UPDATED: DEA Considers Rescheduling Cannabis

DEA reclassifying cannabis schedule 1 schedule I Schedule II schedule 2 legalizing medical cannabis nationwide aug 1

If a widely-circulated report is correct, medical cannabis will be a legal, prescription-only drug in the U.S. as soon as this summer.

aNewDomain — The U.S. Drug Enforcement Agency (DEA) will soon announce its decision on downgrading cannabis from its current status as an illegal Schedule I substance.

In an interview with aNewDomain this week, DEA spokesman Russ Baer wouldn’t confirm or deny a widely circulated Santa Monica Observer report, which said the agency plans to make cannabis a legal prescription-only Schedule II drug sometime this summer.

Such a move would effectively legalize prescription medical cannabis in all 50 states and the U.S. territories.

A leaked DEA letter penned to a group of U.S. senators in 2015 said the law enforcement agency would announce its decision “by the end of the second quarter” of 2016. (Scroll below the fold to read the letter, which Baer said a senator leaked to the media in April.)

The letter is genuine, Baer said, “but we aren’t holding ourselves to any artificial time frame … what I can say is that we want there to be more research on the medical benefits and adverse effects of medical marijuana, and we want to remove roadblocks to that research.”

Schedule II drugs include such legal, commonly prescribed drugs as Abilify, Adderall, Oxycontin, Xanax and Percoset. Though 26 U.S. states in recent years have legalized cannabis in some form, it is currently rated as an illegal Schedule I drug, like LSD, heroin, peyote and methylenedioxymethamphetamine (ecstasy).

“We have not yet made a ruling, and as of today, June 20, marijuana remains an illegal Schedule I substance in the United States,” Baer said, adding that the Department of Health & Human Services (HHS) and the Food and Drug Administration (FDA) delivered the necessary recommendations and report to the DEA in April.

Update: Click here to read more what the DEA has to say now about the upcoming decision on medical cannabis scheduling.

The Controlled Substances Act of 1970 defines Schedule I drugs to have high abuse potential and little or no medical value.

According to the unnamed DEA lawyer who leaked comments to the Observer last week:

Whatever the law may be in California, Arizona or Utah or any other state, because of federal preemption this will have the effect of making THC products legal with a prescription, in all 50 states.”

DEA cannabis schedule 2 legalizing medical use nationwideThe reclassification would force Colorado, Washington, Alaska, Oregon and Washington, D.C. — which have made cannabis legal for recreational use — to revert to prescription-only cannabis status, the DEA lawyer suggested.

It’s possible, however, that the DEA could legalize prescription-only cannabis federally, while still leaving states open to decide how and whether to make it available at medical dispensaries and/or recreational outlets.

Click here to read the DEA’s comments on that matter.

Downgrading Schedule I drugs is exceedingly rare, according to a Brookings Institution report we reviewed. The DEA has only done so five times before.

The implications

At this writing, 25 states and the District of Columbia have laws legalizing marijuana in some form, even though the federal government made cannabis a Schedule I illegal drug under the Controlled Substances Act back in 1970.

In recent years, the feds have indicated that they would nonetheless give states the freedom to decide for themselves whether to allow cannabis for medicinal or recreational use, provided the states properly regulate it.

But the feds are free to change their minds at any time. After all, medical marijuana has been permitted in California for years now, but federal authorities have on multiple occasions seized property, raided clinics and attempted to prosecute growers.

Even if the U.S. stays committed to its fairly new hands-off attitude to state-legalized cannabis, the Schedule I classification makes life difficult for scientists and pharmaceutical companies who aim to research health benefits, contraindications and medical benefits of cannabis. Researchers have to jump through all sorts of regulatory hoops just to do their jobs.

Cannabis industry reaction to the idea of rescheduling was mixed. The execs we interviewed welcoming the DEA’s rescheduling of some cannabis products, like Marinol (medicinal THC tablets) and the cannabidiol (CBD) treatments in demand for young epileptic patients. But a wholesale rescheduling of all marijuana, which would crater the growing recreational cannabis retail industry, would be deleterious.

