BrJP. São Paulo.

2023;6(Suppl 1):S7-11 REVIEW ARTICLE

Medicinal cannabis law in the USA: history, movements, trends, and

countertrends
Legislação sobre cannabis medicinal nos Estados Unidos: histórico, movimentos, tendências e
contra-tendências
Clarissa Krieck Lee1

DOI 10.5935/2595-0118.20230011-en

ABSTRACT RESUMO

BACKGROUND AND OBJECTIVES: In recent decades, JUSTIFICATIVA E OBJETIVOS: Nas últimas décadas, os Es-
the United States (USA), after banning the use, possession, and tados Unidos (EUA), depois de proibir o uso, a posse e a comer-
commerce of the CS plant for medicinal and social purposes for cialização da planta CS para fins medicinais e sociais por quase
nearly a century, has embarked on law reform processes and mo- um século, embarcou em processos e movimentos de reforma
vements at the state level to legalize the plant, forging regulated de lei em nível estadual para legalizar a planta, forjando merca-
markets to support these changes. The present study’s objective dos regulamentados para amparar essas mudanças. O objetivo
was to describe the history of prohibition and eventual legaliza- foi descrever o histórico da proibição e da eventual legalização,
tion, observing the social, political, and economic components observando os componentes sociais, políticos e econômicos que
that contributed to this paradigm shift. contribuíram para essa mudança de paradigma.
CONTENTS: Qualitative research, using observation, literature CONTEÚDO: Utilizou-se de revisão de literatura, amparada por
review, and analysis of practical experience in advocacy processes, análise de experiência prática em processos de “advocacy” e cons-
law reform, and building regulated markets to replace prohibi- trução de mercados regulamentados em substituição a proibição.
tion. The historical, social, and economic processes that made Foram descritos os processos históricos, sociais e econômicos que
up the end of the prohibition of CS and its later regulation as a compuseram o fim da proibição da CS e sua eventual regulamenta-
substance for medicinal and social use were described. ção como substância para uso medicinal e social nos EUA.
CONCLUSION: CS during the last century has been labeled as CONCLUSÃO: Durante o último século, a CS foi rotulada
a drug with no medicinal potential for purely political and non- como droga sem potencial medicinal por motivos puramente
-scientific reasons. A number of civil society movements in the políticos e não científicos. Uma série de movimentos da so-
US led to the legalization of CS due to its therapeutic properties. ciedade civil nos EUA levou à legalização da CS devido a suas
These movements have succeeded in redefining the plant as a propriedades terapêuticas. Esses movimentos tiveram êxito ao
medicine rather than a drug, while also taking into account the redefinirem a planta como um remédio em vez de uma droga,
high social and economic costs of criminalizing it. levando em conta também o alto custo social e econômico de
Keywords: Cannabis, Law Enforcement, Public Policy. sua criminalização.
Descritores: Aplicação da Lei, Cannabis, Política Pública.

INTRODUCTION

The Cannabis sativa (CS) plant permeates the history of Ame-

rican society since its colonial era1, when the planting of its
industrial hemp variety was not only encouraged, but required
Clarissa Krieck Lee – https://orcid.org/0000-0002-3255-7482. by some colonies, such as Virginia, for the production of rope,
cloth for clothing, and ship sails. Presidents such as George
1. Regis University, Denver - Colorado - Estados Unidos
Washington and Thomas Jefferson not only planted hemp on
HIGHLIGHTS their estates but also promoted the practice widely2.
• History of CS prohibition in the United States.
• History of legalization and regulation in the United States.
At that time, using industrial hemp or even the traditional va-
• Description of trends and counter-trends in the new US economy. riation of the plant with other cannabinoids, such as tetrah-
ydrocannabinol (THC), for medicinal purposes was not yet
Submitted on June 19, 2022.
Accepted for publication on January 30, 2023 common in the United States (US), but already by the end
Conflict of interests: none – Sponsoring sources: none. of the 11th century, CS became a regular ingredient in many
Correspondence to: medicines offered in US pharmacies3.
Clarissa Krieck Lee However, in the years 1900 and 1925, due to the great de-
E-mail: [email protected]
pression, the war with Mexico in 1910, and the huge wave of
© Sociedade Brasileira para o Estudo da Dor immigration of Mexicans to the US, society’s perception to-

