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Cannabis Law Now Podcast: What's Next for Schedule III Marijuana

 

Published:

June 17, 2024
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In October 2022, President Biden asked the Department of Health and Human Services (HHS) and the U.S. Attorney General to review how marijuana is scheduled under federal law. In August 2023, the HHS marijuana recommendation went to the Drug Enforcement Administration (DEA) for its consideration. On May 16, 2024, the DEA published its 92-page notice of proposed rulemaking (NPRM) to move marijuana from Schedule I on the CSA to Schedule III. We are currently in a 60-day public comment period that is part of the DEA’s rescheduling process and NPRM. Rulemaking is a complicated and drawn-out process with many twists, turns, and administrative nuances.

In this episode, Hilary Bricken, and John Hudak, Director of the Maine Office of Cannabis Policy and former Deputy Director of the Center for Effective Public Management (who was also a Senior Fellow in Governance Studies at the Brookings Institution where he led Brookings’ research into cannabis policy, regulation, implementation, and politics for over 10 years), take the audience through this historic rulemaking effort by the DEA and what to expect next from federal and state governments. John covers timelines, rulemaking technicalities, the politics behind the NPRM, and the possibility of a bifurcated system for marijuana between pharmaceuticals and state-licensed markets.

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This transcript is auto generated

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welcome I'm your host Hilary Bricken and

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this is the Cannabis law Now podcast

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where we regularly discuss issues

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related to the Cannabis industry

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including investment day-to-day

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operational issues and potential reform

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on the horizon that will impact all

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cannabis businesses and investors in the

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United

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States welcome everybody to today's

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podcast it's going to be an exciting one

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because at this point in time and today

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is May 17th as we're recording we

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finally have in our midst the notice of

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proposed rulemaking from The Drug

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Enforcement Administration to make the

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historic shift from cannabis for

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cannabis on the Controlled Substances

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Act from schedule 1 to schedule three

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and to discuss that move which is

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admittedly epic I have today John Hudak

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who is a longtime friend and colleague

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of mine he wears many hats and as of

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today he is the director of the main

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office of cannabis policy that's number

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one but he is also a former Brookings

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fellow and that is really why I have him

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on today certainly we can discuss what

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you're doing in Maine John but I brought

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you on because you were one of the first

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people in 2016 to deeply analyze what a

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reschedule would look like off of a one

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and I think you even maybe referenced a

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schedule two or three in the piece that

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you put together and I also wanted your

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voice to be Amplified and that you get

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the attention that you deserve on this

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topic because you are truly I think one

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of the few objective voices in the room

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on the topic because you don't have

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clients in the game that are pushing for

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a certain agenda you're not in bed with

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the pharmaceutical industry and you're a

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Regulators so you have a grip on policy

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and kind of these real world

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implications of these major shifts in

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law so welcome to the podcast John

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thanks for having me Hillary and why

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don't you give us a little bit of your

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background I know I just kind of pared a

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little bit of it but let's hear it

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straight from you so the people know

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you're legit yeah so like you said I

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spent over a decade as a senior fellow

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at the Brookings institution where I

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worked on a variety of research areas

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including immigration policy campaigns

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and elections federal spending policy

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and then over time uh cannabis became a

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really big part of my portfolio both out

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of intellectual curiosity but also you

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know if we rewind 10 years 11 years

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there just weren't a lot of think tanks

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talking about cannabis you had the

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Heritage Foundation which was Pearl

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clutching what about the children the

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very Nancy Grace approach to drug policy

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uh and then you had the uh the KO

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Institute which was talking about it

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from a really libertarian economic

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perspective but there weren't a lot of

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think tanks diving into the the real

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nuts and bolts of cannabis policy and so

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you know it's it's easy to be Amplified

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when you're the only voice in the room

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and I um really enjoyed for a bit being

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the only voice in the room from a perch

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at a place like Brookings and then about

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a year and a half ago I hung up my uh

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Think Tank cleats and uh took over at

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Main's office of cannabis policy uh

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where I still am today I I serve as the

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chief regulator and chief enforcement

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officer for the state's medical and

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adult use cannabis programs well I'm

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very happy for Maine I think they're

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incredibly lucky to have you and what I

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like about you most as a political

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scientist is that while you embrace the

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policy you don't get lost in it you've

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always had a very real world perspective

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regarding application and kind of real

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world implications for these moves with

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drugs in particular for cannabis and

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let's just dive right into it this

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notice of prop proposed Ru making is

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fresh I don't even think it's 24 hours

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old as we record this it's 92 Pages some

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of the irony is that the actual proposed

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rule itself only takes up about two

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paragraphs on pages 91 and 92 and the

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remainder of the content really is the

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background and the support for why the

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rule is being brought to bear and I want

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to dive into number one what do you

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think are the top let say three to five

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highlights of the notice of proposed

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rulemaking by the DEA and I'm not going

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to launch into the context of how this

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all came to fruition obviously this is

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highly political we're in a presidential

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election year but when you read the

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notice of proposed rule making what

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really stuck out to you yeah so you're

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right like there's a lot of there's a

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very little bit of the actual sort of

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rule and then there's the justification

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and I think for a lot of your listeners

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their lawyers who are probably pretty

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familiar with regulatory law but I think

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for a lot of your listeners they're

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either lawyers who practice in other

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areas of law or they are not lawyers and

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so the federal rul making process is

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probably pretty foreign to them and this

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might be their first foray into just how

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damn boring it is and the sort of long

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justifications for rule changes are are

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pretty common but I think in this space

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it was a pretty fascinating Deep dive uh

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from the Office of the Attorney General

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from HHS clearly reflecting I would say

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a combination and this is like my

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Topline takeaway is like a combination

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of Science and an understanding of where

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Society is at and so if you strip

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everything away and I'm not saying this

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is my position there would have been

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plenty of justification within HHS and

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FDA specifically to keep Canabis at

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schedule one they did it8 years ago they

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kept it at schedule one let's be honest

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not a lot has changed in our

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understanding of cannabis in 8 years but

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what has changed is the social approach

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um a society's approach to cannabis and

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so I think HHS felt a combination of

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that type of pressure plus the fact that

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the president of the United States

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initiated the rescheduling petition and

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he is their boss at the end of the day

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and so you you have this moment where

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typically does not happen in FDA that is

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outside societal pressure really ended

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up having an impact here and part of the

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reason why I think it's important to

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note that there was this sort of outside

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pressure some of it political excuse me

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some of it societal is a reflection of

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how much we previously misunderstood

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cannabis you know putting it in schedule

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one made it this sort of this demon

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status that it was so bad if it was

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still believed to be so bad HHS would

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not have acted in the way that it did in

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this case in that it it gave into some

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of the political and societal pressure

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but understanding that a lot of states

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have legalized for adult use you know

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Most states have legalized for medical

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use and the sky hasn't and that's an

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important context here the second

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takeaway for me is how much DEA was

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brought dragging kicking dragged kicking

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and screaming to this outcome I think

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for DEA they understood the writing on

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the wall they understood that their boss

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the president of the United States

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wanted this to happen and they very

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vocally and passionately registered

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their objections in this analysis and I

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think some people are going to read the

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uh notice of proposed rulemaking and

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have the approach of like screw the DEA

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like what the hell are they doing but in

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reality like that's good government to

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me you know I would rather know that

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there is dissent I would rather know

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that there is conflicting opinions

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within the administration and despite

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those this is the outcome we got to like

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I can disagree with some of the things

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that DEA noted as objections I'll also

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note that I think some of their

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objections are valid ultimately I think

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we got to the right conclusion the

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administration got to the right

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conclusion we're in an environment where

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our politics is so is so prone to

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conspiracy theories and lack of trust

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and I think having a document like this

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which airs it all out is how government

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should work it's how I like my agency to

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work and Maine and I think it helps

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build that trust to say listen this

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wasn't a bunch of Yes Men behind the

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curtain just saying yes Mr Biden yes Mr

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Biden yes Mr Biden there was this

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conversation internally that ultimately

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Spilled Out into the public and whether

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you agree with HHS whether you agree

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with DEA whether you think cannabis

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should be descheduled this is the type

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of government behavior that we should

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all Embrace that deliberative process

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that's so important see that gives me a

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lot of comfort as an attorney in that in

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one of the few Arenas government should

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be working and not bias one way or the

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other especially when we talk about

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drugs and human safety and consumption

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this type of kind of indirect descent is

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a healthy exercise plus you know you

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mentioned about how boring

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administrative rulemaking is and my god

