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FOOD AND DRUG ADMINISTRATION PROPOSES DROPPING MARIJUANA TO SCHEDULE III
The Dept of Health and Human Services’ Food and Drug Administration last week recommended that the Drug Enforcement Administration significantly loosen federal restrictions on marijuana, yet stopping short of proposing that pot be removed completely from the Controlled Substances Act.
HHS Assistant Secretary Rachel Levine wrote in a letter to the DEA that the FDA wants the drug moved from Schedule I to Schedule III under the CSA. As part of the review process, an HHS spokesperson told Politico last week, “HHS conducted a scientific and medical evaluation for consideration by DEA. DEA has the final authority to schedule or reschedule a drug under the Controlled Substances Act. DEA will now initiate its review.”
President Biden rolled out new initiatives on marijuana last October, pardoning all prior federal simple possession offenses (none of whom was in federal prison at the time) and asking HHS and the Attorney General to review how marijuana is scheduled based on its medical use. While the DEA is not required to follow HHS’s recommendation, it is unlikely that the agency will buck the President, who has made this a White House priority.
Reclassification is a step short of legalizing marijuana entirely, but it would mark a critical shift away from marijuana’s status as a Schedule I substance. Schedule I includes drugs with high risk of abuse that have no legitimate purpose, like heroin, LSD and ecstasy. Schedule III substances, such as ketamine, are seen as less dangerous and can be obtained legally with a prescription.
The effect of dropping marijuana to Schedule III might be a Sentencing Commission rewrite of USSG § 2D1.1 on marijuana offenses. Changing statutory minimums for marijuana set out in 21 USC § 841(b)(1), however, would require action by Congress.
DEA review will be complete within the next year.
Bloomberg, US Health Officials Urge Moving Pot to Lower-Risk Tier (August 30, 2023)
Politico, Slightly higher times: Biden administration moves to loosen weed restrictions (August 30, 2023)
– Thomas L. Root