GOP Lawmakers Seek To Remove Marijuana Testing Ban For Military Recruits From Defense Bill

06/03/2024

Republican members of Congress are seeking to eliminate a provision of a defense bill that would block military branches from testing recruits for marijuana as a condition of enlistment, while other members push for a variety of new drug policy amendments that would prevent security clearance denials based on past cannabis use, expand expungement eligibility and facilitate the rescheduling of certain psychedelics, among other reforms.

The proposals are being pursued as part of the 2025 National Defense Authorization Act (NDAA), which cleared the House Armed Services Committee last month and must now go before the Rules Committee before potentially reaching the floor.

That panel will be taking up a separate defense-focused spending bill on Monday where members will consider several overlapping amendments, including proposals to authorize U.S. Department of Veterans Affairs (VA) doctors to issue medical marijuana recommendations to military veterans, prevent marijuana testing for federal job applicants in legal states and support research on the therapeutic benefits of psychedelics.

As currently drafted, the House NDAA contains a section to prevent military branches for testing recruits for marijuana for enlistment or commission. However, Reps. Pete Sessions (R-TX) and Robert Aderholt (R-AL) each filed separate amendments to strike that section, which reads:

“SEC. 531 PROHIBITION ON CANNABIS TESTING FOR ENLISTMENT OR COMMISSION IN CERTAIN ARMED FORCES.

Subject to subsection (a) of section 504 of chapter 31 of title 10, United States Code, the Secretary of the military department concerned may not require an individual to submit to a test for cannabis as a condition of enlistment of such individual as a member, or the commission of such individual as an officer, of an Armed Force.”

Aderholt’s version of the amendment is cosponsored by Reps. Mary Miller (R-IL), Josh Brecheen (R-OK), Andrew Clyde (R-GA) and Gary Palmer (R-AL)

The language in the bill mirrors a proposed amendment to DOD appropriations legislation last year that was led by Rep. Matt Gaetz (R-FL).

DOD told lawmakers last year that marijuana’s active ingredient delta-9 THC is the most common substance that appears on positive drug tests for active duty military service members. And several military branches have taken steps to loosen cannabis-related restrictions, including issuing waivers for recruits who test positive their first time.

To that end, Reps. Dave Joyce (R-OH) and Earl Blumenauer (D-OR) filed another NDAA amendment that would require the secretary of defense to submit a report to Congress with a plan to “create, disseminate, and use a clear definition for the reenlistment waiver process” to clarify that the existing policy allows for such waivers to reapply for enlistment after testing positive for THC.

Of course, that might not be necessary if the bill is enacted with the broader cannabis testing ban provision in place.

Rep. Robert Garcia (D-CA) filed another familiar amendment that would prevent military departments from denying security clearances to people based solely on their past marijuana use if it was in compliance with state law.

“SEC. 17. PROHIBITION ON AVAILABILITY OF FUNDS TO DENY SECURITY CLEARANCES FOR MARIJUANA USAGE.

(a) PROHIBITION.—None of the funds authorized to be appropriated by this Act may be used to revoke or deny a security clearance under section 3002(b) of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 3343(b)) or any other provision of law prior to the completion of a full security clearance background investigation by an authorized investigative agency and issuance of a final decision on denial or revocation by an authorized adjudicative agency on the sole basis that an individual used marijuana (as defined in section 102(16)(A) of title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 802(16)(A)) if, under the law of the State where such individual used marijuana, such use was lawful.

(b) DEFINITIONS.—In this section: (1) The terms ‘authorized investigative agency’ and ‘authorized adjudicative agency’ have the meanings given those terms in section 3001(a) of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 3341(a)).

(2) The term ‘State’ means each of the several States, and includes the District of Columbia, Guam, and Puerto Rico.”

Reps. Tony Gonzales (R-TX), Jimmy Panetta (D-CA) and Joaquin Castro (D-TX) also filed an amendment to codify that military servicemembers can’t be penalized for using or possessing federally legal hemp products.

“SEC. 5. USE OF LEGAL HEMP PRODUCTS BY MEMBERS OF THE ARMED FORCES.

(a) IN GENERAL.—The Secretary of Defense may not prohibit a member of the Armed Forces from possessing, using, or consuming a product containing hemp or any ingredient derived from hemp if such possession, use, or consumption is in compliance with applicable Federal, State, and local law.