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BrJP. São Paulo. 2023;6(Suppl 1):S7-11 Lee CK

wards CS as a therapeutic agent or medicine changed. Due to generation that consumed CS and, through observation and
the common social (formerly called recreational) use by this experience, did not see that same harmful and dangerous effect
immigrant population, and the fear of mass unemployment dictated by the authorities. Starting with an incident in Ann
by the USA citizens, the substance ended up being associated Arbor, Michigan, in 1971, where student leader John Sinclair
with xenophobic and prejudiced feelings, generating a political was sentenced to 10 years in prison for possession of two ci-
movement focused on banning the plant as a whole (including garettes of CS, society began to question these laws, first at
industrial hemp). the municipal level, then at the state level. Through advocacy,
But the discrimination was not exclusive to Latinos. It was and protests, public education, and plebiscites, many localities be-
still is perversely to black people as well. The “War on Drugs”, gan to decriminalize the plant and its use and possession. In
as it was called, was a racist political tool to target black and the 1970s, several states, such as Oregon, Alaska, and Maine
brown people. Harry Anslinger, then director of the Federal followed this trend.
Bureau of Narcotics coordinated a successful campaign to At this time, the first advocacy group focused on reforming the
spread fallacies such as “people who use cannabis commit cri- unjust laws governing CS, called the National Organization for
mes”, “people who make jazz and use cannabis have an evil the Reform of Marijuana Laws (NORML), emerged. NORML
character”; so much so that the FBI investigated the famous emerged as a force for change at the municipal and state levels,
musician Louis Armstrong for his proclaimed medicinal use. creating opportunities for activism, education, and transforma-
By 1931, 29 states had already banned CS. The use of cannabis tion of these outdated laws. Other groups came later, such as
as medicine greatly decreased in this period also due to the Marijuana Policy Project, based in California and Americans for
increasing popularity of synthetics and opium-derived drugs4. Safe Access and Drug Policy Alliance, both in Washington, DC.
In 1937, a tax measure at the federal level, the Marijuana Tax Drawing on the US constitutionalist legal concept of the au-
Act of 1937, for the first time, through very high taxation, ef- tonomy of the states of the Union to change their local laws
fectively banned the sale and possession of CS. The Marijuana without the permission of the federal government, these groups
Tax Act of 1937 was the measure that drove this trend that in joined with civil society used education to generate a change
the following decades characterized a series of laws and public in public opinion about the plant, while using legal artifacts
policies focused on making CS an illicit drug, erasing for nearly like plebiscites within the concept of state autonomy to chan-
100 years from history its potential and therapeutic properties, ge municipal laws as a way to leverage these processes. Decri-
and eventually preventing any possibility of scientific research minalizing was the first step, followed later by state-by-state
in the area. regulations.
Between 1952 and 1956, laws called the Boggs Act and the In the 1990s, in the midst of the AIDS crisis, following this
Narcotics Control Act, respectively, began to impose severe cri- trend, California passed the 1996 proposition 215, which provi-
minal sentences for the possession of a variety of substances, ded access to CS for HIV-AIDS and cancer patients, creating the
including CS. In 1970, the US Congress passed the Controlled first state-level medicinal market in the US. Other states follo-
Substances Act, which created categories of different substances wed starting in 1998: Oregon, Washington, Nevada, and Alaska.
or drugs, as they were labeled, according to a totally unscien- In 1999 it was the turn of the state of Maine. And in 2000 Co-
tific and arbitrary assessment of their medicinal properties as lorado and Hawaii. In the years that followed, a true domino
well as their potential of abuse by the users of each substan- effect caused several other states to follow the same trend, and
ce. Category 1 drugs, which include CS, was characterized as medicinal use of the plant is now permitted in 38 states6.
agents with no medicinal application, and with a high level of In the 2000s, in addition to this wave of medicinal regulation
abuse potential5. that took the US by storm, activists specifically focused on re-
However, while governments and these eminent laws sought by introducing the cultivation and use of industrial hemp in the
all means to annihilate the medicinal properties in American US were able to advance that cause through the Hemp Farm
memory and public opinion, other forces were at work in so- Bill of 2005, through a series of litigation actions that culmi-
ciety. In 1972, the Shafer commission, a scientific study body nated in the regulation of industrial hemp by the Farm Bill of
created by President Nixon, recommended that the possession 2018.
and use of CS no longer be considered a crime, and that it be Hemp extract imported from Europe had been used as a sour-
removed from category 1 of the Controlled Substances Act, a ce of raw material to obtain cannabidiol (CBD), which has
recommendation that was rejected by the authorities, who kept been used to manufacture medicines on American soil for
(and still keep) the plant in this definition of an illegal drug years. But the Americans wanted to grow hemp. This strate-
with no medicinal properties at the federal level. gic decision to distinguish, for political purposes, industrial
hemp from traditional CS, which by convention offers more
CONTENTS than the 0.3% THC limit contained in hemp, although uns-
cientific, was very successful because it allowed advances in
The beginning of the end of prohibition industrial hemp law before society could even advance the
The Vietnam War was the focus of social debate in the 1970s, laws on traditional CS, or rather the whole plant, like all its
and the counter-culture movement that grew out of protests other cannabinoids. In any case, to science, hemp is a simple
by young people against that war was symbolized by an entire variation of the same plant, CS.

