March 19, 2025 - State-level cannabis legalization efforts in the United States have accelerated over the last decade, especially in the wake of the 2018 Farm Bill, which legalized "hemp" (cannabis with very low levels of naturally occurring Delta-9 THC, the intoxicating cannabinoid found in cannabis). Hemp, in turn, ushered in a nationwide market for CBD, and "Delta-8" intoxicating products which market participants claim is exempt from federal cannabis prohibitions (because the definition of cannabis depends on the concentration of Delta-9 THC).
The proliferation of these products, difficulties of regulating state-level cannabis programs, and more traditional opposition to cannabis legalization, have all contributed to a reactionary anti-legalization movement that has been making inroads directed at slowing or reversing the tide of broad legalization at the state and federal levels using a variety of interrelated approaches, encompassing legal, political, and social strategies aimed at reshaping public perception and influencing policymakers.
Therefore, despite widespread public support for cannabis reform and numerous states adopting full legalization policies, it is worthwhile to take a look at some of these opposition efforts, and their potential ramifications.
Anti-legalization groups gain traction at the state level
Preventing or reversing cannabis legalization at the state level has been a central focus of many anti-legalization groups for years. Their efforts were rewarded this past November when three of the four states with legalization initiatives on the ballot voted against legalization. In Florida, a ballot question that would have legalized recreational cannabis failed to clear the 60% threshold needed to pass. Meanwhile, voters in North Dakota and South Dakota also rejected ballot measures that would have legalized recreational cannabis in those states.
Only Nebraska voted in favor of legalization, approving two complementary proposals to legalize medical cannabis and regulate its manufacture and sale in the Cornhusker State.
While the results in North Dakota and South Dakota were disappointing, they were not entirely unexpected. The results in Florida, however, came as a surprise to many, especially because polling leading up to the election found that roughly 66%, opens new tab of voters supported legalizing recreational cannabis — significantly higher than the 60% of votes needed to approve the ballot question.
Despite the high approval rating, anti-legalization groups were able to persuade a sufficient portion of Florida's electorate to vote against the ballot question. They accomplished this by taking a slightly different approach than in the past. Instead of focusing on fears of crime or widespread drug use (typical anti-legalization campaign themes), anti-legalization advocacy groups in Florida sought to persuade voters that the ballot question was a corporate greed scheme designed to promote the financial interests of the State's largest medical cannabis companies. This apparently struck a nerve with voters.
This was, perhaps, informed by the sharp rhetoric playing out in states (like New York) in which the coalitions needed to pass recreational cannabis legalization have fallen apart, with multiple lawsuits relating to the roll out pointing to the divide between established medical operators and new hopeful entrants. Given the apparent success of this strategy in Florida, we are likely to see a broader messaging shift from anti-legalization groups moving forward.
Pause on federal rescheduling may provide opportunity for anti-legalization groups
As readers of this column know, the cannabis industry has been keeping a close eye on the saga that has been unfolding since October 2022, when the Biden administration called for the review of cannabis's status as a Schedule I controlled substance under the Controlled Substances Act (CSA).
In April 2024, adopting the earlier recommendation of the U.S. Department of Health and Human Services (HHS), the Drug Enforcement Administration (DEA) announced its intent to initiate a formal rulemaking process to reclassify cannabis from Schedule I to the less-restrictive Schedule III under the CSA. The process has not moved as quickly as many industry participants had hoped and now faces additional obstacles.
The next step in the process was to hold hearings on the DEA's proposed rulemaking, which were scheduled to commence on Jan. 21. However, after months of procedural back-and-forth (and barely a week before the hearings), the DEA's Chief Administrative Law Judge presiding over the rulemaking proceedings canceled the hearings in response to a request from two pro-rescheduling groups alleging improper ex parte coordination between the DEA and one of the most prominent anti-legalization groups in the country: Smart Approaches to Marijuana (or SAM). (See Order Regarding Village Farms International, Hemp for Victory, and OCO, et al.'s Motion to Reconsider, Jan. 13, 2025) It is unclear when the hearings might be rescheduled.
Although the rescheduling pause was initiated by pro-rescheduling parties, some reform advocates and industry watchers fear that anti-legalization groups might use this as an opportunity to ensure that rescheduling remains on hold indefinitely — or at least for the next four years. This fear has become especially salient in light of President Trump's recent nominations to head the DEA and the Office of Management and Budget (OMB), both of which play key roles in the rescheduling process.
President Trump's pick to head the DEA, Terry Cole (who will likely take the reins on the rescheduling hearings), has taken an anti-legalization stance in the past, raising concerns that the DEA might put rescheduling on the backburner. Similarly, Russel Vought — who was recently confirmed to head the OMB — has raised concerns among reform advocates due to past statements referring to cannabis as a "gateway drug" and pushing for the rollback of state-level cannabis reforms.
Given OMB's role in reviewing the DEA's proposed rulemaking for budget and regulatory impact, which already occurred for the current proposed rulemaking during the last administration, pro-legalization groups fear Vought could play a role in stymieing any future attempts to reschedule cannabis in the event current efforts fail to make it across the finish line.
Anti-legalization groups seek to influence federal cannabis policy
Anti-legalization groups have also been ramping up efforts to influence federal cannabis policy. For example, during a recent drug policy summit , opens new tabhosted by SAM, the organization touted its efforts to push back on cannabis policies aimed at easing federal restrictions, pledging, among other things, to fight federal rescheduling efforts and lobby against proposed cannabis laws, including the Secure and Fair Enforcement Regulation Banking Act (SAFER Banking Act), which aims to provide legal cannabis businesses access to essential banking services (such as bank accounts, credit cards, and checks) by protecting financial institutions that serve these businesses from federal penalties.
The Act has enjoyed support from industry participants in both the cannabis and financial sectors and has garnered strong bipartisan support in years past.
SAM has also taken credit for pitching the idea for a bill that was recently introduced by U.S. Senators Pete Ricketts (R-NE) and James Lankford (R-OK) called the No Deductions for Marijuana Business Act. The proposed bill , opens new tabaims to preserve a federal tax policy (IRC § 280E) that bars cannabis companies from taking ordinary business deductions on their federal tax returns, regardless of whether cannabis's status as a Schedule I substance under the CSA is ever changed.
It seems unlikely that the proposed bill has enough votes to pass (at least in its current form), but it is an indicator of the inroads anti-legalization groups have gained at the federal level, particularly with some GOP lawmakers.
Conclusion
Whether or not anti-legalization groups succeed in slowing the momentum, it is clear that the national conversation surrounding cannabis legalization is far from over.
Alexander Malyshev and Sarah Ganley are regular, joint contributing columnists on legal issues in the cannabis industry for Reuters Legal News and Westlaw Today.