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do I agree with you in building the

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Integrity of the administrative record

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it is good to have debate because it

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will it will fend off frivolous

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challenges and it will force the science

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to work and probably even up the

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societal pressure around support so I

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don't NE I'm with you I don't

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necessarily think it's a bad thing I was

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surprised to see it but then in reading

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the actual analysis where the DEA is

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pushing back on things it seems that

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what they're really doing is setting the

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record straight that obviously it is the

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attorney general president that is

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pushing for the rulemaking they are

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doing their bidding administratively but

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not that they rejected wholesale they

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want more data and information yeah

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that's right and and what what I'd say

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Hillary is that's that is a remarkable

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change in posture for DEA I think a lot

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of people are going to read this and be

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like oh that's drug enforcement doing

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the drug enforcement thing but you know

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if if you rewind even eight years ago

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dea's position was like yeah it's

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schedule one it should be schedule one

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it's a no-brainer this is bad blah blah

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blah I mean that didn't poure out into

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the public but that was the approach DEA

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held and here they're like you said

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they're not wholesale saying like no

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cannabis is you know an awful thing

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they're just saying we don't have a lot

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of data yet or we don't have enough data

262
00:10:23,000 --> 00:10:27,440
yet for them to be comfortable in the

263
00:10:24,880 --> 00:10:30,120
decision now if we're talking about drug

264
00:10:27,440 --> 00:10:32,240
scheduling and and the debate is between

265
00:10:30,120 --> 00:10:34,079
law enforcement and scientists which if

266
00:10:32,240 --> 00:10:36,720
we boil it down that's the debate

267
00:10:34,079 --> 00:10:38,399
between FDA and DEA scientists versus

268
00:10:36,720 --> 00:10:40,399
law enforcement I'm going to take my

269
00:10:38,399 --> 00:10:43,760
cues from scientists every day and twice

270
00:10:40,399 --> 00:10:47,120
on Sunday I think they are still very

271
00:10:43,760 --> 00:10:48,800
valid perspectives in purches and that

272
00:10:47,120 --> 00:10:50,760
information needs to get out there

273
00:10:48,800 --> 00:10:53,440
because let's be honest I think a move

274
00:10:50,760 --> 00:10:56,360
to schedule three is the right decision

275
00:10:53,440 --> 00:11:00,440
I think the country is marching towards

276
00:10:56,360 --> 00:11:02,880
much broader drug policy reform but the

277
00:11:00,440 --> 00:11:04,320
scheduling process has made mistakes

278
00:11:02,880 --> 00:11:06,000
before I think cannabis being in

279
00:11:04,320 --> 00:11:08,519
schedule one was a huge mistake in the

280
00:11:06,000 --> 00:11:11,639
first place but we have had substances

281
00:11:08,519 --> 00:11:13,959
that move to a lower schedule and then

282
00:11:11,639 --> 00:11:15,920
information comes in and it's realized

283
00:11:13,959 --> 00:11:18,600
that it needs to be moved to higher

284
00:11:15,920 --> 00:11:21,680
control and so putting that information

285
00:11:18,600 --> 00:11:23,399
out there for DEA I think is part of the

286
00:11:21,680 --> 00:11:26,000
conversation to be like hey we might be

287
00:11:23,399 --> 00:11:29,320
make a mistake here and if we are here's

288
00:11:26,000 --> 00:11:32,800
a roadmap road map back to where we need

289
00:11:29,320 --> 00:11:34,320
to be now just so your listeners know I

290
00:11:32,800 --> 00:11:36,839
don't think we're going to be moving

291
00:11:34,320 --> 00:11:38,920
back to schedule two or schedule one for

292
00:11:36,839 --> 00:11:41,800
cannabis I can't fathom a scenario in

293
00:11:38,920 --> 00:11:45,040
which that happens but this is the type

294
00:11:41,800 --> 00:11:47,440
of conversation that exists in drug

295
00:11:45,040 --> 00:11:50,240
scheduling for most people interested in

296
00:11:47,440 --> 00:11:53,800
cannabis this is their first dipping

297
00:11:50,240 --> 00:11:56,079
their toe into that area of policy the

298
00:11:53,800 --> 00:11:58,040
actual drug scheduling area of policy

299
00:11:56,079 --> 00:12:00,720
but it's pretty complicated it happens

300
00:11:58,040 --> 00:12:04,519
all the time and there is a reason why

301
00:12:00,720 --> 00:12:08,839
the Controlled Substances Act asks both

302
00:12:04,519 --> 00:12:11,440
HHS and doj's enforcement areas in this

303
00:12:08,839 --> 00:12:13,800
case DEA to weigh in on it because it is

304
00:12:11,440 --> 00:12:14,920
a complex area of policy certainly I

305
00:12:13,800 --> 00:12:17,399
think it's going to blow the mind of

306
00:12:14,920 --> 00:12:19,399
many actors in the industry because

307
00:12:17,399 --> 00:12:21,399
they've never had to face this on

308
00:12:19,399 --> 00:12:22,959
schedule one ironically their only

309
00:12:21,399 --> 00:12:24,839
Temple at which to worship has been

310
00:12:22,959 --> 00:12:28,720
state law so this is going to be either

311
00:12:24,839 --> 00:12:31,000
a roote Awakening or welcome debate over

312
00:12:28,720 --> 00:12:33,800
a top toic that just tends to generate a

313
00:12:31,000 --> 00:12:35,480
lot of passionate takes and we can talk

314
00:12:33,800 --> 00:12:37,920
about some of that but just to put the

315
00:12:35,480 --> 00:12:40,519
fine point on it with the DEA wanting

316
00:12:37,920 --> 00:12:42,880
more essentially scientific data right

317
00:12:40,519 --> 00:12:44,360
as the top pharmac cops here this is all

318
00:12:42,880 --> 00:12:46,360
going to play out in the rul making

319
00:12:44,360 --> 00:12:49,160
process right with hearings and

320
00:12:46,360 --> 00:12:51,000
testimony public comment from experts I

321
00:12:49,160 --> 00:12:53,639
assume closed door meetings public

322
00:12:51,000 --> 00:12:55,360
meetings and it could take a while right

323
00:12:53,639 --> 00:12:56,839
before we even remotely get to a final

324
00:12:55,360 --> 00:12:59,560
rule yeah that's right so the

325
