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DEA Being Pushed to Clarify Marijuana Schedule. Will it Make a Difference?

Despite the six months that have passed since the Department of Health and Human Services (HHS) recommendation to the Drug Enforcement Agency (DEA) to reclassify marijuana as a Schedule III drug from its current status as Schedule I, there has been no public indication that the DEA is moving forward on the recommendation.

In January 2024, that lack of action elicited a letter to the DEA and US Attorney General from 12 US Senators urging the DEA to “swiftly deschedule marijuana from the Controlled Substances Act (CSA),” as recommended by the HHS. The letter requested that the DEA respond to six questions by February 12 … a date which has passed without response.

The questions, intended to help the American people understand the steps the DEA is taking, focused on:

  1. The status of DEA’s review and timeline for removing marijuana from Schedule 1.
  2. What evidence the DEA intends to consider in its decision and a roadmap for clinical trials, if that is the direction.
  3. How DEA is assessing the medical use of cannabis, given the differences between DEA and HHS methods.
  4. How and if criminal enforcement of marijuana would change if rescheduled.
  5. The specific steps DEA has taken to ensure its polices and programs align with executive orders on racial equity (13985 and 14091).
  6. How DEA’s evaluation addresses the harms of cannabis criminalization, related consequences, and racial disparities associated with enforcement.

The letter is a follow-up to the January Freedom of Information Act (FOIA) release of the HHS Document on the rationale for its descheduling recommendation. The rationale was based on eight factors: its actual or relative potential for abuse; scientific evidence of its pharmacological effect, if known; the state of current scientific knowledge regarding the drug or other substance; its history and current pattern of abuse; the scope, duration, and significance of abuse; what, if any, risk there is to the public health; its psychic or physiological dependence liability; and whether the substance is an immediate precursor of a substance already controlled.

From these, HHS reached the following conclusions: Marijuana has a potential for abuse less than the drugs or other substances in Schedules I and II; it has a currently accepted medical use in treatment in the US; abuse may lead to moderate or low physical dependence or high psychological dependence based on frequency and degree of exposure. Given those conclusions, marijuana does not meet the medical or scientific requirements for Schedule I drugs. Additionally, while there is a high prevalence of nonmedical use, “an overall evaluation of epidemiological indicators suggests that it does not produce serious outcomes compared to drugs in Schedules I or II.”

While the assessment noted that available data do not imply that safety and effectiveness have been established to support FDA approval, the Senators’ letter took their recommendation a step further than that of HHS. It stated that although “rescheduling to Schedule III would mark a significant step forward, it would not resolve the worst harms of the current system. Thus, the DEA should deschedule marijuana altogether. Marijuana’s placement in the CSA has had a devastating impact on our communities and is increasingly out of step with state law and public opinion.”

With the DEA missing the deadline requested by the Senators, other legislators are continuing to push DEA to clarify its timelines and publish a draft rule on the rescheduling of marijuana, with the latest communication sent to DEA by Congressman Earl Blumenauer.

How this will all pan out will depend on the DEA, but it is not a decision that other legislators are letting slide. The first two months of 2024 have already included an FOIA request for the full HHS assessment and a number of Congressional representatives pushing for a decision, and we would expect to see a continued, robust push over the next months – with consumer groups likely to get more involved as well.


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