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 Medicinal cannabis law in the USA: history, BrJP. São Paulo. 2023;6(Suppl 1):S7-11
movements, trends, and countertrends

A few years later, in October 2009, the U.S. Department of an illegal drug under Category 1 of the Controlled Substance
Justice issued the Ogden memo, a directive directing prose- Act, meaning, it has no medical use and has a high potential
cutors not to use federal public funds to arrest patients and for abuse.
medical cannabis providers who were in compliance with their But what does this mean in practice? CS has become a widely
states’ medical laws7. By publicly pronouncing itself tolerant of available product in these markets, and in various forms, from
these states’ civil disobedience to the Union, the federal gover- the raw plant to edibles, beverages, tinctures, topical creams,
nment had sent a message to the states: that they could proceed concentrated extractions for vaporization purposes, dermal
with this grand experiment as long as local laws were respected. patches for muscle pain, capsules, and more. But due to federal
In 2012, motivated by the growth of medicinal markets, the illegality, patients, users, and the medical-scientific community
states of Colorado and Washington became the first two states remain limited and unable to conduct research to really unders-
to regulate adult or formerly called recreational use via plebis- tand in depth how the plant acts in the organism, the recom-
cite. The idea was to regulate not only the use and possession mended dosages, the possible long-term effects of its use, the
by individuals over the age of 21, similar to the approach to al- applications on the most diverse diseases, the pharmacological
cohol, but also the production and commercialization through interactions, etc10. Even so, a simple search on the Pubmed da-
taxation. The main difference between these first two states was tabase results in more than 20,000 articles on the subject. In
that Colorado’s rules allowed any adult without a criminal re- recent years, Canada, by having legalized the drug federally in
cord to also grow up to six plants at home for personal use. 2018, and Israel, by having a medicinal market committed to
Other states followed: now there are 20 states with fully legali- research, have been producing the clinical trials that the U.S.
zed and regulated markets for adult use. cannot yet freely produce.
Regulation of adult markets is extremely relevant for medicinal
use because emerging cannabis science theorizes that all use is The new US economy
therapeutic. Whether for stress management, insomnia, chronic Although the main motivation behind the regulation of CS
pain or anxiety, the US population, confronted by the opioid was humane, there is no doubt that it only succeeded for eco-
crisis, is increasingly turning to the CS plant as an alternative wi- nomic reasons. For a long time, patients and activists visited
thin the perspective of injury reduction. According to a Gallup the offices of federal legislators and senators to demand access
poll, 68% of Americans support harme full legalization8. to the plant, but it wasn’t until the access to the first adult-use
It was precisely this gradual and also drastic change in public markets and socioeconomic data that their voices were heard.
opinion that contributed to this current complex scenario of Instead of hearing the stories of overcoming families and their
law, in which 38 states allow medicinal use, of which 20 also patients, what the politicians heard to when they finally act on
allow adult use. Almost 78% of Americans have access to some and support proposed changes to the law, was the post-regula-
form of legalized cannabis. But at the federal level it remains tion economic data.

