Acting U.S. Attorney General Matthew Whitaker on Feb. 8, 2019, blamed international treaty obligations for the delayed expansion of federally approved marijuana cultivation facilities for research purposes.
During an otherwise tense oversight hearing before the House Judiciary Committee, Democratic Colorado Rep. Joe Neguse asked Whitaker for a status update on applications to become cultivators of research-grade cannabis. The Drug Enforcement Administration (DEA) had pledged to increase the number of such facilities in a notice published in the Federal Register in 2016.
“Several institutions have submitted applications that have yet to receive a response,” Neguse said. “What is the status of those applications, if you might know, and do you know if the Department of Justice and DEA intend to support legitimate cannabis research that can help protect the health and safety of our citizens?”
Whitaker said “this is an issue that I've been aware of and I've actually tried to get the expansion and applications out” during his three months as acting attorney general. “We have run into a very complicated matter regarding a treaty that we're trying to get around,” he said.
“We have some international treaty obligations that may not allow the way that marijuana has been handled from the grow facilities to the researchers,” he said. “It is something that I'm very aware of. It's something that I'm trying to push.
“Unfortunately, I have six days in this chair at the most,” Whitaker said, referring to the fact that attorney general nominee William Barr is likely to be confirmed to take over the post soon. “I don't know if I'm going to successfully get to it, but I understand the concern and know that we're trying to make it work.”
While the Justice Department has regularly cited United Nations (UN) treaties as the reason it can't approve additional marijuana cultivators, the U.S. State Department's Bureau of International Narcotics and Law Enforcement said in 2016 that is not actually the case.
“Nothing in the text of the Single Convention, nor in the Commentary, suggests that there is a limitation on the number of licenses that can be issued,” the department wrote in response to an inquiry from Democratic New York Sen. Kirsten Gillibrand.
The UN's World Health Organization recently released its recommendation that marijuana should be removed from the strictest schedule under an international treaty. But while the political implications of rescheduling would be significant, it would have no bearing on the ability of the DEA to expand domestic cannabis research facilities.
For more than 50 years, the University of Mississippi has operated the only federally approved cannabis manufacturing facility in the U.S. Lawmakers on both sides of the aisle have complained about the monopoly, which some researchers have said leads to the lack of a quality product being available for studies, and called on the Justice Department to approve additional applications.
Then-Attorney General Jeff Sessions, who reportedly blocked the agency from licensing new facilities, also told members of Congress last year that the international treaty “requires certain controls in that process” and that he felt the “previous proposal violated that treaty.”
There was some hope among advocates that Sessions' departure from the office would allow application approvals to move forward. The DEA said in December that it was increasing its quota for research-grade marijuana in 2019 and said it “continues to review applications for registration and registers the number of bulk manufacturers of a controlled substance that is necessary to produce an adequate and uninterrupted supply.” But no additional manufacturers have been permitted to date.
The frustration caused the House Judiciary Committee, which at the time was controlled by Republicans, to advance legislation in 2018 that would force the Justice Department to begin approving more cannabis cultivators. The bill was not given a floor vote, but a new version was introduced in January 2019 for the new Congress.
At the hearing, Whitaker told Neguse, who occupies a seat previously held by marijuana-friendly Democratic Rep. Jared Polis, now Colorado's governor, that he would “try to get an answer as to the current status” of existing applications before leaving the position.
Barr, who is expected to be confirmed as the next attorney general in the coming days, said in written testimony that he supports “the expansion of marijuana manufacturers for scientific research consistent with law.” He also wrote that he is “not familiar with the details of [marijuana cultivation] applications or the status of their review,” but that he would “commit to reviewing the matter” if confirmed.
Separately, Barr has made repeated pledges not to use Justice Department resources to “go after” cannabis businesses operating in compliance with state law. Most recently, he gave that assurance to Republican Colorado Sen. Cory Gardner.