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Lawmakers, Governor And Advocates Share Mixed Reactions To Federal Marijuana Rescheduling Recommendation From Top Health Agency

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8 months ago

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News that the top U.S. health agency is formally recommending the moving marijuana from Schedule I to Schedule III under federal law has ignited a firestorm of commentary from top officials, including the governor of Colorado, congressional lawmakers and national advocacy groups.

A letter that leaked on Wednesday revealed that the U.S. Department of Health and Human Services (HHS) has completed its scientific review into cannabis and is now advising the Drug Enforcement Administration (DEA) to significantly loosen restrictions under the Controlled Substances Act (CSA).

The recommendation is being met with mixed reactions. While many are encouraged that HHS is proposing a reform that would have major implications for cannabis research, while also giving marijuana businesses the ability to make federal tax deductions, others say Schedule III does not go far enough, as cannabis would remain federally illegal, and could even have negative implications.

Both HHS and DEA have confirmed to Marijuana Moment that the letter was sent and received. But while there’s significant excitement about the development, nothing is final about the scheduling decision. DEA said it “will now initiate its review” taking into account FDA’s findings, but it makes the final call and isn’t required to follow through on a Schedule III reclassification.

In any case, advocates, stakeholders and officials from across the country are sharing their perspectives. Here’s what they’re saying:

Congressional lawmakers

Senate Majority Leader Chuck Schumer (D-NY)

“HHS has done the right thing and DEA should now quickly follow through on this important step to greatly reduce the harm caused by draconian marijuana laws,” Schumer said. “While this is a step forward, there is still much more that needs to be done legislatively to end the federal prohibition on cannabis and roll back the War on Drugs. I am committed to continuing to work in Congress to pass important marijuana legislation and criminal justice reform.”

Senate Finance Committee Chairman Ron Wyden (D-OR)

“Ultimately, I believe that cannabis should be descheduled with strong federal regulations put in place to protect public health and safety—that’s why I introduced the Cannabis Administration And Opportunity Act with Leader Schumer and Senator Booker,” Wyden said. “However, the recommendation of HHS to reschedule cannabis as a Schedule III drug is not inconsequential.”

“If HHS’s recommendation is ultimately implemented, it will be a historic step for a nation whose cannabis policies have been out of touch with reality,” he said. “At long last, barriers to much-needed research will be lifted and the inequitable 280E tax provision thrown in the trash can so that state legal cannabis businesses will no longer be treated like criminals and can deduct their business expenses just like any other small business.”

“Progress cannot stop here,” he added. “The administration and my colleagues in Congress must do more to bring America’s cannabis policy into the 21st century, catch up with the states, and help undo the decades of harm caused by the failed War on Drugs.”

Sen. James Lankford (R-OK)

“Oklahoma has seen alarming growth in illegal grow operations, foreign land purchases by China and others, and related criminal activity, including execution-style murder,” the GOP senator said. “More marijuana is not good for our families, our businesses, or our communities.”

Rep. Earl Blumenauer (D-OR)

“This is a step in the right direction but it is not sufficient,” Blumenauer, co-chair of the Congressional Cannabis Caucus, said. “I hope it is followed by more significant reforms. This is long overdue.”

Rep. Matt Gaetz (R-FL)

The congressman celebrated the news by posting a video of himself pressing the head of the DEA on cannabis rescheduling at a hearing last month.

Rep. Dwight Evans (D-PA)

“As a longtime supporter of legalizing cannabis, I also support the more limited step of re-classifying to Schedule III,” the congressman said. “This is just common sense & the federal government should absolutely do it!”

State officials

Colorado Gov. Jared Polis (D)

“Governor Polis is thrilled the Biden administration is moving forward with this commonsense decision to reschedule marijuana, Coloradans are watching and we urge the federal government not to delay the process further as other agencies begin their review,” a spokesperson for the governor said on Wednesday.

“One thing is certain, Schedule III removes 280(E)!,” they said, referencing a federal law that prohibits people from taking federal tax deductions if their income is derived from Schedule I or Schedule II drugs. “This continues to be one of the largest barriers Colorado’s thriving cannabis industry faces and we look forward to seeing the demise of this archaic tax penalty levied against state-regulated businesses.”

