UPDATED: DEA Considers Rescheduling Cannabis

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.”

The 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.

Will 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