Opinion | Lost in the Haze: What Would Rescheduling Marijuana Really Do?

As has been reported, the Drug Enforcement Agency (DEA) is planning to move cannabis (marijuana) from Schedule I to Schedule III at the federal level.

While many details of the proposal and plans are still missing, the move follows directives from President Biden in 2022 to review federal cannabis policy with the stated goal of ending criminal penalties for possession — which disproportionately affect people of color and other minoritized groups — and a subsequent directive from HHS in August 2023 instructing the DEA to reschedule cannabis.

While both medical marijuana and full legalization have broad public support, DEA and Congress have rejected multiple attempts to reduce restrictions or legalize marijuana over the past 50 years. Questions remain about how this will play out and which goals the change would accomplish.

Background on the Country’s Complex Marijuana Laws

While the U.S. has a long and complicated history of patchwork cannabis laws and prohibition, the 1970 Controlled Substances Act prohibited cannabis and cannabis products at the federal level and remains in effect today. Furthermore, the U.S. has treaty obligations under the Single Convention on Narcotic Drugs, which similarly restricts cannabis and cannabis products for manufacture, trade, possession, and use.

Despite complete federal prohibition, 41 states and Washington D.C. have legalized medical use of cannabis, and 24 states and D.C have legalized recreational use of cannabis. While a number of legislative amendments and legal memoranda have been issued to prevent federal interference with legalized cannabis in those states, the federal prohibition remains in effect, theoretically superseding state law. Therefore, attempts have been made to ease this conflict between state and federal law.

Additionally, multiple cannabis products are considered federally legal at present due to provisions in the 2018 Agriculture Improvement Act that were designed to facilitate hemp production. While both marijuana plants and their contained compounds are currently Schedule I, hemp plants and their contained compounds are not scheduled. This creates confusion since marijuana and hemp are both cannabis plants, but are legally defined as different based on the amount of psychoactive products they contain.

Hemp products containing certain cannabinoids, including THC, the primary psychoactive compound in cannabis, are legally allowed to be sold as long as they are present below a certain percent-by-weight threshold. While these compounds were completely removed for controlled substance scheduling in order to be allowed as “naturally occurring” compounds in hemp plants, many other products for sale like edibles and vapes actually use synthetic versions, with conflicting legal determinations based on almost imperceptible chemical differences.

The Schedule I status of marijuana has been questioned for years, as it opposes available scientific evidence. This contradiction is especially apparent when considering that the pharmaceutically synthesized form of delta-9-THC is approved as a Schedule III product, even though it contains the exact same primary psychoactive compound in a cannabis plant, which is a Schedule I substance. Major differences between Schedule I and III status are summarized in the table below.

What Would and Wouldn’t Rescheduling Do?

This change in scheduling would recognize medical use of cannabis at the federal level, catching up to the fact that millions of Americans currently use marijuana. This change would also acknowledge that it has less risk for misuse and problems than other drugs like heroin, bringing policy closer to both scientific and popular consensus. Other potential benefits include increasing the potential for research into cannabis compounds and removing current IRS prohibition for cannabis dispensaries and businesses to claim tax write-offs like other businesses.

However, controlled substances require that a pharmacist dispense them, which is something most cannabis dispensaries do not have, and there is concern that this move will simply allow the pharmaceutical industry — which has long opposed full legalization — to enter the cannabis business rather than support existing legal operations. Cannabis dispensaries are currently licensed by individual states. Making the drug Schedule III would require a significant amount of mandatory federal oversight — mostly from FDA and DEA — including tracking of dispensary clients/patients (as pharmacies must do).

It is unclear how this will play out in practice, especially since the FDA has reported being understaffed and has sought more funding. In addition to monitoring these prescriptions, this move will give DEA the power to set quotas on cannabis production and sales. It is unclear what this will mean for cannabis growers, especially considering that home growing and growing for nonmedical use is legal in multiple states.

What about the impact on recreational marijuana? This change would not recognize nonmedical (e.g. recreational) use as legal. Even possession without a prescription would still be subject to criminal and civil penalties, including potential for prison time.

If the president’s goal for this change is truly to end criminal penalties for simple cannabis possession, he should be informed that changing it from Schedule I to Schedule III will not accomplish this. This reclassification would not free anybody currently incarcerated on cannabis-related charges, and will not expunge criminal records. Furthermore, experts are speculating that DEA will attempt to tighten the loopholes allowing the sale of hemp-related compounds, which would prohibit many currently available cannabis products and significantly reduce access to nonmedical cannabis products.

A Hazy Path Forward

If you are confused, you are not alone.

Biden’s stated goal was that “no one should be jailed for using or possessing marijuana.” Yet that isn’t what’s happening. It’s easy to draw parallels between cannabis and alcohol, as even HHS did in its rescheduling memo, and critics of this change point out that alcohol — the most widely used recreational drug — is not scheduled and arguably leads to greater harms both quantitatively and qualitatively. Alcohol, too, was also famously prohibited in the 1920s through the early 1930s, and is now effectively regulated by the government for individual use.

The majority of Americans are in favor of legalizing cannabis in the same way — but this change will not do that. As of now, it remains to be seen whether this schedule change will ultimately include or lead to more comprehensive reforms, and, given the number of unanswered questions and loose ends, whether this will even work out.

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