Advocacy groups

NORML Deputy Director Paul Armentano

“The goal of federal cannabis policy reform ought to be to address the existing, untenable chasm between federal marijuana policy and the cannabis laws of the majority of U.S. states,” Armentano told Marijuana Moment on Wednesday.

“Rescheduling the cannabis plant to Schedule III of the US Controlled Substances Act fails to adequately address this conflict, as existing state legalization laws—both adult use and medical—will continue to be in conflict with federal regulations, thereby perpetuating the existing divide between state and federal marijuana policies,” he said.

BOWL PAC Founder Justin Strekal

“Schedule 3 maintains the federal criminalization of marijuana possession, even for those participating in state-level medical marijuana programs,” Strekal told Marijuana Moment.”Should the Biden Administration move forward with this, it is not fulfilling their campaign promise to decriminalize,” he said.

(Disclosure: Strekal supports Marijuana Moment’s work through a monthly pledge on Patreon.)

US Cannabis Council (USCC) Executive Director Edward Conklin

“The US Cannabis Council enthusiastically welcomes today’s news. President Biden and his Administration recognized that cannabis was wrongly classified as a Schedule I controlled substance, and they are delivering on their promise to change it,” Conklin said. “We believe that rescheduling to Schedule III will mark the most significant federal cannabis reform in modern history. President Biden is effectively declaring an end to Nixon’s failed war on cannabis and placing the nation on a trajectory to end prohibition.

“Rescheduling will have a broad range of benefits, including signaling to the criminal justice system that cannabis is a lower priority and providing a crucial economic lifeline to the cannabis industry by lifting the 280E tax burden. State licensed cannabis businesses of all shapes and sizes will benefit from this historic reform,” he said. “We urge the DEA to proceed with rescheduling cannabis with all reasonable speed.”

Marijuana Policy Project (MPP) Director of State Policies Karen O’Keefe

“We are encouraged by the recommendation made by the Dept. of Health and Human Services for a more sensible and realistic scheduling for cannabis,” O’Keefe said. “Given that over half the US population lives in medical cannabis states and millions of Americans are finding relief with cannabis products, it is long past due for the federal government to acknowledge cannabis’ medical value.”

“Unfortunately, moving cannabis to Schedule III will still leave many of the harms of federal prohibition in place,” she said. “However, today’s news is a step in the right direction and will deliver real benefits, including facilitating increased research and reducing burdens on medical cannabis patients and the businesses that serve them.”

Drug Policy Alliance (DPA) and Parabola Center’s Cat Packer

“While we recognize that a shift to schedule III would be significant in a number of ways,” Packer told Marijuana Moment, noting how the reform would remove research barriers and allow marijuana businesses to “make normal business deductions.”

However, she said that the rescheduling action “would fall woefully short of the promises made by President Biden during his 2020 presidential election campaign, especially promises made to Black and Brown communities.”

“It does not address the underlying criminalization of marijuana, even just for personal use and possession—which President Biden has already acknowledged as a failure that disproportionately impacts Black and Latino communities,” Packer said. “If the Biden Administration is seriously committed to ending the Country’s failed approach on marijuana and righting the wrongs of marijuana criminalization including addressing the disproportionate impacts of criminalization on Black and Latino communities, Biden should support decriminalization and a new approach to federal cannabis policy that actually promotes fairness and justice.”

National Cannabis Industry Association (NCIA) CEO Aaron Smith

“Moving cannabis to schedule III could have some limited benefit but does nothing to align federal law with the 38 U.S. states which have already effectively regulated cannabis for medical or adult use,” Smith said. “The only way to fully resolve the myriad of issues stemming from the federal conflict with state law is to remove cannabis from the Controlled Substances Act and regulate the product in a manner similar to alcohol.”

“The vast majority of Americans live in states with laws that depart from federal law on this issue and where thousands of regulated Main Street businesses are serving the legal cannabis market safely and responsibly,” he said. “It’s long past time for Congress to truly harmonize federal policy with those states.”

