Van Hollen Joins Warren, Fetterman, Schumer, Senators in Urging Biden Administration to Swiftly Deschedule Marijuana

U.S. Senator Chris Van Hollen (D-Md.) joined Senators Elizabeth Warren (D-Mass.) and John Fetterman (D-Pa.), alongside their Democratic colleagues, including U.S. Senate Majority Leader Chuck Schumer (D-N.Y.), in sending a letter to U.S. Attorney General Merrick Garland and U.S. Drug Enforcement (DEA) Administrator Anne Milgram, urging them to remove marijuana from Schedule I of the Controlled Substances Act (CSA). The letter comes after an August 2023 recommendation from the U.S. Department of Health & Human Services (HHS) that marijuana be rescheduled from Schedule I to Schedule III. The senators are calling for a complete descheduling of marijuana, consistent with state law, public sentiment, and the need to eliminate criminal and civil penalties for marijuana use. 

This letter is also signed by Senators Cory Booker (D-N.J.), Jeff Merkley (D-Ore.), Bernie Sanders (I-Vt.), Kirsten Gillibrand (D-N.Y.), Ron Wyden (D-Ore.), John Hickenlooper (D-Colo.), Peter Welch (D-Vt.), and Alex Padilla (D-Calif.).

“We write to urge the Drug Enforcement Administration (DEA) to swiftly deschedule marijuana from the Controlled Substances Act (CSA),” wrote the senators. “(R)escheduling to Schedule III would mark a significant step forward, (but) it would not resolve the worst harms of the current system. Thus, the DEA should deschedule marijuana altogether. Marijuana’s placement in the CSA has had a devastating impact on our communities and is increasingly out of step with state law and public opinion.” 

In August 2023, HHS recommended moving marijuana to a less restrictive DEA schedule. This followed an October 2022 directive from President Biden requiring HHS and the Department of Justice (DOJ) to review the current scheduling of the drug. Prior to this review, the last review of marijuana scheduling occurred in 2016, when HHS ultimately recommended keeping marijuana under Schedule I. Now, HHS has identified credible scientific support for marijuana’s medical uses and has reversed its position. The medical science, as well as developments in state law and international law, support removing marijuana from Schedule I. 

The Senators were clear about the need to completely deschedule the drug:  “Rescheduling would do little to rectify the most severe harms of the current system…. (The) criminal penalties for recreational marijuana use, and for medical use of marijuana products that lack federal approval, would still exist, disproportionately penalizing Black and Brown communities. Similarly, non-citizens could still be denied naturalization and green cards, and even deported, based on recreational marijuana use and most marijuana offenses,” the senators continued. “Furthermore, rescheduling marijuana would not restore access to public housing or nutrition assistance for individuals who use marijuana recreationally or engage in other marijuana activity against federal law,”

“These harms could be remedied only through fully descheduling marijuana. The Biden Administration has a window of opportunity to deschedule marijuana that has not existed in decades and should reach the right conclusion — consistent with the clear scientific and public health rationale for removing marijuana from Schedule I, and with the imperative to relieve the burden of current federal marijuana policy on ordinary people and small businesses,” concluded the senators. 

The senators have requested that the DEA and DOJ provide more information on steps taken to act on HHS’s rescheduling recommendation no later than February 12, 2024. 

Full text of the letter can be found here and below.

Dear Attorney General Garland and Administrator Milgram:

We write to urge the Drug Enforcement Administration (DEA) to swiftly deschedule marijuana from the Controlled Substances Act (CSA). The Department of Health and Human Services (HHS) has recommended rescheduling marijuana from the CSA’s strictest schedule, Schedule I, to Schedule III. Earlier this month, in response to a Freedom of Information Act request, HHS for the first time disclosed its rationale for this recommendation, which made clear that cannabis does not meet the medical or scientific requirements for Schedule I. While rescheduling to Schedule III would mark a significant step forward, it would not resolve the worst harms of the current system. Thus, the DEA should deschedule marijuana altogether. Marijuana’s placement in the CSA has had a devastating impact on our communities and is increasingly out of step with state law and public opinion.

Background

The Biden Administration has the power to reschedule or deschedule marijuana administratively, without congressional action. Under the CSA, HHS is responsible for the medical and scientific analysis behind scheduling decisions, while the Department of Justice (DOJ), via the DEA, is responsible for making final drug scheduling decisions. In October 2022, President Biden directed HHS and DOJ to “review expeditiously how marijuana is scheduled under federal law.” The CSA divides controlled substances into five schedules ranging from Schedule I to Schedule V. Marijuana is currently a Schedule I drug — a classification reserved for the CSA’s most dangerous drugs that have a “high potential for abuse,” “no currently accepted medical use in treatment in the United States,” and “a lack of accepted safety for use of the drug or other substance under medical supervision.” Thus, marijuana exists in the same category as heroin, and a more dangerous category than fentanyl or cocaine — even though marijuana is consistently found to be less dangerous than those substances, and less dangerous than alcohol, which is not scheduled under the CSA. This scheduling decision was made against the political backdrop of the early 1970s, reportedly as part of President Nixon’s efforts to use cannabis prohibition to target “the antiwar left and black people.”

