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Attorney General Formally Moves To Reschedule Marijuana, But DEA Signals Resistance Despite DOJ Legal Review



The Justice Department announced on Thursday that Attorney General Merrick Garland has formally initiated the process to reschedule marijuana—releasing DOJ’s proposed rule and a separate legal opinion that informed the decision but which also seemed to signal skepticism from the Drug Enforcement Administration (DEA).

Shortly after President Joe Biden announced that the administration is moving to reclassify cannabis as a Schedule III drug under the Controlled Substances Act (CSA), DOJ said Garland “has submitted to the Federal Register a notice of proposed rulemaking initiating a formal rulemaking process.”

It included both the proposed rule that will be published in the Federal Register, kicking off a 60-day public comment period, as well as an Office of Legal Council (OLC) opinion that generally supported the rescheduling action from a legal perspective.

Much of the narrative included in both documents suggests that the Justice Department exercised its authority to make a scheduling determination despite DEA, which has historically been delegated rescheduling authority, seemingly pushing back on the criteria used to justify the modest reform. Moving marijuana to Schedule III would not federally legalize it, but it would recognize that cannabis has some accepted medical value and a relatively low abuse potential.

The draft rule points out that, following a scientific review directed by Biden, the U.S. Department of Health and Human Services (HHS) concluded that a Schedule III reclassification was appropriate. However, “DEA has not yet made a determination as to its views of the appropriate schedule for marijuana.”

“The CSA vests the Attorney General with the authority to schedule, reschedule, or decontrol drugs,” it says. “The Attorney General has delegated that authority to the DEA Administrator, but also retains the authority to schedule drugs under the CSA in the first instance.”

“The HHS Assistant Secretary for Health has provided a recommendation for transferring marijuana to schedule III,” it says. “In light of that recommendation, the Attorney General is exercising the Attorney General’s authority under 21 U.S.C. 811(a) to initiate a rulemaking that proposes the placement of marijuana in schedule III.”

The rule goes through the eight-factor drug scheduling analysis, detailing HHS’s findings on each of the criterion such as abuse potential, pharmacological effects, public health risks, dependence liability and more.

“Overall, these data demonstrate that, although marijuana is associated with a high prevalence of abuse, the profile of and propensity for serious outcomes related to that abuse lead to a conclusion that marijuana is most appropriately controlled in schedule III under the CSA,” it says.

“After considering the foregoing facts and data and the recommendation of HHS, and after according binding weight to HHS’s scientific and medical determinations, the Attorney General concludes that there is, at present, substantial evidence that marijuana does not warrant control under schedule I of the CSA.”

Notably, the proposed rule clarifies that the rescheduling action “would not apply to synthetically derived THC, which is outside the CSA’s definition of marijuana.” Also, it explains that cannabis would continue to be subject to the Federal Food, Drug, and Cosmetic Act (FDCA), which means cannabis products would require Food and Drug Administration (FDA) approval in order to be lawfully introduced into interstate commerce.

FDA typically does not grant such approval to botanical substances; instead, it has so far only authorized the use of synthetic THC or CBD-derived medications as prescription drugs for certain conditions.

To that end, DOJ emphasized that marijuana would continue to be considered federally illegal, and cannabis-related activity would continue to be criminalized, even if it is rescheduled.

“If marijuana is transferred to schedule III, the regulatory controls applicable to schedule III controlled substances would apply, as appropriate, along with existing marijuana-specific requirements and any additional controls that might be implemented, including those that might be implemented to meet U.S. treaty obligations. The manufacture, distribution, dispensing, and possession of marijuana would also remain subject to applicable criminal prohibitions under the CSA.”

At several points throughout the document, it notes that DEA believes “additional information” that could be collected via public comment or a possible administrative hearing could influence the final scheduling decision. Adding to questions about a possible disconnect between DOJ and DEA over the proposal is the fact that the attorney general, rather than the DEA administrator, signed the draft rule.

It was previously reported that certain DEA officials have been “at odds” with the Biden administration over the rescheduling push.