00:12:56,839 --> 00:13:01,279
administrative procedure act lays out a

326
00:12:59,560 --> 00:13:04,000
timeline in which you know there's

327
00:13:01,279 --> 00:13:06,760
notice and comment period but there are

328
00:13:04,000 --> 00:13:09,839
also periods that are a little more

329
00:13:06,760 --> 00:13:12,440
flexible in terms of the administration

330
00:13:09,839 --> 00:13:14,839
going through comment and responding to

331
00:13:12,440 --> 00:13:17,760
it and let's be honest most rul making

332
00:13:14,839 --> 00:13:19,760
associated with drug scheduling does not

333
00:13:17,760 --> 00:13:21,399
have a lot of notice in common because

334
00:13:19,760 --> 00:13:23,320
most people don't give a damn about it

335
00:13:21,399 --> 00:13:25,480
pharmaceutical companies will the

336
00:13:23,320 --> 00:13:27,880
American Medical Association and other

337
00:13:25,480 --> 00:13:30,600
similar bodies will weigh in but you're

338
00:13:27,880 --> 00:13:34,360
not going to have Joe Smith from Central

339
00:13:30,600 --> 00:13:36,360
Maine weighing in on Ru making around

340
00:13:34,360 --> 00:13:38,880
the blood pressure medication and it's

341
00:13:36,360 --> 00:13:41,240
scheduling um but here the Department of

342
00:13:38,880 --> 00:13:43,519
Justice is going to get probably

343
00:13:41,240 --> 00:13:45,160
hundreds of thousands of comments which

344
00:13:43,519 --> 00:13:47,680
by law under the administrative

345
00:13:45,160 --> 00:13:49,680
procedure act they need to go through in

346
00:13:47,680 --> 00:13:51,680
we and some of it will be silly stuff

347
00:13:49,680 --> 00:13:54,720
but some of it will be serious and

348
00:13:51,680 --> 00:13:57,920
thoughtful and it is going to take doj

349
00:13:54,720 --> 00:14:00,959
time to go through all of this and

350
00:13:57,920 --> 00:14:02,680
ultimately put out the final Rule and

351
00:14:00,959 --> 00:14:04,519
even then that sets off the

352
00:14:02,680 --> 00:14:07,120
Congressional review act by which

353
00:14:04,519 --> 00:14:09,360
Congress can uh reconsider uh the rulle

354
00:14:07,120 --> 00:14:12,920
making it will set it will surely set

355
00:14:09,360 --> 00:14:14,720
off litigation and so I think this is an

356
00:14:12,920 --> 00:14:17,360
important step forward that the

357
00:14:14,720 --> 00:14:19,160
administration is taking but whoever

358
00:14:17,360 --> 00:14:20,880
gets elected I guess I should say

359
00:14:19,160 --> 00:14:23,240
whoever gets reelected because someone's

360
00:14:20,880 --> 00:14:25,199
getting reelected in in this November

361
00:14:23,240 --> 00:14:27,720
whether it's Trump or Biden this

362
00:14:25,199 --> 00:14:29,959
probably won't be settled in that term

363
00:14:27,720 --> 00:14:32,399
it will probably be settled in the next

364
00:14:29,959 --> 00:14:34,240
president's term and and so it's not to

365
00:14:32,399 --> 00:14:36,360
say that the rule won't take effect but

366
00:14:34,240 --> 00:14:39,480
I think thinking about what we consider

367
00:14:36,360 --> 00:14:41,880
settled law major litigation ending Etc

368
00:14:39,480 --> 00:14:44,279
we're years and years away from that

369
00:14:41,880 --> 00:14:46,199
yeah I think in kind of dilc in this

370
00:14:44,279 --> 00:14:48,839
entire process because drug scheduling

371
00:14:46,199 --> 00:14:51,440
is its own animal within administrative

372
00:14:48,839 --> 00:14:53,160
law one of these drugs that was moving

373
00:14:51,440 --> 00:14:56,399
around on the schedules I think it took

374
00:14:53,160 --> 00:14:58,519
the the DEA 14 years to basically settle

375
00:14:56,399 --> 00:15:00,000
it out and that was a drug of in my

376
00:14:58,519 --> 00:15:02,839
opinion no

377
00:15:00,000 --> 00:15:04,240
consequence like this one is now given

378
00:15:02,839 --> 00:15:05,519
the Democratic experiments that have

379
00:15:04,240 --> 00:15:07,120
been set up in the states and we we'll

380
00:15:05,519 --> 00:15:09,360
eventually talk about that but let's get

381
00:15:07,120 --> 00:15:13,759
into one of the what I saw as maybe a

382
00:15:09,360 --> 00:15:17,199
more major contention between DEA HHS

383
00:15:13,759 --> 00:15:19,639
FDA and it's regarding schedule 3 is the

384
00:15:17,199 --> 00:15:21,639
most appropriate schedule and how the

385
00:15:19,639 --> 00:15:23,040
HHS came to that conclusion and I don't

386
00:15:21,639 --> 00:15:25,199
want to get too far into the weeds

387
00:15:23,040 --> 00:15:27,920
because it is out there but typically

388
00:15:25,199 --> 00:15:29,560
there's a five Factor test that's used

389
00:15:27,920 --> 00:15:31,040
after we determine that something should

390
00:15:29,560 --> 00:15:32,880
be scheduled then we determine the

391
00:15:31,040 --> 00:15:34,800
schedule it should go on that five

392
00:15:32,880 --> 00:15:37,079
Factor test basically determines the

393
00:15:34,800 --> 00:15:38,720
appropriate schedule DEA and the notice

394
00:15:37,079 --> 00:15:42,920
of proposed rulemaking seems to be

395
00:15:38,720 --> 00:15:45,720
getting after HHS for only using a novel

396
00:15:42,920 --> 00:15:47,279
two-factor test basically to determine

397
00:15:45,720 --> 00:15:49,680
which is really important the currently

398
00:15:47,279 --> 00:15:51,800
accepted medical use of cannabis which

399
00:15:49,680 --> 00:15:53,319
HHS FDA found that there were seven

400
00:15:51,800 --> 00:15:55,399
indications for which it would be

401
00:15:53,319 --> 00:15:58,240
medically appropriate the office of

402
00:15:55,399 --> 00:15:59,920
legal council which supplied an opinion

403
00:15:58,240 --> 00:16:01,399
to the attorney en's office and that's

404
00:15:59,920 --> 00:16:03,160
what they do as you know John they give

405
00:16:01,399 --> 00:16:04,519
opinions advisory opinions and they

406
00:16:03,160 --> 00:16:06,600
basically advise the president and the

407
00:16:04,519 --> 00:16:08,360
executive agencies that the five-part

408
00:16:06,600 --> 00:16:11,199
test that's normally used is quote

409
00:16:08,360 --> 00:16:14,279
unquote impermissibly narrow and that

410
00:16:11,199 --> 00:16:15,920
the hhs2 factor test was satisfactory

411
00:16:14,279 --> 00:16:17,399
see this to me is where the

412
00:16:15,920 --> 00:16:19,800
prohibitionists and the people that

413
00:16:17,399 --> 00:16:22,880
don't want this to happen can lock on

414
00:16:19,800 --> 00:16:24,440
legally procedurally to say you violated

415
00:16:22,880 --> 00:16:26,880
the law this needs to come to a

416
00:16:24,440 --> 00:16:29,399
screeching halt but how do you see that

417
00:16:26,880 --> 00:16:31,639
it was a a really interesting approach

418
00:16:29,399 --> 00:16:33,399
that was taken and so I think if you

419
00:16:31,639 --> 00:16:36,279
pull back it's kind of interesting

420
00:16:33,399 --> 00:16:38,319
because the argument is a five Factor

421
00:16:36,279 --> 00:16:40,800
test is too narrow so let's go with a

422
00:16:38,319 --> 00:16:43,560
two- Factor test which somehow seems

423
00:16:40,800 --> 00:16:47,079
narrower when you start to dive into it

424
00:16:43,560 --> 00:16:49,680
uh the narrowness construct is that the

425
00:16:47,079 --> 00:16:53,360
and the argument is the five Factor test

426
00:16:49,680 --> 00:16:56,360
is too focused on the type of gold

427
00:16:53,360 --> 00:16:58,440
standard research that we are used to

428
00:16:56,360 --> 00:17:00,600
that is double blind Placebo studies

429
00:16:58,440 --> 00:17:04,679
that that type of research and so the

430
00:17:00,600 --> 00:17:07,319
argument is listen we have a lot of data

431
00:17:04,679 --> 00:17:10,520
and a lot of information from the states

432
00:17:07,319 --> 00:17:12,799
that have been dabbling in legalization

433
00:17:10,520 --> 00:17:15,199
for decades now right I mean we have

434
00:17:12,799 --> 00:17:17,839