In response to President Biden’s directive, on August 29, 2023, HHS recommended that the DEA reschedule marijuana to Schedule III. HHS concluded that cannabis satisfies the criteria for a Schedule III drug, meaning that it has (1) a “currently accepted medical use in treatment,” (2) a lower potential for abuse than Schedule I or II, and (3) a possibility of abuse that “may lead to moderate or low physical dependence or high psychological dependence.” HHS noted that marijuana “does not produce serious outcomes compared to drugs in Schedules I or II,” and “the vast majority of individuals who use marijuana are doing so in a manner that does not lead to dangerous outcomes to themselves or others.” Since receiving HHS’s recommendation, the DEA has said that it is “now conducting its review” of how marijuana is scheduled.

Post-2016 Developments Supporting Removal of Marijuana from Schedule I

Almost a decade has passed since the DEA last considered cannabis’s scheduling. In 2016, the DEA decided to retain marijuana’s placement in Schedule I. Despite contrary evidence that existed at the time, the agency reasoned that marijuana had a high potential for abuse, no currently accepted medical use in treatment in the United States, and inadequate safety for use even under medical supervision. To support its decision, the DEA pointed to a lack of scientific evidence supporting marijuana’s medical use, although this created a catch-22; as a Schedule I drug, marijuana is subject to the DEA’s arduous research approval process and restrictions on federal research funding, which has stymied researchers’ ability to rigorously study marijuana’s medical uses. At the time, HHS had reached the same conclusion.

However, HHS has now concluded that cannabis does not meet the requirements for a Schedule I drug and has identified “credible scientific support for the medical use of marijuana” for at least some medical indications. The DEA is bound by HHS’s recommendations as to “scientific and medical matters,” including HHS’s expert medical judgment that marijuana “has a currently accepted medical use in treatment in the United States.” Moreover, experts today generally agree that marijuana has currently accepted medical uses for several indications. Numerous studies have identified such medical uses, including to manage pain, spasms, and nausea in patients undergoing chemotherapy, and to stimulate appetite in patients with weight loss from AIDS. Studies have also found that marijuana access has second-order public health benefits by reducing the rates of opioid use and opioid deaths. Multiple medical organizations, including the World Health Organization and the American Academy of Family Physicians, have recognized the legitimate medical uses of marijuana. Additionally, since 2016, the FDA has approved THC- and CBD-based medications, including two medications containing the primary compound that is responsible for marijuana’s abuse potential. And in 2018, CBD (which is part of marijuana’s chemical makeup) was legalized in certain forms.

Furthermore, since the DEA’s last review, the landscape of state marijuana law has changed significantly. In 2016, only eight states had legalized recreational marijuana.25 That number has grown to 24 states today, and 53 percent of Americans now live in a state where recreational marijuana is legal under state law. Americans’ widespread support for medical marijuana use is even clearer: a total of 38 states permit the medical use of cannabis. Accordingly, thousands of doctors in those states recommend marijuana to their patients, and millions of patients consume medical marijuana under healthcare professionals’ guidance each year. This widespread acceptance of marijuana in medical practice strengthens the HHS’s conclusion that cannabis has a currently accepted medical use. And more states will likely follow suit as public opinion continues to favor ending the criminalization of marijuana use, with 88 percent of Americans now in support of legalizing marijuana in some form. Furthermore, roughly 50 percent of Americans say they have tried marijuana, making the federal government’s one-off arrests for marijuana possession increasingly arbitrary and inequitable. Without descheduling at the federal level and protecting state regulatory programs, consumers and workers in those states remain at risk of arrest and prosecution.

