DEA to Reschedule Marijuana?

Not so fast- many steps and questions remain

On May 16, 2024 the United States Department of Justice (DOJ) announced a notice of proposed rulemaking (NPRM) to reschedule marijuana from a Schedule I to Schedule III controlled substance.  This NPRM was based on a recommendation from the United States Department of Health and Human Services (HHS) which found that marijuana has a currently acceptable medical use and has a potential for abuse and level of physical or psychological dependence less than controlled substances currently in Schedule II, such as cocaine, oxycodone, and hydrocodone. 

Although many news outlets heralded that DEA has initiated the process for rescheduling or some more boldly that DEA will move marijuana to Schedule III, DEA's concurrence is not a foregone conclusion.  Upon closer reading of the NPRM, DEA intends to use this rulemaking process to gather more information to inform, "the appropriate schedule for marijuana."  According to the NPRM, "DEA believes that factual evidence (including scientific data) and expert opinions, including additional data regarding different forms, formulations, and delivery methods for marijuana, as well as evidence regarding the effects of marijuana at various dosages or concentrations, may be relevant."  The NPRM allows for public comment and even public hearings and it appears that DEA will use those opportunities to gather more facts to support the proper scheduling of marijuana in their view.  This process can take months and even years to finalize.

However, if marijuana were to be moved to Schedule III, the laws and regulations regarding handling those substances would apply to it.  So, similar to other controlled pharmaceutical drugs, entities manufacturing, distributing, and dispensing it would be required to be registered with DEA and follow all applicable laws and regulations just like pharmaceutical manufacturers, wholesale distributors, prescribers, and pharmacies.  As many states have already approved marijuana for medical use, it's unclear if DEA would carve out separate regulations to handle current "dispensary" models, or if it would require that marijuana be dispensed from a pharmacy just like any other Schedule III drug.  And, as noted in the NPRM, any drug containing marijuana would still need to be approved by the FDA (currently there are none).

Also, if the move were to be made, marijuana would be legal under federal law only for legitimate medical purposes- recreational marijuana would still be prohibited.  Although Congress could act and remove marijuana from all schedules rendering this NPRM moot while also legalizing its recreational use.

So, although the first steps may have been taken down the path of rescheduling marijuana, rest assured that it will be a long and twisted one with public comments, the potential for public hearings, assured courtroom battles, and the need for FDA approval.  Stay tuned and reach out with questions on this or any other controlled substance topics.

References:

See Justice Department Submits Proposed Regulation to Reschedule Marijuana