More than three months after news leaked that the U.S. Health and Human Services Department (HHS) was recommending that marijuana be moved to Schedule III under the federal Controlled Substances Act (CSA), the agency has finally released a tranche of documents related to its recommendation and the detailed review it undertook on cannabis’s accepted medical value.
Among the materials newly made public are correspondence from HHS officials to Drug Enforcement Administration (DEA) Administrator Anne Milgram as well explanations of the health agency’s reasoning for the recommended change after conducting a required eight-factor analysis under the CSA. Most pages are heavily redacted, however, and some were withheld completely.
The documents were posted online Thursday by attorneys Shane Pennington and Matt Zorn, coauthors of the blog On Drugs. Zorn previously submitted a request under the Freedom of Information Act (FOIA) to obtain the records.
“We haven’t had a chance to wade through it all,” the two lawyers wrote, “but are putting it up here now and will follow up as soon as we’ve studied everything more deeply.”
In response to the FOIA request, HHS “reviewed 252 pages of records,” releasing just two pages in their entirety. Another 236 were redacted in part, while 14 pages were withheld completely. All the released documents are embedded at the end of this article.
Broadly, the documents outline new scientific information that’s come to light in recent years subsequent to an earlier denial of a rescheduling petition, which HHS suggests might now necessitate rescheduling marijuana.
“The current review is largely focused on modern scientific considerations on whether marijuana has a CAMU [currently accepted medical use] and on new epidemiological data related to the abuse of marijuana in the years since the 2015 HHS” evaluation of marijuana under the CSA’s eight-factor analysis.
HHS also notes that it “analyzed considerable data related to the abuse potential of marijuana,” but added that it’s a complicated consideration.
“Determining the abuse potential of a substance is complex with many dimensions,” HHS wrote, “and no single test or assessment provides a complete characterization. Thus, no single measure of abuse potential is ideal.”
Most subsequent pages of the document were withheld completely.
HHS’s director of FOIA appeals and litigations said in a letter to Zorn that the sections were redacted pursuant to a provision of FOIA law that exempts “intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.”
In October, HHS released a highly redacted version of the one-page letter from the health agency to DEA in response to public records requests by news organizations such as Marijuana Moment and lawyers, including Zorn.
With the rescheduling recommendation now in DEA’s hands, many are watching closely for updates.
While the Congressional Research Service (CRS) recently concluded that it was “likely” that DEA would follow the HHS recommendation based on past precedent, DEA reserves the right to disregard the health agency’s advice because it has final jurisdiction over the CSA.
Earlier this week, the governors of six U.S. states—Colorado, Illinois, New York, New Jersey, Maryland and Louisiana—sent a letter to President Joe Biden (D) urging the administration to reschedule marijuana by the end of this year.
“Rescheduling cannabis aligns with a safe, regulated product that Americans can trust,” says the governors’ letter, which points to a poll that found 88 percent of Americans support legalization for medical or recreational use. “As governors, we might disagree about whether recreational cannabis legalization or even cannabis use is a net positive, but we agree that the cannabis industry is here to stay, the states have created strong regulations, and supporting the state-regulated marketplace is essential for the safety of the American people.”
The office of Colorado Gov. Jared Polis (D), who led the group letter, said rescheduling “will not only alleviate the financial and safety concerns for businesses but allow a thriving industry to play a full role in the American business environment.”
One of the first state officials to react to the HHS rescheduling recommendation, Polis told Biden in a letter in September that while he expects DEA will “expeditiously” complete its review and move marijuana to Schedule III, the policy change must be coupled with further administrative and congressional action to promote health, safety and economic growth.
Meanwhile, six former DEA heads and five former White House drug czars sent a letter to the attorney general and current DEA administrator voicing opposition to the top federal health agency’s recommendation to reschedule marijuana. They also made a questionable claim about the relationship between drug schedules and criminal penalties in a way that could exaggerate the potential impact of the incremental reform.
Signatories include DEA and Office of National Drug Control Policy heads under multiple administrations led by presidents of both major parties.
In October, Advocates and lawmakers who support cannabis reform marked the one-year anniversary of Biden’s mass marijuana pardon and scheduling directive this month by calling on him to do more—including by expanding the scope of relief that his pardon had and by expressly supporting federal legalization.
Two GOP senators, including the lead Republican sponsor of a marijuana banking bill that cleared a key committee last month, recently filed new legislation to prevent federal agencies from rescheduling cannabis without tacit approval from Congress.
A coalition of 14 Republican congressional lawmakers, meanwhile, is urging DEA to “reject” the top federal health agency’s recommendation to reschedule marijuana and instead keep it in the most restrictive category under the CSA.
Read the collection of newly released HHS documents below:
Photo courtesy of Philip Steffan.