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By Kyle Jaeger
A newly formed coalition of marijuana businesses and advocacy organizations is making the case that the Biden administration really only has two viable choices when it comes to its ongoing federal scheduling review: remove cannabis from the list of banned substances altogether or reschedule it—the less ideal option of the two, but one that the group says would still come with significant benefits.
The Coalition for Cannabis Scheduling Reform (CCSR), which launched earlier this month, published a report on Monday that outlines the scientific, economic and societal considerations that are going into the scheduling review that President Joe Biden directed late last year.
While advocates—as well as the public overall—has come to embrace full legalization (i.e. descheduling), the new organization is hoping to influence the conversation in a way that acknowledges the potential opportunities that would come with an administrative decision to more incrementally move marijuana from Schedule I of the Controlled Substances Act (CSA) to Schedules III-V.
The report aims to illustrate those benefits, even as the coalition continues to push for complete descheduling.
The final decision isn’t up to the president in this situation. The first step will be for the U.S. Department of Health and Human Services (HHS) to complete an eight-factor scientific review into cannabis and submit its findings and recommendations to the Justice Department. The Drug Enforcement Administration (DEA) under DOJ would then have the final say on a scheduling determination.
HHS Secretary Xavier Becerra told Marijuana Moment earlier this month that it’s his hope that the agencies of jurisdiction will be able to complete its work by the year’s end, but that remains to be seen.
“Descheduling is the optimal outcome and the one that would mark the greatest improvement over the status quo possible without congressional intervention,” CCSR says in the new report. “Descheduling marijuana is sound public policy, supported by both the science and the law, as recent and compelling medical and public health data clearly demonstrate that marijuana simply does not belong in the CSA at all.”
However, if FDA “determines that it cannot find its way to recommending marijuana descheduling, the Agency should instead recommend rescheduling to schedule III, IV, or V.”
CCSR describes that various considerations—and pros and cons of both scenarios—at length in the report, which is broken down into five key sections.
Here’s a rundown of the group’s main arguments:
I. Full descheduling would achieve the most progress possible from the administrative process.
Removing marijuana from the CSA would help address racial inequities resulting from the drug war, lift economic barriers for the workers and businesses that exist in state markets and “go the farther toward aligning federal marijuana policy with the views of the 21st century American voters.”
“The downstream effects of enforcing marijuana’s schedule I status are staggering, producing disparities in policing, incarceration rates, wages, employment opportunities, wealth, and health outcomes,” the report says. “Descheduling would allow for greater equity in the justice system and provide a pathway for individuals who have been impacted by discriminatory marijuana policies to clear their records and access greater economic opportunities.”
Taking this step would be widely embraced by advocates and stakeholders. Even if it simply removing cannabis from the CSA wouldn’t “cure all that is wrong with federal marijuana policy,” it would “mark the most progress possible without federal legislation.”
“However, descheduling is not the only viable option for reform,” CCSR says.
II. Rescheduling to schedule III, IV, or V would mark a historic first step on the path to comprehensive reform.
As far as the coalition is concerned, keeping cannabis in Schedule I—the most strictly controlled category under the CSA—or even moving it one classification down to Schedule II would prove untenable from multiple scientific and policy angles.
But short of descheduling, a reclassification to Schedule III, IV or V “would have significant advantages over the status quo.”
One immediate benefit, the group explains, is that it would allow state-licensed cannabis businesses to take federal tax deductions that they’re currently prohibited from doing under an Internal Revenue Service (IRS) code known as 280E, which only affects people who sell substances in Schedules I and II.
CCSR also says that rescheduling would “diminish” the scope of criminal penalties that could be imposed on people for violating marijuana-related provisions of the CSA.
Moving cannabis to Schedule II, however, “would be an unacceptable and indefensible result under the law,” the report says. “Moreover, it would not only fail to address the President’s stated goals, but it also would present a substantial cost to American marijuana businesses.”
The coalition is further recommending that if that administration does decide to reschedule to III, IV or V, further action would be needed—namely, “FDA and DEA should issue enforcement guidance to minimize economic disruption, promote state-federal collaboration, and protect the public’s health.”
“Rescheduling marijuana to schedule III, IV, or V does not come without real and perceived obstacles,” the group acknowledges. “As a controlled substance, marijuana would still technically be subject to strict regulations governing its use, possession, distribution, and manufacturing. If enforced, these controls would pose significant challenges for the state-regulated marijuana industry, as access to marijuana and marijuana products would remain subject to DEA oversight and criminal enforcement authority.”
While an existing congressional appropriations rider restricts DEA from using its funds to interfere in state medical cannabis programs, CCSR identified ways that the agency could still disrupt state markets, particularly as it concerns the adult-use industry. “Thus, rescheduling would likely leave the marijuana industry under a lingering threat of federal enforcement similar to the one it operates under today,” it says.
