Biden's Bold Strategy: The Path to Marijuana Rescheduling and Its Ripple Effects in 2024

By Alison Adduono, Director of Marketing

On May 16, 2024, the Department of Justice announced that Attorney General Merrick Garland had submitted a notice to start the marijuana rescheduling from a Schedule I to Schedule III drug under the federal Controlled Substances Act (CSA).

What is the Controlled Substances Act?

The Controlled Substances Act (CSA) was signed into law by President Richard Nixon in 1970 and contains 5 schedules after declaring a “war on drugs” which we also delve into in another blog on the history of drug testing. Each regulated drug’s placement within those schedules is based upon the substance’s medical use, potential for abuse, and safety or dependence liability. The 5 different schedules are:

Schedule I: Drugs with high potential for abuse and/or addiction with no current medical use. (Examples: Heroin, Fentanyl, LSD, Ecstasy, etc.)
Schedule II: Substances that have legitimate medical applications yet possess a high risk for misuse and dependency are available via prescription. (Examples: Methadone, Morphine, etc.)
Schedule III: Medications classified as having a mild to moderate likelihood of misuse and/or addiction and are considered less hazardous than Schedule I or II substances, can be acquired with a prescription but are typically not sold over the counter. (Examples: Suboxone, anabolic steroids, etc.)
Schedule IV: Medications that are recognized for their legitimate medical benefits and have a low potential for abuse or dependency. (Examples: Xanax, Ativan, Valium, etc.)
Schedule V: Lower than Schedule IV, these drugs have a low potential for abuse. (Examples: Robitussin, etc.)

An alphabetized DEA list of schedule drugs can be found here for reference.

What prompted this proposed marijuana rescheduling?

In October 2022 (a few weeks prior to that year’s mid-term elections), President Biden directed the Attorney General and the Secretary of Health and Human Services (HHS) to conduct a scientific evaluation of marijuana’s classification under federal law. Following the receipt of HHS’s recommendations in August, the Attorney General consulted with the Justice Department’s Office of Legal Counsel (OLC) regarding pertinent legal questions for this regulatory action. Based on the medical and scientific conclusions provided by HHS and the legal guidance from OLC, the Attorney General began the regulatory procedure to reclassify marijuana as a Schedule III substance in furtherance of the proposed Biden marijuana policy.

What does a cannabis reclassification mean?

When finalized, marijuana will be downgraded from a category (aka Schedule) that includes lethal drugs to a category that includes much milder drugs. This does not however, legalize marijuana on a federal level although it will no doubt ease some federal marijuana restrictions… but then we all know individual states are setting up their own legislation where that is concerned.

NORML, an organization whose mission is “to move public opinion sufficiently to legalize the responsible use of marijuana by adults, and to serve as an advocate for consumers to assure they have access to high quality marijuana that is safe, convenient and affordable” – reports that 24 states have already passed laws to legalize marijuana.

According to a November 2023 Gallup Poll public support for legal marijuana in the United States is at an all-time high (pun intended) of 70%.

In fact, there are Democrats in Congress that are actively pushing to lift federal marijuana restrictions and have it removed from the CSA entirely.

What are the benefits of a marijuana reclassification?

While the Controlled Substances Act (CSA) aimed to address drug abuse and dependence, its implementation and impact have been subject to much criticism over the years. Critics argue that this “war on drugs” with its stiff criminalization and penalties disproportionately impacted minorities. With a marijuana rescheduling it is thought that the following will occur as a result:

A reduction in criminalized marijuana-related offences and sentences.
Eliminating the fear and stigma linked to a Schedule I drug could enhance the availability of treatments that harness the medicinal properties of marijuana.
A reduction in federal marijuana restrictions could pave the way for economic growth in areas that have been disproportionately impacted by stringent drug enforcement laws.
It is considered a move towards social justice for minorities that were impacted by the harsh enforcement of the “war on drugs”.
It would remove the IRS tax burdens in states where cannabis is legal. It would remove the IRS code’s Section 280E, which prohibits legal cannabis companies from deducting what would otherwise be ordinary business expenses. The current cannabis industry is valued at $34 billion.
A cannabis reclassification could potentially open the doors for more medical marijuana research leading to new healthcare discoveries.

Summary

All in all, this marijuana reclassification is not a done deal yet. During the first 30 days of this action there will be comments by interested parties and a review by the US Drug Enforcement Administration (DEA) and if requested a hearing could be called before an administrative law judge. The process could take anywhere from a few months to a year to complete. The US Food and Drug Administration (FDA) and the DEA both previously concluded in 2016 (another federal election year) that marijuana should remain a Schedule I drug. Considering the highly politicized nature of this topic, individuals inclined towards speculation or wagering may anticipate the likelihood of this proposal’s acceptance this time around, especially as the federal election (Tuesday, November 5, 2024) nears.