we're pushing 30 years of legalization

435
00:17:15,199 --> 00:17:20,799
for medical in California we're better

436
00:17:17,839 --> 00:17:24,039
than a decade now of for legalization

437
00:17:20,799 --> 00:17:26,120
for adult use I mean July 1 right is

438
00:17:24,039 --> 00:17:28,679
going to be the 10y year anniversary of

439
00:17:26,120 --> 00:17:31,679
commercial sales starting in Colorado

440
00:17:28,679 --> 00:17:34,760
and so the narrowness of being too

441
00:17:31,679 --> 00:17:38,120
restrictive in the five Factor test is

442
00:17:34,760 --> 00:17:40,360
really a essentially arguing that

443
00:17:38,120 --> 00:17:43,360
cannabis is unique and it is in so many

444
00:17:40,360 --> 00:17:45,919
ways cannabis policy is unique because

445
00:17:43,360 --> 00:17:49,080
when we're talking about drug scheduling

446
00:17:45,919 --> 00:17:50,679
generally we don't have state markets

447
00:17:49,080 --> 00:17:52,360
that are operating that are already

448
00:17:50,679 --> 00:17:54,840
providing the drug that is under

449
00:17:52,360 --> 00:17:56,520
consideration and so I think olc is

450
00:17:54,840 --> 00:17:57,799
smart it's something I've been arguing

451
00:17:56,520 --> 00:17:59,159
for a while I know Hillary it's

452
00:17:57,799 --> 00:18:00,919
something you've been arguing for a

453
00:17:59,159 --> 00:18:02,880
while that like we need to think about

454
00:18:00,919 --> 00:18:04,320
cannabis differently because it is

455
00:18:02,880 --> 00:18:05,760
different and the market is different

456
00:18:04,320 --> 00:18:10,039
and the information environment is

457
00:18:05,760 --> 00:18:12,000
different and so moving toward a broader

458
00:18:10,039 --> 00:18:14,960
understanding and a broader perspective

459
00:18:12,000 --> 00:18:18,320
of what we see as accepted medical use

460
00:18:14,960 --> 00:18:21,159
risk of abuse Etc needs to take into

461
00:18:18,320 --> 00:18:23,200
account Decades of information that we

462
00:18:21,159 --> 00:18:25,320
have um at the state level I agree with

463
00:18:23,200 --> 00:18:27,919
you 100% I think this is going to be

464
00:18:25,320 --> 00:18:30,600
something that does become litigious um

465
00:18:27,919 --> 00:18:32,880
particularly among prohibitionists I

466
00:18:30,600 --> 00:18:37,120
think one of the arguments is going to

467
00:18:32,880 --> 00:18:39,000
be a new uh rule a new regulation is

468
00:18:37,120 --> 00:18:40,720
that the regulation is arbitrary or

469
00:18:39,000 --> 00:18:42,760
capricious and I think one of the

470
00:18:40,720 --> 00:18:45,480
arguments is going to be that this is an

471
00:18:42,760 --> 00:18:47,960
arbitrary approach but I actually I

472
00:18:45,480 --> 00:18:51,919
would flip that argument on its head um

473
00:18:47,960 --> 00:18:55,760
and say that if olc did not provide a

474
00:18:51,919 --> 00:18:58,520
sort of backdrop or a backup for the

475
00:18:55,760 --> 00:19:01,039
transition to the two-factor analysis

476
00:18:58,520 --> 00:19:04,200
that the five factor analysis actually

477
00:19:01,039 --> 00:19:06,440
becomes arbitrary because it ignores so

478
00:19:04,200 --> 00:19:08,440
much information uh that is out there

479
00:19:06,440 --> 00:19:10,039
and so I think prohibitionists

480
00:19:08,440 --> 00:19:12,039
ultimately are going to have a lot of

481
00:19:10,039 --> 00:19:14,440
really lousy days in court when it comes

482
00:19:12,039 --> 00:19:16,400
to challenging schedule three status and

483
00:19:14,440 --> 00:19:18,480
I think what is like you said this has

484
00:19:16,400 --> 00:19:20,919
only been out for less than 24 hours as

485
00:19:18,480 --> 00:19:24,440
you and I are taping this what I think

486
00:19:20,919 --> 00:19:27,960
jumps off the page to some people as

487
00:19:24,440 --> 00:19:29,280
lunacy is actually going to be the solid

488
00:19:27,960 --> 00:19:31,360
legal found

489
00:19:29,280 --> 00:19:33,840
for why this scheduling decision is

490
00:19:31,360 --> 00:19:35,520
ultimately upheld by courts of appeals

491
00:19:33,840 --> 00:19:37,400
so and just to play a little Devil's

492
00:19:35,520 --> 00:19:39,520
Advocate because it's worthwhile and

493
00:19:37,400 --> 00:19:41,760
you're so articulate on this and I love

494
00:19:39,520 --> 00:19:44,360
your takes do you think that going from

495
00:19:41,760 --> 00:19:46,320
the five factor to two Factor even if

496
00:19:44,360 --> 00:19:48,679
it's got some legal backing is

497
00:19:46,320 --> 00:19:51,280
reflective of the social pressure you

498
00:19:48,679 --> 00:19:53,200
spoke about early on that clearly even

499
00:19:51,280 --> 00:19:56,120
if it's anecdotally the states are

500
00:19:53,200 --> 00:19:57,760
bought in there's Clear Medical effect

501
00:19:56,120 --> 00:19:58,840
here we may not know the full extent

502
00:19:57,760 --> 00:20:01,480
because we haven't been allowed to

503
00:19:58,840 --> 00:20:03,640
research it but that this is a product

504
00:20:01,480 --> 00:20:05,200
of that social pressure to treat this

505
00:20:03,640 --> 00:20:07,679
differently in addition to maybe a new

506
00:20:05,200 --> 00:20:09,559
legal standard that's just as adequate

507
00:20:07,679 --> 00:20:12,520
yeah I think it would be foolish to

508
00:20:09,559 --> 00:20:14,400
suggest that it is not a signal of the

509
00:20:12,520 --> 00:20:17,400
social pressure um and political

510
00:20:14,400 --> 00:20:20,559
pressure that exists and I think that is

511
00:20:17,400 --> 00:20:22,320
you know baked into this as you read

512
00:20:20,559 --> 00:20:24,159
along and I think it's going to make

513
00:20:22,320 --> 00:20:27,400
prohibitionists want to tear their hair

514
00:20:24,159 --> 00:20:30,799
out you know I'm not one who would argue

515
00:20:27,400 --> 00:20:33,720
that our drug safety protocols in the

516
00:20:30,799 --> 00:20:36,120
United States should entirely shift to

517
00:20:33,720 --> 00:20:39,679
this two-factor analysis but when you

518
00:20:36,120 --> 00:20:41,559
have this bizarre scenario in which the

519
00:20:39,679 --> 00:20:45,559
federal government says something is

520
00:20:41,559 --> 00:20:47,440
illegal and States not just illicit

521
00:20:45,559 --> 00:20:50,280
actors within States but state

522
00:20:47,440 --> 00:20:54,240
governments like my own are authorizing

523
00:20:50,280 --> 00:20:57,320
the activity to produce manufacture and

524
00:20:54,240 --> 00:20:59,720
sell that substance that the federal

525
00:20:57,320 --> 00:21:01,919
government says is illegal it creates a

526
00:20:59,720 --> 00:21:04,159
different policy environment and yes

527
00:21:01,919 --> 00:21:06,280
there's societal pressure there but part

528
00:21:04,159 --> 00:21:09,280
of it too is just a reflection of the

529
00:21:06,280 --> 00:21:11,880
policy realities and I think while there

530
00:21:09,280 --> 00:21:13,640
will be arguments that this came about

531
00:21:11,880 --> 00:21:15,520
because of social and political pressure

532
00:21:13,640 --> 00:21:18,559
which can certainly factor into a

533
00:21:15,520 --> 00:21:21,799
Court's understanding of whether the rul

534
00:21:18,559 --> 00:21:23,600
making process worked effectively and as

535
00:21:21,799 --> 00:21:27,159
it should under the administrative

536
00:21:23,600 --> 00:21:31,400
procedure act I think also courts are

537
00:21:27,159 --> 00:21:33,480
just as charged to think about the

538
00:21:31,400 --> 00:21:35,520
broader policy environment and all of

539
00:21:33,480 --> 00:21:37,880
the information that weighs into it and

540
00:21:35,520 --> 00:21:40,520
I'm not a lawyer I'm not a judge but for

541
00:21:37,880 --> 00:21:42,320
me if you think about you know let's

542
00:21:40,520 --> 00:21:47,120
boil it down to like a criminal trial

543
00:21:42,320 --> 00:21:50,039
right if there is 99 pieces of evidence

