By Joshua S. Bauchner –
With most Americans now living in states that have legalized adult-use cannabis, the federal foot-dragging on the removal of cannabis from the list of Schedule I controlled substances is more unsupportable, unsustainable, and illogical than ever. This classification means cannabis is considered to have no accepted medical use, a high potential for abuse, and no accepted safety standards even under medical supervision – all criteria which are unsupported and contradicted by the evidence. But even though grouping marijuana with such drugs as cocaine, heroin, and methamphetamines under the federal Controlled Substances Act (CSA) never made much scientific or societal sense, efforts to correct this long-standing error were consistently met with opposition, inertia, and inaction.
Now, a new coalition of cannabis lawyers, researchers, activists, and businesses is ramping up pressure on the Biden administration to finally address the issue and either remove cannabis from the CSA’s list of controlled substances or reschedule it to a lower tier. On June 26, 2023, the recently formed Coalition for Cannabis Scheduling Reform submitted a comprehensive report to the administration that methodically and persuasively makes a case for the multidimensional benefits of descheduling or rescheduling.
The report comes at a cautiously optimistic time for descheduling advocates, as President Biden has expressed more openness to changing marijuana’s classification than any of his predecessors. But he does not have the power to do so with the stroke of a pen. Accordingly, in October 2022, the president asked the Department of Justice (DOJ) and the Department of Health and Human Services (HHS) to initiate an administrative process to review the propriety of marijuana’s classification under the CSA.
Before initiating proceedings to schedule, reschedule, or deschedule a drug, the U.S. Drug Enforcement Administration (DEA) must gather necessary data, request a scientific and medical evaluation from HHS, and request a scheduling recommendation from HHS. This process also includes a review by the Food and Drug Administration (FDA) as to appropriately regulating cannabis.
In its report, the CCSR said that “Descheduling is the optimal outcome and the one that would mark the greatest improvement over the status quo possible without congressional intervention,” It argued that “Descheduling marijuana is sound public policy, supported by both the science and the law, as recent and compelling medical and public health data clearly demonstrate that marijuana simply does not belong in the CSA at all.”
However, the authors continued, if the FDA “determines that it cannot find its way to recommending marijuana descheduling, the Agency should instead recommend rescheduling to schedule III, IV, or V.”
HHS Secretary Xavier Becerra recently said that he hopes his agency will be able to present the president with a scheduling decision by the end of this year. While most observers believe that the FDA is more likely to reschedule cannabis than deschedule it entirely, any progress on the federal front would be better than the current state of affairs.
Ansell’s dedicated Controlled Substances & Regulatory Law Practice Group has an in-depth understanding of the laws related to the production, sale, use, regulation, and legalization of controlled substances, including hemp, cannabis, and psychedelics. Controlled substances law remains a multifaceted and complex field with, at times, conflicting regulations from different governing bodies. Our attorneys are prepared to assist in all aspects of this emerging field. They are committed to helping our clients understand their rights and the opportunities in this complex and evolving area of law. For additional information, please contact Joshua S. Bauchner at (973) 247-9000 or jb@ansellgrimm.com.
