Marijuana

DEA Says 'No' To Rescheduling Marijuana

Marijuana remains out-of-place in Schedule I and the federal war on marijuana continues.

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Hilary Bricken

Hilary Bricken

The Drug Enforcement Administration just determined (yet again) that cannabis will remain as a Schedule I drug under the Controlled Substances Act. This means the federal government still believes cannabis has 1) a high potential for abuse, 2) no currently accepted medical application, and 3) lacks safety standards that make it acceptable for medical use. Other Schedule I drugs include heroin and LSD. 

This latest cannabis rescheduling saga started when the DEA announced back in April that it would consider rescheduling marijuana sometime in the first half of 2016. The DEA enforces the federal Controlled Substances Act (CSA), which classifies drugs into schedules based on their perceived danger. The CSA gives the U.S. Attorney General the power to de-schedule or re-schedule a substance from the CSA scheduling list. In turn, the Attorney General delegated this power to the DEA. The CSA requires the DEA examine the following eight factors in making a substance scheduling determination:

(1) The substance’s actual or relative potential for abuse;
(2) The Scientific evidence of the substance’s pharmacological effect;
(3) The Scientific knowledge regarding the substance;
(4) The substance’s history and current pattern of abuse;
(5) The scope, duration, and significance of abuse of the substance;
(6) The substance’s public health risks;
(7) The substance’s tendency to cause psychic or physiological dependence; and
(8) Whether the substance is an immediate precursor of an already controlled substance.

Based on the above eight factors, the DEA chose not to remove marijuana from Schedule I. According to National Public Radio, DEA chief Chuck Rosenberg gave “enormous weight” to findings from the Food and Drug Administration that cannabis has “no currently accepted medical use in treatment in the United States.”

The DEA’s decision not to reschedule cannabis is nothing new. In 2011, the DEA denied a petition to reschedule cannabis because its eight-factor analysis favored Schedule I. According to Vice News, then-DEA chief Michele Leonhart justified that 2011 decision with the following:

At this time, the known risks of marijuana use have not been shown to be outweighed by specific benefits in well-controlled clinical trials that scientifically evaluate safety and efficacy. Long-term, regular use of marijuana can lead to physical dependence and withdrawal . . . as well as psychic addiction or dependence.

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The DEA relied mostly on studies published before 2005 for its 2011 decision. Back then though, no state had legalized recreational marijuana and only 15 states had any medical cannabis program. Flash forward to today where four states and the District of Columbia have legalized recreational cannabis and 25+ states have some sort of medical marijuana program. Groups like the American Medical Association and the American Academy of Pediatrics have called for the reclassification based on their own findings.

Marijuana’s status as a Schedule I substance makes it difficult to legally research cannabis and its impact on humans, even in states where cannabis is legal. This is because most high-level research institutions receive at least some federal funding and their researching cannabis puts that funding at risk. The DEA allows researchers to apply for permits to conduct cannabis research, but then makes it nearly impossible to secure such a permit, with the end result being a dearth of reliable research on cannabis.

The lack of reliable data on cannabis is the driving force behind the most recent failed attempt to reschedule. In 2015, Senator Elizabeth Warren and other Democratic senators penned a letter to the Attorney General urging the federal government to allow more research into medical cannabis. The DEA’s April announcement that it would re-consider (and now reject) rescheduling was largely in response to that letter.

Cannabis rescheduling is now stuck in a loop. Rescheduling requires scientific studies that show cannabis has positive medical applications that outweigh its potential harm. Those studies cannot happen because cannabis is a Schedule I substance too dangerous to research. But to reschedule cannabis from Schedule I, the DEA needs reliable research. Until that loop is broken, cannabis will likely remain out-of-place in Schedule I and the federal government’s endless war on drugs will continue.

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Hilary Bricken is an attorney at Harris Moure, PLLC in Seattle and she chairs the firm’s Canna Law Group. Her practice consists of representing marijuana businesses of all sizes in multiple states on matters relating to licensing, corporate formation and contracts, commercial litigation, and intellectual property. Named one of the 100 most influential people in the cannabis industry in 2014, Hilary is also lead editor of the Canna Law Blog. You can reach her by email at hilary@harrismoure.com.

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