The U.S. Department of Health and Human Services says that it does not have a record of a White House letter regarding President Joe Biden’s directive to review the marijuana schedule. This appears to contradict what the head of Drug Enforcement Administration (DEA), recently told lawmakers.
At a House Judiciary Committee hearing last month, DEA Administrator Anne Milgram told Rep. Matt Gaetz (R-FL) that the president “had sent a letter to the secretary of HHS and to the attorney general to ask for the scheduling–descheduling process to begin.”
Matt Zorn, an attorney from the firm Zorn & Associates, filed a Freedom of Information Act request (FOIA request) for a copy of this letter. HHS responded last week that they “conducted a thorough search” and found “no records that are responsive to your requests.”
In an open message published on his “On Drugs Substack”, Zorn urged Gaetz “to follow up with DEA” regarding the potential document. This could shed some light on the ongoing opaque administrative process as federal agencies consider whether marijuana should be classified as a strictly prohibited Schedule I drug, under the Controlled Substances Act.
Milgram could have misspoken when she described the letter from President Obama. Marijuana Moment contacted DEA to get clarification but no representative responded by the publication date.
The question of how the directive was drafted and processed remains of great interest to the cannabis community and the public at large. The Department of Justice (where DEA is located) and HHS both appeared to have prepared coordinated statements on the day Biden announced the review and pardoned people for federal marijuana possession crimes. This would indicate that the agencies were given some sort of notice prior to the president’s public announcement.
Zorn said to Marijuana Moment that there are certain aspects of the process which the public does not need to know and may not want to. “But we should have the ability to review the fundamental milestones, like the document which starts the process. Congress and the public both should have access to it. “That’s not too much to ask.”
It’s possible the requested date range, from September 1, 2022 until March 1, 2023, was too narrow. Biden announced the directives and pardons publicly on October 6, 2022. However, it’s possible that the White House had already begun notifying agencies of the upcoming action months prior to his announcement.
It is not clear what the current status of the review of cannabis scheduling. However, HHS Secretary Xavier Becerra told Marijuana Moment in June the agencies were aiming to finish their work by the end the year. Milgram told Gaetz at the hearing last month that she would request an update from HHS on their review.
HHS, and specifically the Food and Drug Administration under HHS, will conduct a scientific evaluation of marijuana. The department will send its findings and recommendation for scheduling to DEA. DEA will then go through its own eight-step process before making a decision. DEA is the primary authority over the CSA, so the HHS recommendation does not have any legal force.
In a separate testimony to Congress, the White House Drug Czar recently said that the President’s marijuana pardons last year and the scheduling directive are part a larger effort to create unified cannabis policy in varying state legalization models.
In March, Rep. Earl Blumenauer, co-chair of the Congressional Cannabis Caucus, along with 15 other members of Congress from both parties, demanded transparency in the cannabis schedule review.
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