The Drug Enforcement Administration (DEA) is currently conducting a review of marijuana’s Schedule I status. Here’s a timeline of how this review began, what’s happened since, and what comes next.
The DEA’s review of marijuana’s scheduling status was prompted by the Department of Health and Human Services (HHS) sending a letter to the agency in August, requesting marijuana be moved to Schedule III. This recommendation came after a nearly year-long review by HHS, which came at the request of President Biden via a late-2022 executive order. The decision is now entirely in the hands of the DEA, with no deadline for them to come to a decision.
Under current law, marijuana is a Schedule I drug, indicating it has no known medical value, it’s highly addictive and dangerous, and is illegal for all uses. Other Schedule I drugs include heroin and LSD. If moved to Schedule III, marijuana would be in the same class as substances like ketamine, testosterone and codeine, making it available for prescription use nationwide.
With that in mind, below is a timeline and overview of the DEA’s review, and the political and public discourse surrounding it.
September, 2023
On September 5, an official with the Biden Administration who asked to remain anonymous told us it’s their belief that marijuana will be moved to schedule III prior to the 2024 election.
On September 13 a report released 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.
Although HHS requested DEA move marijuana to Schedule III, they do have the authority to deschedule the plant altogether.
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.
On February 26 Congresswoman Sydney Kamlager-Dove (CA-37) sent a letter to the Drug Enforcement Administration (DEA) urging them to reject any argument in support of maintaining marijuana in Schedule I or Schedule II based on U.S. Treaty obligations.
March, 2024
On March 7 President Biden became the first president in US history to promote marijuana law reform during a State of the Union address. Biden mentioned “directing my Cabinet to review the federal classification of marijuana, and expunging thousands of convictions for mere possession, because no one should be jailed for using or possessing marijuana.”
According to a March 9 report by the Wall Street Journal, some top DEA officials are disputing HHS’s scientific analysis of marijuana and are at odds with other members of the Biden Administration.
On March 16 Vice President Kamala Harris said the federal government should reschedule marijuana “as quickly as possible”.
What Comes Next?
No specific timeline or date has been given by the DEA on when they will come to a decision on their marijuana rescheduling review. Signs point to an announcement coming in a matter of weeks or months, with an actual law change occuring 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, while giving medical marijuana patients and businesses that are in compliance with their state’s laws a bevy of federal protections and benefits. This includes allowing medical marijuana dispensaries to take federal tax deductions, and allowing patients to have their medicine covered by insurance in certain instances.
Descheduling marijuana would decriminalize it nationwide. 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.
