High Stakes: Rescheduling vs. Descheduling Marijuana – Navigating the New Drug War

In a recent and groundbreaking development just before the U.S. Labor Day weekend, the Department of Health and Human Services (HHS) called upon the Drug Enforcement Agency (DEA) to reassess marijuana's classification under the Controlled Substances Act. 

This unexpected move sent shockwaves through the cannabis industry, igniting a fervent debate that could reshape the landscape of federal marijuana regulation in the United States.

The immediate impact was palpable, with major multi-state operators (MSO’s) like Aurora Cannabis, Canopy Growth, and Tilray Brands experiencing substantial stock price increases. These gains underscored the industry's keen interest in the potential reclassification.

For decades, marijuana has languished in the Schedule I category alongside substances like heroin and LSD, despite growing scientific support, state-level legalization, and public acceptance. Remarkably, it ranked higher than far more dangerous drugs such as fentanyl, cocaine, and methamphetamine.

Now, the DEA faces a decision: whether to relocate marijuana to Schedule III, a category shared with substances like ketamine and anabolic steroids, which are considered to have a lower potential for physical or psychological dependence. It's important to note that this recommendation would not equate to full descheduling of marijuana.

In terms of descheduling vs. rescheduling, the National Organization for the Reform of Marijuana Laws (NORML) takes a clear and unwavering stance in favor of descheduling cannabis from the Controlled Substances Act (CSA) rather than opting for rescheduling. 

With more than two-thirds of U.S. states and territories now regulating marijuana for medical or adult use, NORML asserts that the existing structure of the CSA cannot accommodate the existence of these state-level programs. 

NORML points out that cannabis does not meet the criteria for any of the CSA schedules, and likening it to substances not included in the CSA, such as dietary supplements, vitamins, alcohol, and tobacco, suggests that descheduling is the appropriate path forward. 

This approach would grant both federal and state governments varying degrees of regulatory authority over cannabis, allowing states to continue or prohibit cannabis production and sales as they see fit. NORML argues that rescheduling is intellectually dishonest and would not necessarily facilitate clinical research, as existing onerous regulations specific to cannabis would remain in place. The organization, along with many in the industry from across the country, emphasize the need for cannabis to be descheduled to resolve the state-federal conflict and promote sensible, state-regulated marijuana policies.

While marijuana enjoys legal status for medical use in 39 states and recreational use in 23 states, the complex federal-state legal dichotomy adds layers of complexity to the cannabis industry's operations. Even with a potential rescheduling, cultivation, production, and sales would still technically violate federal law.

As the debate around marijuana rescheduling heats up in Congress and with the DEA being goaded into making a decision soon, concerns arise within the cannabis reform community and industry stakeholders. 

A major worry is that moving marijuana from Schedule I to Schedule II could lead to the legalization of marijuana pharmaceuticals, potentially necessitating the removal of all non-FDA-approved cannabis products from the market. Such a move could severely disrupt the flourishing cannabis industry, which serves both medical and recreational users in nearly half of the United States.

Adding to the complexity, a group of 14 Republican congressional lawmakers has recently issued a letter to the DEA, urging the agency to disregard the HHS recommendation and maintain marijuana's Schedule I classification. They argue for decisions rooted in scientific evidence rather than political considerations or changes in state laws. 

Which makes total sense because the GOP is renowned for their unwavering belief and decisions rooted in science and scientific evidence. 

Now, let's break down the key aspects of this complex issue:

I. The Legal Authority and Scheduling. The Controlled Substances Act of 1970 dictates the scheduling of drugs in the United States based on criteria like medical value, safety for medical use, and potential for abuse. However, it's essential to recognize that the CSA doesn't inherently authorize state-sanctioned cannabis operations. The legal basis for their operation comes from memos issued by the U.S. Justice Department, known as the Cole and Ogden Memos, which establish guidelines for state-approved cannabis operations. These memos represent executive actions, not dependent on marijuana's schedule, and would remain intact even if marijuana were to be rescheduled.

II. Federal Attitude Towards Scheduling. Currently classified as a Schedule I substance at the federal level, marijuana is considered to have no medical utility and a high potential for abuse. Despite this classification, federal authorities have shown deference to state laws, allowing legal cannabis programs to operate in states where they're authorized. Rescheduling marijuana to Schedule II would signify a shift in federal perception, acknowledging its potential medical utility. However, this would not necessarily lead to the closure of state-legal cannabis programs, as the deference to state laws would likely continue.

III. The Role of Presidential Prerogative. The legal basis for the continued operation of cannabis enterprises lies in the Justice Department's memos. Rescheduling marijuana wouldn't fundamentally alter the essence or authority of these memos. In fact, it could further validate them by applying them to a substance considered less dangerous under a lower schedule.

IV. Public Opinion and Disincentives. Public opinion, with over 80% of Americans supporting medical marijuana, plays a vital role in shaping policy decisions. This support, along with evolving views on recreational use, acts as a significant disincentive for any president to shut down state-legal cannabis programs, given the potential economic and political repercussions.

V. Implications of Rescheduling. Rescheduling would primarily impact medical marijuana research and signal federal commitment to aligning policies with state-level reforms. It would ease research barriers and improve access to cannabis for scientific investigation. However, it would not significantly affect the legal status of state-level marijuana programs, which would continue to operate under state law.

VI. Differentiating State Legal Products from FDA-Approved Pharmaceuticals. Products in state-legal cannabis markets would differ significantly from FDA-approved pharmaceuticals, even with rescheduling. While pharmaceutical research into isolated cannabinoids may expand, traditional cannabis products would remain distinct, serving diverse consumer needs.

The potential DEA rescheduling of cannabis holds promise for transforming the industry but is unlikely to result in the widespread closure of state-legal dispensaries. It signifies a shift in perception, eases research barriers, and may lead to expanded consumer access and financial stability for the industry. 

However, it's important to remain attentive to evolving federal and state regulations to grasp the full extent of these potential transformations as well the interests and lobbyists working behind the scenes to advance or stifle these initiatives - i.e. big pharma, MSO’s,  etc. 

In the ongoing debate over marijuana scheduling, various terms like "rescheduling," "descheduling," and "unscheduling" have specific meanings and implications, which can be complex.  Each approach has its pros and cons, and the choice depends on political, social, and economic factors, as well as the goals of policymakers and advocates. 

While there is growing support for descheduling, the specific path forward remains a subject of debate and negotiation. And no matter which way this goes it will likely raise more problems than it solves in the near term.

Stay tuned.