The U.S. Department of Health and Human Services (HHS) formally recommended that marijuana be moved to Schedule III of the Controlled Substances Act some 16 months ago. It was generally accepted that the DEA would honor the recommendation and complete rescheduling by the end of 2024. It is now 2025 and rescheduling proponents are still waiting.
What is the holdup? An ongoing argument between the DEA and rescheduling proponents over whether marijuana truly has medicinal value. The argument has reached fever pitch with rescheduling proponents accusing the DEA of purposely stacking the deck against rescheduling so that they don’t have to issue a new rule.
A Proposal Was Released Last Summer
The DEA initially responded to the HHS recommendation by putting together a proposed rule and publishing it for comment last summer. Even so, they waited nearly a year to do it. Proponents expected public comments to be mostly in favor of rescheduling, resulting in the final rule being published before the end of 2024.
That obviously did not happen. Once the public comment period had concluded, it became apparent that the DEA was not going to move as quickly as HHS and rescheduling proponents wanted. The argument began and the courts got involved. That is where we are now.
The DEA has recently been accused of conspiring with entities favoring continued prohibition to squash the proposed rule. Rescheduling proponents are now convinced that the federal agency has no intent to reschedule marijuana. They believe that the DEA is just stalling for time until the new administration takes over.
Why It All Matters
If you are not familiar with the argument, you may not know why all of this matters. The reality is that rescheduling is more than just semantics. It changes the legal status of marijuana and THC products across the nation.
As long as marijuana remains a Schedule I controlled substance, it is federally illegal. It cannot be legally cultivated, harvested, processed, possessed, or distributed except under a very narrow exception for government approved research.
Practically speaking, that means the Zion Medicinal medical cannabis pharmacy in Utah is operating in violation of federal law. They are allowed to operate because Utah has chosen to decriminalize medical cannabis and Congress has prohibited the DOJ from pursuing the industry in states that have green lit medical cannabis.
If and when marijuana is moved to Schedule III, it would join a group of other drugs subject to medicinal use with a prescription. Rescheduling would not legalize recreational consumption, but it would give the green light to medical use commensurate with similar prescription medications.
It Would Transform the Industry
Rescheduling would literally transform the medical cannabis industry. Research would explode, pharmaceutical companies would be motivated to develop condition-specific cannabis medications, and cannabis companies could begin legally engaging in interstate commerce. Perhaps the only ones harmed by rescheduling would be smaller outfits who owed their current survival on restrictive state markets.
I am guessing most people are in favor of rescheduling cannabis given the general acceptance of marijuana consumption among the public. But there is a danger here. Just like medical cannabis has been used as a steppingstone to recreational consumption, rescheduling could be the first step in fully legalizing marijuana in any form.
For now, it is enough to know that cannabis still has not been rescheduled. A number of court hearings are set to take place over the coming weeks. Maybe they will bring an end to the ongoing argument and lead to an eventual decision by the DEA. Assuming it happens, there is no decision that will make everyone happy.
