DEA Publishes Proposed Rules To Reschedule Marijuana
The path toward the federal rescheduling of marijuana takes a step forward with the DEA's publication of proposed rules open to comments.
The Drug Enforcement Administration published yesterday proposed rules in the U.S. Federal Register to reschedule marijuana from Schedule I to Schedule III of the Controlled Substances Act.
This represents a further concrete step forward in changing U.S. marijuana policy, easing industry regulations, and marking the most significant change in national marijuana legislation since 1970.
This proposal initiates a 62-day public comment period, a necessary step in the formal federal rulemaking process.
The DEA, a component of the Department of Justice, will accept public comments until July 22, as stated in Tuesday’s notice, and will consider requests for a public hearing before an administrative law judge until June 20.
If DEA Administrator Anne Milgram decides to hold a hearing, further notice will be published in the Federal Register. However, the DEA's notice doesn't specify how long the agency will review the public comments before finalizing a rule.
The process to reschedule marijuana began in October 2022 when President Joe Biden issued an executive order directing agencies to "expeditiously review" the policy of classifying marijuana.
In August 2023, after reviewing information including data from states with legal cannabis programs, the Department of Health and Human Services determined that "marijuana has a currently accepted use" and recommended reclassifying it as a Schedule 3 drug. In that process, the HHS considered eight factors, including the drug's actual or relative potential for abuse, scientific evidence and its current scientific knowledge, marijuana's history and current pattern of abuse, the scope, duration, and significance of abuse; potential risk there is to the public health, potential addiction, and whether marijuana is an immediate precursor of a substance already controlled.
This category includes drugs like anabolic steroids, ketamine, and testosterone, which are legally available and can be obtained through prescription.
In this context, the DEA's notice highlighted that if marijuana is reclassified to Schedule III, the regulatory controls for Schedule III substances, along with existing marijuana-specific requirements and any additional controls to meet U.S. treaty obligations, would apply as appropriate. The manufacture, distribution, dispensing, and possession of marijuana would still be subject to the criminal prohibitions of the CSA. Drugs containing substances defined as "marijuana" under the CSA would also remain subject to the prohibitions in the Federal Food, Drug, and Cosmetic Act.
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The big change for the cannabis industry would be that marijuana listed in Schedule III of the CSA wouldn't be subject to Internal Revenue Service Code Section 280E, which is currently preventing marijuana businesses from taking certain deductions on their federal tax returns.
It's worth highlighting that the rescheduling of marijuana from Schedule I to Schedule III wouldn't legalize marijuana for adult use. To achieve this, marijuana should be descheduled from the CSA.
The publication of the notice proposing rules for the rescheduling of marijuana follows the DEA's reported plan on April 30 to reclassify marijuana, recognizing its medical uses and acknowledging it has less potential for abuse than some of the nation’s most dangerous drugs and President Biden's official announcement to ease marijuana regulations.
Biden described this move as "monumental," marking a significant step "towards reversing longstanding inequities."
