The newly formed coalition of marijuana business and advocacy groups is arguing that there are only two options for the Biden administration when it comes time to review the federal schedule: either remove cannabis from the list entirely or reschedule. This option, although less desirable, would still have significant benefits according to the group.
The Coalition for Cannabis Scheduling Reform launched earlier this month published a Monday report that outlines scientific, economic, and societal factors that will be considered in the review of the cannabis schedule that was directed by President Joe Biden late last year.
The public, as well as advocates, have come to accept full legalization. The new organization hopes to influence the discussion in a manner that acknowledges potential opportunities that could come from an administrative decision that more incrementally moves marijuana from Schedule I to Schedules III to V of the Controlled Substances Act.
This report is meant to demonstrate these benefits even though the coalition continues its push for a complete descheduling.
In this case, the final decision doesn’t rest with the president. First, the U.S. Department of Health and Human Services will complete a scientific review of cannabis based on eight factors and then submit its findings and recommended to the Justice Department. The Drug Enforcement Administration under the DOJ will then make a final decision on a cannabis scheduling.
HHS Secretary Xavier Becerra said to Marijuana Moment earlier this month it is his hope that agencies of jurisdiction can complete their work by year’s-end, but that’s yet to be determined.
In its new report, CCSR states that “descheduling would be the best outcome and represent the biggest improvement possible over the current status quo without congressional intervention.” The science and law support the de-scheduling of marijuana, and recent medical and public health evidence clearly shows that marijuana does not belong under the CSA.
If FDA is unable to find a way to recommend marijuana’s descheduling then the Agency should recommend that marijuana be rescheduled to Schedule III, IV or V.
The report is divided into five sections. It contains a detailed description of the pros and cons for both scenarios.
Here is a summary of the main arguments made by the group:
I. The administrative process would be most effective if it were to fully deschedule.
The removal of marijuana from the CSA will help to address racial injustices resulting from drug wars, remove economic barriers that exist for workers and businesses in state markets, and “go further toward aligning federal cannabis policy with the views 21st-century American voters.”
The report states that “the downstream effects of marijuana’s Schedule I status are staggering. They produce disparities in policing and incarceration, wages, employment, wealth, health outcomes, and wealth.” The report states that “descheduling” would lead to greater equity and fairness in the justice system, and allow individuals who were impacted by discriminatory marijuana policy to clear their records and gain access to greater economic opportunities.
Advocates and stakeholders would welcome this move. Even if removing cannabis from CSA didn’t “cure everything wrong with federal marijuana policies,” it “marked the most progress that could be made without federal legislation.”
“However descheduling isn’t the only viable reform option,” CCSR states.
II. The first historic step towards comprehensive reform would be to reschedule to schedule III or IV.
According to the coalition, it is not possible from a scientific and policy perspective to keep cannabis in Schedule I – the most tightly controlled category of the CSA – or even move it down one classification into Schedule II.
A reclassification into Schedule III, IV, or V would have “significant advantages over the current status quo.”
The group says that one immediate benefit is that state-licensed marijuana businesses would be able to claim federal tax deductions, something they are currently not allowed to do under the Internal Revenue Service code 280E. This only applies to people who sell substances listed in Schedules I or II.
CCSR says that rescheduling could “diminish the scope” of criminal penalties that can be imposed for people who violate marijuana-related provisions in the CSA.
The report states that moving cannabis to Schedule II “would be an indefensible and unacceptable result under the law.” The report says that moving cannabis to Schedule II “would be an unacceptable and indefensible result under the law.”
If the administration decides to reschedule, to III, IV, or V, then further action is needed. Specifically, “FDA should issue enforcement guidelines to minimize economic disruptions, promote state-federal cooperation, and protect public health.”
The group admits that “Rescheduling cannabis to schedule III IV or V is not without real and perceived challenges.” As a controlled substance marijuana would be technically subject to strict regulations that govern its use, distribution, manufacturing, and possession. These controls, if enforced, would present significant challenges to the state-regulated cannabis industry as marijuana and marijuana products will remain under DEA supervision and criminal enforcement authority.”
CCSR has identified ways in which the agency can still disrupt the state markets. This is especially true when it comes to the adult-use market. The report says that rescheduling could leave the marijuana industry with a similar threat of federal enforcement as it is today.
