The Controlled Substances Act and Rescheduling Marijuana

By:Jon Gettman  HighTimes

Marijuana is regulated under federal law by way of the Controlled Substances Act (CSA). This, however, is a complicated proposition.

First, it may seem odd to many to discover that marijuana is actually regulated under current federal law.

 Second, while these federal regulations are exceedingly strict they have not prevented various states from implementing their own regulations, which are sometimes contradictory.
In more simple terms, the medical use of marijuana is prohibited under federal law but permitted under many state laws. Non-medical use of marijuana is prohibited under federal law but tolerated, by way of mild sanctions and/or sentencing policies, in almost every state.

The CSA categorizes controlled substances into five schedules, each with specific provisions regulating a substance’s manufacture and distribution, and effectively its use. Schedule I drugs are the most tightly controlled and are only available for research purposes. The other four schedules are distinguished by various levels of what the law refers to as “potential for abuse” and “dependence liability.” Cocaine, for example, has a much greater abuse potential than Valium; consequently Cocaine is a Schedule II drug and Valium is a Schedule IV drug.

Unlike Cocaine and Valium, Schedule I drugs have no accepted medical use in the United States and they have the highest potential for abuse compared to other scheduled substances.

Marijuana is a Schedule I drug. This too is a complicated proposition. Marijuana clearly has an accepted medical use in the United States, one recognized by the American Medical Association and 16 states, for example. Marijuana also clearly has a much lower potential for abuse then other Schedule I drugs, such as Heroin, or even Schedule II drugs like Cocaine.

When Congress passed the Controlled Substances Act in 1970 they recognized that marijuana did not meet the criteria for a Schedule I or II drug. But they also weren’t quite sure what to do about it. The National Commission on Marihuana and Drug Abuse was created to study the issue, and the Nixon Administration asked Congress to place marijuana in Schedule I until this Commission could meet, study the matter, and make some recommendations. Eventually this Commission recommended that marijuana be decriminalized throughout the United States, and many states responded.

Over the last 40 years most states have opted out of federal marijuana prohibition in one fashion or another. Some states no longer arrest people for possession of small amounts of marijuana, and issue citations or summons instead, punishing the infraction with a fine. Other states have conditional discharge policies, granting probation and expunging the individual’s record after a period of good behavior. Most other states, while retaining significant sentences in statute, in practice sentence most first time offenders to probation.

When it comes to the medical use of marijuana, 16 states now permit such use under state law and some even permit cultivation, distribution, and sale for medical use. These state medical marijuana laws provide legal and reliable access for patients with serious medical conditions but also, in many cases, generate significant tax revenue for state governments.

There have been three attempts to change the scheduling of marijuana under federal law. NORML launched the first attempt in 1972, and in what became an epic legal process this groundbreaking effort was finally rejected in federal court in 1994. This author, with the support of HIGH TIMES, launched a second attempt in 1995, arguing that marijuana did not have the abuse potential to qualify for Schedule I status. This effort ran into a roadblock in federal court in 2001; because the plaintiff was not personally affected by the government’s refusal to reschedule marijuana the action did not qualify for intervention by the federal courts. In response, this author, again with the support of HIGH TIMES, organized a coalition of advocacy groups and patients, The Coalition for Rescheduling Cannabis (CRC), and filed a new rescheduling petition in 2002.

Efforts to change the status of a substance regulated by the CSA must pass through the Drug Enforcement Administration (DEA). The process, while lengthy, is fairly straightforward. Petitioners compile scientific evidence to support their request and file it with DEA, which then sends it to the Department of Health and Human Services for review, which then sends back a review and their recommendation. The DEA then studies the issue further and publishes their decision. After the final DEA decision is published, members of the public can challenge the decision before an Administrative Law Judge or take the matter to federal court.

However, the DEA’s response to the current action is to do nothing. Having received the necessary report from HHS, which, unsurprisingly, was not favorable to rescheduling, the DEA has taken no further action. Indeed, they have taken no further action for years. Consequently, the CRC filed a suit in Federal Court on May 23 accusing the government of unreasonable delay and asking the US Court of Appeals for the District of Columbia to compel the DEA to take formal and final action on this rescheduling petition.

The issue here is not whether the DEA decides to reschedule marijuana in response to the CRC petition; indeed they are likely to decide to retain marijuana in Schedule I. The issue here is making a formal decision that allows all interested parties due process. In other words, once the DEA takes final action all interested parties, whether the CRC, other advocacy groups, or even medical marijuana states, can challenge the federal prohibition of marijuana in the federal Courts. Judging from their refusal to act on the CRC petition, this is something the administration clearly wants to avoid.

Marijuana’s medical use is now accepted by 16 states (Alaska, Arizona, California, Colorado, Delaware, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington) as well as the District of Columbia. Each has a stake in challenging marijuana’s status under the Controlled Substances Act.

 Relief sought from the Court of Appeals would enable states with medical marijuana laws to expedite efforts to change marijuana’s status under federal law and narrow the widening gap between state and federal law. For example, Washington Governor Chris Gregoire has expressed interest in having all the states that allow medical marijuana to ask the federal government to reclassify the drug. If the Court of Appeals grants the relief requested by the CRC, Washington and other medical marijuana states would have the opportunity to seek rescheduling now in expedited proceedings, rather than wait years for a new rescheduling action to ripen.

The members of the Coalition for Rescheduling Cannabis include the American Alliance for Medical Cannabis, Americans for Safe Access (ASA), California NORML, the Drug Policy Forum of Texas, HIGH TIMES, Los Angeles Cannabis Resource Center (Cooperative), the National Organization for the Reform of Marijuana Laws (NORML), New Mexicans for Compassionate Use, Oakland Cannabis Buyers Cooperative, and Patients Out of Time.

Jon Gettman is a long time contributor to HIGH TIMES.  A former National Director of NORML, Jon has a Ph.D. in public policy and regional economic development and consults with attorneys, advocates, and non-profits on cannabis related research and public policy issues.  On October 8, 2002,  along with a coalition of organizations, he filed a new petition to have cannabis rescheduled under federal law.  This column will track that petition’s progress.


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