As cannabis consumers, we are often the go-to for friends and family who want advice or information on the latest news surrounding this ancient plant. This year, holiday dinner table and party discussions may turn to the headlines around the rescheduling of cannabis. So, here is a short and accessible guide to rescheduling so that you can continue to be the de-facto cannabis expert in your circle!
Drug schedules were part of the Controlled Substances Act (CSA) passed in 1970 by then President Richard Nixon. The idea behind the CSA was to develop drug schedules based on a substance’s accepted medical use and propensity for addiction and abuse. The CSA divided drugs into five groups or “schedules'' using this criteria as a guide. Schedule I drugs were the most restricted and deemed to have no accepted medical value, and a high rate of addiction and abuse. Schedule V drugs have accepted medical uses, and a low potential for abuse and addiction. Schedule I drugs include heroin, MDMA, LSD and psilocybin. Schedule V drugs include cough suppressants with small amounts of codeine, drugs used to treat diarrhea, and some anticonvulsants like Lyrica.
At the time the CSA was passed, cannabis use in America was gaining favor, especially among anti-war activists, free thinkers, intellectuals and minority groups. Nixon viewed these groups as enemies of his law and order agenda. Years later, it was revealed that Nixon was seeking a way to control these populations and reduce their power and influence…and that cannabis may hold the key to getting what he wanted. In an interview with Harper’s magazine, Nixon’s domestic policy chief John Ehrlichman said:
“You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin. And then criminalizing both heavily, we could disrupt those communities,” Ehrlichman said. “We could arrest their leaders. raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”
So, when developing the CSA, cannabis was placed in Schedule I, with Nixon reasoning that this was a placeholder until studies could be done on the plant to determine the most appropriate schedule. He then formed the Shafer Commission, who was charged with studying cannabis and making a recommendation of where it should be placed in the newly formed drug schedules. Their findings were silent on descheduling specifically, but recommended a decriminalization model that prohibited the commercial production and sale of cannabis, but did not impose criminal sanctions for personal possession or use. They also revealed that cannabis use was usually non-problematic, did not lead to the use of other drugs, and was not of great harm to the user or society. Not liking this answer, Nixon largely disregarded the report and cannabis remained a Schedule I drug. Since, there have been attempts by groups like NORML and Americans for Safe Access to to challenge the Schedule I status of cannabis, especially as research on its medical value continued to grow. But each time they were caught in a spiral of buck passing between the DEA and the Department of Health and Human Services. This led to the current paradox of the Schedule I status of cannabis restricting the research needed to change the Schedule. We can’t show the medical value of cannabis without research, and the Schedule I status of cannabis prevents such research from happening.
Despite ongoing efforts to challenge the Schedule I status of cannabis, there had been no movement until earlier this year, when the Biden Administration directed the Dept. of Health and Human Services to review the relevant literature on cannabis and make a recommendation to the DEA about whether cannabis should move out of Schedule I. While the DHHS is the body responsible for making a recommendation based on the science, ultimately it is the DEA, a law enforcement agency that enforces the CSA, to have the final word. There were a few reasons for this push after decades of inaction. First, nearly all states in the US have some form of medical cannabis program. These vary from commercially based programs with access to a variety of cannabis products, to restrictive programs that only allow low THC products in the form of oils. Currently, 38 states have comprehensive medical cannabis programs. However, the large number of states embracing cannabis as medicine is in direct contradiction with the Schedule I status of cannabis claiming no medical value. Another reason is public support for medical cannabis. Fifty nine percent of Americans think that cannabis should be legal for medical and recreational purposes, and an additional 30% think it should be legal for medical use only. Finally, the FDA is seeing cannabinoid based medications make their way through their process. Epidiolex, a CBD based medication, was approved for use in the US, forcing the federal government to move its active ingredient, Cannabidiol into Schedule V, and Sativex, its THC based cousin is approved for use in several countries around the world, but not in the US, since THC is still Schedule I. All of these circumstances led the Biden Administration to send this directive to the DHHS. Adding to the progress is the fact that the Secretary of the DHHS is Javier Bacerra, who was previously the Deputy Attorney General for CA, a state that pioneered access to medical cannabis.
The DHHS came back with a recommendation to reschedule cannabis to Schedule III. This puts it in the same category as Marinol, the synthetic version of THC. Drugs in this category are accessed via a doctor’s prescription and distributed through licensed pharmacies and clinics as well as used in hospital settings. Many advocates believe that cannabis should be descheduled completely. Alcohol is not a part of the CSA and not considered a controlled substance. Many feel that since cannabis holds lower risk than alcohol, it also should not be in the CSA. However, if cannabis were to be removed from the CSA, it could not be reimbursed by health insurance companies or developed into FDA approved medications. Placing cannabis in a category with other prescription based medications gives it the label of medicine, and all of the rights and privileges that go along with it. This designation may also encourage states with no or limited medical cannabis programs to expand access and allow doctors to determine eligibility instead of state regulators. But, what does that mean for state legal medical and recreational cannabis programs?
The truth is, we don’t know. It is very possible that the rescheduling directive will contain a carve out for state level programs that allow adults to access cannabis products through dispensaries. It is hard to imagine the governors of the states that allow access to give up their tax revenue to transition cannabis into a strictly medical context. I could imagine a scenario where there are two pathways to access. One where cannabis is an FDA approved medication, available through pharmacies and reimbursed by insurance, and another path for regulation similar to supplements where products are available through dispensaries with the label “not approved by the FDA”. These products would not be subject to insurance reimbursement. One immediate change for cannabis businesses would be tax code 280E, which limits business deductions in an effort to prevent money laundering. This clause has been a major issue for cannabis companies who cannot take deductions like other businesses.
Right now, the issue is in the hands of the DEA. They received the recommendation from the DHHS and now they can approve or reject it, or send it back with their recommendations. They have no timeline to render their opinion, but experts believe that they will do so early next year as rescheduling would be a boost to President Biden in the next election, and the head of the DEA is a Biden appointee. But, we have been battling this issue since 1970, and timeliness has never been a part of the process. Recently, the governors of 6 states sent a letter to President Biden urging rescheduling before the end of the year, but I think that is unlikely.
For the first time since the Controlled Substances Act was passed in 1970, we are likely to see major changes at the federal level regarding how cannabis is classified and made available. While many rightfully feel that cannabis does not belong in the CSA at all, its use as a medicine suggests that being regulated along with other medicines may encourage access and allow for insurance reimbursement. At the same time, this pathway threatens existing state level programs that allow non-FDA approved products to be sold in dispensaries. The Department of Health and Human Services is recommending cannabis be moved to Schedule III, and it is now up to the DEA to approve or reject this recommendation.
Consider yourself an armchair expert in the rescheduling of cannabis, and the resident expert at your holiday gathering.