DEA’s Decision on Cannabis: A Game-Changer in U.S. Policy and Global Drug Reform

In a significant development, the Drug Enforcement Administration (DEA) is currently evaluating the classification of cannabis under the Controlled Substances Act (CSA). This review comes on the heels of the Department of Health and Human Services (HHS) publicly acknowledging the medicinal use of cannabis, adding a layer of complexity to the ongoing discourse surrounding U.S. and global drug policy.

Summary of Recent Events:

• President Biden, after emphasizing it during the campaign, initiated a federal review of marijuana scheduling in October 2022.

• In August 2023, Bloomberg News disclosed that the HHS recommended reclassifying cannabis from Schedule I to Schedule III under the CSA, citing eight key factors.

• On January 3, 2024, the DEA confirmed its independent review of marijuana as a Schedule I drug, asserting “final authority” to Congress.

• Following litigation by lawyer Matthew Zorn, HHS released 250+ documents, confirming its recommendation, emphasizing cannabis’s accepted medical use and lower abuse potential compared to Schedule I and II substances.

• The DEA now holds the decision, conducting its five-factor test to make a recommendation.

A History Of Repeated Failed Attempts at Cannabis Rescheduling:

The debate over cannabis classification in the CSA is not new. NORML initiated the first rescheduling petition in 1972. In 1988, DEA Judge Francis Young supported rescheduling, declaring marijuana as one of the safest therapeutically active substances. However, in 1995, DEA director John Lawn overruled this decision, upheld by the U.S. Court of Appeals for the District of Columbia.

Subsequent rescheduling petitions, including one in 2016, were all denied by the DEA, asserting that cannabis does not meet the required five factors for rescheduling.

Despite past failures, there are notable differences this time. NORML’s deputy director, Paul Armentano, considers the current situation “unprecedented.” This rescheduling process was initiated by the current administration, a departure from previous third-party initiatives. Additionally, the process lacks transparency, with leaked information revealing details that would otherwise remain undisclosed until the DEA’s decision.

Armentano suggests two potential reasons for the leak. One possibility is that the Biden administration aims to signal its desire for DEA rescheduling but acknowledges historical reluctance. Alternatively, the leak could serve as political cover, allowing the administration to claim effort if the DEA rejects cannabis rescheduling, as it has done historically.

Potential Implications of DEA Rescheduling Cannabis:

If the DEA agrees with the HHS recommendation, significant policy, business, and consumer implications may arise. Cannabis rescheduling could eliminate its use as a basis for denying individual rights, impacting employment, public housing, and immigration. Federal drug testing laws and health insurance reimbursement policies for medical cannabis might be subject to amendments.

Business operations in the cannabis sector could become easier, with reduced restrictions on banking access and financial services, allowing state-licensed businesses standard tax deductions. Additionally, barriers to research and the development of new treatments may be lifted.

However, entering uncharted territory, NORML’s Paul Armentano highlights more questions than answers. Rescheduling a substance without FDA approval, especially to Schedule III, raises unprecedented challenges. It would also perpetuate the current conflict between state and federal laws, as 38 U.S. states already have some form of cannabis legislation.

Armentano advocates for de-scheduling cannabis, removing it from the CSA entirely, as the only path to real change. He cautions against expecting widespread change from rescheduling alone, emphasizing that it doesn’t bring about substantial shifts.

Global Implications of U.S. Cannabis Rescheduling:

International jurisdictions, especially those advancing reform bills, closely monitor the unfolding events in the U.S., recognizing its potential influence on global drug policy. Olivia Ewenike, a German cannabis legislation specialist, notes that a U.S. reassessment could destigmatize cannabis, impacting public opinion and potentially advancing legalization in Germany.

A policy shift in the U.S., a globally influential nation, might encourage lawmakers worldwide to reconsider drug policies. Ewenike emphasizes that even traditionally strict nations could be prompted to rethink and possibly decriminalize or legalize cannabis.

However, Ann Fordham, Executive Director of the International Drug Policy Consortium, warns that U.S. domestic rescheduling, particularly to Schedule III, may not address the long-standing harms of global cannabis prohibition. Advocates urge President Biden to fulfill his promise by completely removing cannabis from domestic schedules, emphasizing that Schedule III doesn’t equate to decriminalization or effectively address federal prohibition’s harms.

Likelihood of DEA Rescheduling Cannabis:

While the DEA’s decision on cannabis rescheduling remains uncertain, several sources suggest alignment with the HHS recommendation, supported by the FDA and NIDA. A Congressional Research Service report from last year deemed it “likely” that the DEA would follow suit. Six state governors urged President Biden to reschedule by the end of 2023 in a joint letter.

Acknowledging cannabis’s therapeutic benefits publicly for the first time adds significance, with experts like Fordham anticipating DEA acceptance of the recommendation. However, additional controls might be imposed to comply with international drug treaties, considering the DEA’s adherence to outdated “war on drugs” ideology.

Some argue that political considerations could play a substantial role, given drug policy’s tendency to align with political agendas rather than scientific evidence. Ewenike suggests that rescheduling might serve as a strategic move to appeal to progressive constituencies, particularly in the context of upcoming elections, indicating a high likelihood of cannabis rescheduling in the U.S.

Timeline for DEA Review Outcome:

The DEA’s decision won’t be immediate, with past petitions taking up to a decade to progress, and no obligation for an expedited process, according to Armentano. Once announced, a 60-day public comment period will follow, providing ample opportunity for opposition and potential litigation.

Armentano notes existing congressional displeasure with the DEA potentially altering marijuana scheduling, emphasizing the likelihood of resistance from politicians who have long opposed such changes in marijuana laws. Expecting a contentious process, he states that acceptance of bureaucratic agency-led changes won’t occur without a fight.

The potential rescheduling of cannabis by the DEA marks a pivotal moment in the ongoing evolution of drug policy. Balancing the intricacies of U.S. federal decisions with their global repercussions emphasizes the need for a nuanced approach that considers scientific evidence, public health, and international obligations. As stakeholders eagerly await the DEA’s decision, the broader implications on societal attitudes, legal frameworks, and global drug policy remain subjects of intense scrutiny and speculation.