Marijuana Rescheduling

On August 30th, 2023, the Department of Health and Human Services (HHS) announced it recommended the reclassification of marijuana from Schedule I to Schedule III to the Drug Enforcement Administration (DEA). DEA and DOJ are not required to follow this recommendation, but are now conducting their own review.

HHS’ recommendation sends the wrong message about marijuana, saying that it is less likely to be addictive, which we know is not true, as well as giving the industry an easier path to being legitimate. One of the worst things about this is Schedule III gives the industry access to certain tax advantages which will allow these companies to write off their business expenditures on their taxes. This could include things like advertising, which is concerning because of the industry’s track record.

Drug scheduling is not a harm index

The scheduling of drugs is not a “harm index” or directly used to determine criminal penalties for drugs. Scheduling is not synonymous with the danger of a drug. Rather, it is a technical legal term that categorizes drugs according to their potential for abuse and accepted medical value. Marijuana meets the technical definition of Schedule I because it has a high potential for abuse and has no FDA-approved use.

Resources

SAM’s Analysis of HHS’ Recommendation

Talking Points

Presentation: Dug Scheduling

Kevin Sabet in Newsweek: Proposed Marijuana Rescheduling Doesn’t Follow the Science

SAM Statement: Bipartisan Group of White House and DEA Heads Urge Biden Administration to Reject Rescheduling of Marijuana

Letter: Former ONDCP Directors and DEA Administrators Urge Biden to Reject Rescheduling

SAM Statement: Bipartisan Coalition of Former U.S. Attorneys Urge DOJ, DEA to Reject Marijuana Rescheduling

Letter: Former U.S. Attorneys Urge DOJ, DEA to Reject Rescheduling

SAM Statement in Response to HHS’ Recommendation (August 2023)

Frequently Asked Questions

What determine’s a drug’s Schedule?

The Controlled Substances Act (CSA) places all substances which were in some manner regulated under existing federal law into one of five schedules based upon the substance’s medical use, potential for abuse, and safety or dependence liability. Schedule I drugs are determined to have a high potential for abuse and no commonly accepted medical use, Schedule II drugs are determined to have a high potential for abuse but some accepted medical use and so on.

The DEA details each schedule’s criteria here.

Read more about the Controlled Substances Act and scheduling from the DEA here.

How are drugs scheduled or re-scheduled?

Controlled substances can be rescheduled two ways:

  1. The Drug Enforcement Administration (DEA) conducts a scheduling review and the Department of Justice (DOJ) makes a final determination.
  2. Congress passes legislation to schedule or reschedule a drug.
Does this recommendation mean that marijuana is Schedule III or will become Schedule III automatically?

No. The DEA has the final say on scheduling and will determine factors the FDA did not. Considerations on drug scheduling can be initiated by anyone, in this case it was initiated by President Biden in October 2022. The Attorney General directs the FDA to gather relevant scientific and medical information (outlined below), the FDA submits those findings to the AG and makes their recommendations based off of the findings. If the FDA recommends scheduling the drug, the DEA reviews the findings and makes a determination. Then the AG as head of the main agency (DOJ) will initiate rulemaking proceedings. 

What’s the difference between Schedule I and Schedule III?

Schedule I substances are defined as having no accepted medical use and a high potential for abuse; schedule III substances are defined as drugs with a moderate to low potential for physical and psychological dependence. The most significant difference for the marijuana industry is that Schedule III would allow the industry to deduct ordinary business expenses, as it would no longer be subject to Section 280E of the IRS regulations, which stops businesses from deducting expenses related to the trafficking of Schedule I drugs. This would make the marijuana industry much more profitable. 

What other drugs are in Schedule III?

Some depressants (the ones people with a drug use disorder do not usually seek), Anabolic steroids, Buprenorphine, Ketamine, and Codeine, for examples.

On what grounds is HHS recommending the change?

HHS’ recommendation is based on cherry-picked data and represents a weak and intellectually dishonest argument to reschedule marijuana. Read SAM’s full analysis of HHS’ recommendation that provides an in-depth analysis of what the HHS got wrong and how the process could have been strengthened. 

If marijuana is moved to Schedule III, does this mean marijuana is legal?

No. Marijuana is still federally illegal. Schedule III drugs are still controlled drugs and improper sale or transfer of these drugs carries criminal penalties for trafficking, sale, etc. 

What will happen in states with marijuana commercialization if marijuana is moved to Schedule III?

Nothing; these states are still out of compliance with federal law, the activities surrounding marijuana, including banking, are also still federally illegal. 

Has marijuana or the science around marijuana changed since the last time the DEA looked at scheduling?

No, if anything, we have more evidence pointing to the potentially addictive nature of marijuana. Read SAM’s analysis of HHS’ recommendation for more information. The DEA’s denial of rescheduling petition from 2016 is still completely accurate. 

Is it really fair to put marijuana in same category as heroin and LSD?

The scheduling of drugs is not a “harm index” or directly used to determine criminal penalties for drugs. Scheduling is not synonymous with the danger of a drug. Rather, it is a technical legal term that categorizes drugs according to their potential for abuse and accepted medical value. Marijuana meets the technical definition of Schedule I because it has a high potential for abuse and has no FDA-approved use.

Rescheduling is also a source of major confusion. Rescheduling marijuana – while symbolically important for special interest groups – would not have much of a real-world consequence in terms of reducing criminal penalties. Recreational use of Schedule II drugs is still illegal and can come with significant criminal liability.

Still, we support efforts to increase access to marijuana for research to help the FDA find additional therapeutic uses for the drug. SAM published a six-point plan in 2015 that called for changes such as allowing more licensers to grow marijuana for research purposes, and establishing compassionate research programs for the seriously ill.

Does SAM believe in rescheduling marijuana, to Schedule II or III for example, so that we can study the medicinal benefits of marijuana?

SAM wholeheartedly believes that we need to fast-track the FDA process to extract non-smoked medications from the cannabis plant. SAM also believes that in the meantime, before we have more cannabis-based FDA-approved medications, FDA and HHS should administer a program whereby the truly sick and dying can receive yet-to-be approved, non-psychoactive, non-smoked components of marijuana under a special research program. But rescheduling marijuana is neither necessary nor desirable for those actions to happen.

Rescheduling marijuana would do nothing to allow for more cannabis-based medicines. In fact, cocaine is Schedule II today and is not allowed in a widespread fashion. Rescheduling would simply be a symbolic victory for advocates who want to legalize marijuana.