The US Department of Health and Human Services (HHS) recently released an over 250-page document explaining their rationale for wanting marijuana rescheduled. Over 150 of these pages were spent discussing marijuana’s potential medical value, a key determinant in whether marijuana should be moved away from schedule I.
HHS released the documents last week to a pair of attorneys who requested them through the Freedom of Information Act (FOIA). The documents, which are heavily redacted, explain why the Department of Health sent a letter to the Drug Enforcement Agency (DEA) in September asking them to reschedule marijuana.
According to attorney Shane Pennington posting on the Substack On Drugs, “well over 150 pages” of the document was spent on the question of “whether marijuana has a currently accepted medical use in treatment in the United States.” This is important given that to be a schedule I drug, a substance must be dangerous, highly addictive and have no accepted medical value.
Here are some of the key takeaways from the documents, according to Pennington:
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Compared to HHS’s past reviews of marijuana’s abuse potential, these documents seem to reveal a heightened interest in marijuana’s abuse potential compared with other substances of abuse. This shift in focus could facilitate a conclusion that marijuana has an abuse potential less than substances in schedules I and II.
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Compared to HHS’s past reviews of marijuana’s scheduling status under the CSA, these documents appear to focus on a broader and more modern data set. This, too, strikes me as a move that would tend to support a decision to transfer marijuana out of schedule I.
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HHS dedicates the bulk of its analysis—well over 150 pages—to the question of whether marijuana has a currently accepted medical use in treatment in the United States. Had HHS applied the usual standards to decide that issue, it could have resolved it in two or three pages (as it did when it addressed the question in 2016, for example). I therefore conclude that it has likely announced and applied a new standard for assessing whether marijuana has a currently accepted medical use.
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Taken together, and for reasons I explain in greater detail below, all this leads me to conclude that HHS has likely recommended that DEA transfer marijuana to schedule III.
Last week a coalition of six governors sent a letter to President Biden urging his administration to reschedule marijuana by the end of the year. Also this month, a coalition representing thousands of military veterans sent a letter to President Biden asking that his administration reschedule marijuana in a “timely” manner.
In September congressional researchers released a report stating that the DEA is “likely” to reschedule marijuana, with many believing it will be done prior to the 2024 presidential election.
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