Your Voice Matters: Advocating for Equitable Cannabis Programs and Policies
By Amber Lengacher, Kelsey Middleton
Aug 5, 2020
The United States Drug Enforcement Administration (DEA) recently accepted public comments on proposed controls to enhance the cultivation of “marihuana” for research purposes in the United States. These rules are purportedly designed to “enhance and improve research with marihuana and facilitate research that could result in the development of marihuana-based medicines approved by the Food and Drug Administration (FDA),” a request voiced by researchers for decades. The public comment period represented an important and timely opportunity to provide DEA with data and materials to inform its determination of how cannabis cultivation and disbursement for research should be regulated.
In addition to the firm submitting a public comment via the regulations.gov docket, Vicente Sederberg LLP also provided pro bono assistance to Judge Shelli Hayes, co-founding member of the Minority Cannabis Business Association (MCBA), in submitting a comment. The public comment from Judge Hayes and MCBA, shared below, addresses the need for social equity in the federal cannabis research program by establishing diversity and inclusivity guidelines.
The Importance of Advocating for Equitable Cannabis Programs
While the cannabis industry has taken massive strides toward eradicating nationwide cannabis prohibition, the question of how to properly acknowledge the history of the United States’ failed war on drugs is still a major issue. As states and localities across the country develop cannabis licensing programs, efforts to meaningfully account for the history of discriminatory policing and mass incarceration of minority groups are gaining traction at local, state, and federal levels of government.
Despite increasing awareness of the flawed, if not amoral, motivations spurring the failed war on drugs and the growing list of states opting to decriminalize or regulate cannabis, remnants of the drug war linger on in the 21st century. An ACLU study conducted in April 2020 showed that despite a decrease of cannabis arrests at a national level since 2010, the rate of decline has stagnated and, in some instances, even reversed upward despite the popularity of cannabis policy reform movements. The study further revealed that war on drugs policies continue to disproportionately target people of color, particularly Black people. In 2020, data shows that Black people are 3.6 times more likely than white people to be arrested for cannabis possession, despite similar usage rates. At the same time, a growing number of Americans are pushing elected officials to embrace cannabis legalization and decriminalization efforts.
The cannabis industry is uniquely positioned to both recognize the responsibility and realize the promise of its grassroots social justice origins. As industry trailblazers, Vicente Sederberg embraces our responsibility to support social equity programs and advocate for reforms to enhance the efficacy of existing programs. Participating in our democracy by submitting public comments is just one of the effective ways we can make a difference in regulatory policy and help contentious issues, like cannabis, gain legitimacy in the eyes of society.
Public Comment Addressing Social Equity from Judge Shelli Hayes
Thank you for your consideration of our comments below on the United States Drug Enforcement Administration’s (DEA) proposed rules pertaining to the US Code of Federal Regulations, Title 21, Chapter II.
My name is Judge Shelli Hayes and I have spent my life serving the legal industry and my local communities. After graduating from Indiana University Maurer School of Law in 1982, I went on to serve as managing attorney at a private firm in Chicago, and then an Assistant Chief Attorney for the Cook County Board of Commissioners. I also served as Special Assistant Attorney General for the state of Illinois. After twelve years of practice, I became a judge of Cook County’s Circuit Court, where I served for eighteen years. In this position, I heard over 5,000 cases. I have always been passionate about supporting my community through the elimination of illicit drug markets that lead to rampant substance abuse. As such, after retiring from the bench, I turned my efforts to the cannabis industry. As my attached bio indicates, I have extensive licensure and operational experience in the cannabis space. In 2017, I moved to Nevada to cofound a licensed cannabis processing facility where I currently serve as Chief Operating and Legal Officer. I have also served as the Chief Compliance Officer for a hemp company in Colorado. Most recently, my team and I applied for licensure as a dispensary and craft grower in Illinois.
This experience led to my appointment to the founding Board of Directors of the International Cannabis Bar Association. Most recently, I was appointed to the first Equity, Diversity, and Inclusion Board of the Cannabis Trade Federation. I also helped to cofound the Minority Cannabis Business Association. Founded in late 2015, the MCBA is the first not for profit business league created to serve the specific needs of minority cannabis business entrepreneurs, workers, and patients or consumers.
With this experience in mind, I wanted to convey how extremely grateful we are to DEA for affording us the opportunity to comment on these proposed provisions which are intended to regulate the production of cannabis research stock for medical and scientific purposes. For the reasons set forth, we respectfully urge DEA to ensure the establishment of an equitable federal cannabis research program for all communities. We believe DEA can achieve these goals through the implementation of diversity and inclusivity guidelines.
For example, DEA may wish to consider:
Establishing an Equity, Diversity, and Inclusion Committee to monitor application review and safeguard the establishment of an equitable industry.
Affording preference to applicants that demonstrate a commitment to diversity and inclusivity, both within the organization and in their research efforts, including but not limited to those parties who 1) promote diverse hiring or 2) are researching health conditions that are disproportionately impacting communities of color.
Requiring partnerships between registered bulk manufacturers and/or researchers and minority organizations dedicated to serving communities of color (similar to a research incubator program).
Allotting a specific number of registrations to smaller businesses that are certified, minority-owned by their principal state of business (similar to a smaller, craft research program).
Offering fee assistance or waivers to qualified applicants.
