“Simply put, federally rescheduling cannabis does nothing to address the growing and untenable divide between state and federal cannabis laws.”
By Paul Armentano, NORML
Since California legalized the use of cannabis for medical purposes in 1996, there has existed a growing chasm between state-level marijuana policies and federal law.
Today, the majority of states and the District of Columbia authorize the state-licensed production and sale of cannabis to qualifying patients. Twenty-three of these states also regulate the possession and use of marijuana by adults.
Nonetheless, under the U.S. Controlled Substances Act (CSA) of 1970, the cannabis plant is classified as a prohibited controlled substance. The CSA exists to establish a unified legal framework in all 50 states for the regulation of certain substances deemed by federal agencies to pose varying degrees of abuse potential. For decades, the U.S. Drug Enforcement Administration (DEA) has been designated as the agency responsible for implementing and enforcing the CSA while the U.S. Food and Drug Administration (FDA) is designated with determining substances’ medical efficacy.
Since Congress’s enactment of the CSA, marijuana has been placed in the classification of Schedule I—the most restrictive category available under the law.
By definition, substances in this category must meet three specific inclusion criteria:
- The substance must possess “a high potential for abuse;”
- It must have “no currently accepted medical use” in the United States; and,
- The substance must lack “accepted safety for use…under medical supervision.”
Substances that do not meet these criteria are categorized in less restrictive federal classifications (Schedules II through V). Historically, these categories have been reserved for prescription medications that possess FDA market approval. That is why substances placed in these lower classifications are only legally available from licensed pharmacies and they are uniformly regulated by federal laws and agencies.
Alcohol and tobacco, two substances acknowledged to possess far greater dangers to health than cannabis, have never been classified under the CSA. (Over the counter cold medicines generally are not either. Neither are dietary supplements.) This is why state governments possess greater flexibility to regulate the production and sale of these products.
With respect to alcoholic beverages, for instance, states are the primary decision-makers regarding who sells these products (e.g., state-run stores versus privately licenses businesses), where they may be sold (e.g., supermarkets versus pharmacies versus ‘package stores,’ etc.) and what types of products are and are not permissible (e.g., for decades, certain states limited the sale in certain markets of beer above a certain percentage). By contrast, states possess no such flexibility when it comes to regulating scheduled prescription substances like oxycodone, diazepam (Valium) or carisoprodol (Soma).
Since 1972, the DEA has reviewed and ruled upon four separate petitions seeking to either deschedule or reschedule marijuana. The last time they did so was in 2016. In every instance, the agency—which has the final say on such matters—has decided to keep the cannabis plant classified as a Schedule I controlled substance. On one occasion, the agency even overruled a decision from its own administrative law judge to do so.
In recent months, there have been growing discussions regarding when the agency may once again rule on the matter of cannabis’s scheduling and what they will recommend. Some have suggested that the agency may call for the rescheduling of marijuana to a lower classification (e.g., Schedule III) and have opined that doing so would address many of the existing conflicts stemming from federal prohibition.
Such optimism is likely misplaced.
Specifically, reclassifying cannabis to a lower schedule within the CSA continues to misrepresent the plant’s safety relative to other controlled substances such as cocaine and methamphetamine (Schedule II), anabolic steroids (Schedule III), benzodiazepines (Schedule IV) or alcohol (unscheduled). But more importantly, rescheduling marijuana fails to provide states with the explicit legal authority to regulate it within their borders free from federal interference.
Simply put, federally rescheduling cannabis does nothing to address the growing and untenable divide between state and federal cannabis laws. Following rescheduling, state laws authorizing citizens to possess cannabis for either medical or social purposes would continue be in violation of the federal law, as would be the thousands of state-licensed operators who currently serve these markets. And the DEA would still possess the same authority it has now to crack down on these state-regulated markets should it elect to do so.
Some have suggested that rescheduling the cannabis plant may provide greater opportunities for investigators to conduct clinical research, but this result is also unlikely. That is because many of the existing hurdles to clinical cannabis research, such as the limits placed upon scientists’ access to source materials, are marijuana-specific regulations and predate cannabis’s Schedule I classification. Other impediments, such as requiring the U.S. Attorney General to approve marijuana-specific research protocols are statutory and are not specific to marijuana’s scheduling in the CSA.
For these reasons, I believe that the only productive outcome of the current scheduling review would be a recommendation to deschedule cannabis—thereby removing it from the CSA altogether and providing states with greater discretion to establish their own distinct marijuana policies. (A case in point: In 2018 Congress removed from the CSA hemp plants containing no more than 0.3 percent THC, as well as certain cannabinoids derived from them.)
Making this change would remove the threat of undue federal intrusion in existing state marijuana programs and would respect America’s longstanding federalist principles allowing states to serve as “laboratories of Democracy.” By contrast, rescheduling simply perpetuates the existing contradictions between state and federal cannabis laws, and it fails to provide any necessary legal recognition in the eyes of the federal government to either the state-licensed cannabis industry or those adults who use the plant responsibly in compliance with state laws.
Paul Armentano is the Deputy Director of NORML—the National Organization for the Reform of Marijuana Laws. NORML filed the first-ever cannabis rescheduling petition in 1972 and was a co-party to another 2002 petition. In 2014, Mr. Armentano served as the principal investigator for defense counsel in the federal case U.S. v Schweder et al., which challenged the constitutionality of cannabis as a Schedule I controlled substance.
Photo courtesy of Philip Steffan.