III. The executive branch can accomplish meaningful reform through this administrative process without upsetting existing standards.
The third section of the report details how FDA and DEA have historically defended and upheld the Schedule I classification of marijuana under federal law and explains why the agencies “need not and should not reach the same conclusions today.”
Specifically, the coalition provides an analysis about how the “settled standards” of medical value and potential for abuse that are relied on to make scheduling decisions demonstrate that the only viable options for the administration are to either deschedule or reschedule to Schedules III-V.
For example, the fact that the vast majority of states have legalized medical cannabis, recognizing the plant’s utility for a variety of conditions, undermines the federal government’s position that there’s no currently accepted medical value—a key tenet of its current Schedule I classification.
Additionally, numerous academic and scientific institutions have affirmed that cannabis can be therapeutically beneficial to patients—and tens of thousands of studies have supported that conclusion.
IV. Marijuana’s low abuse potential confirms the propriety of descheduling or rescheduling to schedule III, IV, or V.
When it comes to marijuana’s potential for abuse—the other key criterion for the scheduling designation—the report again explains why cannabis does not meet the high threshold for its current Schedule I status.
“At least three developments since this determination powerfully confirm that the time for a new approach is now,” CCSR says. 1) Marijuana is widely considered a medicine at the state-level, 2) even when used for recreational purposes, it has a lower abuse potential than other substances in lower schedules or no schedule at all and 3) studies have suggested that cannabis may actually serve as an “exit drug” that could help people transition away from more addictive and harmful drugs, including opioids.
The coalition also makes an interesting argument about the relative abuse potential of marijuana compared to certain hemp-based cannabinoids that were federally legalized under the 2018 Farm Bill. While the report doesn’t name any specific hemp products that may be potentially more harmful, it contends that marijuana’s “abuse potential is lower than that of the intoxicating hemp products Congress descheduled.”
“In short, the health impacts associated with marijuana use are demonstrably less severe than those of many substances that are not scheduled at all and many others listed in schedules II–V,” it says. “And, unlike other controlled substances, there is a long history and current practice of marijuana being used in small doses without harmful effects.”
Additionally, there are “already marijuana-specific standards, good manufacturing practices (“GMP”) standards, and GMP certification bodies certifying marijuana businesses at the state level—and the “implementation of these existing state regulations for product safety lowers the abuse potential of marijuana.”
V. U.S. international treaty obligations should not prevent the executive branch from descheduling or rescheduling to schedule III or better.
One of the most common arguments that DEA has relied on to dismiss petitions for descheduling or rescheduling is the idea that taking that step would violate decades-old international treaties to which the U.S. is a party. CCSR’s report argues that those treaties should have no bearing on the government’s ultimate decision.
There are three main points to that end: 1) the president’s scheduling directive focuses on administrative authority of sections of statute that the coalition argues are unencumbered by the treaties, 2) the U.S. would still be out of compliance with the Single Convention if marijuana remains in Schedule I, because the federal government’s hands-off approach to state cannabis markets contravenes the treaties already and 3) “the Single Convention provides that signatory states need not comply with the treaty if doing so is incompatible with their constitutional framework.”
The American people need and deserve access to safe, tested, age-verified marijuana products. And the way to do that is to recognize the medical value and lack of abuse potential in state-regulated products,” CCSR concludes. “This is an opportunity for FDA and DEA to place marijuana where it belongs—off the schedule entirely or, in the alternative, in schedule III, IV or V.”
“What is clear is that the status quo (or rescheduling to schedule II) would fix nothing, fail to recognize the scientific and medical realities of the 21st century, and only serve to alienate the population that the President is trying to protect,” it says. “FDA should thus recommend descheduling or rescheduling to schedule III, IV, or V.”
CCSR members include Acreage Holdings, American Trade Association for Cannabis & Hemp, Columbia Care, Cresco Labs, Curaleaf, Dutchie, Green Thumb Industries, Marijuana Policy Project, National Cannabis Roundtable, Scotts Miracle-Gro, U.S. Cannabis Council, Verano Holdings, Vicente LLP and The Weldon Project, among other businesses and organizations.
Not everyone holds the same perspective on the rescheduling side of the conversation, however. NORML’s Paul Armentano argued in a recent op-ed for Marijuana Moment that “rescheduling marijuana fails to provide states with the explicit legal authority to regulate it within their borders free from federal interference.”
At this stage, it’s anyone’s guess what FDA will recommend and what DEA will do with that recommendation. But it’s undoubtedly true that, for activists and stakeholders, the mere fact that a president directed a review is a sign of movement in the right direction—even if there remains disagreement about the potential pros and cons of different outcomes.
As for the timing of any decisionmaking, HHS’s Becerra reiterated to Marijuana Moment this month that agencies are moving “as quickly as we can.”