“While being helpful for the purpose of increasing the ability of researchers to study the plant, (downgrading) cannabis from being a Schedule 1 narcotic to a Schedule II narcotic would be grossly insufficient towards our goal of making sure both recreational and medical cannabis are available to the people that want it,” commented Mike Bologna, founder of the Denver-based cannabis consultancy Green Lion Partners.

“For the good of medical patients, business owners, recreational consumers and taxpayers, it’s vitally important that cannabis be removed from the federal drug schedule altogether,” Bologna said. “It’s also worth noting that Schedule II medical products need to be sold via pharmacies, which would likely disturb the dispensary processing/licensing component of the industry, at the detriment of medical patients and others involved in the process.”

A source close to DEA efforts who asked to remain unnamed told aNewDomain this evening that a rescheduling of cannabis medicinal products like Marinol or CBD is likely, but the rescheduling or descheduling of all marijuana is unlikely, meaning the recreational cannabis business is safe for now.

But if even some portion of cannabis is reclassified, the federal “war on medical marijuana” is over, most observers we talked to agreed.

petition to DEAWill legal medical cannabis clinics fight a Schedule II classification?

That was the opinion of the unnamed DEA lawyer quoted in the report. “The rule change will eliminate any reason for people to visit medical marijuana clinics,” the source said.

In an Inc. Magazine report about reclassifying cannabis earlier this year, Miami lawyer Andrew Ittleman pointed out that making cannabis into a legal, prescription-only drug would be “a nightmare for the (current) cannabis industry.”

The relatively small players who operate such clinics likely don’t have the resources to comply with the strict FDA rules and regulations that come along with Schedule II compliance requirements, he said.

The nascent marijuana industry isn’t ready to turn itself into a Big Pharma sector overnight, he added.

Further, the FDA could easily make cannabis legally available just from regulated pharmaceutical companies.

If it rescheduled all cannabis, and not just THC-based Marinol tablets or CBD, as it did opium before it, smokable weed would go underground. Again, lawyers, business leaders and analysts we talked to while reporting this story found such a move to be unlikely for a long list of practical enforcement and economic reasons.

Why now

Why now? “Marijuana enforcement is a big drain on DEA resources,” the source said.

Fair enough. But that has been the case for years and years.

Another answer might just be that the time is right. It is not as if the DEA is springing a reclassification on anyone, if the report is true, that is. As we’ve already noted, DEA officials back in February said they were reconsidering the Schedule I classification for marijuana.

Another contributing factor might be that the DEA wants to make the decision before a new U.S. president is sworn into office in January 2017. Maybe there are too many unknowns. Presumptive Republican nominee Donald Trump, for example, has long said he approved of decriminalizing cannabis and that he supported federal legalization. But in recent months, he has flip flopped.

The DEA has the authority to make and change drug classification rules. However, it is first and foremost a law enforcement agency, said the DEA’s Baer. And it is constrained by the Controlled Substances Act and other laws the Congress draws up, he added.

In 2011, the DEA rejected a petition asking it to reschedule medical cannabis. The reclassification decision the DEA is now considering, he added, is a response to two other petitions asking the agency to consider reclassifying medical cannabis: one petition from former Washington Governor Chris Gregorie and Rhode Island Governor Lincoln Chafee (2011), the other from New Mexico nurse Bryan Krumm (2009).

“What is being underreported right now,” added DEA spokesman Baer, “is how complex the medical marijuana plant is. It has a number of active (chemicals),” he added, “THC and cannabidiol (CBD) compounds being just two of many.”

The issue isn’t just a black and white one, he added, pointing out that the DEA must consider all the research, all the parts of the plant that might have health benefits and adverse effects and the various pros and cons of synthetic THC, smokeable cannabis, tinctures and so on.

Marijuana isn’t high on the list of the law enforcement agency’s concerns, Baer said.

It’s all about resource allocation,” he said. “We’re not going to go chase the mom who picks up cannabinol for her epileptic child in one state (where it’s legal) and takes it to another state (where it isn’t). We just aren’t.

“Marijuana is important,” Baer added, “but most of our attention is focused elsewhere. We’re worried about the big drug cartels, about cartels working with inner city gangs and the diversion of their money flow.” 

Mostly, he said, the DEA is a law enforcement agency that is right now “overwhelmed and in the middle of an opioid crisis.” The agency is focusing on stopping the black market around fentanyl, fentanyl compounds and heroin, he added. “We are also working hard to prevent the people who are dying as a result of opioid overdoses … and trying to get people better access to treatment for opioid addictions.”

