In 1970, marijuana was classified by the Drug Enforcement Agency (DEA) as a Schedule I controlled substance. Under the Controlled Substances Act, this means marijuana has “no currently accepted medical use” and “a high potential for abuse.” Other Schedule I drugs include: heroin, LSD, and ecstasy.
On October 6, 2022, President Biden requested that the Secretary of Health and Human Services (HHS) and the United States Attorney General launch scientific reviews to determine if marijuana should be rescheduled. HHS completed this review and on August 9, 2023 Rachel Levine, M.D., the Assistant Secretary of HHS, recommended that the DEA reschedule marijuana as a Schedule III controlled substance.
The Attorney General, based upon consultation with the Office of Legal Counsel of the Department of Justice (DOJ), also recommended rescheduling of cannabis. On May 16, 2024, the United States Attorney General issued a Notice of Proposed Rule to “consider” reclassifying marijuana as a Schedule III controlled substance. This is based upon a conclusion that marijuana “has a currently accepted medical use.”
A rescheduling to Schedule III would mean that there is moderate to low potential for physical and psychological dependence on marijuana. Current Schedule III drugs include Ketamine, anabolic steroids, testosterone, and Tylenol with Codeine. Schedule III drugs are considered less dangerous than Schedule II drugs, which “have a high potential for abuse, with use potentially leading to severe psychological or physical dependence.” Examples include Oxycontin, Fentanyl, Vicodin, cocaine, and most opioids.
A Schedule III classification is currently enjoyed by Marinol, an FDA approved medication made from synthetic (lab-created) THC.
The process to reschedule cannabis is a lengthy one. The first step is a 60-day public comment period which began once the Attorney General recommended rescheduling and which will close on July 22, 2024. The DEA is allowing interested parties 30 days thereafter to request a hearing before an Administrative Law Judge. The DEA had the power to request that any hearing be in-person. Following the hearing the DEA will issue final rule to reschedule. There are a few more administrative steps to be undertaken before any rescheduling is final. It is unclear how long this process will take as lawsuits could then be filed to block the reclassification of marijuana, delaying the process. All told the process can take up to nine years.
There are 8 factors to be considered when rescheduling a controlled substance. These are:
(1) The actual or relative potential for abuse of the drug;
(2) The scientific evidence of the drug’s pharmacological effect;
(3) The current state of scientific knowledge regarding the drug;
(4) The drug’s history and current pattern of abuse;
(5) The scope, duration, and significance of abuse;
(6) What, if any, risk there is to public health;
(7) Its psychic or psychological dependence liability; and
(8) Whether the substance is an immediate precursor of a currently controlled substance.
One must bear in mind that even if marijuana is rescheduled as a Schedule III, it would remain a controlled substance that is illegal at the Federal level. Rescheduling of marijuana is not legalization of or even decriminalization of marijuana. While the Rohrabacher Amendment would continue to prevent the United States DOJ from prosecuting those who legally participate in state medical marijuana programs, black market drug dealers and the like could still be prosecuted for violations of the Controlled Substances Act, akin to how cocaine dealers and other drug dealers are prosecuted. The Rohrabacher Amendment doesnot currently offer protection from prosecution for those who participate in state-run adult use/recreational marijuana programs, and reclassification to Schedule III will not change that unless Congress amends the Rohrabacher Amendment to offer protections from prosecution to states with adult-use marijuana programs. That said, it would make rational sense that marijuana purchased at adult-use states at state-approved dispensaries are less likely to be considered problematic by the Federal Government than purchases on the street in those states.
A move to Schedule III could also allow the Federal Government to change the provisions of the CSA to reduce penalties for illegal possession or sale of marijuana, as the current penalties are premised on a Schedule I classification.
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