DEA Will NOT Reschedule Marijuana

cannabis lawThe Drug Enforcement Administration last night determined it will not remove marijuana from Schedule I of the Controlled Substances Act. This ends months of speculation about whether the DEA was ready to take a new approach to marijuana. Marijuana’s placement in Schedule I means the government continues to believe cannabis has a high potential for abuse, no currently accepted medical application, and that there is a lack of acceptable safety standards for its use under medical supervision. In other words, according to the federal government, marijuana is simply too dangerous to research. Other Schedule I drugs include LSD and Heroin.

According to a letter obtained by NPR, DEA chief Chuck Rosenberg gave “enormous weight” to conclusions by the Food and Drug Administration that marijuana has “no currently accepted medical use in treatment in the United States.” Rosenburg further explained that “[t]his decision isn’t based on danger. This decision is based on whether marijuana, as determined by the FDA, is a safe and effective medicine.” NPR also reports that federal authorities will increase the amount of marijuana available for research purposes and will make additional changes if the DEA’s “understanding of the science changes.” Currently, the federal government allows researchers to access only the marijuana it grows at the University of Mississippi.

This latest rescheduling saga started in April when the DEA announced it would consider rescheduling marijuana sometime in the first half of 2016. By Federal law, the DEA was required to follow certain procedures when considering whether to reschedule. The DEA enforces the federal Controlled Substances Act, which classifies drugs into schedules based on the danger of a given substance. The CSA gives the U.S. Attorney General authority to remove a substance from a schedule in the CSA. The Attorney General delegates the power to make decisions regarding the CSA to the DEA.  However, the power to alter a substance’s classification is not unlimited. The CSA requires the DEA undertake an eight-point analysis before removing a substance from a given schedule. The DEA must consider the following factors regarding cannabis:

(1) Its actual or relative potential for abuse.
(2) Scientific evidence of its pharmacological effect, if known.
(3) The state of current scientific knowledge regarding the drug or other substance.
(4) Its history and current pattern of abuse.
(5) The scope, duration, and significance of abuse.
(6) What, if any, risk there is to the public health.
(7) Its psychic or physiological dependence liability.
(8) Whether the substance is an immediate precursor of a substance already controlled under this subchapter.

After running through these factors the DEA elected not to remove marijuana from Schedule I.

The DEA’s decision not to reschedule is nothing new. In 2011, the DEA denied a petition to reschedule cannabis after finding that the eight-factor analysis favored Schedule I. As reported by Vice News, then-DEA chief Michele Leonhart explained:

At this time, the known risks of marijuana use have not been shown to be outweighed by specific benefits in well-controlled clinical trials that scientifically evaluate safety and efficacy. Long-term, regular use of marijuana can lead to physical dependence and withdrawal . . . as well as psychic addiction or dependence.

For the 2011 determination, the DEA largely cited to studies published before 2005. At that time, no state had legalized recreational marijuana and only 15 states allowed medical marijuana. Now, four states and Washington D.C. permit recreational use of marijuana and 25 states permit marijuana for medical use.  Groups like the American Medical Association and the American Academy of Pediatrics have called for the reclassification based on their own findings.

Marijuana’s status as a Schedule I substance makes it difficult to legally research the plant. This problem persists even in states where marijuana is legal because many research institutions (e.g., federally funded universities) risk violating federal law by possessing marijuana, even for research purposes. The DEA allows researchers to apply for permits to study the plant, but the bureaucratic difficulty involved has basically rendered this avenue moot. All of this results in a huge deficit in reliable research on marijuana, despite growing legalization, widespread use across the country and massive anecdotal evidence as to its efficacy as medication.

Ironically, the lack of reliable data on cannabis is the driving force behind the most recent failed attempt to reschedule. In 2015, Senator Elizabeth Warren and other Democratic senators penned a letter to the Attorney General urging the federal government to allow more research into the benefits of medical marijuana. The DEA’s April announcement regarding rescheduling was a response to that letter. At the time of this writing, details about the DEA’s process in rescheduling are not available.

The rescheduling of marijuana seems to be stuck in an infinite loop. Rescheduling requires scientific data showing cannabis has positive medical applications that outweigh its potential harm. Those studies are not happening because cannabis is a Schedule I substance that is too dangerous to research. But to get marijuana out of Schedule I, the DEA needs reliable research. . . .

For now — just like it has been for the last forty years — marijuana remains out-of-place in Schedule I and the war on drugs continues.