Rescheduling Cannabis

 

The cannabis landscape is currently in a dramatic shift, from one of prohibition to nationwide regulation.  In order for this transformation to materialize, cannabis must be removed from its Schedule I designation.  Under the CSA, a controlled substance may be rescheduled either through legislative or administrative action.

Legislative

Congress has the power to pass law amending the CSA to reschedule or even de-schedule cannabis from its current Schedule I classification.  For example, introduced in February 2015, the Regulate Marijuana Like Alcohol Act (H.R. 1013) directs the Attorney General to issue a final order that removes marijuana in any form from all Schedules of controlled substances under the CSA; allows the Secretary of the Treasury to issue permits for the importing, shipping, selling, purchasing, producing, packaging, and warehousing of marijuana; and grants the FDA the same authorities with respect for marijuana as it has for alcohol.  

Administrative

The second method to reclassify cannabis is through an administrative action brought by either an outside party, the Secretary of Health and Human Services (HHS), or by the US Attorney General (through the DEA).  The CSA allows the DEA to “transfer between… Schedules”  or “remove any drug from the schedules… if he finds that the drug does not meet the requirements for inclusion in any Schedule.” 

The DEA will take into account eight factors when considering rescheduling a controlled substance:

  1.  Its actual or relative potential for abuse;
  2. Scientific evidence of its pharmacological effect, if known;
  3. The state of current scientific knowledge regarding the drug or other substance;
  4. Its history and current pattern of abuse;
  5.  The scope, duration, and significance of abuse;
  6. What, if any, risk there is to the public health;
  7. Its psychic or physiological dependence liability;
  8. Whether the substance is an immediate precursor of a substance already controlled under this subchapter.

The DEA must also request scientific and medical analysis regarding the controlled substance from HHS.  HHS has delegated this responsibility to the US Food and Drug Administration (FDA). 

“[The] FDA conducts for Health and Human Services a scientific and medical analysis of the drug under consideration, HHS then recommends to DEA that the drug be placed in a given Schedule.  DEA considers HHS’ analysis, conducts its own assessment, and makes a final scheduling proposal in the form of a proposed rule.”

While the DEA has consistently denied petitions to reschedule cannabis, they are currently assessing two petitions and have already received the scientific, medical, and scheduling recommendations from HHS.  In an April, 2016 joint statement, the DEA along with HHS and the Office of National Drug Control Policy stated that they hope to release their decision in the first half of 2016.   Despite the optimism of a definitive statement from the DEA regarding cannabis’ scheduling status, the current political climate may cause the agency to delay its decision until the presidential election has been decided.