National Cannabis Roundtable (NCR) Executive Director Saphira Galoob, Executive Director

“For half a century, cannabis has been inappropriately classified with no real scientific basis to the detriment of patients and those persecuted under the misguided drug war,” Galoob said. “With the conclusion of the scientific review by HHS, this historic recommendation to lessen federal restrictions on cannabis and affirming that cannabis has medical value is a major win for patients and should help undo decades of misguided drug policy.”

“This recommendation by HHS is just the first part of the scheduling review process started under the direction of President Biden last fall, so it remains just as urgent and critical for congressional action on SAFE Banking and other cannabis policy reforms on the federal level,” she said, referencing legislation to protect banks that work with state-licensed marijuana businesses from being penalized by federal regulators.

“We look forward to the DEA and DOJ determination on this recommendation, and hope that those agencies will consider additional aspects of criminal justice reform in their decision, which lay outside the jurisdiction of the FDA and HHS,” Galoob said. “NCR remains committed to working with federal agencies and Congress to move much-needed cannabis reforms forward that protect consumers, address social justice, and promote economic opportunities.”

Minority Cannabis Business Association President Kaliko Castille

“Moving cannabis to Schedule III simply re-brands prohibition — it doesn’t end it. Although this decision would lead to much needed tax relief for some cannabis businesses, it would do nothing to remove criminal penalties that still continue to disproportionately impact minority communities,” Castille said. “We urge President Biden to make good on his promise to end arrests for marijuana and fully remove cannabis from the CSA. This is the only way to ensure equity, social justice, and economic opportunities in the cannabis industry.”

Prohibitionists

Smart Approaches To Marijuana (SAM) President Kevin Sabet

“While under HHS’s recommendation marijuana would remain illegal under federal law, the move flies in the face of science, reeks of politics, and would allow the industry to deduct business, promotional, and other expenses like ads promoting kid-friendly THC flavored gummies and candies by repealing Section 280E of the tax code,” Sabet said.

“The addiction profiteers who have been exposed for lying about marijuana’s physical, mental and economic impacts, are desperately looking for legitimacy in the wake of mounting evidence their products are harming millions of Americans,” he said. “It is regrettable that the Department of Health and Human Services move now appears to be a nod to those monied interests.”

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The news of the HHS recommendation comes two months after Secretary Xavier Becerra told Marijuana Moment that his agency was aiming to wrap up the review by the end of the year.

A White House spokesperson told Marijuana Moment on Wednesday that the “administrative process is an independent process led by HHS and DOJ and guided by the evidence,” so president’s team will not be commenting on the agency’s recommendation at this time.

Politically, moving marijuana from Schedule I to Schedule III would allow the president to say that he’s helped accomplish a major reform, facilitating an administrative review that may result in rescheduling more than 50 years after cannabis was placed in the most restrictive category as the federal government launched a war on drugs.

This could also bolster momentum for congressional efforts to further reform federal cannabis laws. As lawmakers come back from the August recess and continue to try to pass cannabis banking legislation, they will be able to point to the HHS recommendation as evidence of the urgency to normalize the industry.

Of course, advocates’ highest hopes for the HHS review was that it would lead to a descheduling recommendation, where marijuana would be completely removed from the CSA and treated the same as alcohol in the eyes of the government. Some have also voiced concerns that a Schedule III reclassification could negatively impact state markets, with FDA potentially assuming a more hands-on role with respect to cannabis.

Meanwhile, last week, Rep. Matt Gaetz (R-FL) pressed DEA Administrator Anne Milgram to expand on her recent remarks about the origin and timeline of the president’s marijuana scheduling review directive. Specifically, he’s asking for a copy of a letter that Milgram said the president sent to the attorney general and HHS secretary last year directing the review. He also wants an update on whether the administrator asked HHS about the timetable for their work, as she told him she’d do during a recent House Judiciary subcommittee hearing.

As far as the alleged rescheduling letter from Biden is concerned, an attorney filed a Freedom of Information Act (FOIA) request with HHS in an effort to obtain a copy of the letter. But earlier this month, the department said it had “no records” of such a document.

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Photo courtesy of Brian Shamblen.

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Kyle Jaeger is Marijuana Moment's Sacramento-based managing editor. His work has also appeared in High Times, VICE and attn.

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