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A Guide to Federal Drug Rescheduling (And What It Means for Cannabis)

October 19, 2017
(Carolyn Kaster/AP)
Could the US ever legalize cannabis federally? The simple answer is yes, but the reality is far more complex. The reason laws and regulations around cannabis are so complicated leads back to the federal government – more specifically, the Controlled Substances Act, Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970.

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A Little History About the Controlled Substances Act

The Controlled Substances Act (CSA) was signed into law by President Richard Nixon on October 27, 1970. The act divides all known medicines, substances, or drugs into various categories based on their potential for abuse, medical applications and known benefits, and safety considerations. The Drug Enforcement Agency is tasked with enforcing the inventory management, records, and security of controlled substances, and individuals who order, handle, store, and distribute must be registered with the DEA.

The CSA has been amended many times over the years. For example, it’s been changed to abide by the Convention on Psychotropic Substances, to include anabolic steroids at Schedule III in 1990, and to help divert methamphetamine trafficking in 1993.

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Scheduling Controlled Substances

The tiers of drugs range from Schedule V – considered the least dangerous and therefore, requiring the least amount of regulations – all the way up to Schedule I, a tier that is considered the most dangerous, with the strictest regulations and “no medical benefit,” which includes LSD, heroin, and cannabis.

In order to be categorized as a Schedule I substance, the drug must meet three criteria:

  • The drug has a high potential for abuse
  • The drug has no currently accepted medical use in treatment in the United States
  • There is a lack of accepted safety for use of the drug under medical supervision

Drugs may be rescheduled at a lower level or removed entirely from the list of Controlled Substances, but the process is rigorous and the criteria is incredibly restrictive.

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Petitions to Reschedule Cannabis

The first petition to reschedule cannabis from Schedule I to Schedule II was filed in 1972 by the National Organization for the Reform of Marijuana Laws (NORML), but the petition was not given a hearing for fourteen years. In 1986, the petition was finally considered by the DEA, but the debate continued for years.

It was during this trial that DEA Administrative Law Judge Francis L. Young concluded that marijuana is “one of the safest therapeutically active substances. By any measure of rational analysis marijuana can be safely used within a supervised routine of medical care… The overwhelming preponderance of the evidence in this record establishes that marijuana has a currently accepted medical use in treatment in the United States for nausea and vomiting resulting from chemotherapy treatments in some cancer patients.  To conclude otherwise, on this record, would be unreasonable, arbitrary and capricious.”

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Despite Young’s conclusion, the DEA Administrator at the time, John Lawn ultimately rejected the petition 22 years after it was first filed.

In 1995, High Times and former NORML Director Jon Gettman filed another rescheduling petition, using studies of the endocannabinoid system conducted by the National Institute of Mental Health between 1988 and 1994. The DEA officially denied the petition on April 18, 2001, a decision upheld by the US Court of Appeals in May of 2002.

Another petition was filed by Americans for Safe Access and the Coalition for Rescheduling Cannabis in 2002, but was ultimately denied in 2011. Americans for Safe Access filed an appeal in January 2012, which led to a hearing in October, before another rejection on January 22, 2013.

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Who Holds the Power?

There are only a few select entities with the power to make such a big change at a federal level. Cannabis may be rescheduled through Congressional legislation; an example of this is the CARERS Act, repeatedly proposed by Senator Cory Booker (D-NJ), to no avail.

  • Cannabis may also be rescheduled at the executive level by the President of the United States.
  • The Controlled Substances Act also provides a process for which the US Attorney General may reschedule cannabis legislatively.
  • The Drug Enforcement Administration evaluates all petitions to reschedule cannabis.
  • The Department of Health and Human Services, however, also carry as great deal of power in the rescheduling decision process.

The DEA must first accept the petition, which is no small feat, as illustrated by past attempts to reschedule cannabis. The Health and Human Services Secretary must then submit a “scientific and medical evaluation, and his recommendations, as to whether such drug or other substance should be so controlled or removed as a controlled substance.” The HHS Secretary has the power to reschedule cannabis in their own right, if they so choose.

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In order to classify a drug or consider whether a substance should be rescheduled or decontrolled, the determining factors are as follows:

  • Its actual or relative potential for abuse.
  • Scientific evidence of its pharmacological effect, if known.
  • The state of current scientific knowledge regarding the drug or other substance.
  • Its history and current pattern of abuse.
  • The scope, duration, and significance of abuse.
  • What, if any, risk there is to the public health.
  • Its psychic or physiological dependence liability.
  • Whether the substance is an immediate precursor of a substance already controlled.

