Experts say that if the Drug Enforcement Administration (DEA), reschedules cannabis to Schedule III under the Controlled Substances Act, it could have a significant impact on cannabis at the federal and state levels.
In response to the so-called trigger laws, most U.S. States would either automatically reschedule cannabis to follow a federal change or begin a reclassification process. The ripple effect may affect politics, criminal justice, and medical marijuana among other topics.
In general, the response of states to federal rescheduling falls into three broad categories. A federal schedule change triggers rescheduling at the state level in slightly more than half of states. In other states, a federal rescheduling will initiate a state-level rescheduling process that requires further action from the state legislature or controlling state authority. About 10 states do not directly link their scheduling decisions with the federal status of a drug.
Shawn Hauser is an attorney and co-chair of the hemp and cannabinoids division at Vicente LLP, a cannabis-focused firm.
She told Marijuana Moment that “the majority of states automatically trigger a state schedule procedure when a federal schedule is changed.” The state must control the substance according to state law unless the regulatory body of the state objects.
Texas’ trigger law, for instance, would automatically reschedule events. After receiving notification of federal rescheduling, the Commissioner of the Department of State Health Services has 30 days to reschedule in a similar manner.
Among other possible changes, a state-level change could provide Texans with broader access high-THC medical cannabis. Patients are currently limited to products that contain no more than 1 percent THC.
Reclassification would allow medical marijuana to be used in some cases, but not all, of the automatic trigger states, like Idaho, where cannabis is illegal for any use.
Hauser explained that in states where there is no automatic process for rescheduling, the state legislature, or another controlling authority would need to take further action. In Kansas, for example, legislators have the power to change the schedule based on recommendations from the Board of Pharmacy.
In 2018, the Food and Drug Administration approved Epidiolex, a CBD oral solution. CBD was then moved to Schedule V by the federal government. The manufacturer of Epidiolex (then known as GW Pharmaceuticals, now Jazz Pharmaceuticals) went state-by state to ensure that states made similar changes at the state-level.
Other states specify that the action is discretionary. In Virginia for example, the state law states that regulators can amend their rules to align with federal scheduling changes, but formal action is not required.
Hauser explained that the effects of a state-level rescheduling on residents would depend on how each state currently treats marijuana.
She expects that little will change in states where medical cannabis or adult-use marijuana is already legal.
She said that in these states, the issue would not be relevant, because they have chosen to regulate cannabis less strictly than federal law. They do this knowing that federal enforcement will likely not occur.
She added that one possible change in these states could be the introduction of interstate cannabis trade–shipping pot across state borders. All three West Coast States, for example passed laws that allow for cross-border trade . But Oregon and Washington laws require first a federal change, which rescheduling can accomplish.
Hauser doubted states with established cannabis laws would change their laws in order to comply with strict Schedule III restrictions. She said that states with mature industries and regulatory models, such as Colorado and Washington, would not be affected by this.
In states without any legal marijuana, medical patients would have limited access to the drug as the result of rescheduling. The drug will be regulated in a similar way to other Schedule III drugs, like ketamine or Tylenol codeine.
Hauser expects that, beyond the formal legal changes, a broader state level rescheduling will have a significant political impact, by igniting a new conversation about cannabis among doctors, law enforcement, and elected officials.
She said that “as we’ve already seen, the federal classification of the information has influenced the way doctors, government officials, police, and parents look at this information.”
She continued, “Schedule 3 means that it acknowledges medical use and has a lower potential for abusing,” This will change the conversation between doctors, in health care, and with government.
Hauser noted that this perspective would not only help facilitate broader medical marijuana reform, but also how law enforcement approaches cannabis cases. She noted that while most marijuana crimes are not based on marijuana’s schedule but on its volume, prosecutors and judges may still consider marijuana’s lower schedule in processing cases.
She said that “viewing cannabis through the Schedule I lens has shaped prosecutors, and it has shaped judges.”
Changes could also increase pressure on governors for pardoning people who have previous cannabis convictions – especially simple possession.
Hauser stated that “when Biden announced the rescheduling of cannabis, he pardoned federal prisoner — there are some and directed state governors do the same.” The states are responsible for a large part of the pardon process.
Rearranging the schedule at state level could provide an additional opportunity.
Some opponents are trying to sabotage the process as the DEA is reviewing the recommendation of the U.S. Department of Health and Human Services regarding the federal marijuana rescheduling.
Rep. Pete Sessions, R-TX, for example, has filed a legislative amendement to prevent the Biden administration rescheduling marijuana. The provision prevents federal funds from be used to “deschedule or reschedule marihuana”, under the Controlled Substances Act.
Sessions led a recent letter urging DEA to “reject” top federal health agency’s recommendation to reschedule cannabis instead of keeping it in the most restricted category under the CSA.
Two Republican Senators introduced a separate Bill in September that would strip the DEA of their rescheduling powers and prevent all federal agencies to reschedule cannabis without Congress’ approval.
The same month, 14 GOP legislators sent a letter urging DEA not to accept the marijuana rescheduling recommendations.
The rescheduling of marijuana would not allow federal access to the current medical cannabis programs at state level, but it would open up the research on the plant. This would have important implications in the marijuana industry.
The recommendation of the top health agency has been praised by lawmakers from both parties. has described the recommendation as an important step on the road to federal legalization. has claimed credit, citing their years of activism around marijuana reform.
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