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Top Federal Health Agency Releases Highly Redacted Marijuana Scheduling Recommendation Letter To DEA



The U.S. Department of Health and Human Services (HHS) has released a highly redacted version of a brief letter to the head of the Drug Enforcement Administration (DEA) regarding the agency’s marijuana rescheduling recommendation.

The letter, obtained via Freedom of Information Act (FOIA) request by Law360 reporter Sam Reisman, confirmed certain previously reported details such as the date of the correspondence, August 29, and the author, HHS Assistant Secretary for Health Rachel Levine. But it was redacted to exclude the substance of the message such as the scheduling recommendation itself, as well as the scientific review portion that was attached to the letter.

HHS is believed to have advised DEA to move marijuana from Schedule I to Schedule III of the Controlled Substances Act (CSA), and the law enforcement agency is now carrying out its own review before making a final determination.

The letter to DEA Administrator Anne Milgram says that the HHS recommendation was based on “the eight factors determinative of control of a substance under 21 U.S.C. 81 1 (c).”

Reisman told Marijuana Moment that an agency FOIA officer said the justification for exempting the bulk of the letter’s contents was to protect “inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency.”

Marijuana Moment separately filed a FOIA request for a copy of the letter in September. A FOIA officer handling the request did not respond to a request for an update on the status of the request by the time of publication. Attorney Matt Zorn also requested the letter and filed a lawsuit earlier this month to obtain the document, alleging the HHS has “improperly held agency records.”

The recommendation from the health agency followed an 11-month scientific review process, which was carried out under an October 2022 directive from President Joe Biden. HHS Secretary Xavier Becerra told Marijuana Moment over the summer that his agency was aiming to wrap up the review by the end of the year.

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.

Meanwhile, six former DEA heads and five former White House drug czars sent a letter to the attorney general and current DEA administrator this month, 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 may exaggerate the potential impact of the incremental reform.

Signatories include DEA and ONDCP heads under multiple administrations led by presidents of both major parties.

Advocates and lawmakers who support cannabis reform separately 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 is also 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 HHS letter to DEA regarding its marijuana scheduling recommendation below: 

Photo courtesy of Philip Steffan..

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