Six Democratic governors have sent a letter to President Joe Biden urging the administration to push the Drug Enforcement Administration to “reschedule” marijuana as a less dangerous Class III drug by the end of the year, a move that could be one of the biggest changes in federal drug policy in decades. The letter, sent Tuesday, was signed by Govs. Jared Polis of Colorado, Kathy Hochul of New York, J.B. Pritzker of Illinois, Wes Moore of Maryland, Jon Bel Edwards of Louisiana, and Phil Murphy of New Jersey.
With Republicans lining up in opposition to any rescheduling, marijuana policy could become an issue in the 2024 presidential election if the DEA moves to change the drug’s classification. That could prove a boost to the Biden campaign’s efforts to boost flagging support among young voters.
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In October 2022, Biden asked the secretary of Health and Human Services “to review expeditiously how marijuana is scheduled under federal law.” Biden also issued a pardon for all those convicted on federal charges of simple possession of marijuana and urged state governors to do the same.
The DEA currently classifies marijuana under Schedule 1 of the Controlled Substances Act, the classification meant for the most dangerous substances such as heroin and LSD, considered to have a high likelihood of abuse and no medical uses.
“Too many lives have been upended because of our failed approach to marijuana. It’s time that we right these wrongs,” Biden said in his White House statement.
Biden’s request initiated an official review process. The Food and Drug Administration conducted the review, which was then sent to the National Institute on Drug Abuse and HHS. In late August, HHS recommended that the DEA move marijuana from Schedule I to Schedule III, which would significantly loosen federal restrictions on the drug, Politico reported. DEA has the option of rejecting the recommendation. Schedule III includes such substances as ketamine and testosterone which are categorized as having “moderate to low potential for physical and psychological dependence.”
The DEA has yet to act on HHS’s recommendation. The governors wrote that federal law has failed to keep pace with the huge changes over the past decade in state cannabis policies and public opinion. They wrote:
"We hope that DEA will follow suit and reschedule cannabis to Schedule III this year, given that 88 percent of Americans are in favor of legalization for medical or recreational use," the governors wrote. "Rescheduling cannabis aligns with a safe, regulated product that Americans can trust." …
The governors said that rescheduling marijuana will increase public health and safety, and is a "big win for states, especially helpful for the 38 states that have some form of state-regulated cannabis policies in place, which represent 72% of the population."
Colorado Politics wrote that the governors also claimed that rescheduling will protect Americans from more dangerous drug use, arguing that a state-legal cannabis marketplace is safer than the alternatives, including opioids. They governors pointed out that even fentanyl has been found in unregulated marijuana. "While opioids killed more than 80,000 people last year, cannabis use killed no one," the governors wrote. The governors added that people will continue to demand cannabis regardless of government policies.
If people want the product, they will procure the product, as they always have. So, it seems obvious and sensible to us to make cannabis as safe as it can be for adult consumers while simultaneously protecting our children.
The biggest impact of rescheduling would be to remove financial and legal barriers to the emerging marijuana industry. Since marijuana is a Category I substance, cannabis businesses are not federally legal, and are prohibited from taking typical tax exemptions for business expenses. Businesses also have difficulties accessing banking services and raising cash.
The office of Colorado Democratic Gov. Jared Polis, who led the governors’ letter initiative, issued a press release that said:
This federal rescheduling would allow cannabis-related businesses to take ordinary tax deductions, like any other business. The cannabis industry generated an estimated $30 billion dollars in sales revenue in 2022 and is estimated to generate over $71 billion by 2030. Rescheduling cannabis will not only alleviate financial and safety concerns for businesses but allow a thriving industry to play a full role in the American business environment.
Andrew Kline, a Denver-based lawyer, told Colorado Politics that it’s unlikely that the DEA would reject HHS’s recommendation. He said once the DEA makes the decision and issues a draft rule that will be followed by a 60-day public comment period. It’s likely that someone opposing rescheduling would request an administrative law judge hearing within the DEA, and the judge would then make a recommendation to the DEA administrator.
Republicans are certainly ready to do that. In September, 14 Republican members of the House and Senate sent a letter to the DEA opposing any effort by the Biden administration to remove marijuana’s Schedule I drug status. They wrote:
Any effort to reschedule marijuana should be based on proven facts and science—not popular opinion, changes in state laws, or the preferred policy of an Administration … It is irresponsible for Health and Human Services (HHS) to recommend that marijuana be removed from Schedule I. It would also be irresponsible for DEA to act on this recommendation.
In October, six former DEA heads and five former White House drug czars sent a letter to the attorney general and current DEA administrator voicing opposition to the top federal health agency’s recommendation to reschedule marijuana. But Edward Conklin, executive director of the U.S. Cannabis Council, an advocacy and trade group, said in a statement reported by Politico:
We believe that rescheduling to Schedule III will mark the most significant federal cannabis reform in modern history. President Biden is effectively declaring an end to Nixon’s failed war on cannabis and placing the nation on a trajectory to end prohibition.
And in an indication of public support for loosening federal regulations on marijuana, a coalition of military veterans’ organizations sent a letter to Biden last week to asking him to ensure that the ongoing administrative review into marijuana’s scheduling status is completed in a “timely manner,” the website Marijuana Moment reported.
They praised Biden for his directive initiating the marijuana review last year that led to HHS’s rescheduling recommendation. Marijuana Moment quoted from the letter:
“This process represents a significant opportunity for our nation to lead with science over fear, and begin righting the wrongs of prohibition,” the groups, which include Iraq and Afghanistan Veterans of America, wrote. “The actions taken by your administration and HHS have been historic, and lay the groundwork for the significant work ahead, including the need to ensure that the Drug Enforcement Administration (DEA) expeditiously accepts the scientific and medically founded recommendation.” ...
“While the significance of cannabis rescheduling is unique to each community, as Veterans, reclassifying cannabis means a better future for those who chose to serve our country,” they said. “To us, it means access to life-changing medicine, to economic opportunity, to healthy futures—free of opioids, and to wellness without the weight and stigma of unscientific restrictions.”
And yet, the step of rescheduling marijuana falls short of demands by marijuana advocacy groups that the federal government remove cannabis completely from the Controlled Substances Act. “Rescheduling cannabis from 1 to 3 does not end criminalization, it just rebrands it. People will still be subject to criminal penalties for mere possession, regardless of their legal status in a state-level medical program,” cannabis advocate Justin Strekal told Politico.
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