Lawmakers urge DEA to pick up the pace on Marijuana scheduling review
Democrats Call on DEA to Act on Marijuana Reclassification as Inaction Persists.
While the Department of Health and Human Services recommended last summer that cannabis no longer be considered a Schedule I controlled substance, the DEA historically has demurred from taking that step.
Members of Congress on Wednesday once again pushed the U.S. Drug Enforcement Administration to follow through on guidance to remove marijuana from the top of its list of controlled substances.
It’s been roughly eight months since the Department of Health and Human Services recommended that the DEA reclassify cannabis as a Schedule III drug under the Controlled Substances Act and more than a year since the Biden administration directed federal agencies to review the plant’s classification.
That’s 18 too many months of DEA inaction, a group of Democrats led by Massachusetts Senator Elizabeth Warren told agency administrator Anne Milgram in a letter dated Wednesday.
“It is time for the Drug Enforcement Administration … to act,” Warren told Milgram and Attorney General Merrick Garland.
According to the Controlled Substances Act, which ranks substances by their abuse potential and level of accepted medical use, marijuana is currently listed under Schedule I, the highest enforcement level which includes drugs such as heroin and LSD. Dropping cannabis to a Schedule III substance would put it among the likes of codeine, ketamine and anabolic steroids — substances the DEA considers to have “a moderate to low potential for physical and psychological dependence.”
The Democratic lawmakers argued that the longer marijuana remains a Schedule I substance, the longer state cannabis laws exist in conflict with federal law, and the longer communities face unnecessarily severe penalties for cannabis use and possession.
“While we understand that the DEA may be navigating internal disagreement on this matter, it is critical that the agency swiftly correct marijuana’s misguided placement in Schedule I,” the letter read.
Leaving marijuana in Schedule I “produces a cascade of severe penalties for marijuana users and businesses,” the Democrats argued, pointing out that facing federal prosecution for the sale or use of cannabis can impact access to employment, heath care, or public housing, as well as a person’s immigration status or taxation.
But while following through on the Health and Human Services Department’s recommendation to move marijuana to Schedule III would be a meaningful step, the lawmakers wrote, the DEA review should take things even further.
“[T]he only way to remedy the most concerning consequences of marijuana prohibition is to deschedule marijuana altogether,” the letter said.
Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws, or NORML, agreed.
“We believe that moving cannabis from Schedule I to Schedule III under the Controlled Substances Act is both illogical and impractical,” he told Courthouse News in an interview Thursday.
Armentano pointed out that HHS’s review of cannabis found it has a superior safety rating compared with other scheduled drugs — such as Schedule IV benzodiazepines — and even substances such as alcohol which are not covered by the federal drug law.
“It’s somewhat befuddling,” Armentano said, “that if the HHS acknowledges that cannabis possesses a superior profile than Schedule IV substances and unscheduled substances, why, in fact, they would recommend it be placed in Schedule III.”
De-ranking cannabis in the Controlled Substances Act also does nothing to help alleviate the widening gulf between restrictive federal marijuana laws and increasingly loose use and possession laws in the states, he argued.
Currently, 24 states have legalized the use of recreational marijuana, but those relaxed regulations actually violate federal law — meaning that the DEA could, theoretically, crack down on cannabis users, growers and sellers in those states at any point, Armentano explained.
The only way to smooth over the diverging state and federal policies is to remove cannabis from the Controlled Substances Act altogether, leaving enforcement up to the states, he said.
“If marijuana is placed in Schedule III, all of those marijuana laws that right now are in conflict with federal law will remain perpetually in conflict with federal law going forward,” Armentano contended.
While lawmakers and other federal agencies keep up the pressure to lower federal restrictions on cannabis, the final authority to change the plant’s scheduling lies with the DEA. The agency, for its part, has long resisted calls to do so.
The DEA in 2016 rejected a petition from Rhode Island and Washington to consider rescheduling marijuana, arguing at the time that the substance does not meet the criteria, which include potential for addiction and possible medical uses, to be moved out of Schedule I.
The agency has brushed off similar petitions, including a 2002 filing from NORML and a coalition of other groups which ultimately had to sue the DEA before it would issue a ruling nearly a decade later. NORML has requested the DEA consider rescheduling cannabis as far back as 1972.
While he noted that haranguing from members of Congress is important, Armentano did not appear confident that the DEA would follow through on the Health and Human Services Department’s recommendations.
“They can make any determination they want,” he said, “and historically, the agency has consistently made only one determination — that the cannabis plant ought to remain in Schedule I.”
Armentano also pointed out that it would be intellectually difficult for the DEA to reschedule marijuana after only recently declaring that there was no scientific basis for doing so.
“It would be a very dramatic about-face,” he said.
A spokesperson for the DEA did not immediately return a request for comment.
Meanwhile, the group of Democrats Wednesday urged the DEA not to reject federal agency guidance, writing that it would be an “unprecedented choice” to disagree with the Health and Human Services findings.
The lawmakers also pushed Milgram and Garland to act swiftly and make good on the White House’s commitment to address federal marijuana law.
“Right now, the administration has the opportunity to resolve more than 50 years of failed, racially discriminatory marijuana policy,” they said.
