After House Democrats and Democratic leadership, spearheaded by vice-president pick Kamala Harris, have drummed up an upcoming vote for the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, the vote was abruptly postponed. The MORE Act would have removed cannabis from the list of controlled substances, effectively legalizing it federally and allowing states to set their own rules. The vote, initially promised for the week starting on September 21, has been moved to an undetermined date “later this autumn,” presumably after the November 3 election.

The MORE Act was expected to be approved by a large margin in the House of Representatives, where Democrats hold a solid majority and the bill has 113 co-sponsors. It was, however, expected to fail in the Republican-controlled Senate. Overall, this is not a catastrophe so much as a disheartening setback: The MORE Act would not have successfully legalized marijuana as long as the GOP is standing in the way, but it would have been a powerful statement, forcing Republican politicians to go on the record opposing legal weed ahead of the elections. Instead, Democrats crumbled under the pressure out of fear for their own reelections chances if they pushed through a marijuana bill—while Republicans use it as a rallying cry to demean “pot-loving” Democrats—before resolving coronavirus relief legislation—which the Republicans have also been blocking in the Senate.

The MORE Act, despite the very partisan attitude of Republican congresspeople actively opposing it, is popular with supporters of both parties. A study found that 59% of voters, including 53% of Republicans, support passing the MORE Act.

“Vote Democrat to legalize it,” said Sen. Chuck Schumer. “I am fervently committed to get [legalization] done.” Now, without the MORE Act to look forward to as the first cannabis reform bill to ever be voted on in the House, the fate of marijuana legalization depends entirely on the results of the upcoming elections.

Tightening Drug Testing

If the delay imposed to cannabis reform is disheartening, the federal government’s attempt to tighten the screw on drug prohibition is horrifying. The Substance Abuse and Mental Health Services Administration (SAMHSA) has quietly published in the Federal Register a proposition to include hair testing to the mandatory guidelines for drug testing. The proposal is in the commenting period until November 9.

The proposed change in drug testing guidelines “will allow federal executive branch agencies to collect and test a hair specimen as part of their drug testing programs,” the document reveals. Any test done with hair must also include collection of at least one other specimen (urine or saliva, which are currently the norm), which seems rational enough until you reach the paragraph where SAMHSA explicitly singles out cannabis: “The Department is specifically requesting comments on whether hair tests that are positive for the marijuana analyte should be excluded from the requirement to test an alternate authorized specimen.”

The detection window for marijuana depends on numerous factors such as the frequency of drug use and the body fat of the person being tested. Saliva tests can only detect marijuana for a few hours up to a couple days after last use. Blood tests have a similar detection window, between a few hours and a few days; they are useful to determine if someone is currently under the influence. Urine tests can detect marijuana for weeks and up to more than a month after the last use. Hair tests are by far the most sensitive tests; they can detect traces of marijuana for several months after the last use. By mandating hair tests, SAMHSA would not be able to determine whether prospective employees are high on the job, they would merely know that they might have used marijuana—probably on their own time and in a fully legal manner—sometime in the past six months.

Hair tests have been repeatedly shown to be a discriminatory and imprecise. For one, they do not detect THC (the psychoactive component of cannabis) but THCA, its chemical precursor. By itself, THCA is non-intoxicating; a person could eat raw cannabis flower and have their body saturated with THCA without ever feeling even the slightest psychoactive effect. Hair tests are also infamous for giving false positives when testing for marijuana—and the Department of Health wants to specifically waive the secondary test that could confirm or infirm the hair test results.

Hair tests also show different results depending on the color of the hair, adding to their well-documented imprecision. Studies found that melanin, which gives hair its color, is a central component of the binding of drugs to the hair: Dark hair, and in particular African American hair, retains traces of drug use far better than Caucasian hair and white or greying hair. The Journal of Analytical Toxicology concludes: “[Drug] binding was significantly higher to male Africoid hair compared with other groups. [… ] The lowest amount of binding was observed with blond, female Caucasoid specimens.”

This is not news to SAMHSA, as they refer directly to it in their own proposal to implement hair testing: “The presence of eumelanin [which causes black and brown hair colors] appears to be the major determinant of drug binding and incorporation of drug into the hair shaft,” the agency says. “Direct evidence of binding of various drugs with melanin and with human hair has been demonstrated.” This is something that SAMHSA already published years ago, when they concluded that “higher drug concentrations [were] demonstrated with the same dose in dark hair versus light hair.”

SAMHSA themselves estimate that more than 1.5 million people would be tested exclusively through hair tests for marijuana use every year.

“It’s shameful that these harmful federal drug testing guidelines are even being considered again,” Rep. Barbara Lee (D-CA), co-chair of the Congressional Cannabis Caucus, told Marijuana Moment. “Not only is hair follicle testing discriminatory against people of color due to its sensitivity to melanin and darker hair, it gives no indication of someone being impaired on the job. This just goes to show how far behind the federal government is on cannabis policy.”

This attempt to expand drug testing through a famously unreliable method that will structurally discriminate against black people and anyone with higher melanin levels is nothing short of an attack on the widespread acceptance of cannabis reform in the United States.

To read more Cannabis Connection articles, click here.

To read more articles by Jean-Gabriel Fernandez, click here.