What’s Really Going on With the DEA and Marijuana Rescheduling? A Timeline

There’s been a lot of news recently surrounding the Drug Enforcement Administration’s (DEA) review of marijuana as a Schedule 1 drug. Here’s a timeline of what’s happened so far, and what we can expect going forward.

In October, 2022 President Biden issued an executive order that pardoned thousands of federal marijuana offenders, while also initiating a federal review of marijuana as a Schedule I drug.

Here is a timeline of what has happened since.

August, 2023

In August, in a letter addressed to DEA Administrator Anne Milgram, the Department of Health and Human Services (HHS) asked for marijuana to be reclassified as a Schedule III drug under the Controlled Substances Act following a nearly year-long review.

Under current federal law, marijuana is classified as a Schedule I drug, putting it alongside hard drugs such as heroin and indicating that it has “no known medical benefit”. Being a Schedule I drug makes it illegal for all uses.

Schedule III drugs, on the other hand, are usable nationwide for prescription use, with other Schedule III drugs including codeine, testosterone and ketamine.

September, 2023

On September 5, an official with the Biden Administration told us it’s their belief that marijuana will be moved to schedule III prior to the 2024 election.

A report released nine days later by the Congressional Research Service (CRS) stated that it’s “likely” the DEA will reschedule marijuana to reschedule III, which will have “broad implications for federal policy”.

October, 2023

On October 27 a bipartisan coalition of 31 members of the US House of Representatives sent a letter to the DEA urging them to consider fully descheduling marijuana, which would effectively end marijuana prohibition nationwide while allowing states to decide their own regulatory policies.

November, 2023

In mid-November Senator Gillibrand sent a letter to the DEA requesting marijuana be reschedule, while cementing her support for fully descheduling it. Senator Gillibrand is Chair of the Subcommittee on Livestock, Marketing and Agriculture Security as well as Chair of the Subcommittee on Emerging Threats and Capabilities.

December, 2023

In early December HHS released an over 250 page document explaining their rationale for wanting the DEA to reschedule marijuana, with some of the information redacted (it wasn’t until the following month that the department released the fully unredacted document). Over 150 of these pages were spent discussing marijuana’s potential medical value. The department argues that since marijuana does have known medical value, it should not be classified as a Schedule I drug.

On December 19 the DEA sent a letter to congressional lawmakers confirming that their review of marijuana as a Schedule I drug is currently underway, while noting that the agency has “the final authority” when it comes to any rescheduling effort.

“DEA has the final authority to schedule, reschedule, or deschedule a drug under the Controlled Substances Act, after considering the relevant statutory and regulatory criteria and HHS’s scientific and medical evaluation. DEA is now conducting its review”, said DEA Acting Chief of the Office of Congressional Affairs Michael Miller.

January, 2024

On January 12, Colorado Attorney General Phil Weiser led a group of 12 state attorneys general on a letter encouraging the DEA to reschedule in the interest of public health and safety.

On January 15 the secretary HHS confirmed, for the first time, that their agency has recommended to the DEA that marijuana be rescheduled to Schedule III, while confirming they are in continuing talks on the issue.

On January 25 an official with the DEA requesting to remain anonymous told us that the agency is “on track for rescheduling to happen before the end of summer. Most likely in August.”

On January 29 US Senator Kirsten Gillibrand and Congressmember Jerrold Nadler joined numerous New York lawmakers and marijuana reform activists to call on the Attorney General and the Drug Enforcement Administration (DEA) to deschedule marijuana.

February, 2024

On February 6 attorney Adrian Snead, a partner at firm Porter Wright Morris & Arthur LLP who previous worked for Senator Jeff Merkley (D), said that an announcement regarding the DEA’s decision could come within a matter of days.

“Big #cannabis announcement is coming from the Administration this week”, Snead said in a post on LinkedIn. “A highly placed Administration source confirmed that there will be a big announcement regarding cannabis likely this week.”

On February 8 Congressmember Earl Bluemauer (D-OR), co-chair of the Congressional Cannabis Caucus, sent a letter to DEA Administrator Anne Milgram requesting answers to several poignant questions regarding the agency’s review of marijuana as a Schedule I dug.

On February 19 a report released by the FDA says that when they were conducting their review of marijuana as a schedule I drug, the agency not only examined a plethora of scientific research, they had a team of researchers who spent months analyzing thousands of posts on various social media platforms, many of which were marijuana consumers putting forth anecdotal evidence of its therapeutic and medical benefits.

What’s Next?

At this point it’s unlikely anyone but a few select people at the DEA and maybe HHS and White House know exactly when the DEA will come to a decision on rescheduling marijuana. At this time, all signs point to an announcement coming in a matter of weeks or months, with an actual change coming prior to the 2024 election. However, until there’s an official announcement from the DEA, HHS or President Biden, nothing is certain.

Implications of Rescheduling vs. Descheduling

Rescheduling marijuana would legalize it for prescription use across the country. This would also give medical marijuana patients and businesses that are in compliance with their state’s laws a bevy of federal protections and benefits not currently afforded to them, including allowing medical marijuana dispensaries to take federal tax deductions.

Descheduling marijuana would decriminalize it nationwide, briskly ending the plant’s federal prohibition. This would give states the authority to fully determine their own policies without fear of federal interference. Descheduling would not force a state to legalize marijuana, but it would fully allow them to do so. It would also allow the above-mentioned benefits to apply to recreational marijuana consumers and businesses, and not just patients (for example, a marijuana consumer could not be denied their gun rights based solely on their marijuana use).

Given HHS has recommended a move to Schedule III, it seems more likely the DEA will reschedule than fully deschedule marijuana, but it’s possible the increased calls from lawmakers and the public to deschedule could lead them to put more consideration into the move than they otherwise would have.

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