Cannabis Rescheduling: Winning the Battle, but Not the War

Hailed as a historic shift in federal cannabis policy, the U.S. Drug Enforcement Administration (DEA) has submitted a formal recommendation to the White House to move the substance from Schedule I to Schedule III. But despite overwhelming support for legal access to medicinal and recreational marijuana from voters across the political spectrum, advocates fear this reclassification could impede efforts to deschedule cannabis completely and end the war on drugs.

“Pot”-ential Policy Pros

Schedule III substances like anabolic steroids, ketamine, and acetaminophen-codeine combinations are federally illegal and subject to penalty under the Controlled Substances Act. Though it would remain illegal, rescheduling marijuana would allow physicians to prescribe it and state-authorized dispensaries to distribute it. Recreational marijuana and the use, sale, and distribution of medical marijuana without permission would also remain illegal under federal law.

But moving marijuana from Schedule I to Schedule III acknowledges what the scientific community has known for years: that in addition to some accepted medical value, marijuana has less potential for abuse compared to its Schedule I counterparts (heroin, LSD, and MDMA). State-sanctioned dispensaries stand to benefit from a reduced federal tax burden—estimated at 70 percent or more—which could potentially help small businesses and reduce competition from illicit suppliers. Rescheduling also opens up banking opportunities to lessen the threat of violence associated with cash-based operations and provides greater research opportunities, though restrictions still apply.

Weed Woes

Supported by lawmakers on both sides of the aisle, the recommendation to reschedule marijuana is considered “one step closer to ending the failed war on drugs.” But cannabis advocates want the substance declassified entirely so it can be regulated like alcohol or tobacco. Despite potential benefits, the proposed rescheduling still pits federal law against laws in Washington, D.C. and the 38 U.S. states with legal medical marijuana programs (as well as the 24 that have approved recreational marijuana). At any given time, the DEA can choose to prosecute people and businesses that comply with existing state regulations on recreational and medicinal marijuana products.

There is also concern that the DEA is ill-equipped to handle the roughly 15,000 cannabis dispensaries that would have to register and follow strict reporting requirements under the rescheduling. Similarly, the lack of U.S. Food and Drug Administration (FDA) approval of existing products is problematic. Traveling across state lines or via air with state-legalized cannabis could trigger federal criminal penalties unless or until the FDA approves and regulates the industry. Since state-sanctioned cannabis products are currently outside the FDA’s purview, they would not be rescheduled automatically; instead, they would remain illegal under federal law. Quantity-based mandatory minimum sentencing would not change under the proposed policy. The continued incongruity between federal and state law is problematic for police and citizens alike and perpetuates the ongoing war on drugs. Critics also contend that rescheduling does not address the harms associated with five decades of marijuana prohibition.

One Small Step for Marijuana, One Giant Leap for Mankind

Marijuana must be descheduled to ensure that businesses, consumers, communities, and children are protected. This is not an endorsement of the substance—rather, it is a practical solution to conflicting laws that currently restrict the proper regulation of cannabis products. Federal legislation that deschedules marijuana and includes standards of product testing and oversight, established age for consumption, packaging and quality control, and marketing restrictions increases product safety and reduces potential harms. Furthermore, complete descheduling has significant potential to enhance public safety by improving police-citizen interaction to strengthen relationships and restore legitimacy; allow for the reallocation of system and financial government resources historically wasted on cannabis enforcement; and implement appropriate regulation to aid in disrupting illicit market activity.

Where Do We Go from Here?

Following April’s confirmed proposal to reschedule cannabis, there is still much to do. It is unclear how long it will take for the rule to be finalized, and its potential impact on the criminal justice system and industry stakeholders remains uncertain. Even with specific rulemaking timeframes, litigation issues could delay implementation—especially where political pressure is involved. Moreover, depending on this year’s election results, we could see an attorney general who decides to keep cannabis a Schedule I controlled substance. For now, we must wait to see how cannabis rescheduling will progress.