We shouldn’t treat cannabis like heroin.
Nearly a year ago, the Biden administration asked the Department of
Health and Human Services to reconsider how marijuana is scheduled under
federal law..webp)
From "Reefer Madness" (1936)
Under the Controlled Substances Act (CSA) of 1970,
different drugs are regulated or prohibited according to their placement in
five different “schedules.”
The federal government currently puts marijuana in
Schedule 1 — the most restrictive level, which it shares with heroin, ecstasy,
and other drugs. By definition, substances in this category must possess “no
currently accepted medical use” or “accepted safety for use… under medical
supervision.”
After a long internal process, the Department of Health
and Human Services now recommends removing the drug from Schedule 1.
While the explicit details of the recommendation aren’t public, Bloomberg reports that
the agency is suggesting moving marijuana to Schedule III.
The HHS recommendation now goes to the Drug Enforcement
Administration (DEA), which will conduct its own scientific review. In the
past, most recently in 2016, the agency has categorically refused to reschedule the drug. We
likely won’t know how the DEA will respond for some time.
In the meantime, some observers have lauded the proposed change as a giant step
forward. But my own reaction is more restrained.
That’s because reclassifying cannabis from Schedule I to a lower classification (like II or III) won’t bridge the widening gap between state and federal marijuana laws. Simply put, rescheduling marijuana fails to provide states with the explicit legal authority to regulate it within their borders as they see fit, free from federal interference.
To date, 38
states regulate the production and distribution of cannabis
products for medical purposes. Twenty-three of
these states regulate the possession and recreational use of marijuana for
adults. All of these state laws are in conflict with federal marijuana laws —
and they will remain in conflict even if the drug is rescheduled.
That’s because Schedule III substances — which include
ketamine, anabolic steroids, testosterone, and others — are uniformly
regulated by the federal government. Legal access to these substances is
limited to those with a prescription from a licensed physician and who obtain
the product from a licensed pharmacy.
Currently, no states regulate cannabis this way — nor are
they likely to reconstruct their existing laws and regulations to do so. That
means citizens and state-licensed operators following the law in legal states
will still be violating federal law. And the DEA will still have the same
authority it has now to crack down.
A far more productive outcome of the current
scheduling review would be to deschedule cannabis
— to remove it from the Controlled Substances Act altogether and give states
greater discretion to establish their own distinct marijuana policies. That
would put cannabis in line with how we treat alcohol and tobacco, two far
deadlier substances.
There’s recent precedent for this. In 2018, Congress
completely removed hemp plants containing no more than 0.3 percent
THC, as well as certain cannabinoids derived from them, from the federal
scheduling system.
By contrast, rescheduling fails to provide any federal
legal recognition for either the state-licensed cannabis industry or those
adults who use the plant responsibly in compliance with state laws.
Descheduling cannabis would remove federal intrusion from
state marijuana programs and respect America’s longstanding federalist
principles allowing states to serve as “laboratories of democracy.”