The head of the U.S. Department of Health and Human Services (HHS) says his agency has “communicated” the agency’s “position” on marijuana rescheduling to the Drug Enforcement Administration (DEA) and has continued to offer additional information to assist with the final determination.
HHS for the first time confirmed that it had recommended moving cannabis from Schedule I to Schedule III under the Controlled Substances Act (CSA) on Friday, releasing a trove of documents it submitted to DEA last year amid a Freedom of Information Act (FOIA) lawsuit initiated by attorney Matt Zorn.
Xavier Becerra, secretary of HHS, told The New York Times in a new interview that his department “communicated to them our position” and “put it all out there for them,” referring to the comprehensive scientific review it conducted and submitted to DEA as part of a scheduling directive from President Joe Biden.
“We continue to offer them any follow up, technical information if they have any questions,” Becerra said.
The status of DEA’s review is currently unknown, though some suspect the release of the cannabis materials in the FOIA lawsuit may indicate the scheduling decision announcement is imminent. Marijuana Moment reached out to DEA for clarification on the timing, and a spokesperson referred the inquiry to the Justice Department, which has not responded to requests for comment.
Congressional lawmakers, meanwhile, have touted the HHS Schedule III recommendation following Friday’s disclosure of the review documents.
“I’m encouraged by this news & urge the DEA to follow this common-sense scientific recommendation to move cannabis to Schedule III,” Rep. Dwight Evans (D-PA) said on Friday. “I continue to support full legalization but this would be a positive action.”
2/ I continue to support full legalization but this would be a positive action.
— Congressman Dwight Evans🟧 (@RepDwightEvans) January 13, 2024
Rep. Chris Deluzio (D-PA) said the HHS recommendation shows federal scientists “think treating marijuana like heroin doesn’t make sense,” and the broader policy of decriminalization “will give the states freedom to craft local policies, and I’m supporting legislation to do it.”
Federal scientists think treating marijuana like heroin doesn’t make sense.
Federal decriminalization of marijuana will give the states freedom to craft local policies, and I’m supporting legislation to do it. https://t.co/GXqc7AJpsJ
— Congressman Chris Deluzio (@RepDeluzio) January 13, 2024
Rep. Steve Cohen (D-TN), who sent a letter to DEA earlier this month urging the agency to act “as swiftly as possible” on rescheduling, also shared the news.
Federal Scientists Recommend Easing Restrictions on Marijuana – The New York Times https://t.co/MZ7z5mAYxG
— Steve Cohen (@RepCohen) January 13, 2024
Rep. Earl Blumenauer (D-OR), founder of the Congressional Cannabis Caucus, said the HHS news continues the progress made toward ending prohibition.
“Even though this has long been anticipated, it is still a very welcome development,” the congressman said in a statement. “It is another step toward the inevitable legalization of cannabis and ending this sad chapter of the failed war on drugs.”
While the Congressional Research Service (CRS) assessed last year that it is “likely” DEA will follow the Schedule III recommendation from HHS, the law enforcement agency has steadfastly maintained it has “final authority” over the matter and could make any scheduling determination that it sees fit.
“DEA has the final authority to schedule, reschedule, or deschedule a drug under the Controlled Substances Act, after considering the relevant statutory and regulatory criteria and HHS’s scientific and medical evaluation,” the agency said in a letter to lawmakers last month. “DEA is now conducting its review.”
The statement came in response to an earlier letter from 31 bipartisan lawmakers, led by Rep. Earl Blumenauer (D-OR), that urged the agency to consider the “merits” of legalization as it carried out its review.
DEA has faced pressure on both sides of the marijuana policy debate over recent months, with advocates pressing for a Schedule III decision, or complete descheduling, and prohibitionists urging the agency to keep cannabis in Schedule I.
Prior to the HHS documents’ release, a coalition of 12 Democratic state attorneys general implored DEA to move forward with federal marijuana rescheduling, calling the policy change a “public safety imperative.”
In another letter last month, 29 former U.S. attorneys called on the Biden administration to leave cannabis in Schedule I.
Last month, the governors of six U.S. states—Colorado, Illinois, New York, New Jersey, Maryland and Louisiana—sent a letter to Biden calling on the administration to reschedule marijuana by the end of last year.
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 in September, also filed legislation late last year to prevent federal agencies from rescheduling cannabis without tacit approval from Congress.
A coalition of 14 Republican congressional lawmakers, meanwhile, has urged 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.
Separately, DEA recently announced that it is taking another shot at banning two psychedelics after abandoning its original scheduling proposal in 2022, teeing up another fight with researchers and advocates who say the compounds hold therapeutic potential.
The agency has separately warned Georgia pharmacies that dispensing THC is unlawful because it remains a Schedule I drug after the state became the first in the U.S. to allow pharmacies to sell medical marijuana, with nearly 120 facilities applying to sell cannabis oil.
Meanwhile, DEA recently affirmed that spores that produce so-called magic mushrooms are not, on their own, federally prohibited prior to germination.
Photo courtesy of Mike Latimer.