Just weeks into 2024 we’ve already seen the Drug Enforcement Administration confirm it is reviewing the classification of cannabis under the Controlled Substances Act, along with the first public acknowledgement of its medical use by the Department of Health and Human Services.
Amid an ‘unprecedented’ situation, speculation is rife around whether the U.S. is finally heading for a shift in policy at a federal level. But one thing experts do agree on is that any decision on cannabis policy is likely to be based on politics, rather than public health.
A Quick Rundown Of Events So Far
- After making it a key issue on the campaign trail, in October 2022, President Biden announced that he was initiating a review of how marijuana is scheduled under federal law.
- In August 2023, Bloomberg News revealed that the HHS had recommended that the DEA reclassify cannabis from a Schedule I to a Schedule III under the CSA, based on eight key factors.
- On January 3 2024, Punchbowl News was the first to report that the DEA had confirmed it was conducting its own review of marijuana as a Schedule I drug, making it clear to Congress that it has “final authority” on the decision.
- Days later, following litigation over a Freedom of Information Act request brought by lawyer Matthew Zorn, the HHS released over 250 documents confirming its recommendation.
- The documents explain that cannabis “has a currently accepted medical use in treatment in the United States” and has a “potential for abuse less than the drugs or other substances in Schedules I and II.”
- Now the decision is in the hands of the DEA which will make a recommendation based on its own five factor test.
A History Of Failed Attempts—Why Would It Be Any Different This Time?
This is far from the first time the classification of cannabis in the CSA has been up for debate.
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Cannabis advocacy organization, NORML, filed the first rescheduling petition in 1972. In 1988, DEA Judge Francis Young ruled in favor of rescheduling, stating that: “Marijuana, in its natural form, is one of the safest therapeutically active substances known to man”. But in 1995, DEA director John Lawn set aside this ruling, a decision which was upheld by the U.S. Court of Appeals for the District of Columbia.
Since then several subsequent rescheduling petitions have been made—the most recent of which was in 2016—all of which have been denied. The DEA has repeatedly claimed that cannabis fails to meet the five factors required for drug rescheduling.
While past attempts have proven unsuccessful, there are some key differences this time around, with NORML’s deputy director Paul Armentano describing the current situation as ‘unprecedented’.
“The first most obvious difference is that this process was initiated by the current administration,” he tells me on a video call.
“All the other prior petitions had been initiated by third parties.”
The other key difference is that this is not supposed to be a transparent process, he explains. If it wasn’t for the leaked letter, we wouldn’t know any of this information until the DEA had made its call. So, why would someone leak the information? Armentano has two potential theories.
“One is that the Biden administration wants the world to know that they would like the DEA to reschedule, but understand historically it has been reluctant. They may have thought that by having the HHS make their recommendation public it might put added pressure on DEA,” he explains.
“Or, they want some political cover. If the DEA goes ahead, as it historically has, and rejects any effort to move cannabis the administration can say ‘hey look, we tried!’”
What Happens If The DEA Agrees To Reschedule Cannabis?
If the DEA was to agree with the HHS recommendation there would be many potential implications for policy, business and consumers.
It would mean that cannabis could no longer be used as a reason to deny individual rights such as employment, public housing and immigration visas, and could lead to amendments in federal drug testing laws and in how health insurance companies handle medical cannabis reimbursements.
Meanwhile, it could make it easier for businesses to operate in the cannabis sector, lifting some of the restrictions around access to banking and financial services and permitting state-licensed businesses to take standard tax deductions. It would also remove some of the barriers preventing research on the plant and the development of new treatments.
But this is uncharted territory, Armentano reminds us, and at this stage there are more questions than answers. A substance that has not gone through the FDA approval process has never been categorized as a Schedule 3 drug before.
It would also mean a continuation of the current contradiction in state and federal law, with 38 U.S. states having now introduced some form of cannabis legislation.
“The reason the CSA exists is to establish a uniform set of regulations for those drugs,” explains Armentano.
“If we move marijuana into schedule III, we perpetuate the very situation we have now.”
NORML advocates for the de-scheduling of cannabis, in other words, its removal from the CSA altogether, which he says is the only way to achieve any real change.
“A lot of people are going to be disappointed that there’s not any sort of widespread or seismic change, because rescheduling doesn’t bring many changes,” he adds.
What About Implications For Global Drug Policy?
That said, jurisdictions around the world will be watching closely to see how it all plays out, particularly those which are already advancing with their own bills for reform.
