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MARIJUANA MOMENT
BIDEN REVIEW MUST FULLY DESCHEDULE—AND NOT MERELY RESCHEDULE—MARIJUANA TO
RESOLVE STATE-FEDERAL CONFLICTS (OP-ED)
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POLITICS
BIDEN REVIEW MUST FULLY DESCHEDULE—AND NOT MERELY RESCHEDULE—MARIJUANA TO
RESOLVE STATE-FEDERAL CONFLICTS (OP-ED)
Published
42 mins ago
on
June 21, 2023
By
Marijuana Moment
“Simply put, federally rescheduling cannabis does nothing to address the growing
and untenable divide between state and federal cannabis laws.”
By Paul Armentano, NORML
Since California legalized the use of cannabis for medical purposes in 1996,
there has existed a growing chasm between state-level marijuana policies and
federal law.
Today, the majority of states and the District of Columbia authorize the
state-licensed production and sale of cannabis to qualifying
patients. Twenty-three of these states also regulate the possession and use of
marijuana by adults.
Nonetheless, under the U.S. Controlled Substances Act (CSA) of 1970, the
cannabis plant is classified as a prohibited controlled substance. The CSA
exists to establish a unified legal framework in all 50 states for the
regulation of certain substances deemed by federal agencies to pose varying
degrees of abuse potential. For decades, the U.S. Drug Enforcement
Administration (DEA) has been designated as the agency responsible for
implementing and enforcing the CSA while the U.S. Food and Drug Administration
(FDA) is designated with determining substances’ medical efficacy.
Since Congress’s enactment of the CSA, marijuana has been placed in the
classification of Schedule I—the most restrictive category available under the
law.
By definition, substances in this category must meet three specific inclusion
criteria:
1. The substance must possess “a high potential for abuse;”
2. It must have “no currently accepted medical use” in the United States; and,
3. The substance must lack “accepted safety for use…under medical supervision.”
Substances that do not meet these criteria are categorized in less restrictive
federal classifications (Schedules II through V). Historically, these categories
have been reserved for prescription medications that possess FDA market
approval. That is why substances placed in these lower classifications are only
legally available from licensed pharmacies and they are uniformly regulated by
federal laws and agencies.
Alcohol and tobacco, two substances acknowledged to possess far greater dangers
to health than cannabis, have never been classified under the CSA. (Over the
counter cold medicines generally are not either. Neither are dietary
supplements.) This is why state governments possess greater flexibility to
regulate the production and sale of these products.
With respect to alcoholic beverages, for instance, states are the primary
decision-makers regarding who sells these products (e.g., state-run stores
versus privately licenses businesses), where they may be sold (e.g.,
supermarkets versus pharmacies versus ‘package stores,’ etc.) and what types of
products are and are not permissible (e.g., for decades, certain states limited
the sale in certain markets of beer above a certain percentage). By contrast,
states possess no such flexibility when it comes to regulating scheduled
prescription substances like oxycodone, diazepam (Valium) or carisoprodol
(Soma).
Since 1972, the DEA has reviewed and ruled upon four separate petitions seeking
to either deschedule or reschedule marijuana. The last time they did so was in
2016. In every instance, the agency—which has the final say on such matters—has
decided to keep the cannabis plant classified as a Schedule I controlled
substance. On one occasion, the agency even overruled a decision from its own
administrative law judge to do so.
In recent months, there have been growing discussions regarding when the agency
may once again rule on the matter of cannabis’s scheduling and what they will
recommend. Some have suggested that the agency may call for the rescheduling of
marijuana to a lower classification (e.g., Schedule III) and have opined that
doing so would address many of the existing conflicts stemming from federal
prohibition.
Such optimism is likely misplaced.
Specifically, reclassifying cannabis to a lower schedule within the CSA
continues to misrepresent the plant’s safety relative to other controlled
substances such as cocaine and methamphetamine (Schedule II), anabolic steroids
(Schedule III), benzodiazepines (Schedule IV) or alcohol (unscheduled). But more
importantly, rescheduling marijuana fails to provide states with the explicit
legal authority to regulate it within their borders free from federal
interference.
Simply put, federally rescheduling cannabis does nothing to address the growing
and untenable divide between state and federal cannabis laws. Following
rescheduling, state laws authorizing citizens to possess cannabis for either
medical or social purposes would continue be in violation of the federal law, as
would be the thousands of state-licensed operators who currently serve these
markets. And the DEA would still possess the same authority it has now to crack
down on these state-regulated markets should it elect to do so.
Some have suggested that rescheduling the cannabis plant may provide greater
opportunities for investigators to conduct clinical research, but this result is
also unlikely. That is because many of the existing hurdles to clinical cannabis
research, such as the limits placed upon scientists’ access to source materials,
are marijuana-specific regulations and predate cannabis’s Schedule I
classification. Other impediments, such as requiring the U.S. Attorney General
to approve marijuana-specific research protocols are statutory and are not
specific to marijuana’s scheduling in the CSA.
For these reasons, I believe that the only productive outcome of the current
scheduling review would be a recommendation to deschedule cannabis—thereby
removing it from the CSA altogether and providing states with greater discretion
to establish their own distinct marijuana policies. (A case in point: In 2018
Congress removed from the CSA hemp plants containing no more than 0.3 percent
THC, as well as certain cannabinoids derived from them.)
Making this change would remove the threat of undue federal intrusion in
existing state marijuana programs and would respect America’s longstanding
federalist principles allowing states to serve as “laboratories of Democracy.”
By contrast, rescheduling simply perpetuates the existing contradictions between
state and federal cannabis laws, and it fails to provide any necessary legal
recognition in the eyes of the federal government to either the state-licensed
cannabis industry or those adults who use the plant responsibly in compliance
with state laws.
Paul Armentano is the Deputy Director of NORML—the National Organization for the
Reform of Marijuana Laws. NORML filed the first-ever cannabis rescheduling
petition in 1972 and was a co-party to another 2002 petition. In 2014, Mr.
Armentano served as the principal investigator for defense counsel in the
federal case U.S. v Schweder et al., which challenged the constitutionality of
cannabis as a Schedule I controlled substance.
> Congressional Bill To Decriminalize All Drugs Will Be Refiled Soon, Sponsors
> Announce On Drug War Anniversary
Photo courtesy of Philip Steffan.
Marijuana Moment is made possible with support from readers. If you rely on our
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