(b) HEMP DEFINED.—In this section, the term ‘hemp’ has the meaning given that term in section 297A of the Agricultural Marketing Act of 1946 (7 U.S.C. 1639o).”

Since hemp was federally legalized under the 2018 Farm Bill, multiple military branches have updated their policies around the use of products such as CBD. While some have simply cautioned about the risk of mislabeled products containing excess THC, others like the Navy and Air Force have outright banned the use of hemp regardless of its legal status.

Another proposed NDAA amendment from Reps. Madeleine Dean (D-PA) and Nancy Mace (R-SC) would create a streamlined process for the Drug Enforcement Administration (DEA) to move drugs designated as “breakthrough therapies” by the Food and Drug Administration (FDA) from Schedule I to Schedule II of the Controlled Substances Act (CSA), “which could help facilitate a phased roll-out of these potentially lifesaving therapies via FDA-approved Expanded Access pilot programs.”

The amendment text doesn’t mention any specific drugs, but the summary specifically discusses MDMA and psilocybin as examples of such breakthrough therapies. This comes as an FDA advisory committee is set to meet this week to discuss a new drug application for MDMA-assisted therapy for the treatment of post-traumatic stress disorder (PTSD).

Reps. Glenn Ivey (D-MD), Laurel Lee (R-FL), Mikkie Sherrill (D-NJ), Barry Moore (R-AL) and Kelly Armstrong (R-ND) also filed an amendment to expand eligibility for expungements of non-violent drug convictions by removing an age restriction limiting relief to those who were under 21 at the time of the offense.

“SEC. 17. ELIMINATING AGE REQUIREMENT FOR EXPUNGEMENT OF CERTAIN RECORDS OF DISPOSITION FOR SIMPLE POSSESSION OF CONTROLLED SUBSTANCES BY NONVIOLENT OFFENDERS.

Section 3607(c) of title 18, United States Code, is amended by striking ‘and the person was less than twenty-one years old at the time of the offense,’.”

Meanwhile, the Rules Committee is also set to consider an NDAA amendment that would allow veterans to access state medical marijuana programs and eliminate a VA directive barring the department’s doctors from issuing cannabis recommendations.

SEC. 17__. PROVISION BY DEPARTMENT OF VETERANS AFFAIRS HEALTH CARE PROVIDERS OF RECOMMENDATIONS AND OPINIONS REGARDING VETERAN PARTICIPATION IN STATE MARIJUANA PROGRAMS.

(a) IN GENERAL.—Notwithstanding any other provision of law, the Secretary of Veterans Affairs shall authorize physicians and other health care providers employed by the Department of Veterans Affairs to—

(1) provide recommendations and opinions to veterans who are residents of States with State marijuana programs regarding the participation of veterans in such State marijuana programs; and

(2) complete forms reflecting such recommendations and opinions.

(b) STATE DEFINED.—In this section, the term ‘‘State’’ means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, any territory or possession of the United States, and each federally recognized Indian Tribe.

The amendment is based on a standalone bill, the Veterans Equal Access Act, that Blumenauer has championed across multiple sessions. It’s advanced several times in committee and on the floor but has yet to be enacted into law.

Another amendment from Mace that members adopted in committee added report language for the NDAA that would require DOD to issue a report on how many service members have been discharged due to marijuana.

“The committee directs the Secretary of Defense to submit a report to the House Committee on Armed Services and the Senate Committee on Armed Services on the number of servicemembers discharged from service on the sole basis of marijuana use not later than December 1, 2024. The report shall include the total number of servicemembers discharged over the previous ten years, the number discharged by year, and the state or location these service members resided at the time of discharge.”

An additional amendment from Rep. Steven Horsford (D-NV) that was adopted by the panel would require a DOD briefing on sentencing for cannabis-related offenses under the Uniform Code of Military Justice.

“Briefing on Sentencing of Cannabis-Related Offenses Under the Uniform Code of Military Justice In 2019, the U.S. Government Accountability Office reported that some disparities exist in different stages of the military justice process, including at courts-martial. The committee acknowledges and commends the Department for its numerous initiatives to address identified disparities and to reform the Uniform Code of Military Justice, including by implementing sentencing parameters pursuant to section 539E(e) of the National Defense Authorization Act for Fiscal Year 2022. The committee further recognizes that the U.S. Drug Enforcement Administration has agreed with the Department of Health and Human Services’ recommendation to reschedule Cannabis from Schedule I to Schedule III of the Controlled Substances Act.