544
00:21:47,120 --> 00:21:53,080
that point to someone being guilty and

545
00:21:50,039 --> 00:21:55,440
you go in to a judge and you say here's

546
00:21:53,080 --> 00:21:57,960
one piece of evidence that suggests that

547
00:21:55,440 --> 00:21:59,880
this person is guilty a judge might say

548
00:21:57,960 --> 00:22:02,000
like that's not a lot there might be

549
00:21:59,880 --> 00:22:04,559
other issues here so why not bring all

550
00:22:02,000 --> 00:22:06,120
99 pieces of evidence in and display it

551
00:22:04,559 --> 00:22:08,679
to a court and a criminal trial that's

552
00:22:06,120 --> 00:22:10,720
what a prosecutor is going to do in a a

553
00:22:08,679 --> 00:22:12,720
defense attorney in a criminal trial is

554
00:22:10,720 --> 00:22:14,880
going to bring all of the exculpatory

555
00:22:12,720 --> 00:22:16,640
evidence that they can bring to bear so

556
00:22:14,880 --> 00:22:19,440
why not bring all of this information

557
00:22:16,640 --> 00:22:21,720
out and I think when it eventually gets

558
00:22:19,440 --> 00:22:26,080
challenged in federal courts courts are

559
00:22:21,720 --> 00:22:27,720
going to be pleased that all of the

560
00:22:26,080 --> 00:22:29,600
information that could be bought brought

561
00:22:27,720 --> 00:22:31,520
to bear was brought to bear in this

562
00:22:29,600 --> 00:22:33,799
conversation well and certainly public

563
00:22:31,520 --> 00:22:36,480
policy is always relevant it may not be

564
00:22:33,799 --> 00:22:38,159
the most primary factor at least in

565
00:22:36,480 --> 00:22:40,080
civil litigation but it's always a

566
00:22:38,159 --> 00:22:41,520
consideration right our courts acting in

567
00:22:40,080 --> 00:22:43,840
the interest the best interest of the

568
00:22:41,520 --> 00:22:45,520
public based on the body of law and the

569
00:22:43,840 --> 00:22:47,440
real facts in front of them obviously

570
00:22:45,520 --> 00:22:49,640
it's a very fluid situation especially

571
00:22:47,440 --> 00:22:50,919
this one now let's move on and this will

572
00:22:49,640 --> 00:22:52,480
probably be the last thing I asked you

573
00:22:50,919 --> 00:22:54,440
about the notice of proposed R making

574
00:22:52,480 --> 00:22:56,080
itself people were banging the drum in

575
00:22:54,440 --> 00:22:58,520
both camps about International drug

576
00:22:56,080 --> 00:23:01,120
treaties it's something that we can't

577
00:22:58,520 --> 00:23:03,480
skirt it's a reality they're complicated

578
00:23:01,120 --> 00:23:05,559
and they're Antiquated olc the office of

579
00:23:03,480 --> 00:23:07,279
legal council opinion essentially came

580
00:23:05,559 --> 00:23:09,880
to the conclusion that none of these

581
00:23:07,279 --> 00:23:11,799
treaties none of them actually require

582
00:23:09,880 --> 00:23:15,080
cannabis to be placed in schedule one or

583
00:23:11,799 --> 00:23:18,559
two but then it seems that the DEA

584
00:23:15,080 --> 00:23:20,200
concludes that we can do this move we

585
00:23:18,559 --> 00:23:22,000
have the authority to do it the move

586
00:23:20,200 --> 00:23:24,400
itself will not violate the treaties we

587
00:23:22,000 --> 00:23:26,520
can continue to honor our treaties so

588
00:23:24,400 --> 00:23:29,279
long as we ensure that schedule three

589
00:23:26,520 --> 00:23:31,760
controls remain in place if I'm getting

590
00:23:29,279 --> 00:23:34,000
that wrong let me know but I glommed on

591
00:23:31,760 --> 00:23:35,600
to that because then I look at the state

592
00:23:34,000 --> 00:23:37,039
experiments and this will be the next

593
00:23:35,600 --> 00:23:38,679
thing we talk about and probably the

594
00:23:37,039 --> 00:23:40,400
thing that's on everybody's mind if they

595
00:23:38,679 --> 00:23:42,240
have a licensed cannabis business in one

596
00:23:40,400 --> 00:23:44,360
of these states and state Regulators is

597
00:23:42,240 --> 00:23:46,760
that how you read that from the DEA

598
00:23:44,360 --> 00:23:48,640
about splitting the baby on compliance

599
00:23:46,760 --> 00:23:52,080
with drug treaties yeah that's how I

600
00:23:48,640 --> 00:23:54,960
read it and I will say the caveat here

601
00:23:52,080 --> 00:23:57,840
is this is the same Federal agency that

602
00:23:54,960 --> 00:23:59,679
for years said medical cannabis couldn't

603
00:23:57,840 --> 00:24:02,039
be allowed because of our treaty

604
00:23:59,679 --> 00:24:04,440
obligations when in reality the single

605
00:24:02,039 --> 00:24:07,440
convention and its successor treaties

606
00:24:04,440 --> 00:24:10,240
have specific carats for the medical use

607
00:24:07,440 --> 00:24:12,279
of scheduled substances and so I

608
00:24:10,240 --> 00:24:13,880
typically take with a grain of salt what

609
00:24:12,279 --> 00:24:15,640
the DEA says about our treaty

610
00:24:13,880 --> 00:24:18,200
obligations when it comes to Controlled

611
00:24:15,640 --> 00:24:21,440
Substances but my reading of what they

612
00:24:18,200 --> 00:24:23,279
said here is your reading of it and I

613
00:24:21,440 --> 00:24:24,840
actually think in this case the right it

614
00:24:23,279 --> 00:24:29,080
is not a violation of our treaty

615
00:24:24,840 --> 00:24:31,960
obligations so long as there are

616
00:24:29,080 --> 00:24:34,320
controls Federal controls around

617
00:24:31,960 --> 00:24:37,240
production and distribution of that

618
00:24:34,320 --> 00:24:39,679
substance now it does fly in the face of

619
00:24:37,240 --> 00:24:42,080
what state experiments are which are

620
00:24:39,679 --> 00:24:43,919
absolutely without a doubt no questions

621
00:24:42,080 --> 00:24:47,440
asked violations of our treaty

622
00:24:43,919 --> 00:24:50,080
obligations but Canada and Uruguay have

623
00:24:47,440 --> 00:24:53,080
legalized and now Germany has legalized

624
00:24:50,080 --> 00:24:55,600
adult use recreational Cannabis explicit

625
00:24:53,080 --> 00:24:57,679
violations of their treaty obligations

626
00:24:55,600 --> 00:25:00,320
and nothing has happened to them in the

627
00:24:57,679 --> 00:25:02,600
international community and so it is the

628
00:25:00,320 --> 00:25:06,559
obligation of DEA and the office of

629
00:25:02,600 --> 00:25:09,520
legal counsel to bring up issues around

630
00:25:06,559 --> 00:25:12,240
our treaty obligations but the United

631
00:25:09,520 --> 00:25:14,120
States typically doesn't let treaty

632
00:25:12,240 --> 00:25:17,360
obligations get in the way of a policy

633
00:25:14,120 --> 00:25:19,880
it wants to ultimately Chase and I don't

634
00:25:17,360 --> 00:25:22,200
think it's going to have an effect here

635
00:25:19,880 --> 00:25:24,039
and I think being the first person to

636
00:25:22,200 --> 00:25:25,360
the party of breaking a treaty

637
00:25:24,039 --> 00:25:27,520
obligation is always a little

638
00:25:25,360 --> 00:25:29,919
uncomfortable and what I always say is

639
00:25:27,520 --> 00:25:34,000
you know Canada a big booming you know

640
00:25:29,919 --> 00:25:37,080
G7 economy and so it's easy to ignore

641
00:25:34,000 --> 00:25:38,960
them violating treaty obligations but

642
00:25:37,080 --> 00:25:40,360
nothing happened to Uruguay and if if

643
00:25:38,960 --> 00:25:42,520
the International Community didn't

644
00:25:40,360 --> 00:25:44,120
penalize Uruguay for it and I say that

645
00:25:42,520 --> 00:25:46,120
as I love Uruguay it's a beautiful

646
00:25:44,120 --> 00:25:48,240
country nothing against that country but

647
00:25:46,120 --> 00:25:50,200
Uruguay is not the United States uguay

648
00:25:48,240 --> 00:25:52,520
is not Canada and if Uruguay can get

649
00:25:50,200 --> 00:25:54,760
away with it even if ultimately we are

650
00:25:52,520 --> 00:25:56,520
violating our treaty obligations I don't

651
00:25:54,760 --> 00:25:57,840
think a lot of Americans and I don't

652
00:25:56,520 --> 00:25:59,399
