According to statistics cited by the National Center for Drug Abuse, 45 percent of the U.S. population has tried marijuana at least once and 55 million Americans are regular users of the drug, also known as cannabis. Forty-one states, as well the District of Columbia and Puerto Rico, have medical marijuana programs and 23 of those states have decriminalized cannabis or have full adult recreational-use programs. However, marijuana remains illegal at the federal level, classified as a Schedule 1 drug that has a high probability for abuse, and has no accepted medical use.
On Jan. 12, federal research papers were released finding that cannabis may have medical uses and is far less likely to cause harm than drugs like heroin. The Food and Drug Administration and the National Institute on Drug Abuse have recommended that the Drug Enforcement Administration make marijuana a Schedule III drug, alongside ketamine and testosterone, which are available by prescription.
However, the lead organization that has been fighting since 1970 to make marijuana legal for adult recreational use says this new development may not portend big changes in federal law. Between The Lines’ Melinda Tuhus spoke with Morgan Fox, political director of the National Organization for the Reform of Marijuana Laws, or NORML. Here he assesses what this potential federal change could mean for people who use cannabis or who have used it in the past.
MORGAN FOX: The president called for review of scheduling last year and we were relatively hopeful, because this was a symbolic victory, but this process has to go through several federal agencies. So the Food and Drug Administration and the Department of Health and Human Services were reviewing the issue and a couple of months ago a heavily redacted letter was leaked from Health and Human Services directing the DEA – Drug Enforcement Administration – supposedly to reschedule cannabis to Schedule 3, according to the Controlled Substances Act. Unfortunately, until Friday afternoon, nobody had actually seen the full extent of what HHS’s recommendations to DEA were.
HHS looks at scheduling according to an eight-point review plan that they have, and I think a lot of people are under the impression that DEA has to follow that same eight-point plan, but the last four times they have reviewed cannabis’s schedule on the Controlled Substances Act, they’ve used their own five-point criteria, which basically allows them to disagree with HHS’s recommendations based on medical issues or science, whereas they wouldn’t be allowed to do that if they were using the same rubric.
All this is to say that while a lot of people are expecting the DEA, which has the final call on scheduling, to make an announcement to move to Schedule 3 relatively soon, the fact of the matter is that we don’t know if they are actually going to do that, or if they are going to do it when that exactly will happen. It’s entirely possible that they will recommend that cannabis stay on Schedule 1 or move to Schedule 2 instead of 3, so we really don’t know what the future holds at this point.
MELINDA TUHUS: What defines Schedule 1, 2, 3 and 4? What’s the difference between them?
MORGAN FOX: All the scheduling below 1 have nuances and variations, but the most important one is that Schedule 1, which is a determination that a drug has a high potential for abuse and no accepted medical uses within the U.S., which clearly doesn’t apply to cannabis, and luckily we’ve started to see, both from the president and from HHS, that that definition is no longer met by cannabis.
Now, I think it’s really important to talk about what these things would actually do. So, a move to Schedule 3 would essentially not do anything in practice, when you look at the practicality of state cannabis laws, because moving to Schedule 3 at the federal level would not resolve the conflict between existing state laws and federal law. Every single existing medical cannabis program or adult-use program at the state level would continue to be in conflict with federal law if cannabis was moved to Schedule 3, so there’s a big question on whether or not compliance would be enforced. Right now, it’s not being enforced and I find it doubtful that the FDA would put resources into enforcing such compliance at the state level, but it’s entirely possible.
MELINDA TUHUS: And just say a little bit about what Schedule 3 would do – or not do.
MORGAN FOX: Schedule 3, in theory, would allow state-legal cannabis businesses to be able to deduct normal business expenses on their federal taxes. But that’s in theory. Again, we’re in uncharted territory so it’s not certain that would actually happen. But what it would not do is end any criminal penalties at the federal level for cannabis; it would not directly impact a lot of federal agencies in terms of being able to hire people with past cannabis use or current cannabis use. It would not remove any barriers to research and would not undo any of the harms caused by cannabis prohibition at the federal level. It also would not legalize things like interstate commerce or international trade.
NORML has long been of the opinion that cannabis should be removed from the schedule of controlled substances under the Controlled Substances Act entirely – a term we call descheduling – and treated in a manner more similar to alcohol and tobacco, utilizing best practices from state cannabis programs, deferring heavily to states and recognizing the relative safety of cannabis when compared to alcohol and tobacco.
MELINDA TUHUS: Is it right that alcohol and tobacco are not scheduled at all?
MORGAN FOX: That’s correct. Yes, they’re regulated by a branch of the Department of Commerce called the Alcohol and Tobacco Tax and Trade Bureau.
The practice right now for the Department of Justice is to defer to state law and to not prosecute individuals who are acting in compliance with state law, whether that be medical or adult use. They still have the ability to do so, but that is the general guidance that the attorney general has issued to federal prosecutors and that policy has been in place basically since 2013 or so, and continued to be the operational practice of federal prosecutors even after Acting Attorney General Jeff Sessions rescinded what was call the Cole Memo, which was the official guidance to leave states alone and not interfere with their programs. Federal prosecutors who had been operating in these areas continued to recognize that it was a waste of their resources and continued to not prosecute people who were in compliance with state laws.
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