For aNewDomain, this is Gina Smith and David Street reporting.

UPDATE June 20, 2018: Here is the 26-page letter the DEA sent to seven U.S. senators in response to their 2015 query about whether the agency “acknowledges the mainstreaming” of marijuana. The letter is genuine, the DEA’s spokesman Baer told aNewDomain, but it was leaked to journalists by lawmakers. Moreover, the agency isn’t bound to its promise to arrive at a decision “in the first half of 2016” as the letter states, he said. Nevertheless, it does outline the process the DEA must follow in order to reschedule cannabis and is definitely worth a read. — Eds.

UPDATE June 21, 2016: Read more about the DEA’s response to our cannabis rescheduling questions here.

DEA April 16 2016 Letter

Here is one of the petitions that spurred the DEA to reconsider the current Schedule I status of medical marijuana. This one is from 2011, and signed by Rhode Island Governor Lincoln Chafee and former Washington Governor Chris Gregorie. Read it in full, below.

Cannabis Petition to DEA 2011 Gregorie Chafee

Cover image of DEA headquarters in Washington, D.C.: WashingtonTimes.com, All Rights ReservedInside image: Earthmed.com, All Rights Reserved.

About the author

Gina Smith

Gina Smith is a New York Times bestselling author and an award-winning journalist. A former correspondent for ABC News, Gina is the co-founder and editorial director of aNewDomain Media. Email Gina at gina@anewdomain.net and find her on Twitter @ginasmith888

48 Comments

  • Sorry, the voters passed the laws in legal states, the federal government bureaucrats CANNOT over ride those laws, period.

    • Legalization in the medical and recreational states exists only because recent administrations have looked the other way. Schedule II status would slap on another level of federal bureaucracy (FDA) that manufacturers and dispensaries cannot afford. All the next President has to do is declare that prescription drugs (like cannabis) are not for recreational purposes and it’s over: No more recreational dispensaries and the medical cannabis industry gets handed over to big pharma on a silver platter. The DEA knows this.

      • First of all, federal bureaucracies do not have the Constitutional authority to make policy, how they started to be able to do so decades ago should have been stopped from the beginning. Second, even though the POTUS does have the authority to reschedule, in reality even as the highest law enforcement officer in the US, even he doesn’t have the power to supercede voter approved referendums, the people have spoken. You will see massive riots in the streets if he tried.

        • 1. The authority of administrative agencies to make administrative law is in fact enshrined in the United States Constitution and “should have” or “would have” is technically irrelevant.

          2. The United States Attorney General is actually the “highest ranking law enforcement officer” in the country under the Constitution (Google it).

          3. State referendums have no authority over federal law.

          4. Rioting has no authority over any law.

        • Is that you, Jensen?

          Frankly, states’ rights, which is what you’re referring to, are a courtesy as far as the US Constitution is concerned. They would have dominance over the central government in a confederacy, whereas the US, after a couple of bad tries in the 18th C, scrapped the confederalist system for a federacy, in which the central government is dominant. Honestly, I think states’ rights need to be pulled entirely, along with other relics of the era before rapid mass communication (ie, the Electoral College). Then, I’ve seen a lot of women die or suffer because of vintage-style abortions because of all of that BS.

      • As fate has it, we the people don’t care about this law no matter what legislative advances or takeaways are made. Refer to last 70 years (Google it).

      • But they cannot patent a plant. What they can do is patent their delivery devices and extractions teks which GW has already done. You can be sure any changes will favor the pockets of the 1% who have successfully waged war on us for millenniums.

    • Same-sex marriage was legalized nation-wide despite certain states voting against. You don’t know what you’re talking about, Dean.

    • It’s complicated, more complicated than that, Dean. The DEA official I spoke with this morning pointed out again that, currently, weed is a schedule I and illegal. Yes, the states have passed referendums, but federal trumps gs

      • The Amendment that supposedly claims that federal law trumps state referendums is the 14th, which was improperly ratified in 1868, three years after the Civil War.