think a lot of people in the Biden

653
00:25:57,840 --> 00:26:02,559
administ are going to lose a lot of

654
00:25:59,399 --> 00:26:04,600
sleep over that understood Fair take and

655
00:26:02,559 --> 00:26:06,279
now let's talk about this apparent

656
00:26:04,600 --> 00:26:07,960
elephant in the room and when you and I

657
00:26:06,279 --> 00:26:09,720
spoke about this last we were on a panel

658
00:26:07,960 --> 00:26:11,679
together in Michigan talking again to a

659
00:26:09,720 --> 00:26:14,440
bunch of lawyers and Suits speculating

660
00:26:11,679 --> 00:26:16,760
what a schedule 3 world would look like

661
00:26:14,440 --> 00:26:18,279
there is a lot of talk some alarmists

662
00:26:16,760 --> 00:26:21,200
some conspiratorial some totally

663
00:26:18,279 --> 00:26:23,240
dismissive about what schedule 3 means

664
00:26:21,200 --> 00:26:25,480
for these existing state legal markets

665
00:26:23,240 --> 00:26:28,440
like the one you're in in Maine and is

666
00:26:25,480 --> 00:26:30,840
this the dea's second bite at the Apple

667
00:26:28,440 --> 00:26:32,279
enforcement because under schedule one

668
00:26:30,840 --> 00:26:34,440
even though they did nothing they were

669
00:26:32,279 --> 00:26:36,760
basically Bound by the coal memo which

670
00:26:34,440 --> 00:26:38,360
has now been vaporized and US attorney

671
00:26:36,760 --> 00:26:40,200
simply wouldn't prosecute the cases

672
00:26:38,360 --> 00:26:42,399
there was no interest taxpayer dollars

673
00:26:40,200 --> 00:26:44,919
support or resources to pursue something

674
00:26:42,399 --> 00:26:47,120
like that why does this time at least to

675
00:26:44,919 --> 00:26:48,919
me it feels different and I it might

676
00:26:47,120 --> 00:26:51,640
feel different because we have these

677
00:26:48,919 --> 00:26:53,039
controlled schedule 3 drugs in existence

678
00:26:51,640 --> 00:26:55,240
that to your point they didn't have

679
00:26:53,039 --> 00:26:57,240
existing over the counter State markets

680
00:26:55,240 --> 00:26:59,480
beforehand so to me it feels

681
00:26:57,240 --> 00:27:02,679
substantively legally and enforcement

682
00:26:59,480 --> 00:27:04,480
wise like a paradoxical Universe where

683
00:27:02,679 --> 00:27:06,600
how could you treat One schedule three

684
00:27:04,480 --> 00:27:08,520
substance differently carve it out even

685
00:27:06,600 --> 00:27:10,080
if it's by Omission right they just lay

686
00:27:08,520 --> 00:27:11,240
down they never say anything about it

687
00:27:10,080 --> 00:27:13,320
when you've got these others like

688
00:27:11,240 --> 00:27:15,279
testosterone ketamine Etc you've heard

689
00:27:13,320 --> 00:27:17,760
all of it that you can only get through

690
00:27:15,279 --> 00:27:20,399
the doctor's office tell me why I should

691
00:27:17,760 --> 00:27:22,679
not be concerned about that yeah so it

692
00:27:20,399 --> 00:27:25,720
doesn't feel different to me you know my

693
00:27:22,679 --> 00:27:27,679
take has been and will continue to be it

694
00:27:25,720 --> 00:27:29,919
is what I've told the administration

695
00:27:27,679 --> 00:27:32,640
here in main it's what I've told every

696
00:27:29,919 --> 00:27:35,320
lie here in Maine who has asked me this

697
00:27:32,640 --> 00:27:37,640
does not change our Market in Maine it

698
00:27:35,320 --> 00:27:39,679
doesn't change things for our operators

699
00:27:37,640 --> 00:27:42,480
in Maine except potentially changing

700
00:27:39,679 --> 00:27:45,600
their tax obligations to the IRS my take

701
00:27:42,480 --> 00:27:47,760
has been if DEA wanted to do something

702
00:27:45,600 --> 00:27:50,840
about cannabis they would have done it

703
00:27:47,760 --> 00:27:53,279
when it was in schedule one when it was

704
00:27:50,840 --> 00:27:56,000
deemed as a worst quote unquote worse

705
00:27:53,279 --> 00:27:58,919
drug a more harmful drug a scarier drug

706
00:27:56,000 --> 00:28:01,840
its movement to schedule three doesn't

707
00:27:58,919 --> 00:28:03,720
change their enforcement Authority at

708
00:28:01,840 --> 00:28:05,799
all they have just as much Authority

709
00:28:03,720 --> 00:28:08,240
against the programs that I um

710
00:28:05,799 --> 00:28:10,559
administer in Maine and my colleagues do

711
00:28:08,240 --> 00:28:12,960
across the country um they have just as

712
00:28:10,559 --> 00:28:15,320
much enforcement Authority for cannabis

713
00:28:12,960 --> 00:28:17,919
schedule one as they do for cannabis at

714
00:28:15,320 --> 00:28:20,960
schedule three it is going to be damn

715
00:28:17,919 --> 00:28:23,000
near impossible at this point for uh the

716
00:28:20,960 --> 00:28:24,799
DEA to put the toothpaste back in the

717
00:28:23,000 --> 00:28:27,440
tube they you know they tried their

718
00:28:24,799 --> 00:28:29,840
damnest in the mid 90s the mid to late

719
00:28:27,440 --> 00:28:31,880
990s and early 2000s to do this in the

720
00:28:29,840 --> 00:28:34,760
early medical legalizing States

721
00:28:31,880 --> 00:28:37,200
California Colorado places like that and

722
00:28:34,760 --> 00:28:39,440
that didn't work I don't see the

723
00:28:37,200 --> 00:28:41,000
political interest from the Biden

724
00:28:39,440 --> 00:28:42,559
Administration there certainly wasn't

725
00:28:41,000 --> 00:28:45,120
the political interest in the Trump

726
00:28:42,559 --> 00:28:47,399
Administration actually to go out and

727
00:28:45,120 --> 00:28:49,600
start enforcing against State programs I

728
00:28:47,399 --> 00:28:51,799
mean the way I look at it is you know

729
00:28:49,600 --> 00:28:54,559
with Jeff sessions as attorney general

730
00:28:51,799 --> 00:28:57,480
lighting the Cole memo on fire issuing

731
00:28:54,559 --> 00:29:01,039
what I would call the sessions memo as a

732
00:28:57,480 --> 00:29:03,440
result didn't result in National

733
00:29:01,039 --> 00:29:05,240
enforcement against State regulated

734
00:29:03,440 --> 00:29:08,399
programs I don't think the move to

735
00:29:05,240 --> 00:29:11,320
schedule 3 is going to do it and also

736
00:29:08,399 --> 00:29:14,360
like you have a president who has spoken

737
00:29:11,320 --> 00:29:16,360
supportively of State programs he has

738
00:29:14,360 --> 00:29:18,440
had an Administration and an attorney

739
00:29:16,360 --> 00:29:20,760
general and US attorneys across the

740
00:29:18,440 --> 00:29:24,279
country who have not enforced against

741
00:29:20,760 --> 00:29:26,440
these State programs initiating a

742
00:29:24,279 --> 00:29:29,240
rescheduling petition that clearly

743
00:29:26,440 --> 00:29:33,080
politics factored into why on Earth

744
00:29:29,240 --> 00:29:34,679
would he then once rescheduling happens

745
00:29:33,080 --> 00:29:36,760
go call the Attorney General into the

746
00:29:34,679 --> 00:29:38,960
Oval Office and be like okay let's nuke

747
00:29:36,760 --> 00:29:41,159
them now like I just don't see that

748
00:29:38,960 --> 00:29:43,039
scenario playing out like I understand

749
00:29:41,159 --> 00:29:44,960
the concern that is out there there's a

750
00:29:43,039 --> 00:29:47,880
lot of misinformation out there that

751
00:29:44,960 --> 00:29:49,480
like oh now FDA has Authority FDA has

752
00:29:47,880 --> 00:29:51,640
always had authority over cannabis

753
00:29:49,480 --> 00:29:53,200
they've sent letters out to businesses

754
00:29:51,640 --> 00:29:54,559
that have said you're making medical

755
00:29:53,200 --> 00:29:57,000
claims for cannabis that are

756
00:29:54,559 --> 00:30:00,480
inappropriate this doesn't change the

757
00:29:57,000 --> 00:30:01,919
enforcement environment for DEA or FDA I

758
00:30:00,480 --> 00:30:03,960
think we're still going to have a non-

759
00:30:01,919 --> 00:30:06,480
enforcement Doctrine under President

760
00:30:03,960 --> 00:30:08,840
Biden if president Trump is reelected in

761