The President, the Attorney General, the Secretary of Health and Human Services, and Congress all have the power to reschedule cannabis.

With each new Congressional bill proposed, with each new politician that recognizes the therapeutic value of cannabis, with each new state that embraces medical cannabis, with each new voice speaking out in favor of cannabis, the US grows ever closer to legalization.

Lisa Rough's Bio Image

Lisa Rough

Lisa is a former associate editor at Leafly, where she specialized in legislative cannabis policy and industry topics.

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  • Franklin

    The DEA will never reschedule as the rules are written. Simply for the fact that marijuana is the most commonly consumed substance on schedule without a prescription, They boxed a plant in as drug with all the negatives of each. The other factor is the final part of “The Test”. Even if the FDA and HHS recommend a schedule change, there is still a final test.

    That part of the test takes in the opinion by coded groups with Law Enforcement being one vote that will always be “No”. Education is a representation by High School principles and education administration types that love the old drug war. Another vote that will always remain “No”. In the final phase Social Workers and Rehab workers have the exact same vote as HHS and the FDA. Those political groups are the milkmaids on that 2 trillion dollars failed war on drugs. Has a Schedule 1 substance ever been moved down?

    • What about the voice of the people? Don’t they have a say about it?

      • Nightmask

        lol you think those in power actually listen to the people? Bwahaha. They don’t. Those in power do not care about the people, all they care about is the status quo of power, profit, and control. And that’s why the ‘powers that believe they be’ won’t want to reschedule or decriminalize cannabis because it would mean relinquishing power to dictate what other human beings can or cannot do with their own body or grow/consume in their own house, giving up billions in profit from pharmaceuticals and the prison industrial complex (and the lobbying/bribes that go with it), and giving up the control they have over other people to fine them large sums of money and/or put people in prison and otherwise destroy their lives, and all because of a plant that is less harmful than the majority of so called “safe and effective” drugs on the market, and that’s not even getting into the harms that legal substances like alcohol and tobacco can cause.

        • I do know that the people still have the power to vote out people who won’t vote for legislation that is what they want but they first have to pay attention to the voting record of the elected.

        • Guitarzan

          Sad but so very on point…

  • Gerald Garrett

    Never elect another prohibitionist to any public office within America.

  • eco_man

    The president alone can not reschedule cannabis.

    • swooper

      yes, the President absolutely CAN reschedule cannabis at the stroke of a pen.

      • Nope, eco_man is right.

        There are two issues — one is the Controlled Substances Act itself. The CSA contains a process (with hearings and public comment) for the AG to remove or reschedule marijuana. But no, he cannot do it unilaterally without going through that process.

        Further, there can be treaty factors. HOWEVER, there is the “over-the-counter sale” exemption, which could arguably apply. It would be immediately challenged.

        There is no direct Executive authority cited therein. That could bear on the CFRs (21 CFR 1308) but not the statute.

        The way around this is a Bill specifying that marijuana (Genus Cannabis, preparations thereof, etc) are deemed removed from 21 USC Chapter 13, 21 CFR 1308 and all BATFE regulations. Now getting that *passed*…..

    • David Manevich

      Yes the president can all by himself only reason none have done it yet is they feel it wouldve been career suicide politically speaking. This is not my view on politics and cannabis just stating politicians reasons for not rescheduling so far from a presidents view that is.

      • eco_man

        Neither the president nor the attorney general can reschedule cannabis by themselves. Not even together. Rescheduling is a process set out by law. See the Wikipedia article titled “Removal of cannabis from Schedule I of the Controlled Substances Act”. See the “Process” section.

        • James Filegar

          Yes the President CAN reschedule Marijuana. By executive order. With that said, the next Bozo in
          office can rescind said order.

  • Michael L. Wallace Jr.

    Marijuana was / is / always will be the “CURE” . Prohibition deprived the body of Cannabinoids throwing our bodies Homeostasis out of Whack . Created a source for Synthetic Drug Companies to feed on . Years of Cannabinoid Deficiencies have degraded our Health with a Host of Disease & illnesses . The DEA & Jeff Sessions are Genocide Murderers .

  • Laura P. Schulman

    Can you imagine cannabis as Schedule II? What a nightmare. (Schedule II is the same as oxycodone, fentanyl, and other drugs that have high lethality.) First you’d have to find a doctor to prescribe it. No refills on Schedule II, so even if you found a doc, monthly trips for refills. Schedule II drugs must be purchased from a pharmacy. Most are kept in a safe in said pharmacy, just like opioids. No more lovely dispensaries! And of course the endless rounds of urine tests…way to drive cannabis back underground!

