Researchers from Congress are pointing out the limitations to the proposed policy change. They emphasize that the state cannabis markets will continue to be in violation of federal law and criminal penalties for marijuana-related activities will remain in place.
The Congressional Research Service (CRS), in a report released on Tuesday, explained the “legal implications” of moving marijuana from Schedule I of the Controlled Substances Act to Schedule III of that Act. This is what the U.S. Department of Health and Human Services has recommended to the DEA following its thorough scientific review.
CRS stated that “moving marijuana from Schedule I into Schedule III without other legal changes would not bring state-legal medical and recreational marijuana industries in compliance with federal controlled substance law,”
It continued, “With regard to medical marijuana, the key difference between substances listed in Schedule I and Schedule III, is that substances in Schedule III are accepted for medical use, and can be legally dispensed on prescription, whereas Substances listed in Schedule I, cannot.” To be legally prescribed marijuana, however, the Food and Drug Administration would have to approve it. Plant medicines are not usually subject to this FDA approval process.
“Moreover, if a marijuana product or products received FDA approval, the manufacturers and distributors of those products would have to register with DEA, and follow regulatory requirements applicable to Schedule III substances, in order to deal with these products.” Medical marijuana users would be required to get valid prescriptions from their doctors, which are subject to federal requirements that are different from the state regulations for medical marijuana.
The report makes it clear that certain criminal penalties are “dependent on the schedules in which substances are classified,” but others, such as those for marijuana, would not change automatically with a Schedule III classification.
It says that if marijuana was moved to Schedule III the penalties applicable for certain offenses would be lowered. The CSA penalties for marijuana-related activities, like the mandatory minimum sentences based on quantity, discussed above, will not change.
CRS noted, however, the change in scheduling would “allow marijuana business to deduct their business expenses from federal tax returns” which they were previously barred under an Internal Revenue Service code (IRS) known as 280E.
reports that “other collateral legal consequences will continue to apply to marijuana-related illegal activities.”
CRS stated that regardless of the scheduling decision made, the Justice Department will continue to be prohibited from interfering with state medical cannabis programs. This is due to an appropriations riders that Congress has renewed every year since 2014.
The report states that “so long as the current riders remain in place, those who participate in the state-legal, medical marijuana industry and comply with state laws would be shielded against federal prosecution.” If the rider was to expire or be repealed these people would be prosecuted at DOJ’s discretion.
Researchers also suggested that Congress could seek to impose stricter controls on marijuana. They listed a number existing legislative proposals which “would relax federal regulations of marijuana.”
The article continues, “Reclassifying or declassifying marijuana under the CSA may raise additional legal issues.” Congress could also decide to change the Federal Food, Drug, and Cosmetic Act, which regulates some cannabis products. Relaxing the CSA’s marijuana restrictions could also affect the United States’ obligations under international treaties.
CRS published a similar analysis in September that focused on how rescheduling could have “broad consequences for federal policy”, including areas like taxes, housing and immigration, military eligibility as well as gun rights. Based on previous precedent, researchers also concluded that it’s “likely” the DEA will abide with HHS’s recommendation.
HHS finally released the full recommendation and scientific findings that it shared with DEA the previous week. HHS Secretary Xavier Becerra stated his agency has “communicated” their “position” on marijuana rescheduling to DEA , and has continued to provide additional information to help with the final decision.
CRS stated in its report that DEA has steadfastly claimed it has the “final authority” over this matter , and can make whatever scheduling decisions it sees fit.
In a letter sent to legislators last month, the DEA said that it had the final say on whether to schedule, reschedule or deschedule a substance under the Controlled Substances Act. This decision was made after evaluating the relevant statutory criteria, the HHS medical and scientific evaluation, and the relevant statutory and regulation criteria. “DEA is currently conducting its review.”
The statement was made in response to a letter sent by 31 bipartisan legislators, led Earl Blumenauer (DOR), who had urged the agency to take into account the “merits of legalization” as it conducted its review.
DEA has been under pressure from both sides in the recent debate on marijuana policy. Prohibitionists have urged the agency to maintain cannabis as Schedule I, while advocates are pushing for a Schedule III or descheduling decision.
Before the HHS documents were released, a coalition consisting of 12 Democratic state Attorneys General urged DEA to proceed with federal marijuana rescheduling. They called the policy change a “public safety imperative.”
In a second letter sent last month, 29 former U.S. Attorneys urged the Biden administration not to include cannabis in Schedule 1.
The governors of six U.S. States–Colorado Illinois, New York New Jersey Maryland and Louisiana sent a letter to Biden last month asking the administration to reschedule cannabis by the end the year.
Six former DEA directors and five former White House Drug Czars have sent a letter to the Attorney General and current DEA Administrator expressing their opposition to the recommendation of the federal health agency to reschedule cannabis . The letter also included a questionable statement about the relationship between criminal penalties and drug schedules, which could have exaggerated the impact of incremental reform.
The DEA and Office of National Drug Control Policy directors under both major parties’ presidents are among the signatories.
Advocates and legislators who support cannabis reform marked in October the anniversary of Biden’s mass marijuana pardon, and his scheduling directive by calling for him to do more. This included expanding on the scope of relief he had received and by explicitly supporting federal legalization.
Two GOP Senators, including the Republican lead sponsor of an marijuana banking bill which was approved by a key committee back in September also filed legislation at the end of last year to prohibit federal agencies from rescheduling Cannabis without tacit consent from Congress.
A coalition of Republican lawmakers has urged DEA, meanwhile to “reject”, the top federal agency’s recommendation that marijuana be rescheduled and instead kept in the most restricted category under the CSA.
Michigan Marijuana sales surpass $3 billion in 2023 as retailers smash monthly record in December
The article Congressional researchers detail limitations of marijuana rescheduling for state markets and criminal justice reform first appeared on Marijuana Moment.
