Rescheduling Marijuana to Schedule III Remain Within Bounds...

A recently published legal opinion, prepared by a team of attorneys, challenges the longstanding assertion by the Drug Enforcement Administration (DEA) that international drug treaties present a barrier to rescheduling marijuana within the Controlled Substances Act (CSA). The legal experts, affiliated with Porter Wright LLP and Vicente LLP, argue that contrary to the DEA’s position, these treaties do not obstruct the placement of marijuana into Schedule III, a recommendation put forth by the Department of Health and Human Services (HHS).

The opinion contends that elevating marijuana to Schedule III not only aligns with the nation’s international obligations but also serves to advance broader public health and safety goals. Highlighting the failures of the war on drugs, particularly its disproportionate impact on communities of color, as well as the inherent risks associated with illicit markets, the opinion suggests that reclassifying marijuana would better safeguard public health, safety, and welfare compared to its current classifications under Schedules I or II.

In a direct rebuttal to the DEA’s stance articulated in a 2016 denial of a prior rescheduling petition, the legal memo emphasizes the flexibility embedded within existing international drug treaties. According to the document, these treaties afford member nations the latitude to adjust their drug scheduling frameworks in response to evolving scientific and medical evidence, even if such changes entail moving away from prohibitionist approaches.

Commissioned by the Coalition for Cannabis Scheduling Reform, a diverse alliance representing various cannabis-related businesses and advocacy groups, the legal opinion aims to challenge the narratives propagated by proponents of prohibition. Co-chair Adam Goers underscored the importance of disseminating the opinion publicly to dispel misconceptions, affirming that the nation’s treaty obligations do not present an insurmountable barrier to the rescheduling of cannabis to Schedule III.

Rep. Andy Harris (R-MD) recently voiced concerns regarding treaty obligations that could impede the rescheduling of marijuana to Schedule III. In a letter addressed to DEA Administrator Anne Milgram, Harris asserted that any reclassification of marijuana outside of Schedules I or II would violate the terms of the 1961 United Nations (UN) Single Convention on Narcotic Drugs, commonly referred to as the Single Convention.

However, a coalition of 12 senators countered this argument in a separate correspondence to Milgram, highlighting the UN’s updated stance on global cannabis scheduling policies. These senators emphasized that other member states, such as Canada, have been permitted to legalize and regulate marijuana without facing repercussions. Encouraging the DEA to consider full legalization, the senators underscored the evolving interpretations of international drug treaties.

In support of their position, the authors of the legal opinion pointed to examples from Canada and Uruguay, where international drug treaties have not hindered the implementation of comprehensive regulatory frameworks for cannabis. These countries’ approaches, including full adult-use legalization, demonstrate that treaty obligations need not be viewed as barriers to progressive drug policies aimed at promoting public health and advancing scientific research.

The legal opinion also highlighted the DEA’s previous actions regarding Epidiolex, a pharmaceutical derived from marijuana containing purified CBD. Despite initially classifying CBD as a Schedule I controlled substance, the DEA adjusted its scheduling following FDA approval of Epidiolex, eventually descheduling the drug entirely after the passage of the 2018 Farm Bill. This precedent, according to the opinion, provides a blueprint for rescheduling marijuana to Schedule III while ensuring compliance with treaty obligations.

Despite the DEA’s assertion of final authority over rescheduling decisions, the agency has yet to provide clarity on the status of its review process, prompting calls for transparent communication from lawmakers such as Rep. Earl Bluemauer (D-OR). As discussions around marijuana rescheduling continue, the legal opinion advocates for a clear and proactive approach consistent with past DEA precedents and evolving international drug policy norms.

In addition to asserting that drug treaties do not prohibit the reclassification of marijuana to Schedule III and that such a move aligns more closely with the spirit of international agreements, the legal opinion also contends that member countries retain sovereignty to act in accordance with their domestic constitutional frameworks, even if it means diverging from treaty obligations.

This aspect of international law holds particular significance in the context of existing adult-use marijuana markets legalized under U.S. state laws. The legal team argues that the treaties include exceptions when a party is constrained by constitutional limitations, emphasizing that enforcing treaty provisions to shut down state adult-use marijuana markets would encroach upon states’ core police powers protected under the U.S. Constitution.

The attorneys involved in crafting the opinion include Shane Pennington of Porter Wright, along with Shawn Hauser, Jason Adelstone of Vicente, and contributions from Brandon Adkins, also associated with Vicente. Pennington was among the first to highlight comments made by a senior legal advisor from the State Department during a United Nations drug commission session last October.

