Rescheduling Marijuana from Schedule I to Schedule II

Congress has expressed interest in rescheduling marijuana from a Schedule I to Schedule II substance in the near future. The Drug Enforcement Agency (DEA) announced it will rule on the idea of rescheduling cannabis this summer, possibly as early as June. Changing the status of marijuana to a Schedule II substance would make it no longer illegal, rather it would be considered a substance with potential medical use, but with a “high possibility for abuse”. Schedule II substances are defined by their possibility to lead to physiological or physical dependency and include Percocet, Oxycontin, and Fentanyl.

Some people in the marijuana industry have expressed concern that if marijuana is made a Schedule II substance that it would shut down the existing marijuana industry due to pending FDA approval on marijuana products. FDA approval would take years and hundreds of millions of dollars that most if not all cannabis businesses cannot afford. Clinical testing by the FDA, however, does not make the current cannabis industry automatically legal or immediately create approved pharmaceuticals. The process of rescheduling marijuana and circulating it as an official pharmaceutical could take time, but the industry should be able to continue to operate at its current capacity in the meantime.

Rescheduling Doesn’t Shut Down Industry

The Controlled Substances Act of 1970 gives Congress, and other relevant federal agencies, the ability to schedule and reschedule substances. The CSA directly outlaws state-approved enterprises of marijuana production and distribution. The Cole and Ogden memos, however, allow the marijuana industries to remain open in the states where they have been approved. The Cole and Ogden memos are a series of memorandum issued by the US Justice Department and allow for highly regulated, state-approved operations. The one main condition of the Cole and Ogden memos is that the state-approved marijuana industries cannot violate specific concerns of the Department of Justice, such as distribution to minors and the involvement of cartels in marijuana production.

The memos highlight the ability of enforcement discretion by the US president and administrative officials, allowing them to choose how and under what circumstances laws will be enforced. Since the Obama administration does not prioritize the enforcement of the CSA, in regards to cannabis within states with legalized marijuana industries, this should not change in the wake of rescheduling.

What Does Schedule II Mean for Existing Businesses?

Currently, the federal government has allowed for the marijuana industries in legal states to continue without intervention. If, at its current status, the marijuana industry is not being shut down, it is unlikely that if the government reschedules cannabis, declaring that it is less dangerous than previously thought, that they would then to work to close the industry. If there is any change, rescheduling cannabis is likely to relax the bureaucratic hurdles in the marijuana industry, rather than changing the way that state legal businesses operate now.

A Precedent Has Been Set

The Obama administration issued the Cole and Ogden memos in 2012, setting up the system in which the marijuana industry was allowed to continue in state-approved markets despite the CSA. These memos do not change if cannabis is rescheduled or when the Obama administration is no longer in power. The memos would have to be specifically rescinded in order for them to no longer apply. It is also not likely that these memos would change under the next president. Both Hilary Clinton and Donald Trump have indicated that they are comfortable with the current approach to marijuana legalization. Clinton has also explicitly argued for rescheduling and a state-based cannabis regulation system. Recommitting to the Controlled Substances Act would be complicated and costly. Reinstating the whole CSA would require shutting down the marijuana industry in every state where cannabis is legal. The politics of trying to move backwards on the current system in place for cannabis would possibly be too laborious and costly for any first term president to take on.

What’s the End Result of Rescheduling?

Over 80% of Americans approve of medical marijuana and 50% of americans support recreational marijuana legalization. Rescheduling will not do much to change the existing market, however, it does have many positive implications for the future of medical marijuana. Moving marijuana to a Schedule II substance would ease the restrictions on research, allowing for more clinical trials to be conducted across the United States. If rescheduling happens, the FDA approved medical marijuana products will be very different from what we see on the shelves now. There will most likely be more tablets and liquid forms of marijuana, made from isolated cannabinoids and compounds, rather than whole flowers. The FDA approved cannabis industry will provide a different aspect to the medical marijuana field than the current dispensaries offer.

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