To better understand potential disparities in sentencing outcomes for cannabis-related offenses, the committee directs the Secretary of Defense, in coordination with the Secretaries of the military services, to provide a briefing to the House Committee on Armed Services not later than January 31, 2025, on the following:

1) the number of convictions, broken down by service, for cannabis use for the last four fiscal years, disaggregated by time in service, rank/grade, sex, race, and ethnicity;

2) the number of convictions, broken down by service, for cannabis possession for the last four fiscal years, disaggregated by time in service, rank/grade, sex, race, and ethnicity;

3) the number of convictions, broken down by service, for cannabis use and possession, for the last four fiscal years, disaggregated by time in service, rank/grade, sex, race, and ethnicity; and

4) for each of the categories listed above, an assessment of whether any disparities exist based on time in service, rank/grade, sex, race, or ethnicity in the reviewed sentencing of servicemembers, broken down by service.”

Mace has also touted a separate amendment that she said “supports states’ rights by incorporating findings from 38 state marijuana programs into research.”

“The committee notes that to date, 38 states have implemented state regulatory programs for marijuana and therefore retain a level of knowledge and lessons learned regarding regulations and trends among producers, products, and consumer habits. The committee believes that the Department of Defense program established under Section 723 of the National Defense Authorization Act for Fiscal Year 2024 (Public Law 118-31) to study the effectiveness of psychedelic substances and plant-based therapies, including marijuana, in treating post-traumatic stress and traumatic brain injuries should incorporate findings and data collected by State-approved marijuana regulatory programs. The committee directs the Secretary of Defense to provide a report to the House Committee on Armed Services not later than January 31, 2025, on the extent to which the Department is coordinating with States which have regulatory programs for marijuana and incorporating related findings and data collected by State-approved marijuana regulatory programs.”

The legislation also includes report language to follow up on provisions in the most recently enacted NDAA that provide funding for DOD-led clinical trials on the therapeutic potential of psychedelics for active duty military service members.

The report language says the committee “wants to ensure the establishment of the program is progressing without impediment,” and calls on DOD to provide Congress with a status update report by January 31, 2025.

“Section 723 of the National Defense Authorization Act for Fiscal Year 2024 (Public Law 118-31) established a Department of Defense program to study the effectiveness of psychedelic substances and plant-based therapies in treating post-traumatic stress and traumatic brain injuries. The committee wants to ensure the establishment of the program is progressing without impediments. Therefore, the committee directs the Secretary of Defense to provide a briefing to the House Committee on Armed Services no later than January 31, 2025, on the following with regards to the progress of the program:

(1) the Department’s process for funding eligible entities;

(2) the Secretary’s selection for lead administrator to carry out the program;

(3) a list and description of the eligible entities that have been selected for the program;

(4) how the Department notified and selected servicemembers to participate in the program;

(5) how many servicemembers have requested participation in the program;

(6) how many servicemembers have been selected for participation in the program;

(7) any issues the Department is encountering establishing the program;

(8) any anticipated delays to implementing the program; and

(9) any other information the Secretary deems relevant.”

Rep. Morgan Luttrell (R-TX), a former Navy SEAL with personal experience with psychedelics treatment who championed the underlying amendment, told Marijuana Moment earlier this year that he planned to separately meet with military leadership to collaborate on how to effectively administer the program.

Meanwhile, a top official at the U.S. Department of Veterans Affairs (VA) said at a conference last month that he was initially “surprised” by the level of bipartisan support for psychedelic medicine in Congress. He said, at this point, psychedelics policy enjoys a greater level of bipartisanship than marijuana.

The conference took place about two weeks after the House Veterans’ Affairs Committee passed a bill to require VA to notify Congress if any psychedelics are added to its formulary of covered prescription drugs.

Kyle Jaeger via (https://www.marijuanamoment.net/gop-lawmakers-seek-to-remove-marijuana-testing-ban-for-military-recruits-from-defense-bill/)

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