Congressional researchers say it’s “likely” the Drug Enforcement Administration (DEA) will follow the top federal health agency’s recent recommendation to reschedule marijuana, which would have “broad implications for federal policy” in areas such as taxes, housing, immigration, military eligibility, gun rights and more.
In a report published on Wednesday, analysts with the Congressional Research Service (CRS) gave an overview of the cannabis scheduling review directed by President Joe Biden last year and assessed the potential impact of moving marijuana from Schedule I to Schedule III of the Controlled Substances Act (CSA), as recommended by the U.S. Department of Health and Human Services (HHS).
While DEA has affirmed that it’s bound by the health agency’s scientific and medical findings, it can still make a conflicting scheduling decision. But “if past is prologue it could be likely that DEA will reschedule marijuana according to HHS’s recommendation,” CRS said.
It pointed to an example of DEA following HHS’s scheduling advice when it came to the synthetic cannabinoid product Marinol, which was placed in Schedule III in 1999.
“If marijuana is rescheduled to Schedule III, it would have broad implications for federal policy,” CRS said. “Also, this move would have significant implications for state medical marijuana programs and users of medical marijuana, but fewer implications for state recreational marijuana programs and those who use marijuana recreationally.”
There’s some disagreement among experts about the extent to which rescheduling cannabis would affect state-level medical marijuana programs. CRS said such an action would make it legal to “manufacture, distribute, dispense, and possess medical marijuana.” But others say that, without Food and Drug Administration (FDA) approval and manufacturers obtaining DEA licenses, that would not be the case.
CRS also said that a Schedule III reclassification would mean that state medical marijuana programs “may now be able to comply with the CSA, and will still be subject to CSA/DEA criminal and regulatory control, federal public health laws such as the Federal Food, Drug, and Cosmetic Act, and agricultural laws such as the Agricultural Marketing Act of 1946.”
“The scope of and demand for FDA oversight for medical marijuana and related products may grow considerably. In the short term, FDA may need to generate or update a substantial amount of technical information to clarify its regulatory approach to marijuana for relevant stakeholders. Given that marijuana is a complex substance containing various pharmaceutical components and is available to consumers in numerous formats, FDA may also need to consider long-term resource allocation to ensure that marijuana products consistently meet applicable regulatory standards.”
Schedule III would also make it so medical cannabis patients would be eligible for immigrant and non-immigrant visas, and they could “purchase and possess firearms,” CRS said. It added that the same rights would not apply to adult-use cannabis consumers.
Again, it’s not exactly clear what steps would be needed for state medical cannabis laws—and people acting under those laws—to come fully into compliance with rules for Schedule III drugs. Colorado Gov. Jared Polis (D), for example, recently sent a letter to Biden calling for “FDA enforcement guidance to minimize economic disruption, promote state-federal collaboration, and protect the public’s health” while respecting current state laws.
The new CRS report says that under Schedule III, “marijuana producers and retailers would be able to deduct the costs of selling their product (e.g., payroll, rent, advertising) for the purposes of federal income tax filings,” adding that the reclassification would also free up research into cannabis.
“DEA would no longer set production quota limitations for marijuana,” it said. “Those who use medical marijuana lawfully may contend with fewer barriers to federal employment and eligibility to serve in the military.”
The report concludes by noting that Congress could separately “choose to address any number of issues related to the potential rescheduling of marijuana,” including by independently rescheduling or descheduling cannabis, or placing it in an entirely new schedule.
“If the administrative scheduling process moves forward, Congress may consider whether to devote additional resources to FDA and the U.S. Department of Agriculture (USDA) to ensure the safety and quality of the many different products already available in many state markets,” CRS said.
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As DEA moves forward with its own review into cannabis scheduling, Administrator Anne Milgram Milgram had made clear that its review will follow the science.
Biden, for his part, hasn’t personally commented on HHS’s rescheduling recommendation, but the White House press secretary did say last month that the president has been “very clear” that he’s “always supported the legalization of marijuana for medical purposes.”
Of course, it’s not accurate to say that Biden has “always” backed cannabis reform. As a senator he championed several pieces of legislation that ramped up the war on drugs.
Congressional lawmakers across party lines have applauded the top health agency’s recommendation. Some have described it as an important “step” on the path to federal legalization. Others have claimed credit for the move, pointing to their years of advocacy around marijuana reform.
But not everyone is celebrating the news. This week, a coalition of 14 Republican congressional lawmakers urged DEA to “reject” the HHS recommendation to reschedule marijuana and instead keep it in Schedule I.
Another GOP lawmaker, Rep. Greg Murphy (R-NC), separately sent a letter to HHS Secretary Xavier Becerra on Tuesday that voices concern about the agency’s rescheduling recommendation and prompts the official with several questions about how it reached its decision.
Meanwhile, a GOP congressman who does support legalization recently expressed concern that simply moving marijuana to Schedule III may inadvertently lead the pharmaceutical industry to overtake the cannabis industry.