The Biden administration’s recommendation that the DEA remove marijuana from Schedule I and place the substance in Schedule III “would have broad implications for federal policy,” according to a Sept. 13 Congressional Research Service (CRS) study.

The Aug. 29 recommendation by the Department of Health and Human Services (HHS) followed the FDA’s administrative review of the scheduling of marijuana. as requested by President Biden in October 2022.

“Federal law currently classifies marijuana in Schedule I of the Controlled Substances Act [(CSA)], the classification meant for the most dangerous substances,” Biden said in his request. “This is the same schedule as for heroin and LSD, and even higher than the classification of fentanyl and methamphetamine — the drugs that are driving our overdose epidemic.”

In 2023, the FDA concluded that marijuana should be moved to Schedule III.

Prospects for Rescheduling

CRS noted that Matthew J. Strait, a senior policy advisor in the DEA’s Diversion Control Division, testified during a January 2020 hearing before the House Energy and Commerce Committee Subcommittee on Health that under federal law the DEA “shall be bound by [HHS recommendations] as it pertains scientific and medical matters.”

“If past is prologue,” CRS stated in its study, “it could be likely that DEA will reschedule marijuana according to HHS’s recommendation.”

Schedule I versus Schedule III

DEA’s current scheduling of marijuana as a Schedule I substance prohibits the manufacture, distribution, dispensing and possession of marijuana except for research studies approved by the federal government, CRS noted.

Under the CSA, Schedule I controlled substances are deemed to have “a high potential for abuse” with “no currently accepted medical use in treatment in the United States,” and therefore Schedule I substances cannot be dispensed in accordance with a health care provider’s prescription.

The supply of marijuana available for research is subject to quotas set by the DEA on the basis of the agency’s annual assessment of need.

In July 2016, the DEA denied a petition seeking to have the agency initiate rulemaking proceedings to reschedule marijuana (81 Fed. Reg. 53688, Aug. 12, 2016).

If rescheduled into Schedule III, marijuana would be deemed to have “a potential for abuse less than the drugs or other substances in Schedules I and II” and to have “a currently accepted medical use in treatment in the United States.”

The DEA states that Schedule III substances nevertheless have a high potential for abuse, and that abuse of controlled substances in Schedule III “may lead to moderate or low physical dependence or high psychological dependence.”

Moving marijuana from Schedule I would allow for medical uses of the substances even while the DEA maintains control over marijuana as specified in the CSA.

DEA Rescheduling Procedure

Under its rescheduling procedure, the DEA conducts its own review of a substance’s chemistry and safety and of other available scientific evidence about the substance. Such an evaluation led the DEA to conclude in March 1992 that marijuana had no accepted medical use at the time (57 Fed. Reg. 10499, March 26, 1992).

Following its examination, if the DEA decides to move forward, it would initiate a rulemaking to reschedule marijuana.

“CRS is unaware of any instance where DEA has rejected an FDA recommendation to reschedule,” the service noted in its Sept. 13 study.

Implications of Rescheduling

“A change to Schedule III would mark a major shift in the federal government’s policy on marijuana,” CRS said. “For over 50 years, marijuana has remained on Schedule I. Violations of CSA law involving marijuana have resulted in criminal sanctions for thousands of offenders.”

• State medical marijuana programs. In additional to allowing the lawful manufacture, distribution, dispensing and possession of medical marijuana under the CSA, rescheduling would mean that state medical marijuana programs could comply with the federal statute while remaining under the DEA’s criminal and regulatory control and subject to the Federal Food, Drug, and Cosmetic Act and various agriculture laws, including the Agricultural Marketing Act of 1946.
• FDA regulation. Moreover, the scope and demand for FDA regulation of medical marijuana and related products “may grow considerably,” CRS said.
• “In the short term, FDA may need to generate or update a substantial amount of technical information to clarify its regulatory approach to marijuana for relevant stakeholders,” the service noted. “Given that marijuana is a complex substance containing various pharmaceutical components and is available to consumers in numerous formats, FDA may also need to consider long-term resource allocation to ensure that marijuana products consistently meet applicable regulatory standards.”
• Federal income tax. Rescheduling would allow marijuana producers and retailers to deduct the costs of selling their products — including the costs of payroll, rent and advertising — in their federal income tax filings.
• Restrictions under federal programs. Users of medical marijuana would no longer be blocked from eligibility to access public housing, obtain immigrant and nonimmigrant visas, and purchase and possess firearms. Those using marijuana recreationally “would still face restrictions in these areas,” CRS noted.
• Research. Marijuana research may likely expand given the relaxing of some regulatory controls that would result from the rescheduling.
• Quotas. DEA would no longer set production quota limitations for marijuana, CRS said.
• Employment eligibility. Users of medical marijuana may face fewer barriers to federal government employment and eligibility to serve in the miliary.

Congressional Options

According to CRS, the options for Congress in the face of HHS’s rescheduling recommendation include taking legislative action to keep marijuana in or to remove the substance from Schedule I.

If Congress removes marijuana from Schedule I, it might:

• Specifically place the substance in one of the other CSA controlled substance schedules;
• create another schedule or a separate classification under the CSA for marijuana; or
• “remove marijuana as a controlled substance altogether.”

If the DEA moves forward with the rescheduling process, CRS added, members of Congress “may consider whether to devote additional resources to FDA and the U.S. Department of Agriculture (USDA) to ensure the safety and quality of the many different products already available in many state markets.”