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The U.S. Department of Health and Human Services (HHS) completed its review of marijuana safety and efficacy earlier this summer. The review was triggered by an order from President Joe Biden. In late August 2023, the agency issued a report calling for marijuana to be rescheduled under Schedule III of the Controlled Substances Act (CSA). The ball is now in the DEA’s court.
Whether or not the DEA follows HHS recommendations remains to be seen. The nation’s top drug enforcement arm is bound by HHS findings, but only in terms of the actual pros and cons of marijuana as a drug. DEA rule makers are still free to schedule drugs as they see fit. If they can find justification, they could keep marijuana on the Schedule I list.
At least one federal agency does not think that is likely. The Congressional Research Service (CRS) issued its own report in mid-September, a report that indicates a high likelihood of the DEA rescheduling marijuana. But a word of caution to those expecting rescheduling: it is not the panacea some hope it is.
Rescheduling in a Nutshell
All sorts of drugs are categorized by the DEA under different schedules established by the CSA. Those classified as Schedule I drugs are believed to have a high potential for addiction but no medical benefits. Cocaine is on the Schedule I list right along with marijuana.
Schedule III drugs are not considered as addictive or dangerous as their Schedule I counterparts. But they are still controlled substances. Federal regulators still exercise significant control over Schedule III drugs, including how they are produced and the conditions they are capable of treating.
Not Suddenly Legal
Rescheduling marijuana to the lower schedule would not suddenly make it a legal substance without any restrictions. Yes, marijuana would be legal for medical purposes. It would still be illegal for recreational consumption. That is, of course, unless Congress intervenes or the DEA manages to find a way to make an exception.
So, what does rescheduling mean practically? No one really knows for sure. However, there are some key considerations that will have to be dealt with:
1. State Medical Cannabis Programs
As things currently stand, states regulate their medical cannabis programs as they see fit. They have no other choice. But if marijuana is rescheduled, state programs may be upended. Some sort of federal framework will have to be established in order to bring state programs in compliance with federal law. Either that or the states will have to continue thumbing their noses at Washington.
2. The FDA Question
Marijuana’s status as a Schedule I controlled substance has so far kept the FDA out of the equation. You could walk into the Beehive Farmacy in Brigham City, Utah and buy all sorts of medical cannabis products that have neither been reviewed nor approved by the FDA.
Rescheduling marijuana gives the FDA authority over medical cannabis. Dispensaries like Beehive Farmacy would then be in a curious position. Do they keep selling what they sell now or shut down and wait for the FDA to start approving medications?
3. Federal Taxation
Rescheduling marijuana would undoubtedly open the door to federal taxation. That could be bad for the industry. On the other hand, it would also allow marijuana companies to write business expenses off on their taxes. That would be a huge help.
No one really knows how rescheduling marijuana will play out. But make no mistake: rescheduling is no panacea. It will introduce its own set of problems that lawmakers, industry experts, and marijuana users will all have to sort out.