Time to remove marijuana from the Controlled Substances Act

A recent memorandum by representatives of the U.S. Drug Enforcement Administration (DEA) to several U.S. senators indicates that the agency is prepared to respond imminently to a pair of administration petitions challenging marijuana’s status as a Schedule I federally prohibited substance.

Under the U.S. Controlled Substances Act of 1970, the cannabis plant and its biologically active components are classified as Schedule I prohibited substances — 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 must, by law, be categorized in less restrictive federal schedules (Schedules II through V) and are legally regulated accordingly. Alcohol and tobacco, two substances acknowledged to possess far greater dangers to health than does cannabis, are not classified under the Controlled Substances Act.

{mosads}Federal law grants the U.S. attorney general the ability to reclassify a controlled substance if the available scientific evidence no longer supports that drug’s classification. Congress also possesses the authority to reclassify cannabis. In fact, there are several pieces of legislation presently pending before federal lawmakers that, if enacted, would either reclassify or declassify marijuana. Yet, despite the reality that 26 states and the District of Columbia have now enacted statutory language permitting the physician-supervised use of cannabis therapy, federal lawmakers appear unwilling to confront the flat-Earth allegation that marijuana lacks any “accepted medical use” in the United States.

The federal courts also can rule on the issue of rescheduling. Nonetheless, the courts have largely declined to take up the issue or have determined that questions surrounding drug classification are best left up to lawmakers, not legal scholars.

As a result, the power to classify and/or reclassify controlled substances has, in practice, primarily been delegated to the DEA, with input from both the Food and Drug Administration (FDA) and the Department of Health and Human Services. Under federal law, third parties may petition these agencies to consider reclassifying controlled substances.

There are two marijuana rescheduling petitions now before the DEA. The first was filed by a nurse practitioner in 2009. The second was filed in 2011 by then-Govs. Christine Gregoire (D) of Washington and Lincoln Chafee (D) of Rhode Island. A similar 2002 petition filed by a coalition of marijuana law reform and health advocacy organizations was denied by the agency in 2011. Perhaps the most high-profile rescheduling petition was initially filed by NORML (the National Organization for the Reform of Marijuana Laws, of which I am deputy director) in 1972 but not heard before the DEA until 1986. In 1988, the DEA’s own administrative law judge ruled in favor of rescheduling marijuana, but in 1990, the agency set aside that decision — a decision the appellate courts eventually let stand.

While it remains unknown how DEA will respond to the current rescheduling efforts before it, it is apparent that reclassifying cannabis from I to II — the same category as cocaine — falls woefully short of the sort of federal reform necessary to appropriately reflect America’s emerging understanding of the marijuana plant and how best to regulate its consumption.

Specifically, reclassifying cannabis from I to II (or even to Schedule III) continues to misrepresent the plant’s safety relative to other controlled substances such as methamphetamine (Schedule II), anabolic steroids (Schedule III) or alcohol (unscheduled), and fails to provide states with the ability to regulate it free from federal interference. (To date, 26 states regulate cannabis’s therapeutic use, while four states permit its retail production and sale to adults. At least seven additional states are expected to decide this issue this coming November.)

Further, the federal policies in place that make clinical trial work with cannabis more onerous than it is for other controlled substances — such as the requirement that all source material be purchased from the University of Mississippi’s federally licensed marijuana cultivation program — are regulatory requirements that are specific to cannabis, not to Schedule I drugs in general. Simply rescheduling cannabis from I to II from I to III does not necessarily change these regulatory hurdles.

In addition, the sort of gold-standard, large-scale, long-term phase III safety and efficacy trials that are typically necessary prior to bringing drugs to market are prohibitively expensive. As a result, trials of this kind are typically are funded by private pharmaceutical companies aspiring to bring a new product to market. In some cases, the federal government may assist in sharing these costs. However, political reality dictates that neither entity is likely to pony up the tens of millions of dollars necessary to conduct such trials any time soon, if ever, regardless of the plant’s federal scheduling.

This is not to say that rescheduling cannabis would not have any positive tangible effects. At a minimum, it would bring an end to the federal government’s longstanding intellectual dishonesty that marijuana “lacks accepted medical use.” Downgrading cannabis from Schedule I to Schedule III would also likely permit banks and other financial institutions to work with state-compliant marijuana-related businesses, and permit employers in the cannabis industry to take tax deductions similar to those enjoyed by other businesses. It would also open the door to changes in federal drug testing requirements that currently sanction employees for their off-the-job cannabis use, even in cases where the consumption takes place in jurisdictions that permit it.

But ultimately, rescheduling the plant would do little to significantly loosen the grasp of federal prohibition or make herbal cannabis readily accessible for clinical study. These goals can only be accomplished by federally descheduling cannabis in a manner similar to alcohol and tobacco, thus providing states the power to establish their own marijuana policies free from federal intrusion. If the DEA fails to take this opportunity to take such action, then it is incumbent that Congress does so posthaste.

Armentano is the deputy director of NORML (the National Organization for the Reform of Marijuana Laws) and an adviser for Freedom Leaf. He is the co-author of the book “Marijuana Is Safer: So Why Are We Driving People to Drink?” (Cheslea Green, 2013) and author of the book “The Citizen’s Guide to State-By-State Marijuana Laws” (Whitman Press, 2015).