On October 6, President Joe Biden announced that people convicted of marijuana possession under federal law were pardoned of their convictions, and he urged all governors to pardon those convicted of simple marijuana possession under state law. The president also announced he has asked the U.S. attorney general to review how marijuana is classified, saying that treating marijuana “the same as heroin and LSD … makes no sense.” Implicit in this request is to move marijuana classification under the federal Controlled Substances Act, or CSA, from Schedule I to Schedule II, which could have unintended negative consequences in Michigan and other states where use has been legalized.
The vast majority of marijuana possession convictions occurred under state laws and are not impacted by President Biden’s announcement. However, since 1996 when California voters legalized the medical use of marijuana in their state, 39 of the 50 states have now followed suit – and 19 of those states have fully legalized medical and adult-use marijuana. Many states are working to expunge the criminal records of people previously convicted of activity that is now lawful in those states.
Polling data indicates that nearly 70% of Americans favor the repeal of marijuana prohibition. The president’s announcement of the pardon of those convicted of simple marijuana possession is probably strongly favored by most Americans.
Many who approve of the repeal of marijuana prohibition will probably applaud the president’s direction to the attorney general to consider “rescheduling” marijuana under the CSA to Schedule II. But a closer look at the consequences of rescheduling suggests such action would actually undercut the progress that’s been made to legalize medical and especially adult cannabis use. A little background on the CSA will illustrate the negative effects of a Schedule II reclassification.
The CSA established five schedules for the classification of drugs and substances. All substances placed in one of the five schedules are defined as “controlled substances.” Schedule I is where drugs like heroin, peyote, LSD, mescaline and psilocybin are classified, along with marijuana. By definition, Schedule I controlled substances have no accepted medical use.
If a substance is placed on one of the schedules, anyone who deals with that substance must be registered or licensed with the federal Drug Enforcement Agency, or DEA. The DEA is supposed to then ensure the controlled substance is used only for legitimate medical and scientific purposes.
Advocates hope removing the Schedule I stigma might make things like banking more accessible to the marijuana industry. Unfortunately, the legal systems in place in many states authorizing the cultivation, sale and use of medical marijuana would probably not satisfy FDA approval and control requirements that would apply to medical marijuana in Schedule II. Moreover, unlike the current practice under which the FDA plays no role in marijuana regulation, moving marijuana to Schedule II would trigger an FDA role in testing and approval of medical marijuana applications, which is a very complex and expensive process. Medical marijuana under a Schedule II classification would likely become the exclusive product of the pharmaceutical industry, which is one of the few industries that has the financial and research resources to fund the clinical research required to satisfy the FDA’s requirements.
The consequences for adult-use recreational marijuana would be even more drastic. Schedule II classification for marijuana would eliminate the possibility of creating a structure for federally legalized recreational marijuana use since any drug or substance classified in any of the five CSA schedules may only be used for medical or scientific purposes pursuant to a prescription from a licensed health care provider. Distilled spirits, wine, malt beverages and tobacco are expressly excluded from the CSA to avoid this problem. Those products could not be marketed or used the way they are if they were subject to DEA and FDA regulation as controlled substances.
President Biden’s observation that marijuana’s classification as a Schedule I controlled substance “makes no sense” is correct. But the problem isn’t the scheduling of marijuana, it’s including it as a controlled substance at all. The solution does not lie in simply making marijuana a Schedule II controlled substance. That would increase the FDA’s role and make it more complex and costly to develop medical applications for marijuana. It would also continue the federal prohibition of recreational use. Only complete removal of marijuana from the CSA schedules (while still leaving the states to regulate use and access) will truly advance the legalization effort.
We will follow this eAlert with another that will provide a detailed look at the legal and scientific complexities associated with de- or rescheduling marijuana under the CSA. For questions surrounding this pardon and any other marijuana-related issue, please contact Bob Hendricks, a member of Warner Norcross + Judd LLP’s Cannabis Industry Group or your Warner attorney.