“A reassessment in the U.S. could play a pivotal role in shaping public opinion in Germany on this issue,” says Olivia Ewenike, a German lawyer specializng in cannabis legislation, over email.
“A policy shift in a globally influential nation like the U.S. has the potential to significantly destigmatize cannabis, thereby reinforcing the argument for its legalization. The German media and public debate would likely draw attention to this development, which in turn could add wind to the sails of the German legislators and further advance the legalization of cannabis.”
She adds: “If the U.S., a pioneer of restrictive drug policy, changes its stance on cannabis, it could send a strong signal to lawmakers worldwide. It would show that a rethinking of drug policy is possible even in countries that have traditionally taken a hard line. This could lead to an increased willingness worldwide to reconsider existing drug laws and possibly decriminalize or legalize cannabis.”
And yet it will do little to address the harms caused by decades of this hard line approach, according to Ann Fordham, executive director of the International Drug Policy Consortium.
“The devastating harms of U.S. led global cannabis prohibition, such as the criminalisation and incarceration of millions of people for cannabis-related activities, would remain entirely unaddressed by domestic rescheduling,” she says in an email.
“Furthermore, advocates for drug policy reform within the U.S. have called on President Biden to take steps to completely remove cannabis from the domestic schedules, noting that a move to Schedule III does not mean cannabis is decriminalized, as per his campaign promise, or lessen the harms of federal prohibition.”
How Likely Is It That The DEA Will Reschedule Cannabis?
While no one knows for sure what the outcome of the DEA’s review will be, several sources have indicated that it will follow the HHS recommendation, of which the U.S. Food and Drug Administration and the U.S. National Institute on Drug Abuse are said to be in agreement with.
Last year a report published by the Congressional Research Service also concluded that it was “likely” the DEA would follow the recommendation. In December, Governors from six states—Colorado, Illinois, New York, New Jersey, Maryland and Louisiana —authored a joint letter urging the President to reschedule by the end of 2023.
The fact that this is the first time officials have publicly acknowledged what many patients and advocates have known for decades—“that cannabis is a safe and effective therapeutic agent for tens of millions of Americans”—will also be significant.
Fordham believes the DEA will be bound to accept the recommendation, but may impose “additional controls” as it did when Epidiolex was moved from Schedule I to Schedule V in 2018.
“When it comes to scheduling of substances, the HHS’s recommendations regarding scientific and medical matters are understood to be generally binding on the DEA, so it would be difficult for the DEA to reject the recommendation to move cannabis to Schedule III,” she explains.
“However, rescheduling could result in the DEA seeking to impose additional controls to continue to comply with the U.S.’s international legal obligations under the UN drug control treaties. The DEA has demonstrated a tendency to take an overly strict interpretation of international drug treaty obligations, in this sense they have remained wedded to outdated and harmful “war on drugs” ideology.
“Unfortunately, while cannabis remains in Schedule 1 of the 1961 Single Convention on Narcotic Drugs, the DEA must ensure certain controls remain in place and the full descheduling of cannabis (removing it from the schedules entirely) would be diplomatically explosive for the USA.”
Meanwhile others have pointed out that the decision is far more likely to be influenced by the political agenda, rather than the wealth of scientific evidence.
“Drug policy is often more influenced by political agendas than by scientific evidence or public health considerations; it is primarily a means for governments to achieve political goals and gain public support,” says Ewenike.
“Given the current political landscape in America, the rescheduling of cannabis could be used as a strategic move to appeal to progressive constituencies. This could be a key factor, especially in the context of the upcoming elections. Considering these factors, the likelihood of cannabis being rescheduled in America appears to be quite high from my perspective.”
When Will We Know The Outcome Of The DEA Review?
Whatever the decision is, it’s not going to be reached overnight. Previous petitions having taken up to a decade to progress and the DEA is “under no obligation to do this in an expeditious manner”, according to Armentanto.
Once the decision has been published there will then be a 60 day period for public comment and plenty of opportunity for the opposition to push back with potential litigation.
“There’s already a number of members of Congress who are upset by the possibility that the DEA could make a decision that could actually change the scheduling of marijuana,” he says.
“I find it hard to believe that politicians in this country that have been so wed to not making any change in marijuana law, are suddenly going to accept some bureaucratic agency making this change that they fought against for so long. That’s not going to happen without a fight.”
H/T: www.forbes.com