    Nope, we have to liberate the herb, my friends! Don’t let Tha Man put our medicine in jail.

    • Rick Pauley

      At least it would be possible.

    • Jackson Shredder

      The black market would thrive even bigger than before. Schedule II is a waste of time.

  • ragnarb

    I was watching AG Session testifying before some congressional boobs, and was struck by his answer concerning the government study of medical marijuana. He said he was for more of it; cool. But here’s what was stunning. He said they are supplied with pot from only one grower, which of course, seriously limits any real study. He did say that he wanted more study, with more growers. He said they are being petitioned now by 26 growers. So; yes, legalization will happen. But the easiest thing would be for the states to have reciprocity among themselves, like drivers licences etc, and get support for California republican, Dana Rohrabacher, who is pushing the issue directly, by offering a bill for the feds to recognize medical marijuana.

    • Eric Kent

      We the people want legal access to Cannabis with little to no Governmental interference. So here this is for you our elected officials. Wake up! The people want this now! Deliver it or we will just go underground again and fuck you and your TAX money.

      • Jackson Shredder

        I could not have said it better myself Eric !! That nails it !!

      • David Manevich

        Hear hear way to tell em

    • lovingc

      The thing of it is that Jeffy is the one blocking research in the first place.
      If you saw the crap they provided for PTSD research you would see what government growers produce. It was not even fit for human consumption. Full of mold and pesticides, reminded me of the worst pound of mexican pot I ever bought. No buds just shake. That was in the seventies and I paid a whole $100.00 for it.

  • Joan

    The most important question is how putin feels about cannabis freedom. He is running the show.

    • lovingc

      Do you really have to ask?

    • christie

      Thanks LOL I needed to laugh.

  • Bear Will

    Foot dragging for sure, Just rescind the initial law enacted in October 27, 1970. B.S. game is over then, no schedule, no crime, free to everyone.

  • lovingc

    We need to reschedule Jeffy as toxic. Not fit for anything, and dangerous to children and small animals.

  • Jeremy Haynes

    Ok 29 states of USA has made it legal. witch means majority of the states of USA want Cannabis for medical.
    Why is this not brought up in Congress?
    Not to take jobs but a retrain them to except the Cannabis.
    What can Cannabis do for us? Taxes placed on Cannabis can be put in use.

  • Jeremy Haynes

    Here is a thought have all grower grow food not just Cannabis but grow food make the food free now we would not need foodstamps
    Is that not the biggest problem on topic where are we going to get the money ?

  • Anthony Cain

    all about the money that why it not legal …WTF they have patents to cure many illnesses

  • RainmanGump

    big pharma will lobby against any and all decriminalization at the federal level. they stand to lose billions if the feds decriminalize cannabis and will therefore spend hundreds of millions to lobby congress to keep things just as they are. the DEA? decriminalizing the most popular “drug” in the US would cut them too deep, so they’re not going down without a fight either. however, once a majority of states go recreational it will be harder for the federal judges to ignore the will of the people. work at the state level where ever you are and support those working towards the same ends in neighboring states. Decriminalization has to be the goal. Cannabis as an over-the-counter controlled substance like alcohol will probably be the best we can hope for. Medical Marijuana leaves too much regulatory power in the hands of state and local governments. Watching them destroy what was a perfectly functioning and very peaceful, for the most part, “black-market” industry here in Michigan is enough to teach anyone a lesson in free market economics.
    As Michigan moves forward with it’s latest phase of Medical legislation it also becomes glaringly apparent that the heavy hitting investors have learned from the patterns established in other states and are helping to shape the laws governing Medical marijuana. The state intends to track the plants from cradle to grave and control every step of the process, adding it’s hefty fees along the way. Besides the normal start-up costs which any small business must anticipate, the state will also require that licensed business’ have heavy cash reserves on hand. $300k is the current number, and that’s enough to either push out or keep out many small business people. Combine that with the fact that all existing dispensaries must shut down by December of this year or face censure when applying for a license when they become available in 2018 and risk of prosecution by local authorities, if they stay open, and you can see the writing’s on the wall. Time to push out the mom-and-pop and make room for the good ol’ boy network. aka Croney-Capitalism.
    I say stay small and grow your own whenever you can. Tents are pretty cheap and produce good results. And in the mean time, push for decriminalization where/when-ever you can. Peace my brothers and sisters.

  • Da Choosta

    The AG can’t make law…only enforce them