By Griffen Thorne
On October 6, 2022, President Joe Biden announced a retroactive pardon for simple possession of marijuana. He also announced that the federal government will review marijuana’s federal scheduling. His announcement suggests that the federal government may reschedule cannabis or even deschedule cannabis. Rescheduling cannabis is a bad idea, as I explain below. If the government wants to help, the best thing it can do is to deschedule cannabis.
In his announcement, President Biden said, “Federal law currently classifies marijuana in Schedule I of the Controlled Substances Act, the classification meant for the most dangerous substances. This is the same schedule as for heroin and LSD, and even higher than the classification of fentanyl and methamphetamine – the drugs that are driving our overdose epidemic.” This is exactly true. The federal Controlled Substances Act (CSA) places drugs into one of five schedules. Schedule I is the most illegal and is reserved for drugs that are supposed to be dangerous like heroin.
Cannabis and psychedelics were placed on schedule I for pretty absurd reasons. Drugs that are on schedule I are basically off limits and treated as supremely dangerous. Physicians cannot prescribe them. Getting federal approval to research them is nearly impossible except for public universities. Selling or even possessing them can lead to serious time in prison. Biden is absolutely right to point out that cannabis has no business on schedule I. The issue is just whether he should reschedule cannabis or deschedule cannabis.
To understand why rescheduling cannabis is a bad idea, let’s look at what being on the “lower” schedules means. Schedules II through V are reserved for drugs that are ostensibly less dangerous, in decreasing orders of magnitude. For example, schedule II contains strong prescription opioids, schedule III contains ketamine , schedule IV contains Xanax, and schedule V contains cough medicines with small doses of codeine. Unlike with schedule I narcotics (which are essentially off limits), DEA has very stringent regulations concerning manufacturing, distribution, storage, and prescription of schedule II through V drugs.
To address the problem of leaving marijuana on schedule I, President Biden will ask federal agency heads “to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law.” While he did not mention rescheduling or descheduling cannabis, it’s implied that he wants to reschedule cannabis.
To back up a bit here, President Biden has not been good on cannabis. When he was running for President, we graded him and his contenders, and gave him a solid D. While many of his contenders wanted decriminalization or even legalization, Biden campaigned on moving marijuana to schedule II. Because we have not seen any changes in federal law in his first two years as president (other than his pardon, of course), it’s reasonable to expect that he’d advocate for rescheduling in the future.
What would happen if the federal government decided to reschedule cannabis and move it to schedule II or III? At least under federal law, it would be subject to regulation in the same fashion as any drug on those schedules. While it’s certainly possible that the federal government would continue its policy of non-enforcement, it’s also possible that the federal government could try impose onerous DEA regulations on the industry. Doing so would change the regulatory landscape for all cannabis businesses overnight. This wouldn’t be a welcome change.
If the federal government wants to continue its policy of deference to state cannabis regulations, it should deschedule cannabis. It would avoid the clash between DEA and state regulations. And it would not be that difficult to do. The federal government could do something similar to what it did with hemp in the 2018 Farm Bill by centering federal oversight in one agency but allowing states to regulate cannabis as they see fit in coordination with the federal agency. The federal government could also pass the States Rights Act or any of the myriad other pieces of federal legislation that have been (and inevitably will continue to be) proposed in Congress.
Rescheduling cannabis and subjecting it to DEA regulation is a bad idea. We hope that Biden and his administration can focus efforts on descheduling cannabis and allowing states to regulate it as they see fit, which will cause the least amount of friction in the industry.
Re-published with the permission of Harris Bricken and The Canna Law Blog
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