III. This administrative process allows the executive branch to make meaningful reforms without compromising existing standards.
The third section of this report explains how FDA and DEA historically defended the Schedule I classification for marijuana under federal law, and why they “need and shouldn’t reach the same conclusion today.”
The coalition’s analysis focuses on how “settled” standards of medical value and abuse potential that are used to make scheduling decisions show that the only viable option for the administration is to deschedule, or reschedule the drugs to Schedules III-V.
The fact that the majority of states recognize the medical benefits of cannabis undermines the federal government’s claim that it has no accepted medical value, which is a major tenet in its current Schedule I classification.
Numerous academic and scientific institutions also affirm that cannabis is therapeutically beneficial for patients. Tens of thousands studies have supported this conclusion.
IV. Marijuana has a low abuse potential, which confirms its appropriateness to be rescheduled or descheduled as schedule III, IV or V.
The report explains again why cannabis doesn’t meet the high threshold required for its current Schedule I designation.
“At the very least, three recent developments confirm that it is time to move on,” CCSR states. Marijuana, even when used recreationally, has a lower potential for abuse than other substances with lower schedules, or none at all.
The coalition makes an interesting point about the relative abuse of marijuana in comparison to hemp-based cannabinoids, which were legalized by the federal government under the 2018 Farm Bill. The report does not name specific hemp products which may be more harmful. However, it claims that the “abuse potential of marijuana is lower than the intoxicating products Congress deschedule.”
It says that “in short, the health effects associated with marijuana are demonstrably lower than those of many other substances listed in schedules II to V and many others not listed at all.” “Unlike other controlled substances that are used today, marijuana has a long-standing history of being used in low doses with no harmful effects.”
There are also “already marijuana specific standards, GMP standards and GMP certification agencies certifying cannabis businesses at the State level” – “implementation these existing state regulations on product safety reduces the abuse potential for marijuana.”
V. The executive branch should not be prevented from removing or adding items to the schedule if they are in violation of international treaties.
The DEA’s most common argument to reject petitions to deschedule or reschedule is that doing so would be in violation of decades-old treaties that the U.S. has signed. The CCSR report argues these treaties shouldn’t have any bearing on the government’s final decision.
The coalition has three main points: 1) The president’s scheduling Directive focuses on administrative power of sections of law that they argue are not encumbered with treaties; 2) if marijuana remained in Schedule I the U.S. will still be in violation of the Single Convention, as the federal government’s approach to state cannabis market contravenes treaties and 3) the Single Convention states that signatory countries do not have to comply with treaties if it is incompatible to their constitutional framework.
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The American people deserves and needs access to marijuana products that are tested for safety, verified by age, and safe. CCSR concludes that the best way to achieve this is to acknowledge the medical benefits and lack of abuse in state-regulated marijuana products. This is an opportunity for FDA to move marijuana off the schedule or into schedule III, IV, or V.
It says: “It is clear that a return to the status quo, or a rescheduling of schedule II, would not fix anything, but only alienate – and fail to acknowledge – the medical and scientific realities of 21st century. This will also serve to alienate – the population the President wants to protect.” The FDA should recommend that schedule III, IV or V be rescheduled.
CCSR is comprised of Acreage Holdings and other companies and organizations, including American Trade Association for Cannabis & Hemp (ATC&H), Columbia Care, Cresco Labs Curaleaf Dutchie, Green Thumb Industries Marijuana Policy Project National Cannabis Roundtable Scotts Miracle-Gro U.S. Cannabis Council Verano Holdings Vicente LLP, The Weldon Project and Verano Holdings.
There are different perspectives on the rescheduling issue. In a recent op/ed published by Marijuana Moment , NORML’s Paul Armentano argued that “rescheduling cannabis fails to give states the explicit legal authority they need to regulate marijuana within their borders without federal interference.”
It’s anybody’s guess at this point what FDA will recommend, and what DEA is going to do with that recommendation. It’s true, however, that for activists and stakeholders the fact that the president has directed a review indicates a move in the right directions, even if there is disagreement over the pros and cons of various outcomes.
Becerra, HHS’s Becerra, told Marijuana Moment in this month that the agencies were moving “as fast as we could.”
A Congressman Celebrates the 50th Anniversary of Marijuana Decriminalization in His State and Tells Federals to ‘Catch up’
Photo by Mike Latimer.
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