“Based on the legal opinion of OLC and consideration of the scientific and medical evaluation and accompanying recommendation of HHS, the Attorney General is initiating a rulemaking that proposes the placement of marijuana in schedule III of the CSA,” the proposed rule says. “DOJ is soliciting comments on this proposal.”

A key component of the Justice Department’s rationale for the rescheduling proposal came from a legal analysis from OLC, which considered questions about DEA’s standards for assessing medical value, HHS’s revised review process and potential implications of rescheduling on international treaty obligations, for example.

OLC concluded that “DEA’s current approach to determining whether a drug has a [currently accepted medical use (CAMU)] is impermissibly narrow, and that satisfying HHS’s two-part inquiry is sufficient to establish that a drug has a CAMU even if the drug has not been approved by FDA and would not satisfy DEA’s five-part test.”

It also determined that HHS’s rescheduling recommendation is binding on DEA—but only until a formal rulemaking process is initiated. But even after that point, “DEA must continue to accord HHS’s scientific and medical determinations significant deference.”

Finally, it concluded that neither the United Nations (UN) Single Convention treaty nor the CSA require DEA to keep marijuana in either Schedule I or Schedule II, as the agency has asserted in previous rejections of rescheduling petitions such as a 2016 denial.

“Both the Single Convention and the CSA allow DEA to satisfy the United States’ international obligations by supplementing scheduling decisions with regulatory action, at least in circumstances where there is a modest gap between the Convention’s requirements and the specific restrictions that follow from a drug’s placement on a particular schedule,” OLC said. “As a result, DEA may satisfy the United States’ Single Convention obligations by placing marijuana in Schedule III while imposing additional restrictions pursuant to the CSA’s regulatory authorities.”

Certain conservative congressional lawmakers and prohibitionist groups have insisted that cannabis cannot be placed in Schedule III without violating international treaty obligations.

The documents are being released about two weeks after the Justice Department confirmed that DEA was moving to reclassify cannabis as a Schedule III drug.

The public comment period that will soon open is expected to receive historic attention given widespread public support for broad legalization and competing perspectives about the appropriateness of a Schedule III designation.

On the one hand, many advocates have welcomed the rescheduling determination, given that it represents the first time in over 50 years that the federal government has recognized the medical value and relatively low abuse potential of a plant that’s been legalized in some form in the vast majority of states.

On the other hand, activists have emphasized that rescheduling does not federally legalize marijuana or provide corrective relief to people who’ve been criminalized over it. And, of course, prohibitionists have urged DEA to keep marijuana in Schedule I and are expected to litigate if the agency moves forward with the incremental reform.

DEA Administrator Anne Milgram has also acknowledged the possibility of an administrative hearing to gain further input on the decision before its finalized.

The Congressional Research Service (CRS) has also weighed in on the rescheduling development, saying in a report that while it was “likely” that DEA would enact the policy change, that would not bring state markets into compliance with federal law. It added that Congress still has the authority to address the federal-state cannabis policy gap “before or after” that reform is enacted.

To that end, Senate Majority Leader Chuck Schumer (D-NY) and colleagues have reintroduced legislation to federally legalize cannabis and impose certain regulations. The bill’s prospects are dubious in the current divided Congress, however.

Meanwhile, the top Democrat in the U.S. House said that the Biden administration’s move to reschedule marijuana is a “step in the right direction,” but it should be followed up with congressional action such as passing the legalization bill Schumer filed.

In a recent interview with Fox News, former DEA Administrator Asa Hutchinson said it “absolutely looks like” the agency will follow through with moving marijuana from Schedule I to Schedule III under the CSA.

Biden has separately issued two rounds of mass pardons for people who’ve committed federal marijuana possession offenses. Again, a Schedule III reclassification would not legalize cannabis or free people still incarcerated over cannabis.

It should also be noted that, during his run for the presidency, Biden pledged to move cannabis to Schedule II—a stricter category compared to what’s been proposed by his administration.

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