From Schedule I to Schedule III

Jan 15

A good first step. But more needs to be done.

Marijuana. Cannabis. A Schedule I drug, in the same category as Heroin, LSD, and Ecstasy. According to the Drug Enforcement Administration (DEA), the federal agency whose mission is to “enforce the controlled substances laws and regulations of the United States”, there is no accepted medical use for marijuana. And it has a high potential for abuse.

But in late August of this year, the Department of Health and Human Services (HHS) recommended to the DEA that marijuana be reclassified from a Schedule I to a Schedule III controlled substance, thus opening the door to easing restrictions on the drug and enabling the federal government to finally develop a nation-wide policy for cannabis.

When past efforts were made to change marijuana’s categorization, the DEA denied the request. But now that the HHS has made the recommendation, and because the DEA defers to the HHS on the scientific and medical aspects of the issue, it’s likely that the DEA will approve the recommendation. The ball, as they say, is now in the DEA’s court.

DEA Drug Schedule Classification — ***Drug Schedule Classification with Sample Drugs***

There are challenges. The first is that the DEA may deny the request because of its precedents, and because of its obligations under international drug treaties—what signal will it send to countries like Mexico, countries that the DEA is putting constant pressure on to stem the flow if illegal drugs across the border? The second is that as with anything to do with government, declassifying a Schedule I drug is a complicated administrative process, which could take months, if not years. And third, legalization advocates want marijuana to be in the same category as tobacco and alcohol, which are not designated controlled substances. The fear of those against reclassification is that if marijuana is reclassified as a Schedule III drug, the momentum will inevitably strip marijuana of its controlled substance designation, making it accessible to all.

Nevertheless, reclassifying marijuana as a Schedule III drug is a good first step:

It signals that marijuana has medicinal value, and opens up the potential of scientific research on the health benefits of the drug. Today, any research on marijuana requires approval from the DEA, and marijuana samples must be procured directly from the federal government. Have fun with that one.
Rescheduling has a significant economic benefit for marijuana businesses, as they would receive a tax windfall because Section 280E would no longer apply. Federal Section 280E doubles a company’s effective income tax, as a business cannot deduct most of its business expenses. It’s from a racketeering law. Add on state excise taxes, and other taxes levied by the cities for cultivation, retail, distribution, and manufacturing, and the total effective tax burden on a cannabis business is close to 50%.
More people that need the drug—for example, people with PTSD, depression, and chronic pain—may have easier access to it, as the downgrading at a federal level may induce other states to legalize, and decriminalize, the drug.
The FDA will probably continue to take a hands-off approach and not enforce any federal statutes against marijuana at the state level.

But more needs to be done. Because cannabis would still be a controlled (and therefore illegal) substance at the federal level, reclassification to Schedule III does not solve a significant number of problems inherent in the US cannabis ecosystem:

The illegal cannabis markets will continue to thrive, as reclassifying a drug does not change the game—for example, today, nearly 70% of the cannabis market in California is illegal.
Whether accessible legally or illegally, people will continue to abuse marijuana. Cannabis use disorder—the term used for marijuana addiction, will continue to run rampant—in 2021 an estimated 16 million people in the US suffered from the ailment (Source: 2021 National Survey on Drug Use and Health)
Rescheduling does not rein in nor cap the potency of existing and new strains. Cannabis growers will continue to cultivate more potent and more dangerous strains, and sell them at the highest potency possible to compete in a commoditized market. In fact, some concentrates are higher than 90% THC, whereas in the eighties, a joint contained maybe 2% - 3% THC.
The lack of federal oversight still gives cannabis firms tremendous leeway to irresponsibly market their products as remedies towards all sort of ailments, often without evidence.
It does not introduce any sort of regulation to force companies, and individuals, who sell and recommend cannabis products to be accredited, like a pharmacist, or a nurse, or a doctor have to be in order to administer or prescribe medicines. A license should only be issued via a significantly more rigorous process than what exists today to open a dispensary, run a dispensary, and work in a dispensary.
State agencies will still be underfunded, agencies that do not have the resources, human or economic, to stamp out the illegal activities that prop up the illegal market. Why spend over $20 on a few joints, or gummies, when I can spend less than half on the same amount of weed and still reach the same, or even a better, high? The risk of buying weed off the street if it saves money is worth it to many.

The real answer? Reclassify marijuana to a Schedule III drug AND make it legal at a federal level AND task the FDA to create strong federal regulations to protect public health and safety AND fund the right federal and state entities to enforce the law. And hold people accountable.

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