“Simply stated, federally rescheduling marijuana does nothing to address or reduce the growing and unsustainable divide between federal and state cannabis laws.”
By Paul Armentano, NORML
California’s 1996 legalization of medical cannabis has led to a growing gap between federal and state marijuana laws.
The majority of states as well as the District of Columbia allow the sale and production of cannabis by state licensed producers to qualified patients. Twenty three of the states regulate adult marijuana use and possession.
The U.S. The Controlled Substances Act of 1970 (CSA) classifies the cannabis plant as a controlled substance. The CSA was created to create a unified framework for all 50 states to regulate certain substances deemed to have varying levels of abuse potential by federal agencies. Since decades, the U.S. Drug Enforcement Administration has been responsible for implementing and enforcing CSA. The U.S. Food and Drug Administration is in charge of determining the medical efficacy of
Since Congress passed the CSA in 1970, marijuana is classified as Schedule I. This is the most restrictive category of law.
Substances in this category must meet the following three criteria to be included:
- The substance must have “a high potential abuse”
- The drug must not be “currently accepted as a medical treatment” in the United States.
- The substance must not be “accepted as safe for use…under supervision of a medical practitioner.”
Substances which do not meet the criteria above are classified in federal categories that are less restrictive (Schedules I through V). These categories were historically reserved for FDA-approved prescription drugs. These substances are available only from licensed pharmacies, and are regulated uniformly by federal laws.
The CSA has never classified alcohol or tobacco, substances that are known to pose far greater health risks than cannabis. The CSA does not classify cold medications over the counter. Dietary supplements are not included. The state governments have more flexibility in regulating the sale and production of these products.
In the case of alcoholic beverages, the states make all decisions regarding who can sell these products (e.g. state-run stores or privately licensed businesses), and where (e.g. supermarkets, pharmacies, What types of products can be sold and which are prohibited (e.g. for many years, some states restricted the sale of beer in certain markets above a certain percentage). States, however, do not have the same flexibility in regulating prescription drugs like oxycodone or diazepam.
The DEA has reviewed four petitions since 1972. These petitions sought to either deschedule, or reschedule, marijuana. The most recent time that they did this was in 2016. The agency, which is the ultimate authority in such matters, has decided on every occasion to keep cannabis classified as Schedule I controlled substances. even overruled the decision of its own administrative law judges on one occasion.
There have been increasing discussions in recent months about , when the agency will once again make a decision on the cannabis’s schedule, and what it will recommend. Some have speculated that the agency could call for a rescheduling marijuana to a lower class (e.g. Schedule III), and that this would resolve many of the conflicts arising from federal prohibition.
This optimism is probably misplaced.
Reclassifying cannabis into a lower schedule in the CSA is a misrepresentation of the plant’s relative safety compared to other controlled substances, such as cocaine, methamphetamine and anabo Reclassifying marijuana is not only a mistake, but it also fails to give states the legal authority to regulate marijuana within their borders without federal interference.
Reclassifying cannabis federally does not address the unbridgeable and growing gap between federal and state cannabis laws. After rescheduling state laws that allow citizens to possess marijuana for medical or social reasons would still be in violation of federal law. The same would apply to the thousands of operators licensed by the state who serve these markets. The DEA could still use the same authority to crackdown on state-regulated markets if it so chose.
Some people have said that rescheduling cannabis could provide investigators with greater opportunities to conduct clinical studies, but this is unlikely. Many of the current obstacles to clinical cannabis research are marijuana-specific regulations that predate cannabis being classified as Schedule I. requiring that the U.S. attorney general approve marijuana-specific protocols is a statutory impediment and not related to the CSA’s classification of marijuana.
(As an example, in 2018 Congress removed from the CSA hemp plants containing no more than 0.3 percent THC as well as certain cannabinoids derived from them.) (For example, in 2018, Congress removed hemp plants containing less than 0.3 percent of THC from the CSA as well as some cannabinoids derived therefrom.)
This change would eliminate the risk of federal interference in state marijuana programs, while respecting America’s federalist principles, which allow states to be “laboratories for democracy.” Rescheduling, on the other hand, perpetuates existing contradictions in state and federal cannabis law, and fails to give the federal government any legal recognition to the state-licensed industry, or to adults who use cannabis responsibly and in compliance with the laws of their state.
Paul Armentano, Deputy Director of NORML (the National Organization for the Reform of Marijuana Laws), is a member of the NORML Board of Directors. NORML was a party to the second petition for cannabis rescheduling in 2002 and filed the first petition ever. In 2014, Mr. Armentano was the principal investigator of the defense counsel in U.S. v Schweder et al. which challenged the constitutionality cannabis as a Schedule I drug.
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Photo by Philip Steffan.
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