In Historic Move, DEA Will Recommend Cannabis Reclassification

For the first time in history, the federal government has agreed that cannabis should be moved to a less restrictive category.

The U.S. Drug Enforcement Administration will advance a recommendation from the Department of Health and Human Services that cannabis be moved from Schedule I to Schedule III of the Controlled Substance Act. Cannabis has been in Schedule I, the most restrictive category, for more than fifty years. A move to Schedule III acknowledges its medical uses. 

“Today, the Attorney General circulated a proposal to reclassify marijuana from Schedule I to Schedule III. Once published by the Federal Register, it will initiate a formal rulemaking process,” the Department of Justice’s Director of Public Affairs Xochitl Hinojosa told Cannabis Wire in a statement.

Sources close to the rescheduling process who spoke on the condition of anonymity confirmed to Cannabis Wire that a memo from the DOJ’s Office of Legal Counsel – the Attorney General requested their legal opinion – is expected to be published alongside the DEA’s Notice of Public Rulemaking in the Federal Register. Some details about the memo: it will make clear that the Single Convention on Narcotic Drugs does not pose an obstacle to cannabis moving from Schedule I to Schedule III, that the two-part test that HHS conducted to support its recommendation is sufficient, and that DEA must substantially defer to HHS findings in support of Schedule III amid public comment. 

One outstanding question that will arise in the coming weeks and months is: how much will DEA defer?

HHS recommended to the DEA in August that cannabis be moved to Schedule III, following an extensive assessment of new data and research, and of medical cannabis programs across the country, as Cannabis Wire previously reported.

In October 2022, President Joe Biden called on the DOJ, within which DEA sits, and HHS to evaluate how the federal government classifies cannabis. He declared that “it makes no sense” that cannabis is in the same category as heroin.

The announcement was itself historic, as no U.S. president has called on their administration to conduct this kind of review. Past reviews have resulted from petitions, most often from reform advocates. In each and every case, DEA and HHS decided to keep cannabis in Schedule I. 

While the full impact of a move to Schedule III remains to be seen, some implications are clear. Primarily, there would be fewer hurdles for cannabis researchers with Schedule III, and such a move is likely to lead to a more robust research landscape. On the industry side of things, Schedule III would mark the end of a tax code that has led to a high tax burden. 

Today, a majority of Americans live in a state where cannabis is legal for medical or adult use.

Rep. Earl Blumenauer, co-chair of the Congressional Cannabis Caucus, said on Tuesday that the “Biden-Harris Administration is listening.” 

“If today’s reporting proves true, we will be one step closer to ending the failed war on drugs. Marijuana was scheduled more than 50 years ago based on stigma, not science. The American people have made clear in state after state that cannabis legalization is inevitable,” Blumenauer said in a statement. 

Already, Smart Approaches to Marijuana, the largest anti-legalization group in the U.S., has announced that it will challenge the DEA’s decision. “SAM intends to oppose the Attorney General’s decision in the rule making process and to challenge any final rescheduling decision in court,” the group said in an email.

The Associated Press first reported that the DEA will put forth a proposed rule this week.

This story will be updated as it develops.