After decades of intransigence on the issue, the Drug Enforcement Administration may finally recommend removing marijuana from the list of the country’s most dangerous drugs. That list was created as part of the Controlled Substances Act (CSA) of 1970, which consolidated all federal drug laws into a single comprehensive measure and defined marijuana as a Schedule I controlled substance, alongside heroin, LSD and other drugs that the government says have no medical value and the highest potential for abuse. That meant marijuana was saddled with the strictest possible restrictions and penalties.
Ever since then, marijuana activists have been fighting to remove cannabis from that category. In 1972, the National Organization for the Reform of Marijuana Laws (NORML) petitioned the DEA to instead place marijuana in Schedule II of the CSA, alongside cocaine, meth and other drugs considered dangerous but with medical potential. Twenty-two years and multiple courtroom battles later, the DEA had a final decision: Marijuana would remain a Schedule I substance.
The DEA has rejected two other marijuana rescheduling petitions since then, but now there’s a glimmer of hope among activists that change could finally be in the works. As first reported last week by the Huffington Post, in a recent letter to a group of Democratic senators, the DEA referenced a 2011 petition to reschedule cannabis to Schedule II, noting, “DEA understands the widespread interest in the prompt resolution to these petitions and hopes to release its determination in the first half of 2016.” While there’s a good chance this determination will be no different than in the past, the country’s rapidly shifting cannabis landscape — with 23 states plus Washington, D.C., having legalized medical marijuana (and Pennsylvania poised to do so) — makes some people think the DEA could be ready to concede that cannabis has medicinal value.
But instead of being cause for celebration, the news has met with largely subdued reaction from marijuana activists and business owners. “Symbolically, one could say that would be a victory because you’d have for the first time the federal government acknowledging that cannabis does in fact have some therapeutic utility,” said NORML deputy director Paul Armentano. “But that by and large would be the extent of it. By moving marijuana from Schedule I to II, the federal government would still be putting forward the intellectual dishonesty that cannabis has a high potential for abuse and needs to be regulated accordingly.”
Such responses suggest it’s not just the DEA that’s shifting its position on federal marijuana laws. Marijuana proponents’ stance on federal cannabis rules are evolving, too. As the movement racks up one legal victory after another with little federal acknowledgement, there’s a growing belief that the cannabis crusade doesn’t have to settle for marijuana's move to Schedule II, for which it has long lobbied. Some even worry that such a rescheduling could in fact limit or derail a thriving industry.
A handful of drugs have been rescheduled like this before. Marinol, a synthetic version of marijuana’s psychoactive components, was moved from Schedule I to Schedule II, and then to Schedule III in the 1980s and '90s. But rescheduling is rare. According to John Hudak, deputy director of the Brookings Institution’s Center for Effective Public Management, the DEA has rescheduled substances 39 times since the CSA was ratified 46 years ago, and only five of those instances involved moving a drug from Schedule I to II. Many drug policy experts aren’t optimistic that marijuana will soon be the sixth instance of this happening. After all, the DEA bases such decisions on existing marijuana research — research that has long been severely limited thanks in part to restrictions related to marijuana’s Schedule I status. Even if the DEA recommends rescheduling marijuana in the next few months, the change wouldn’t happen overnight; it would instead trigger a lengthy rulemaking process.
“Even if the DEA comes out in July and says, ‘We are moving from I to II,’ it would still take about a year for that to happen,” said Hudak.
But if rescheduling does occur, some marijuana activists say there would be major repercussions. By acknowledging marijuana has medical use and placing it in the same category not just as cocaine but also Vicodin and Ritalin, the government would be signaling that times have changed. “This stands to be a legacy-defining move for Obama if his administration makes the right decision here,” said Tom Angell, founder of the cannabis advocacy group Marijuana Majority. “It would send a strong message to states that do not yet have medical marijuana laws on the books and a strong message to governments around the world that the U.S. government is now on board [with marijuana policy reform].”
The move wouldn’t just be symbolic. Moving marijuana to Schedule II would remove some of the logistical hurdles and academic taboos limiting cannabis research. It would also eliminate several of the bureaucratic hassles plaguing marijuana markets around the country because of the drug’s Schedule I status, such as confusion over whether publications with marijuana ads can be sent through the mail.
But as many marijuana supporters point out, shifting cannabis to Schedule II would not solve the biggest problems facing the nascent marijuana industry. Many unique barriers for marijuana research would still remain, such as the fact that all cannabis for such studies has to be obtained, via a lengthy and complicated approval process, from a single marijuana grow at the University of Mississippi that’s administered by the National Institute on Drug Abuse (NIDA). “The big issue is Ole Miss’ marijuana monopoly, and this wouldn’t fix that at all,” said drug-policy expert Mark Kleiman, a professor of public policy at the New York University Marron Institute of Urban Management.
Then there’s the fact that the biggest headaches afflicting marijuana businesses, such as a lack of banking services and sky-high tax rates thanks to IRS section 280E, which prohibits drug dealers from deducting the costs of selling illicit substances, are due to laws that cover drugs in both Schedules I and II of the CSA. “Moving it to Schedule II really doesn’t accomplish a lot, and frankly it is not scientifically supportable,” said Taylor West, deputy director of the National Cannabis Industry Association. “From a business perspective, it is unclear [if] it would have any impact on the banking situation, and it is specifically clear it would not have any impact on the 280E situation.”
Some marijuana advocates go further, worrying moving marijuana to Schedule II could actually make things worse. Could rescheduling open the door to Big Pharma moving in and taking over the industry? Or could it force all marijuana to be sold by prescription in pharmacies, doing away with the dispensary and recreational marijuana shop markets spreading across the country? “I think a risk that this creates is that it enables DEA to become more directly involved in the control of the current medical cannabis industry,” said Eric Sterling, executive director of the Criminal Justice Policy Foundation. “And that many of the features of the current medical cannabis industry that the public appreciates and values could be lost or destroyed. The DEA would be able to write regulations of the production and processing and distribution of medical cannabis, and they could be quite onerous.”
Others believe such fears are unfounded. “I think if Big Pharma really wanted marijuana to be a huge part of its product line, you would have seen it push the government long ago to consider rescheduling,” said Hudak at the Brookings Institution. Hudak also doesn’t expect to see the federal government dismantling the current marijuana industry: “The state systems are so large, economically and in terms of the people who are served, and they have become entrenched. And frankly, it would be a tremendous enforcement action by the U.S. government to shut them all down, and it would likely be beyond the enforcement resources of the U.S. government right now.”
Still, to be safe, a growing number of marijuana activists would prefer marijuana is instead moved further down the CSA hierarchy to Schedule III, IV, or V and placed among drugs that are considered less dangerous and face fewer restrictions — or, better yet, removed from the CSA altogether and regulated independently, similarly to alcohol and tobacco. But, as NORML’s Armentano knows from experience, we shouldn’t expect massive policy shifts like this anytime soon. After all, he points out, the current petition to move marijuana from Schedule I to II was filed in 2011.
“If the past is to serve as any precedent, the DEA has been recalcitrant for decades with regards to moving forward with these sorts of petitions,” he said. “The positive takeaway on this is the DEA only waited five years and the filers of the petition haven’t had to file additional litigation to force the DEA to respond to it. That in itself is a change.”