In order to give a comprehensive overview of what a program would resemble if the above elements were incorporated, I have attached a piece of model legislation that the MCBA drafted and spent years perfecting. This model bill includes initiatives similar to the above and could serve as a guide to the Administration in navigating this complicated process, as it has served as a guide to many states. I have also included a summary of the bill and model ordinances for governing at the municipal level. These models have guided cities and counties across the country as they attempt to incorporate cannabis equity provisions into local programming.
We set forth the reasoning for the above suggestions in two parts below: I) promoting community outreach; and II) promoting equity in healthcare.
Promoting Community Outreach
DEA should include regulatory provisions in the proposed rules that afford economic opportunities to communities that have been disproportionately impacted by substance abuse and illicit drug markets. To move forward inclusively, we must ensure these communities are provided with the same business opportunities historically reserved for those with greater economic privilege.
We know DEA values community outreach as a critical component of its primary law enforcement mission to prevent the sales and use of illicit drugs. DEA has worked with community coalitions and state and local governments all over the country to increase drug use prevention education. In that same vein, we believe that DEA should continue that noble outreach through this new application process, taking proactive steps to engage with communities of color to not only educate but to receive feedback on social equity measures that would be the most significant for these individuals. A large part of that outreach includes providing opportunities to individuals, namely people of color, who have faced historical, systemic barriers to entry in economic opportunities. By including those opportunities in the proposed rules, DEA can begin to promote diverse ownership and hiring within the federal marijuana research program. DEA has served as a leader for state law enforcement since 1973, and it is imperative that it continue to do so in the realm of community outreach and social equity. As a result of this leadership and the new business opportunities for impacted communities, we feel confident the country will experience a decline in substance abuse rates and illicit markets. Studies support what reality suggests: employment often leads to reduced substance abuse. By creating new economic opportunities within the cannabis research space, DEA can attain its mission of reducing substance abuse and illicit markets.
We value any opportunity to work with DEA in this effort. As leaders in the minority cannabis industry, we acknowledge that perfect solutions still elude us despite our efforts to date. We do know one thing though: disproportionately impacted individuals must have a seat at the table. This applies to any organization or business, but importantly here, in the early planning stages of expanding federally legal medical marihuana cultivation for research. The voices of these communities must be heard for the forward progress of our entire country.
The establishment of a DEA Equity, Diversity, and Inclusion Committee would allow the free-flowing, educated, and insightful discussion of ways to increase economic opportunities in research and cultivation for those impacted communities. We have watched several jurisdictions take the lead in social equity initiatives for state-regulated marihuana, including in San Francisco and Oakland, California, as well as Illinois. Throughout these programs, one thing has become apparent: in order to achieve social equity and promote outreach to traditionally marginalized communities, we must provide economic opportunities through appropriate regulations and guidelines. DEA has an important opportunity to do that here and we look forward to collaborating in this effort.
Promoting Equity in Healthcare
Communities of color are too frequently overlooked in medical and scientific research, as well as misdiagnosed or treated in healthcare settings. As such, DEA should give preference to minority-owned businesses seeking registration and applicants that are committed to conducting research on certain serious health conditions that disproportionately impact minority communities. Fees should be reduced or waived for these applicants as well. By promoting this research, people of color will receive better healthcare, which will, in turn, decrease rates at which they are forced to seek treatment from unauthorized sources, often leading to drug abuse.
Historically, conditions such as sickle cell disease, high blood pressure, diabetes, hypertension, or stroke have been experienced at higher rates by people of color. According to the Centers for Disease Control and Prevention, African Americans ages 35-64 years are 50% more likely to have high blood pressure than white individuals. Recently and importantly, studies have shown that even the novel COVID-19 is impacting communities of color at disproportionate rates, as reported by The Harvard Gazette. The Harvard article cited quotes a Harvard social scientist as indicating that, based on previous research, “200 black people die every single day in these United States who would not have died if the health experience of African Americans was equivalent to that of whites.” Many diverse researchers and minority groups have confidence that cannabis research will lead to specifically-targeted treatments for minority individuals suffering from these predisposed health conditions, or at the very least, identification of the factors that lead to the increased rates of those ailments in communities of color.
As such, we implore DEA to recognize the importance of registering persons who demonstrate a commitment to closing this documented gap in the American healthcare industry by conducting research specific to minority populations and the health conditions they face. DEA has the authority to register organizations eagerly awaiting such an opportunity. In this manner, DEA can ensure this type of research occurs – research that is vital to DEA’s goal of preventing drug abuse. Pain tolerance and the ailments which drive that pain are often misdiagnosed by healthcare professionals serving African Americans. These conditions are readily treated with opioids for white patients, but are not consistently or accurately diagnosed or treated for our communities of color. As a result, some minority individuals are forced to obtain drug substances from unauthorized sources in order to manage their pain, committing a criminal act that may worsen their health outcomes and their status as a free citizen.
We hope our suggestions above, including but not limited to the establishment of an Equity, Diversity, and Inclusion Committee, will help DEA navigate the registration process in an equitable manner and ensure efforts are undertaken that focus on increasing the health, wellness, and quality of lives of our communities of color.
Thank you for your attention to and consideration of our feedback regarding the proposed rules. We are extremely grateful to the DEA for proposing this framework and look forward to continuing this conversation as we advance together into the world of cannabis policy reform. If you would like to discuss any of these comments, or my attached model legislation, please feel free to contact me at any time. I would love the opportunity to collaborate with you all and potentially work on your diversity committee. Thank you again for your time.
/s/ Judge Shelli Hayes
VS is eager to continue empowering our clients to submit public comment to regulators and governmental bodies such as DEA and others to advocate for the conscious advancement of our industry. If we are to rise, we must rise together.