00:30:06,480 --> 00:30:11,559
November I think that will continue I

762
00:30:08,840 --> 00:30:14,679
think the writing is on the wall about

763
00:30:11,559 --> 00:30:17,799
where the American public is cannabis

764
00:30:14,679 --> 00:30:20,039
policy I think if you talk to the

765
00:30:17,799 --> 00:30:22,679
strongest prohibitionists in the country

766
00:30:20,039 --> 00:30:25,200
off the Record and ask them you know

767
00:30:22,679 --> 00:30:28,559
would you rather drug enforcement money

768
00:30:25,200 --> 00:30:30,399
be used against cannabis or against

769
00:30:28,559 --> 00:30:32,399
the answer is always fentol and we can't

770
00:30:30,399 --> 00:30:34,320
we don't even have the resources to deal

771
00:30:32,399 --> 00:30:36,760
with our fentol problem in the United

772
00:30:34,320 --> 00:30:38,720
States why divert even a penny of it

773
00:30:36,760 --> 00:30:40,799
towards something else that the vast

774
00:30:38,720 --> 00:30:43,440
majority of Americans see as not a

775
00:30:40,799 --> 00:30:45,679
harmful substance or not as harmful of a

776
00:30:43,440 --> 00:30:47,799
substance and so if there's not going to

777
00:30:45,679 --> 00:30:50,799
be this kind of conspiratorial mass

778
00:30:47,799 --> 00:30:53,600
shutdown I've never envisioned that do

779
00:30:50,799 --> 00:30:55,799
you think the feds Force DEA

780
00:30:53,600 --> 00:30:58,279
registration and all of the hoopla that

781
00:30:55,799 --> 00:30:59,760
comes with making schedule 3 controled

782
00:30:58,279 --> 00:31:02,639
substances or is that kind of in the

783
00:30:59,760 --> 00:31:05,240
same boat where we won't see a pan shut

784
00:31:02,639 --> 00:31:07,080
down and we also won't see these State

785
00:31:05,240 --> 00:31:10,320
licensed companies impacted by Health

786
00:31:07,080 --> 00:31:12,399
Care laws and Drug development rules Etc

787
00:31:10,320 --> 00:31:14,559
and they really are kind of in their own

788
00:31:12,399 --> 00:31:17,679
realm here legally and regulatorily

789
00:31:14,559 --> 00:31:20,679
speaking Yeah I don't see the push for

790
00:31:17,679 --> 00:31:22,480
requiring DEA registration again they

791
00:31:20,679 --> 00:31:24,399
could have required DEA registration

792
00:31:22,480 --> 00:31:26,880
under schedule one right and and they

793
00:31:24,399 --> 00:31:29,840
didn't choose to do that you know I was

794
00:31:26,880 --> 00:31:32,720
on a panel years back and I think it was

795
00:31:29,840 --> 00:31:34,360
in Oakland and I someone on the panel

796
00:31:32,720 --> 00:31:37,080
hell it might have been you Hillary made

797
00:31:34,360 --> 00:31:40,320
sort of a brilliant point which was you

798
00:31:37,080 --> 00:31:43,519
know their vision for what cannabis

799
00:31:40,320 --> 00:31:45,880
policy would be in a rescheduled world

800
00:31:43,519 --> 00:31:48,559
is kind of like the difference between a

801
00:31:45,880 --> 00:31:51,039
chiropractor and a massage therapist

802
00:31:48,559 --> 00:31:53,559
there are similar techniques that both

803
00:31:51,039 --> 00:31:57,519
of them use but one of them is a

804
00:31:53,559 --> 00:31:59,559
physician and one of them is not and

805
00:31:57,519 --> 00:32:01,080
they're treated very differently they're

806
00:31:59,559 --> 00:32:02,720
regulated very differently they're

807
00:32:01,080 --> 00:32:05,600
treated very differently by insurance

808
00:32:02,720 --> 00:32:09,480
companies for the most part uh the idea

809
00:32:05,600 --> 00:32:13,120
that you can't have sort of peer

810
00:32:09,480 --> 00:32:14,960
behaviors or peer activities or peer

811
00:32:13,120 --> 00:32:17,639
medicines that are treated very

812
00:32:14,960 --> 00:32:21,279
differently just doesn't necessarily

813
00:32:17,639 --> 00:32:23,799
hold up and I I say that um recognizing

814
00:32:21,279 --> 00:32:27,120
that we tend not to have those types of

815
00:32:23,799 --> 00:32:29,279
peer tracks for substances but the

816
00:32:27,120 --> 00:32:31,360
chiropractor versus massage therapist

817
00:32:29,279 --> 00:32:33,080
thing made sense and if there are any

818
00:32:31,360 --> 00:32:34,679
chiropractors listening I'm sure they're

819
00:32:33,080 --> 00:32:36,559
going to be pissed that I'm comparing

820
00:32:34,679 --> 00:32:38,720
them to massage therapist but but

821
00:32:36,559 --> 00:32:41,200
ultimately you know you can look at

822
00:32:38,720 --> 00:32:44,240
cannabis very similarly right you can go

823
00:32:41,200 --> 00:32:45,880
to a medical retail store here in main a

824
00:32:44,240 --> 00:32:48,159
medical cannabis retail store here in

825
00:32:45,880 --> 00:32:50,240
Maine and you can with a card you can

826
00:32:48,159 --> 00:32:52,120
get cannabis and the person behind the

827
00:32:50,240 --> 00:32:55,320
counter is not supposed to say to you

828
00:32:52,120 --> 00:32:56,559
like oh this cures you know Ms or

829
00:32:55,320 --> 00:32:59,240
they're not supposed to say that I'm

830
00:32:56,559 --> 00:33:01,039
sure some of them do but you're sort of

831
00:32:59,240 --> 00:33:03,120
just flying by the seat of your pants

832
00:33:01,039 --> 00:33:04,639
with it you're like I hope this works I

833
00:33:03,120 --> 00:33:06,639
I'll be honest I'm I'm not a medical

834
00:33:04,639 --> 00:33:08,600
cannabis patient here in main because

835
00:33:06,639 --> 00:33:10,720
the legislature won't allow us to test

836
00:33:08,600 --> 00:33:13,240
our medical cannabis for adulterant so I

837
00:33:10,720 --> 00:33:16,240
don't use it here but I have been a

838
00:33:13,240 --> 00:33:20,440
medical cannabis patient elsewhere and

839
00:33:16,240 --> 00:33:22,360
it is very much a trial by error process

840
00:33:20,440 --> 00:33:24,880
I don't have that same trial by error

841
00:33:22,360 --> 00:33:27,440
process typically if I go to CVS for a

842
00:33:24,880 --> 00:33:28,880
pharmaceutical and so I think

843
00:33:27,440 --> 00:33:30,880
understanding cannabis to have two

844
00:33:28,880 --> 00:33:32,639
different tracks we are going to have a

845
00:33:30,880 --> 00:33:35,399
pharmaceutical version of cannabis we

846
00:33:32,639 --> 00:33:37,080
already do with epids and Marinol and

847
00:33:35,399 --> 00:33:39,799
things like that and we might have more

848
00:33:37,080 --> 00:33:42,720
in the future that has been tested and

849
00:33:39,799 --> 00:33:43,960
you can go in and have pretty good

850
00:33:42,720 --> 00:33:45,720
confidence that this is going to work

851
00:33:43,960 --> 00:33:47,519
for the thing it's prescribed for or you

852
00:33:45,720 --> 00:33:50,240
can go to The Dispensary or the retail

853
00:33:47,519 --> 00:33:52,039
store and try until you find something

854
00:33:50,240 --> 00:33:53,200
that works and and not to belabor the

855
00:33:52,039 --> 00:33:55,760
point but you know one of the

856
00:33:53,200 --> 00:33:58,799
interesting things that happened for me

857
00:33:55,760 --> 00:34:00,519
a few years back was I got asked to

858
00:33:58,799 --> 00:34:02,600
participate in a drug trial a cannabis

859
00:34:00,519 --> 00:34:04,200
drug trial I have what's called an

860
00:34:02,600 --> 00:34:05,399
essential tremor so if you've ever been

861
00:34:04,200 --> 00:34:07,320
around me you'll see I have a little bit

862
00:34:05,399 --> 00:34:08,720
of a hand Tremor it's benign it's not

863
00:34:07,320 --> 00:34:10,639
like it's Parkinson's disease or

864
00:34:08,720 --> 00:34:12,560
something like that it's benign but it's

865
00:34:10,639 --> 00:34:15,119
noticeable and there are cannabis

866
00:34:12,560 --> 00:34:17,919
formulations that can be used to treat

867
00:34:15,119 --> 00:34:19,639
it I think it was like UCSD or UCLA was

868
00:34:17,919 --> 00:34:22,800
running a drug trial about it I declined

869
00:34:19,639 --> 00:34:24,839
the drug I declined to participate I use