Patt Prugh, the primary counsel for the State Department’s Bureau of International Narcotics and Law Enforcement Affairs, emphasized during the session that global drug conventions adopt a respectful stance toward member states’ domestic policies not directly linked to international concerns, suggesting that states’ obligations should be balanced against their duty to safeguard human rights.

Pennington and others view these remarks as potentially indicative of a significant shift in the U.S. interpretation of global drug treaty obligations amid the ongoing DEA rescheduling review. Pennington previously argued, alongside colleague Matt Zorn, that the provision of the Controlled Substances Act imposing treaty requirements on the rescheduling process may itself be unconstitutional.

In the event that the DEA maintains that drug treaties prohibit rescheduling below Schedule II, Pennington suggests that constitutional arguments could serve as the basis for challenging the agency’s decision in federal court. He notes that courts have recognized the obligation of the DEA to adhere to scientific and medical findings from the Department of Health and Human Services without compromising compliance with international treaties.

Furthermore, the authors underscore a legal distinction between a final order and a final rule in DEA rescheduling actions. They emphasize that a final rule entails a public participation process, including notice and comment periods and administrative hearings, leading to the issuance of a formal rule. This distinction is crucial in understanding the procedural aspects of DEA rescheduling decisions.

However, according to the opinion, if the DEA were to cite its treaty obligations, regardless of its decision on the scheduling, the agency could bypass the rulemaking process by issuing a final order.

Shane Pennington noted, “When DEA invokes the treaties and issues a final order like it did with Epidiolex, it can do so without public participation.” Shawn Hauser, a co-author of the opinion, stated that there is ongoing debate among various member states regarding the flexibility of the treaties in interpreting them to align with domestic laws.

Hauser emphasized that many member countries acknowledge the treaties’ allowance for certain latitude on various issues, including drug regulation for medicinal and research purposes. She suggested that this existing flexibility should suffice to justify moving marijuana to Schedule III, as she believes the U.S. has already indicated on the international stage.

However, Hauser predicted that as more member states adopt alternative approaches to prohibition, international drug treaties may need revision to better suit a post-drug-war era. She questioned whether existing treaties are flexible enough or whether updating them is necessary to accommodate modern drug policies.

Regardless, the legal opinion asserts that current treaties not only permit but also endorse rescheduling cannabis to Schedule III. It argues, “The DEA can clearly meet its obligations under the Treaties by controlling Marijuana in Schedule III and amending current regulations to meet Treaty reporting, quota, and other requirements.”

Since the news first emerged last August regarding the HHS rescheduling recommendation, advocates have been pushing to uncover more details about the review, including its legal and medical rationale. Last month, health officials released over 250 pages of medical review and related documents in response to numerous public records requests and a lawsuit, marking the federal government’s formal acknowledgment of the accepted medical benefits of marijuana.

However, it remains uncertain when the DEA will act on this advice. In recent comments to Marijuana Moment, a Biden administration official dismissed rumors of an imminent rescheduling decision. Prior to the release of the rescheduling-related documents, only a highly redacted version of the HHS rescheduling memo and a single page of the recommendation revealed last October were made public.

In other developments, a coalition of 12 Democratic state attorneys general urged the DEA to proceed with federal marijuana rescheduling, emphasizing it as a “public safety imperative.” Conversely, 29 former U.S. attorneys called on the Biden administration to maintain cannabis in Schedule I.

Moreover, two GOP senators introduced legislation late last year to prevent federal agencies from rescheduling cannabis without congressional approval. Additionally, a coalition of 14 Republican congressional lawmakers urged the DEA to reject the top federal health agency’s recommendation to reschedule marijuana.

A recent poll found that approximately one-third of marijuana consumers would revert to the illicit market if cannabis were only available as an FDA-approved prescription drug. Another survey suggested that President Joe Biden could gain significant political advantages if marijuana is rescheduled under his administrative directive, though the final decision is beyond his direct control.

President Biden has highlighted his 2022 scheduling directive and issued a mass pardon for individuals convicted of federal marijuana possession offenses. Vice President Kamala Harris also referenced the administration’s efforts to reform federal marijuana laws in a new video aimed at young voters, although the video contained inaccuracies regarding current state marijuana laws. Harris previously cited the pardons as evidence of the administration’s commitment to delivering for Americans, particularly young and Black voters, who could be pivotal in Biden’s reelection bid this year.

In conclusion, the ongoing debate surrounding the rescheduling of marijuana underscores the complex interplay between domestic law, international treaties, and evolving societal attitudes. While legal opinions advocate for flexibility within treaty obligations to accommodate progressive drug policies, the final decision lies with the DEA. As stakeholders continue to advocate for various positions, the outcome will undoubtedly shape the future landscape of marijuana regulation in the United States and beyond.

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