Interest in the legalization of marijuana and its reclassification under the Controlled Substances Act (CSA) has significantly increased over the past decade. Despite this interest and legalization of marijuana in many states, the legalization of marijuana has yet to gain momentum at the federal level.
On August 29, 2023, the United States Department of Health and Human Services (HHS) recommended that the United States Drug Enforcement Administration (DEA) ease government restrictions on marijuana. More specifically, HHS has recommended marijuana be rescheduled under the CSA from a Schedule I controlled substance to Schedule III controlled substance.
This recommendation was based upon an extensive review by the United States Food and Drug Administration (FDA). This also comes after President Biden's October 6, 2022, statement asking that HHS and the Attorney General conduct an extensive scientific and medical review regarding the scheduling of marijuana under federal law. In this same statement, President Biden also issued several thousand pardons to individuals previously convicted of federal marijuana possession and encouraged state governors to do the same.
DEA has final authority with respect to rescheduling and will consider factors such as the history of abuse (e.g., scope, duration, patterns, etc.), the relative potential for abuse, and the risk to public health. DEA will also consider any scientific evidence (e.g., pharmacological effect, physiological dependence, etc.) regarding marijuana, among other factors.
If this recommendation is accepted, it will significantly change the marijuana/cannabis industry. Schedule I controlled substances, which include drugs such as heroin, are considered to have no accepted medical use, a high potential for abuse, and no accepted safety standards, even under medical supervision. Comparatively, Schedule III controlled substances, such as ketamine, are seen as less dangerous and can be obtained legally with a prescription.
Rescheduling marijuana to a Schedule III controlled substance would effectively reclassify marijuana as a moderate to low potential for dependence with a lower abuse potential. In turn, the scope of potential criminal liability related to marijuana would be diminished, businesses in the industry would be eligible for tax incentives, and research and innovation involving marijuana would be easier to conduct and achieve.
It is important to note that HHS has not advised that marijuana should be removed from the CSA altogether. Even if DEA would agree with HHS' recommendation for rescheduling, marijuana would still be subject to strict regulations governing its use, possession, distribution, and manufacturing under federal law. This includes, for example, recent action taken by FDA and FTC with respect to cannabidiol (CBD) and/or delta-8 tetrahydrocannabinol (delta-8). Moreover, this rescheduling recommendation would not provide a comprehensive regulatory framework for marijuana or cannabis.
It will be important to assess and prepare for any potential impact the rescheduling of marijuana under the CSA would have on your business. Buchanan's experienced and dedicated cannabis industry group is here to help.
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