        In reality, the 9th and 10th Amendments gives us State’s Rights. In reality, the Civil War was not fought over slavery, but instead the federal government was pissed that the much richer southern states seceded, leaving the much poorer northern states to struggle. The only reason why Nevada was brought into statehood in 1861 was for their gold and silver deposits and mining, to help them pay for the upcoming war. I know that everyone claims that slavery was claimed as the basis for the war, but in all truth, if you read the 1860 Lincoln-Douglas debates, it was barely mentioned in passing, and then both Douglas AND Lincoln joked about it.

        After the war untold multitudes of carpetbaggers invaded the southern states, taking over their state and local governments, thus putting in their votes to unethically ratify the 14th Amendment, allowing the federal government more power over the states.

  • Fucking idiots cocaine is not scheduled 1, so if they dont get their facts right why would this be true at all?

  • This is a states rights issue. If you go against the will of the people who voted for freedom, you can expect major consequences..

    • The story was published in the Santa Monica Observer last night. I give it a high rating the Bull Hockey scale. The original author is legit as is this author. A conversation probably happened with the DEA lawyer but who one knows if he was just yapping his opinions.

      • It will be interesting to see if the unnamed DEA source the Santa Monica Observer used is just floating the idea to gauge reaction ..

        Years ago, as a college newspaper reporter, I was first to break the story that the DEA was moving to classify Ecstasy as a Schedule 1. I remember no one believed my story because how could it appear in such a small paper? Anyway, we do know the DEA is considering the reclassification …

        It’s intriguing and timely to imagine the ramifications, depending on what the DEA decides. We’ll see. gs

  • The last letter to the senate inquiry into the two standing petitions to reschedule the marijuana plant said a report should be ready by ”the end of the first half of 2016”. A lot of people are digging into this story. We know the decision was made months ago. It seems like a big change like this, that doesn’t make sense by the way with S2, but it would leak in more than one place.

    I don’t expect any change from the DEA. But if they were going to do something productive it would be to remove the botanical marijuana from the schedule. Plants shouldn’t be on there. Since Marinol is already at S3, no natural derivative of concentrate should be higher on the schedule than the synthetic version of THC. The plant should be deferred to states to decide how they want to regulate.

    • IMO, Franklin, that is my guess they’re going to do. Make synthetic THC, CBD other medical cannabis treatments schedule II. Keep the rest Schedule I, leaving the taxation and recreational issues with the states. The DEA official I spoke to this morning repeated several times how “complicated” the marijuana plant is — and repeatedly said that it wishes to remove research roadblocks.

      • Marinol is synthetic THC and it is already Schedule III. Logically, botanical marijuana shouldn’t be on the schedule as it’s not a dangerous substance and it’s a plant not a drug. Any other form or combination of cannabanoids should be no higher than S3 in my opinion.

        The marijuana plant is not more complicated than the coffee plant or the grape vine. We do not know what all the compounds in either of those plants. Coffee is banned in the LDS religion in America. No law against it in Utah yet, and no labeling of how much caffeine is even in a kid’s soft drink. It’s not easy to have any faith in the logic of the FDA and DEA.

        It’s only complicated if we try to evaluate a plant using a form designed for a synthetic drug. The best car in the world won’t pass a basic boating safety test. The FDA has never approved any whole plant as a medicine. There are two extracts in the botanical drug section. The makers of Savitex managed to get approval in Europe by identifying a few hundred compounds. But I think the DEA had that research in their last denial.

  • Pot is safer than Abilify, Oxycontin, Xanax and Percoset. So why on earth is it illegal while the man made poisonous drugs are legal?

    • The legalization of Cannabis and Hemp threatens the revenue of eight major corporate interests, which are, fabric, timber, prisons, oil, tobacco, rehabs, drug testing, and most of all, pharma. If Cannabis and Hemp were legalized overnight, lost money would reach hundreds of billions annually. Prohibition is profit.

    • Hey, I’m not allergic to a lot of opioids, and my daily pain levels terrify even pain specialists. Can’t say as much for weed, which nearly sent me to the ER when I walked past a stoner’s dorm in college when the dip wasn’t toking.

  • If it was true.. it still is a smack in the face.. in my opinion.. Schedule 2 ….. ” “Schedule II/IIN Controlled Substances (2/2N)
    Substances in this schedule have a high potential for abuse which may lead to severe psychological or physical dependence.

