The classification of marijuana, including its medical use, is a complex and often debated topic. In the United States, marijuana was classified as a Schedule I controlled substance in 1970 under the federal Controlled Substances Act and has stayed there for more than 50 years. With ongoing research and indications from anecdotal patient reports, there is now data supporting that medical marijuana does not fit into Schedule 1.
On Friday, January 12th, 2024, Health and Human Services released a 252-page review outlining the reasoning that the Food and Drug Administration used to support rescheduling marijuana. It states that “there exists some credible scientific support for the medical use of marijuana in at least one of the indications for which there is widespread current experience in the United States.”
The review was conducted at the request of President Joe Biden, who instructed HHS in an executive order issued in October 2022 to look through all available research on cannabis and recommend if the drug should be moved within the list of federally controlled drugs or removed from it altogether.
“After assessing all available preclinical, clinical, and epidemiological data, FDA recommends that marijuana be rescheduled from Schedule 1 into Schedule 3 of the [Controlled Substances Act],” the agency wrote in its Jan. 12 report. “Schedule 3 drugs are classified as having a potential for abuse less than the drugs or other substances in schedules 1 and 2, a currently accepted medical use in treatment in the United States, and moderate or low physical dependence or high psychological dependence that may result from their use.”
The US Drug Enforcement Agency (DEA) will be tasked with the final decision concerning rescheduling marijuana on the federal level. Congressman Steve Cohen has called on the agency to ‘act expeditiously’ on the Department of Health and Human Services (HHS) recommendation to reschedule cannabis. “Marijuana never belonged on Schedule I. Its inclusion resulted in harsh and disproportionate prison sentences, particularly for communities of color. Nearly half the states have already legalized marijuana for recreational use by ballot measure. You have a historic opportunity to make meaningful progress as Congress works on legislation to de-schedule marijuana under the Controlled Substances Act and address some of the inequities caused by this misguided and discriminatory policy,” Cohen wrote.
While previous precedent suggests the DEA will follow the HHS’s advice, the letter has been seen as a power play among lawmakers, emphasized by the DEA’s refusal to provide any sort of timeline or insight into its position in the letter.
Advocates for the reclassification of medical marijuana say that scientific evidence supports its potential therapeutic benefits for certain medical conditions. They believe that reclassifying marijuana could facilitate more research and allow for a clearer regulatory framework.
Reasons for reclassification include:
Medical Value: Data obtained from current studies suggests that marijuana may have therapeutic benefits for certain individuals for conditions such as chronic pain, nausea, muscle spasms, seizures, and certain neurological disorders, among others. Reclassifying marijuana would acknowledge its medical value.
Research Opportunities: Current restrictions on Schedule I substances make it challenging for researchers to conduct rigorous studies on the medical effects of marijuana. Reclassifying it could open up more opportunities for research into its benefits.
Regulatory Clarity: Reclassification could provide a clearer regulatory framework for the production, distribution, and use of medical marijuana, helping to address concerns related to safety, quality, and standardization. For states like Louisiana that already have a program operating under state law that provides quality control for marijuana growers and producers, this federal reclassification would not interfere with current operations except federal business taxes.
While marijuana advocates might say the rescheduling as a step forward, some would like to see the drug removed from the schedule system entirely, treated like tobacco and alcohol.
Moving marijuana from Schedule I to Schedule III, without other legal changes, would not bring the state-legal medical or recreational marijuana industry into compliance with federal controlled substances law. With respect to medical marijuana, a key difference between placement in Schedule I and Schedule III is that substances in Schedule III have an accepted medical use and may lawfully be dispensed by prescription, while Substances in Schedule I cannot. However, prescription drugs must be approved by Congressional Research Service 3 the Food and Drug Administration (FDA). Although FDA has approved some drugs derived from or related to cannabis, marijuana itself is not an FDA-approved drug.
Moreover, if one or more marijuana products obtained FDA approval, manufacturers and distributors would need to register with DEA and comply with regulatory requirements that apply to Schedule III substances in order to handle those products. Users of medical marijuana would need to obtain valid prescriptions for the substance from medical providers, subject to federal legal requirements that differ from existing state regulatory requirements for medical marijuana.
In addition, federal requirements would likely be so strict that current marijuana growers and producers would not have the resources available to comply, putting large pharmaceutical companies with far great resources in a position to have control over production of those FDA-approved cannabis products. Epidolex, a cannabis anti-seizure drug, is a good example.
Rescheduling marijuana won’t make it legal or even allow for decriminalization on a federal level. Marijuana would still be a controlled substance, subject to federal rules and regulations. Medical marijuana, on the other hand, would still be legal within the state with a recommendation from a licensed Louisiana physician regardless of its classification.
What it will do is open doors for more research without fear of litigation because it’s easier to research Schedule I drugs versus Schedule III drugs. And, if marijuana is moved to Schedule III, IV, or V, Internal Revenue Code 280E would no longer apply to marijuana businesses, resulting in a much lower effective tax rate for businesses across the industry.
And, as for existing medical marijuana patients in Louisiana, there will be little to no impact on how they are currently receiving their recommendations from their medical marijuana doctor.
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