870
00:34:22,800 --> 00:34:26,679
cannabis for a different medical

871
00:34:24,839 --> 00:34:29,040
condition and typically when I use

872
00:34:26,679 --> 00:34:31,520
cannabis it makes my hand Tremor

873
00:34:29,040 --> 00:34:33,480
extraordinarily worse I'm sure there's a

874
00:34:31,520 --> 00:34:35,679
formulation that can help treat it but

875
00:34:33,480 --> 00:34:37,760
it sort of goes to show that like some

876
00:34:35,679 --> 00:34:40,079
people might use cannabis for their hand

877
00:34:37,760 --> 00:34:42,280
Tremor if I use cannabis for something

878
00:34:40,079 --> 00:34:43,520
different it amplifies my hand Tremor

879
00:34:42,280 --> 00:34:45,879
and I think that's the sort of thing

880
00:34:43,520 --> 00:34:47,359
like I've gotten a bad massage before

881
00:34:45,879 --> 00:34:49,119
gotten a really lousy massage I've

882
00:34:47,359 --> 00:34:50,839
gotten off the massage table and my back

883
00:34:49,119 --> 00:34:52,240
is killing that's some people's

884
00:34:50,839 --> 00:34:54,000
experience with Canabis and I think

885
00:34:52,240 --> 00:34:56,639
we're going to have that sort of dual

886
00:34:54,000 --> 00:34:58,000
track process without DEA stepping in

887
00:34:56,639 --> 00:35:00,359
well you've heard it here folks that we

888
00:34:58,000 --> 00:35:01,880
might see bifurcation between let's say

889
00:35:00,359 --> 00:35:04,000
a Choose Your Own Adventure health and

890
00:35:01,880 --> 00:35:06,520
wellness industry which does exist with

891
00:35:04,000 --> 00:35:09,560
Botanicals dietary supplements you name

892
00:35:06,520 --> 00:35:10,960
it right where fire beware sounds strong

893
00:35:09,560 --> 00:35:12,480
but you're kind of on your own with

894
00:35:10,960 --> 00:35:14,119
education and you have autonomy over

895
00:35:12,480 --> 00:35:15,720
your body and then you've got the firm

896
00:35:14,119 --> 00:35:19,040
grade where you're seeing a treading

897
00:35:15,720 --> 00:35:21,320
physician for on label indications maybe

898
00:35:19,040 --> 00:35:23,119
even more potent that world I can get

899
00:35:21,320 --> 00:35:25,520
behind because that to me my lawyer

900
00:35:23,119 --> 00:35:27,880
brain makes sense other than some

901
00:35:25,520 --> 00:35:29,800
arbitrariness where we get State Market

902
00:35:27,880 --> 00:35:31,119
but no guidance on how they're

903
00:35:29,800 --> 00:35:32,160
inevitably going to be treated that's

904
00:35:31,119 --> 00:35:33,960
what I think what's making me

905
00:35:32,160 --> 00:35:36,359
uncomfortable now last question before I

906
00:35:33,960 --> 00:35:38,920
let you go and it's a tough one but a

907
00:35:36,359 --> 00:35:41,880
fun one are we getting a rule in 60 days

908
00:35:38,920 --> 00:35:43,280
a rule in 60 days uh no I mean the

909
00:35:41,880 --> 00:35:45,599
notice and comment period is going to

910
00:35:43,280 --> 00:35:48,240
close in 60 days but like I do rle

911
00:35:45,599 --> 00:35:51,079
making here in Maine for I've only been

912
00:35:48,240 --> 00:35:53,480
in the job for 14 15 months now and

913
00:35:51,079 --> 00:35:56,240
we've done a few rounds of rule making

914
00:35:53,480 --> 00:35:58,400
and going through the the notice and

915
00:35:56,240 --> 00:36:01,079
comment period in a state with 1.3

916
00:35:58,400 --> 00:36:02,640
million people mind you going through

917
00:36:01,079 --> 00:36:04,440
after the notice and comment period

918
00:36:02,640 --> 00:36:07,480
through all of the comments we are

919
00:36:04,440 --> 00:36:09,560
legally obligated to do that and we make

920
00:36:07,480 --> 00:36:11,960
statements in response to the notice and

921
00:36:09,560 --> 00:36:13,720
comment period that are exactly that

922
00:36:11,960 --> 00:36:17,920
responsive to the comments that we

923
00:36:13,720 --> 00:36:20,240
receive and you know we'll get 30 40 50

924
00:36:17,920 --> 00:36:22,040
100 comments on a rule and it takes our

925
00:36:20,240 --> 00:36:24,640
office a lot of time to go through all

926
00:36:22,040 --> 00:36:26,920
of that like I said I expect hundreds of

927
00:36:24,640 --> 00:36:29,359
thousands of comments on this proposed

928
00:36:26,920 --> 00:36:31,160
Ru making and now granted you know the

929
00:36:29,359 --> 00:36:32,920
Department of Justice has a hell of a

930
00:36:31,160 --> 00:36:35,000
lot more people than the office of

931
00:36:32,920 --> 00:36:37,839
cannabis policy in Maine does to work on

932
00:36:35,000 --> 00:36:41,440
this stuff that thoughtful process is

933
00:36:37,839 --> 00:36:43,400
not just important but it is required

934
00:36:41,440 --> 00:36:47,000
under the administrative procedure act

935
00:36:43,400 --> 00:36:49,040
and a violation or a deviation from

936
00:36:47,000 --> 00:36:53,040
thoughtful responsiveness to those

937
00:36:49,040 --> 00:36:54,839
comments will create a legal situation

938
00:36:53,040 --> 00:36:56,839
in which the rule can be thrown out by

939
00:36:54,839 --> 00:36:58,000
the courts and so yeah I don't think

940
00:36:56,839 --> 00:37:00,720
we're going to get a we're going to get

941
00:36:58,000 --> 00:37:02,560
a rule in 60 days I think the president

942
00:37:00,720 --> 00:37:05,720
would like the rule to be out before the

943
00:37:02,560 --> 00:37:07,720
election but in reality for most

944
00:37:05,720 --> 00:37:10,079
Americans the rules already happen this

945
00:37:07,720 --> 00:37:12,359
is already policy the do has been closed

946
00:37:10,079 --> 00:37:14,000
in fact the announcement the leak and

947
00:37:12,359 --> 00:37:16,240
then the announcement a couple of weeks

948
00:37:14,000 --> 00:37:17,839
ago was the end of the conversation for

949
00:37:16,240 --> 00:37:19,400
most Americans the president's going to

950
00:37:17,839 --> 00:37:21,000
get the political benefits if any that

951
00:37:19,400 --> 00:37:22,760
he's going to get out of it most

952
00:37:21,000 --> 00:37:24,640
Americans most Americans aren't going to

953
00:37:22,760 --> 00:37:26,240
see a change anyways around schedule

954
00:37:24,640 --> 00:37:29,319
three the business owners might with

955
00:37:26,240 --> 00:37:32,920
some tax relief but ultimately now it's

956
00:37:29,319 --> 00:37:35,520
just the boring tody parts of

957
00:37:32,920 --> 00:37:37,800
administrative law that get to be

958
00:37:35,520 --> 00:37:39,839
bearing out and nerds like you and me

959
00:37:37,800 --> 00:37:42,480
Hillary and others are going to be

960
00:37:39,839 --> 00:37:44,160
hanging on every word and every release

961
00:37:42,480 --> 00:37:46,400
but for most Americans this this

962
00:37:44,160 --> 00:37:49,400
conversation has ended all right dear

963
00:37:46,400 --> 00:37:51,119
listener uh you've heard it again here

964
00:37:49,400 --> 00:37:53,920
don't buy into the internet we will not

965
00:37:51,119 --> 00:37:55,920
see a rule in 60 days I had to ask that

966
00:37:53,920 --> 00:37:58,319
question to clear the air now we get to

967
00:37:55,920 --> 00:38:00,160
see how the sausages SA is made for

968
00:37:58,319 --> 00:38:02,119
probably months and years to come so

969
00:38:00,160 --> 00:38:03,800
John thank you so much for your time and

970
00:38:02,119 --> 00:38:05,680
attention it really has been very

971
00:38:03,800 --> 00:38:07,079
Illuminating I sincerely hope at some

972
00:38:05,680 --> 00:38:08,800
point you get to publish more literature

973
00:38:07,079 --> 00:38:10,599
on this because we'd all benefit from

974
00:38:08,800 --> 00:38:13,200
that thanks again thank you Hillary it's

975
00:38:10,599 --> 00:38:15,880
been a bless and that concludes today's

976
00:38:13,200 --> 00:38:21,040
episode of the Cannabis law Now podcast

977
00:38:15,880 --> 00:38:21,040
until next time stayer stay alive

Professional:

Hilary Bricken

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