Gov. Jared Polis and several other governors urged the Biden administration to “reschedule” cannabis, a move that could remove financial and legal barriers to the marijuana industry.
That decision has been pending since August, when the U.S. Department of Health and Human Services recommended that the Drug Enforcement Administration reschedule the drug — previously listed as a dangerous drug that poses the same risks as LSD, peyote and heroin under Schedule 1 — to a Schedule 3 substance.
In addition to Polis, the signatories included the governors of Illinois, New Jersey, Maryland, New York and Louisiana. All the governors are Democrats.
“We hope that DEA will follow suit and reschedule cannabis to Schedule III this year, given that 88 percent of Americans are in favor of legalization for medical or recreational use,” the governors wrote. “Rescheduling cannabis aligns with a safe, regulated product that Americans can trust.”
Rescheduling will increase public health and safety, is sound public policy, and is a “big win for states, especially helpful for the 38 states that have some form of state-regulated cannabis policies in place, which represent 72% of the population,” they added.
They also claimed that rescheduling will protect Americans from more dangerous drug use, arguing that a state-legal cannabis marketplace is safer than the alternatives, including opioids.
“While opioids killed more than 80,000 people last year, cannabis use killed no one,” they said.
The governors pointed out that not all cannabis is regulated, such as intoxicating hemp products. (Colorado lawmakers put regulations around those products in the 2023 session). Even fentanyl is now found in unregulated marijuana, the governors wrote.
Consumers will continue to demand cannabis, they said, adding, “That fact will not change regardless of the public policy choices that we make.”
“If people want the product, they will procure the product, as they always have. So, it seems obvious and sensible to us to make cannabis as safe as it can be for adult consumers while simultaneously protecting our children,” they said.
No timeline has been reported for the DEA to complete its work on rescheduling, although most experts believe it could happen by the end of the year.
Because the Food and Drug Administration’s review was science- and health-based, it’s unlikely the DEA would reject the recommendation, according to Andrew Kline of Denver-based law firm Perkins Coie. The way the statute is written, he said, the DEA has to follow the FDA’s scientific evaluation.
The FDA’s review is based on two parts: evidence of medical use and treatment in the United States, and that the abuse potential for marijuana is less than any drug in Schedule 1 or Schedule 2.
“It would be hard to imagine how the DEA could disagree with the scheduling recommendation. They have to agree with a scientific recommendation,” Kline said.
The debate at that point is whether marijuana belongs in Schedule 3, he said.
Once the DEA makes the decision, they will issue a draft rule, which will be followed by a public comment period of 60 days, he said.
Interested parties will be able to file public comments during that time. It’s likely that someone will request an administrative law judge hearing within the DEA, Kline said, adding that will probably come from those who oppose rescheduling.
The judge will look at the comments and testimony in the hearing and follow that with a recommendation to the DEA administrator, he added.
The opposition is likely to come from groups, such as Smart Approaches to Marijuana, which believe marijuana should stay at Schedule 1.
Congressional lawmakers and former DEA officials are also raising objections.
Fourteen members of the U.S. House and Senate, all Republicans, sent a letter to the DEA following the news of possible rescheduling. None was from Colorado.
“Any effort to reschedule marijuana should be based on proven facts and science- not popular opinion, changes in state laws, or the preferred policy of an administration,” the lawmakers wrote.
They pointed to research from the National Institute on Drug Abuse that indicated 30% of marijuana users have marijuana use disorder, who included individuals severely addicted to the drug.
“The amount of tetrahydrocannabinol (THC) in marijuana has consistently increased in recent years,” the lawmakers wrote. “It is estimated that today’s marijuana has three times the amount of THC compared to the marijuana consumed 25 years ago. A higher concentration of THC is likely linked to higher rates of addiction. These facts indicate that marijuana has a high potential for abuse and that the risk is only increasing.”
In addition, 11 former DEA administrators and directors of National Drug Policy who served under both Democratic and Republican presidents also oppose rescheduling.
In an October letter, they wrote, “The FDA has not approved marijuana for medical use because no double-blind, published studies show safety and efficacy for raw marijuana; thus, it must remain a Schedule I drug.”
Nothing has changed since the Obama administration rejected rescheduling in 2016, they noted.
Gov. Jared Polis and several other governors urged the Biden administration to “reschedule” cannabis, a move that could remove financial and legal barriers to the marijuana industry. Read More