Reclassifying Marijuana. It’s About Time.

On May 16, 2024, President Biden announced that his administration took a major step to reclassify marijuana from a Schedule I drug to a Schedule III drug. Biden called the move “monumental”.  So, what’s all the fuss about, and what are the practical implications of reclassifying marijuana?

Currently marijuana is legal for medical use in 38 states, and fully legal in 24 of these states. The federal government still considers the production, distribution, and use of marijuana to be illegal. But it is the policy of the Department of Justice not to prioritize marijuana enforcement in those states that have legalized it’s use. As long as states have marijuana regulations in place that prevent the use by minors, prevent sales across state lines, and don’t contribute to other criminal activity, the federal government has a hands-off approach.    

Federal Regulation of Marijuana (Cannabis): The DEA has the final authority to schedule, reschedule, or de-schedule a drug under the Controlled Substances Act. Only practitioners licensed with the DEA may prescribe a controlled substance, and only DEA licensed pharmacies may dispense them. 

​Marijuana is a Schedule I controlled substance under the federal Controlled Substances Act (The Federal Comprehensive Drug Abuse Prevention and Control Act of 1970) . A controlled substance is any drug or chemical with the potential to cause harm through dependency, misuse, or abuse, and falls into one of five schedules of the Controlled Substances Act.

• Schedule I: Drugs with high abuse potential with no accepted medical uses. These substances may not be prescribed, dispensed, or administered. Examples include marijuana, heroin, and LSD.  
• Schedule II: Drugs with high abuse potential, and may lead to severe psychological or physical dependence. These drugs have accepted medical uses. Examples include oxycodone, morphine, amphetamine, and some barbiturates.
• Schedule III: Drugs with intermediate abuse potential and accepted medical uses. Examples include anabolic steroids, testosterone, and ketamine. This is the schedule that the Biden Administration has recommend that marijuana be placed.
• Schedules IV and V: These drugs have some potential for abuse, but much less than Schedule III drugs.
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Note: Marinol and Syndros are two prescription drugs approved by the FDA that contain synthetic THC (the active ingredient in marijuana). They are used as antiemetics and appetite stimulants, mostly in cancer patients. Marinol falls under Schedule III and Syndros falls under Schedule II of the Controlled Substances Act.

Timeline of Marijuana Reclassification:

October 6, 2022: President Biden directed the Secretary of the Department of Health and Human Services and the Attorney General to review how marijuana is currently scheduled under federal law. The Food and Drug Administration (FDA) then conducted a scientific and medical evaluation on whether marijuana has any current medical use in the United States, it’s potential for abuse, and other factors necessary for rescheduling a drug under the Controlled Substances Act.  

August 2023: The FDA issued a 252-page report recommending that marijuana be reclassified as a Schedule III drug under the Controlled Substances Act. The report concluded that there is some scientific support for therapeutic uses of marijuana, and though frequently abused, it is not as dangerous as drugs listed in Schedules I or II. The National Institute on Drug Abuse concurred with the findings of the report.

August 29, 2023: The Department of Health and Human Services made a formal request to the DEA to reclassify marijuana as a Schedule III drug. 
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May 16, 2024: President Biden announced that his administration initiated the process of reclassifying marijuana. The Attorney General submitted to the Federal Register a notice of proposed rulemaking initiating the formal rulemaking process to consider moving marijuana from a Schedule I to a Schedule III drug under the Controlled Substances Act.
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May 21, 2024: The Federal Register published a notice of proposed rulemaking to reschedule marijuana to the less restrictive Schedule III. This triggered a 60-day public comment period on the proposed rulemaking change. People objecting to the rule change may request a hearing before an Administrative Law Judge. This process could take months or years depending upon the objections raised. Once the process plays out, the Administrative Law Judge will make their recommendation to the DEA who has the ultimate authority to reschedule marijuana.

What Reclassification of Marijuana Will Achieve:
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1. The federal government would acknowledge that marijuana has some legitimate medical uses and that it has less potential for abuse than other dangerous drugs such as LSD and opiates.
2. Expands research opportunities by lowering legal and financial barriers that currently exist for Schedule I drugs. This would help to expand research on the therapeutic uses of marijuana and to standardize dosage, strength, and delivery systems.
3. Under Section 280 E of the Internal Revenue Code, businesses participating in the production, distribution or sale of marijuana products cannot deduct most of their legitimate business expenses from their federal income taxes. This is a huge barrier to profitability for most of these businesses. If marijuana is moved to Schedule III, Section 280E will no longer apply. 

What Reclassification of Marijuana Will Not Achieve:
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1. It will not decriminalize marijuana.
2. Marijuana will not become legal for recreational use at the federal level.
3. It will not be legal to sell marijuana across state lines. As a controlled substance marijuana would require FDA approval to participate in interstate commerce.
4. It will not ease banking restrictions. Many banks and credit card companies will still be reluctant to do business with the cannabis industry. Marijuana will still be illegal at the federal level. Financial institutions doing business with the cannabis industry could face federal charges of money laundering and racketeering. This forces some cannabis businesses to only accept cash, a dangerous and inefficient practice.  Congress should pass the bipartisan SAFER Banking Act which would allow banks to serve the cannabis industry in those states where it is now legal. 

Unanswered Questions:
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1. Will the DEA regulate marijuana like other Schedule III drugs, and require prescribers and dispensers to become registered?
2. As a Schedule III controlled substance, could marijuana only be prescribed by a licensed physician and dispensed by a licensed pharmacy? Where would this leave the nation’s thousands of cannabis dispensaries?  
3. Would marijuana and related products be subject to oversight by the Food and Drug Administration (FDA), just like any other Schedule III drug? If so, marijuana products would require FDA approval before marketing.
4. The United States is a treaty member of the 1961 Single Convention on Narcotic Drugs which requires the criminalization of cannabis. Would rescheduling marijuana put the United States in violation of this international treaty? The DEA cited the United States’ international treaty obligations as a reason not to reschedule marijuana in 2016.

These unanswered questions lead me to the conclusion that the road to full legalization of marijuana is a long way off. The laws governing drugs in this country are complex and impact many state and federal agencies. Only Congress has the power to untangle the complex web of laws that govern marijuana and other potentially dangerous drugs. Even though the majority of Americans are behind full legalization of marijuana, the Congress has no appetite for it. Therefore, the states will continue to take the lead.  

Final Thoughts:

A recent study published in the journal Addiction shows that more Americans than ever are using cannabis related products. The study concludes that the number of Americans who use cannabis daily is greater than the number of Americans who use alcohol daily.  
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I am not naïve to the dangers of increased access to marijuana, or any other potentially dangerous drug, particularly among our youth. The concentration of THC (the principal psychoactive compound in marijuana) in marijuana today is up to five times greater than it was in the 1990s. This increases the potential for dependence and the development of psychotic symptoms, particularly in young people. I am in favor of strict regulations to limit the sale of marijuana, just like with alcohol, to protect young people and society at large. 

Even though reclassifying marijuana from a Schedule I to a Schedule III drug will not be the panacea that many advocates hope for, it is a step in the right direction. Expanding research into marijuana’s potential medical benefits, and moving the cannabis industry out of the shadows, makes rescheduling it worthwhile.

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Thanks,
Armchair American