At a Glance

• Schedule III drugs are defined as having moderate to low potential for psychical and psychological dependence, and have less abuse potential than Schedule I.
• Cannabis will remain a Schedule I controlled substance until after a final rule is published.
• Any member of the public can submit their opinion on the rule to assist the DOJ in making a determination about the appropriate schedule of cannabis.

On May 16, 2024, the U.S. Department of Justice (DOJ) published its proposed rule to move cannabis from the highly restrictive Schedule I tier under the federal Controlled Substances Act (CSA) to the more loosely regulated Schedule III. According to the Drug Enforcement Administration (DEA), Schedule I drugs are defined as having no accepted medical use and a high potential for abuse. Conversely, Schedule III drugs are defined as having moderate to low potential for psychical and psychological dependence, and have less abuse potential than Schedule I.

The proposed rule, submitted to the Federal Register by Attorney General Merrick Garland, initiates the formal rulemaking process that begins with a public comment period before it is taken to final rule status. Any member of the public can submit their opinion on the rule to assist the DOJ in making a determination about the appropriate schedule of cannabis. Cannabis will remain a Schedule I controlled substance until after a final rule is published.

For context, President Biden asked the attorney general and the secretary of Health and Human Services (HHS) in October of 2022 to launch a review of how cannabis is scheduled under federal law. Attorney General Garland received HHS’s scientific recommendations and subsequently sought the legal advice of the DOJ Office of Legal Counsel (OLC) to advise on questions related to the rulemaking process. After considering both HHS’s and OLC’s advice, Garland initiated the rulemaking process to transfer cannabis from Schedule I to Schedule III. The DOJ OLC memorandum that includes questions asked regarding the potential rescheduling of cannabis is linked here.

For More Information

Faegre Drinker will track this proposed rule and alert its clients when it is opened for public comment on the Federal Register.