It seems such a simple matter, rescheduling marijuana. Currently, the drug is rated by federal authorities as a Schedule I narcotic, meaning it has no value as medicine, is highly addictive and extremely dangerous. It actually ranks higher than methamphetamine in terms of risk and lack of redeeming value.
This is in clear opposition to what science tells us – both medical and public policy researchers. But because of that serious Schedule I rating, those who cultivate, distribute and possess the drug are at potential risk of federal prosecution, even in states where the drug is legal. Compare this to the status of drugs classified in Schedules II-IV. They are still subjected to various degrees of control, but medical use is recognized and they are allowed to undergo research, testing and manufacture without significant difficulty.
So why not just pass a bill to reclassify marijuana?
Unfortunately, according to the latest analysis from the Brookings Institute, it’s not quite that simple.
There are a few different ways that marijuana could be rescheduled. First, Congress has the authority to reschedule, and it could do so either through a custom-tailored amendment to the Controlled Substances Act or through the introduction of new legislation specific to cannabis. Efforts on this front have been ongoing since 1981. Every single one of these has died in committee.
Another avenue is executive action. Although President Barack Obama has stated it’s up to Congress to decide whether to reschedule, technically, his office has the power to initiate the process as well. In the case of executive office rescheduling, the Secretary of Health and Human Service, an outside interested party or the U.S. Attorney General could file a petition to reschedule the drug. That petition would then be reviewed by the U.S. Attorney General’s Office, which would then need to file a request for medical and scientific evaluation form the Secretary of Health and Human Services.
From there, the U.S. Food and Drug Administration would be asked to conduct an analysis to to determine a host of criteria, including the evidence of pharmalogical effect of the drug, the potential public health risks, the current scientific knowledge or understanding, the dependence liability, the potential for abuse, the history or current pattern of abuse and the scope, duration and significance of such abuse. From there, the Secretary of Health and Human Services would submit a recommendation to the Attorney General to either keep the drug controlled or release it from control. It’s then up to the Attorney General to decide whether to initiate rule-making procedures for control, transfer between schedules or total removal from control.
It’s a process that would take several years. The future of such action is highly uncertain given that in just 2006, the FDA issued a finding indicating there was “no sound scientific studies” that support the use of marijuana for medical treatments.
However, our cannabis attorneys recognize this as a giant Catch-22. The reason there isn’t a ton of accepted studies on the issue is because of the drug’s classification. Researchers generally aren’t allowed to conduct human studies on the drug because it is so tightly controlled.
Although 23 states plus the District of Columbia have legalized the drug for medicinal purposes, that decision has no bearing currently on federal drug control laws. Although the federal government has essentially said it will turn a blind eye to enforcing federal drug laws in states where the drug is legal, that could change once a new administration is seated, so long as the current federal classification of marijuana remains in place.
One way around rescheduling would be if Congress enacted a measure that would specifically grant states the right to govern their own legitimate marijuana activities.
But even if the drug were rescheduled, it’s unclear exactly how that might impact growers and distributors. In fact, it could actually result in complications for many states because if the drug were to come under the control of the FDA – as almost all prescription medications are – that could lead to a lot of required testing and mandatory requirements that go far beyond the guidelines states currently follow.
The Brookings analysis indicated that while it would be ideal if such decisions were based solely on the medical, policy and scientific consideration about the drug, the reality is politics play a significant role in the whole thing. As of right now, it’s simply not a priority for the Obama administration, and that’s not likely to change in the next two years.
We may see a shift from the next administration, but the direction of that shift remains to be seen.
The Los Angeles CANNABIS LAW Group represents growers, dispensaries, collectives, patients and those facing marijuana charges. Call us at 714-937-2050.
How to reschedule marijuana, and why it’s unlikely anytime soon, Feb. 13, 2015, By John Hudak and Grace Wallack, Brookings Institute
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Marijuana Business Owners Seek Banking Solutions, Feb. 12, 2015, Los Angeles Marijuana Lawyer Blog