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The Implications of the DEA’s Possible Rescheduling of Marijuana


The Drug Enforcement Administration (DEA) has indicated that it will rule on the rescheduling of marijuana sometime this summer.


The scheduling of drugs originated more than 45 years ago with the signing into law of the Controlled Substances Act of 1970. The Act allowed Congress or the applicable government agencies to “schedule” substances based on their medical value, safety, as a medical treatment and their potential for abuse. Under the Act, the government assigns drugs to specific schedules and also can reschedule a drug.


Currently, marijuana is a Schedule I substance, based on the federal government's view that the plant provides no medical benefit and has a high potential for abuse. Under federal law, no Schedule I substance, including marijuana, can be legally purchased in the U.S.


Concerns have recently been raised that a rescheduling of marijuana by the DEA will result in the closure of state-licensed marijuana growers, extractors, edible product manufacturers, dispensaries, and retailers. However, this will not be the case. Forced closures will not occur as a result of the rescheduling of marijuana.


The existence of state-licensed marijuana programs is not based on marijuana's schedule.  Instead, the ability of states to allow and license marijuana businesses derives from a series of federal executive actions, the most important of which were the Cole and Ogden memorandums. These executive actions allowed state marijuana programs to exist as long as they were not at odds with certain Department of Justice objectives, including the trafficking of marijuana by drug cartels and the sale of marijuana to minors


The authority for these executive actions derives from Supreme Court decisions that provide for presidential enforcement discretion. These decisions allow an administration to prioritize how and under what circumstances laws will be enforced.


The Obama administration used this authority to allow state-licensed marijuana programs to exist by de-prioritizing the provisions of the Controlled Substances Act. The de-prioritizing of marijuana is what the Cole and Ogden memoranda accomplished.


If the Drug Enforcement Administration reschedules marijuana from Schedule I to II, which I believe is likely, the agency will finally be acknowledging that the plant is not quite as dangerous or without any medical value as indicated by marijuana’s current Schedule I status.


Rescheduling of marijuana from Schedule I to Schedule II would allow drugs derived from marijuana that have been approved by the Food and Drug Administration to be available through pharmacies on a highly-restricted basis. It also would minimally reduce the bureaucratic roadblocks to researching the medical benefits of the plant.


The bottom-line is simple. Rescheduling does not itself establish any approved marijuana-based drug, nor does it in any way impact state-licensed marijuana programs.


But rescheduling would also send several important messages. Because rescheduling would make research into the benefits of marijuana-based medicine somewhat easier, it would serve as an important message to scientists and doctors that the government is supportive of research into the benefits of marijuana-based medicine.


Rescheduling would also send a message to millions of Americans who are currently using marijuana-based medicine who are now using the plant or derivatives of the plant without any science confirming the safety or medical benefits. It would be an acknowledgment by the government that the plant has potential medical benefits.


The bottom line, owners of state-licensed marijuana businesses, will not face closure as a result of rescheduling. Likewise, millions of Americans who are now benefiting from marijuana-based medicine should not worry about losing access to their medicine.  


Copyright 2016 Jeffrey Friedland


Jeffrey Friedland is the author of “Marijuana: The World’s Most Misunderstood Plant,” which is available at Amazon in print and Kindle editions.


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