Last updated : December 16, 2024
Whether or not marijuana remains a controlled substance is ultimately still up in the air. This is despite the House having passed the Marijuana Opportunity Reinvestment and Expungement (MORE) Act over a year and a half ago now. However, after a request from President Joe Biden to consider providing the Drug Enforcement Agency DEA with a scheduling recommendation for marijuana in light of its growing medical use, the U.S. Department of Health and Human Services (HHS) has pushed the topic of legalization into the limelight again.
On August 29, 2023, the HHS recommended that the DEA reclassify marijuana. It’s suggested dropping it from a Schedule 1 controlled substance to a Schedule 3. Should the DEA decide to follow the recommendation it will have a profound effect on the following:
- The marijuana industry
- Medical research
- Tax and banking
- Criminal enforcement
The scheduling difference
Marijuana was listed as a Schedule 1 controlled substance in 1970 when Congress initially passed the Controlled Substance Act. It was signed by President Richard Nixon. At that time, marijuana was temporarily placed on the list as a Schedule 1 drug, subject to review.
However, mainstream society still had rigid views of the drug. Many people still linked marijuana use to the 1960s protests at the University of California, Berkeley. This hindered any change and marijuana remained listed as a Schedule 1.
The definition of a Schedule 1 drug is a drug with no currently accepted medical use and has a high potential for abuse. They’re illegal in the United States and can’t be prescribed by a physician. Other drugs that share this rating include heroin, LSD, ecstasy, methaqualone, and peyote.
Schedule 3 controlled substances include drugs, substances, or chemicals that are defined as drugs with a moderate to low potential for physical and psychological dependence. Schedule 3 drug abuse potential is less than Schedule 1 and Schedule 2 drugs but more than Schedule 4. Some examples of Schedule III drugs are products containing less than 90 milligrams of codeine per dosage unit as does Tylenol with codeine, ketamine, anabolic steroids, and testosterone.
State laws more in line with Schedule 3
Of course, individual states can’t restructure the DEA’s controlled substance list, however, they are taking initiatives. Thirty-eight states have passed some form of medical use legalization and twenty-three have legalized recreational marijuana use. These states have clearly chosen to take a conflicting stance with the federal government in this matter.
This is one of the reasons that the president asked HHS to provide a scheduling recommendation to the DEA.
Reclassification effects
If the DEA reclassifies marijuana from a Schedule 1 to a Schedule 3 drug, it will be the first of a series of steps necessary to completely legalize marijuana at the federal level. However, as mentioned above, the decision would affect change in several areas. The marijuana industry, as a whole, would feel the shift. Tax and banking changes would naturally follow suit.
If the DEA reclassifies marijuana to a Schedule 3, it resolves the “Catch-22” the drug has been caught up in with regard to medical use. Experts feel that whether or not marijuana has medical benefits hasn’t been proven with enough evidence gleaned from medical studies. That’s due to the fact that the Schedule 1 listing prevents it.
Switching the drug to Schedule 3 would allow the necessary medical research that could support these claims. After following its consideration of a “scientific and medical evaluation” of marijuana using its own statutorily mandated eight-factor analysis, the HHS has determined that there is enough evidence to support medical marijuana use. They, then, according to HHS Secretary, Xavier Becerra, expeditiously recommended the change to the DEA.
Is it a “hurry up and wait” deal?
The HHS’s idea of “expeditiously” was, in reality, over a year from the time President Biden requested the HHS scheduling review. In light of that fact, it’s pretty safe to say that if the DEA approves changing marijuana from a Schedule 1 to a Schedule 3 drug, legalization at the federal level is still likely to be a fairly slow process.
The next step is for the DEA to publish a proposed rule. It should contain both its and HHS’ summarized analysis and conclusions. This is necessary to open up the public notice and comment period. After the comment period closes, the DEA reviews the submitted comments and, then, makes its ruling. Lastly, the DEA publishes its final ruling. Remember though this is just the first step down the road to legalization at the federal level.
There is really no way to predict how much longer we will wait to learn whether or not the federal government truly plans to completely legalize marijuana. Actually, for that matter, we have no way of knowing when the DEA will announce whether or not they have chosen to reclassify marijuana from Schedule 1 to Schedule 3. We know the government doesn’t make quick decisions as a norm. However, time does, indeed, fly and hopefully, in this instance, it won’t be long before we discover the DEA’s final decision in this matter.