Recreational Medical Illegal

Note: Updated as of Nov 9, 2022. INSIDER

Figure 1. Map of Cannabis sativa legalization in the United States9.

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BrJP. São Paulo. 2023;6(Suppl 1):S7-11 Lee CK

After each each year going by, officials saw more economic ac- embark on a new era of cannabis medicine, that of personalized
tivity being generated by this new economy. In 2021, the legal medicine, in which, each individual, with his or her physician,
cannabis industry totaled $25 billion in sales. The expectation could assess the unique needs of his or her endocannabinoid
by the end of 2022 is $33 billion, an annual increase of 32%, system, and determine which strains of plant and dose would
a growth percentage that has remained constant annually since be best suited for his or her specific condition. Tests that deter-
legalization. The industry today has already created 520,000 mine these specific deficiencies and needs for certain cannabi-
jobs, and this number is expected to reach 800,000 by 202611. noids are already being tested in the marketplace.
Above all, regulated markets generate wealth for the public re- One cannot forget the socioeconomic impact caused by the
pository in the form of taxation. According to a study by New incarceration of people arrested daily for possession, purcha-
Frontier Data, federal legislation would result in $128.8 billion se, or sale under federal illegality, the vast majority of whom
in taxes, and 1.6 million new jobs12. are black and Latino individuals. Even though regulated states
Representing the burgeoning cannabis industry, while bringing are not focused on arresting users and patients, 660,000 peo-
this economic data, activists were able to regulate full adult ple are still arrested each year for possession of CS in the US.
use in twenty states, a number that is likely to expand further, The trend of historical reparations will continue to dominate
especially in states where a medicinal market already exists and the law reform debates because, as it was observed and proven,
where activists and society are organizing to change the laws. prohibition and the war on drugs itself is a war based on racist
precepts. Ironically, the legalization movement began with cou-
Trends and countertrends nties decriminalizing use and possession, yet to this day, even
This complex legal scenario in the US is likely to remain the with multi-billion dollar markets in place, CS has yet to be
same for some years to come. Although the MORE Act, a bill decriminalized at a federal level.
proposing to legalize the plant at the federal level has passed the
House of Representatives, and has the support of the industry CONCLUSION
at large, it is unlikely to pass the current Senate. Meanwhile,
the global trend is for other countries to continue to evolve CS, for the past century, has been labeled as a drug with no medi-
and reform their laws regarding CS, as the law reform in the cal potential for purely political rather than scientific reasons. A
US has caused other societies to question their laws due to the series of civil society movements in the US led to its legalization
huge lack of access to medical cannabis for patients with a wide due to its therapeutic properties. These movements succeeded in
variety of illnesses. redefining the plant as a medicine rather than a drug, also consi-
The trend of existing medical markets in the US continues to dering the high social and economic cost of its criminalization.
expand their reach and implement adult-use models amidst fe-
deral illegality. Just as it was with the regulation of alcohol at AUTHOR CONTRIBUTION
the time of the great depression, it is important to highlight
that not all states will regulate the use, be it medicinal or adult. Clarissa Krieck Lee
States will follow the same concept of state autonomy in deter- Writing - Preparation of the Original
mining whether or not they want to expand or implement new
regulatory systems to govern its use. REFERENCES
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movements, trends, and countertrends

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