the decision to keep cannabis in Schedule I. At the same time, the U.S. can actively engage with like-minded countries and other UN Member States to consider options—such as reservations and inter se treaty modification agreements—for reconciling the legal regulation of adult-use cannabis with their obligations under the UN drug control conventions, including if cannabis remains in Schedule I.