Unpacking possible change to marijuana classification

McAfee & Taft

McAfee & Taft

You may have heard that the federal government may downgrade marijuana from a “Schedule I” to “Schedule III” drug, but do you know the implications of such a change?

In October 2022, President Biden issued an executive order directing the Department of Health and Human Services and Department of Justice to review the classification of marijuana. The Drug Enforcement Administration, the component of DOJ that enforces the Controlled Substances Act, classifies drugs into five schedules based on their acceptable medical use and potential for abuse or dependency. At the top are Schedule I drugs, which are deemed to have no currently accepted medical use and a high potential for abuse (heroin, LSD, marijuana). At the other end of the spectrum are drugs determined to have a low potential for abuse and contain limited quantities of certain narcotics. In the middle are Schedule III drugs, which are deemed to have a moderate to low potential for physical and psychological dependence (ketamine, anabolic steroids).

CSA mandates that DOJ obtain a “scientific and medical evaluation” and recommendation from HHS and its recommendation is binding on DEA as to such matters. CSA requires that other factors – including history, pattern and significance of abuse, risk to public health and dependence liability – be considered by DOJ. In September, HHS recommended that marijuana be downgraded to Schedule III based on scientific and medical factors, but the report is not publicly available.

While the Congressional Research Service predicts it could be likely that DEA will follow HHS’ recommendation, a group of Republican lawmakers has asked DEA to keep marijuana as Schedule I, stating that the decision “should be based on proven facts and science – not popular opinion, changes in state laws, or the preferred policy of an administration.”

Congress could amend CSA with respect to marijuana by keeping or removing it from Schedule I, moving it to a different Schedule, or creating a new Schedule for it.

If marijuana is ultimately reclassified as Schedule III, the implications under federal law are:

• Manufacture, distribution and possession of medical marijuana would be lawful under CSA.

• Individuals who use medical marijuana would need prescriptions and would purchase marijuana at pharmacies.

• Individuals who use medical marijuana lawfully may be eligible to purchase and possess firearms, access public housing, obtain immigrant and non-immigrant visas, and face fewer hurdles for federal employment or military service.

• Marijuana producers and retailers could deduct costs of selling their product in federal income tax filings.

• Investigators could more readily conduct federally sponsored research on marijuana.

• FDA oversight would expand significantly, as the FDA heavily regulates the manufacture, distribution, and sale of drugs.

Analysts predict that the DEA decision (or action by Congress) will occur before the 2024 presidential election.

This article appeared in the September 28, 2023, issue of The Journal Record. It is reproduced with permission from the publisher. © The Journal Record Publishing Co.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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