    Examples of Schedule II narcotics include: hydromorphone (Dilaudid), methadone (Dolophine), meperidine (Demerol), oxycodone (OxyContin, Percocet), and fentanyl (Sublimaze, Duragesic). Other Schedule II narcotics include: morphine, opium, and codeine.

    Examples of Schedule IIN stimulants include: amphetamine (Dexedrine, Adderall), methamphetamine (Desoxyn), and methylphenidate (Ritalin).

    Other Schedule II substances include: amobarbital, glutethimide, and pentobarbital.”””

  • This is a good point, Dean. Certainly there will be lots of lawsuits on the voter referendum issues you mentioned.

    • Thank you Gina. The power that our gov’t had put into bureaucracies to make policy is downright unconstitutional, and no politician in their right mind would dare try to reverse our votes through Congressional action. I say let the lawsuits begin.

  • Methamphetamine is a Schedule II drug, not Schedule I. I have been offered the choice to utilize it awhile ago, to mitigate the symptoms of A.D.H.D. It’s kind of funny, I have heard people try to make the argument that cannabis legalization is a slippery slope, and whats next legalize meth? Meth is legal, though it is often acquired illegally, through unlicensed pharmacists, from unregulated underground manufacturing processes. Drug dealers to be more succinct. This reclassification of cannabis will be nice, finally federal employees won’t be required by law to lie about cannabis anymore. Yay! Step in the right direction I think.

    • Thank you for that catch. I thought I had it as a schedule II example. I made the change. Good eyes!

  • Methamphetamine is not a Schedule I drug. It’s on Schedule II. It is prescribed for ADHD, appetite control, and narcolepsy.

  • The Supremacy Clause of the United States Constitution (Article VI, Clause 2) establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the supreme law of the land. Federal law supersedes state law.

  • The people don’t and won’t care legal or illegal, I find this whole thing humorous. Where’s my popcorn?!

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  • “We aren’t holding ourselves to any artificial timeframe”
    No, but you’ll continue to hold the American people to an artificial sense of justice.

  • It is already a done deal everyone – it’s over for the entrepreneur but it was a fun ride while it lasted for sure. The Cannabis Care Act has already been written. Do you think the Affordable Care Act (aka Obama Care) was really rolled out as it appeared to be under President Obama? Do you really believe that those 11,000 pages of words were created in those few months from the time Obama supposedly conceptualized the vision to it becoming a final document? Do you have any idea who the real visionary of ACA was? It was Hillary who many years prior had commissioned the work by her long-used consultant friends at firms unknown, but similar to McKinsey, Boston Consulting Group, Booz & Co., Bain and K Street Lobbyist Consulting Firms and legal firms.

    The rollout of the Cannabis Care Act (or whatever label they put on it) might go something like this: 1) we get a new President, 2) Cannabis is rescheduled as a level 2 drug (every silly stoner celebrates on cue), 3) the President offers a vision for the future to make cannabis available to the masses, 4) the President rolls out the Cannabis Care Act (CCA), 5) the President declares there will be 6, 7, 8 or however many exclusive licenses granted for cannabis production and distribution nationwide (all the usual players like Bayer/Monsanto, DuPont, McKesson, Dow, 3M, Merck, Altria Group etc.), 6) the President will give 30 days or so for all entrepreneurial cannabis producers, dispensaries and product companies to cease operations and close their doors so the real cannabis elites can begin their operations and 7) cannabis will become a pharmaceutical product, become very expensive for the masses and be highly regulated and then 8) many people will go back to growing it in their closets and the forest and things will be as they ever were and the Prison Industrial Complex rolls on with a never ending stream of easy to manage milquetoast MJ inmate cash cows.

    Think this isn’t true? Think this won’t happen? I am betting there is a higher than 50% probability it will, in fact, it is already written and in the can and just waiting for the announcement and rollout. Did we really think a bunch of nobody’s would win over the corporate elites? Silly serf’s 😉 BTW, the stoner culture entrepreneurs are screwing it up anyway, so maybe big business is the better platform…

  • NNNNOOOOOOO!!!!!!!! We must have it de-scheduled completely!!! We must be able to have this plant in our yards so we can juice it & use it daily!!

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