 Finally, in 2016 the DEA considered its international treaty obligations a bar to rescheduling marijuana to anything less restrictive than Schedule II. Since then, cannabis has been rescheduled under international law — a change that the United States and the World Health Organization supported, in light of “the legitimate medical use” of certain cannabis products. Now, the relevant treaty, the Single Convention on Narcotic Drugs of 1961 (Single Convention), has removed cannabis from the most restrictive schedule and placed it in a schedule that requires countries to limit the drug’s use to only “medical and scientific purposes.” Additionally, since 2016, the DEA has found that placing the first cannabis-based FDA-approved drug in Schedule V (and later descheduling it altogether) was consistent with the Single Convention. The United States can persuasively argue that decriminalizing marijuana activity is consistent with its treaty obligations. As the U.S. State Department and United Nations have clarified, the relevant narcotics treaties are “highly respectful of the legal frameworks of states party” and “allow for sufficient flexibility for States parties to design and implement national drug policies according to their priorities and needs.” Furthermore, the treaties are primarily concerned with the trafficking of narcotics “having an international dimension,” rather than purely domestic matters — and research has found that marijuana legalization may actually reduce violent international drug trafficking. As it has done in the past, the DEA can in good faith reinterpret its obligations under the Single Convention. It could argue that even adult-use marijuana legalization would still permit a civil regulatory regime that prevents abuse and international trafficking while satisfying the country’s domestic policy need to advance an evidence-based harm reduction approach, protect the settled expectations of U.S. states, and comply with international human rights obligations that weigh against the disproportionate criminalization of people of color. The United States would not be the first mover; many fellow signatories of the Single Convention have legalized cannabis for medical and non-medical uses. And arguably, the United States is already among them as a country that has largely permitted cannabis at the state level.

The Case for Descheduling Marijuana

The case for removing marijuana from Schedule I is overwhelming. The DEA should do so by removing cannabis from the CSA altogether, rather than simply placing it in a lower schedule. Although HHS recommended rescheduling, its analysis could support a decision to deschedule — particularly its emphasis on the fact that marijuana has less adverse outcomes (including less potential of an overdose) and less potential of abuse than substances that are descheduled (alcohol) or scheduled below Schedule III (such as benzodiazepines). The DEA has final decision-making authority and should ultimately deschedule marijuana. To be sure, rescheduling marijuana to Schedule III would have some important policy benefits. It would pave the way toward increasing scientific research of marijuana’s medical uses, eliminating barriers to federal employment for medical marijuana users, and permitting the Department of Veterans’ Affairs to prescribe marijuana to veterans. It would allow marijuana businesses to access standard tax deductions for ordinary business expenses. Rescheduling would also represent the first federal acknowledgment of marijuana’s legitimate medical uses — though, importantly, it would not automatically permit marijuana to be used as a medicine; medical marijuana would still have to undergo FDA drug approval, the DEA registration process for manufacturers, and compliance with prescription regulations in order to be legally prescribed under federal law.

However, rescheduling would do little to rectify the most severe harms of the current system. Many of the CSA’s criminal penalties for marijuana will continue as long as marijuana remains in the CSA, because those penalties are based on the quantity of marijuana involved, not the drug’s schedule status. Thus, criminal penalties (including prison sentences, fines, and asset forfeiture) for recreational marijuana use, and for medical use of marijuana products that lack federal approval, would still exist, disproportionately penalizing Black and Brown communities. Similarly, non-citizens could still be denied naturalization and green cards, and even deported, based on most marijuana offenses. Furthermore, rescheduling marijuana would not restore access to public housing or nutrition assistance for individuals who use marijuana recreationally or engage in other marijuana activity against federal law. Nor would rescheduling resolve the growing inconsistency between federal and state law; states’ regulatory systems for the recreational marijuana industry — and for medical marijuana products that have not been federally approved — would continue to lack federal legal recognition.

These harms could be remedied only through fully descheduling marijuana. Once descheduled, marijuana can still be subject to public health regulations, drawing from lessons learned through the regulation of alcohol and tobacco. And here, the federal government has the rare opportunity to shape the new cannabis industry from the ground up, designing a federal regulatory system untainted by the corporate capture that has influenced alcohol and tobacco regulations, and advancing federal cannabis reforms that acknowledge and repair the harms of cannabis criminalization.

Conclusion

The DEA has never kept a drug in Schedule I after HHS recommended removing it, and it must not do so now. It is imperative that the DEA remove marijuana from Schedule I as several members of Congress and state attorneys general have urged. The DEA should do so promptly; its past record of taking years to resolve rescheduling petitions should not be repeated here. Furthermore, the DEA and HHS should be fully transparent about the evidence relied upon in the course of their review processes. The Biden Administration has a window of opportunity to deschedule marijuana that has not existed in decades and should reach the right conclusion — consistent with the clear scientific and public health rationale for removing marijuana from Schedule I, and with the imperative to relieve the burden of current federal marijuana policy on ordinary people and small businesses.

Questions

To help the American people understand what steps the DEA is taking to act on HHS’s rescheduling recommendation, we request responses to the following questions no later than February 12, 2024:

1. What is the current status of the DEA’s review of marijuana’s scheduling, pursuant to President Biden’s 2022 directive and HHS’s 2023 recommendation?
1. What is the DEA’s timeline for removing marijuana from Schedule I?
2. What evidence does the DEA intend to consider in reaching its decision regarding the scheduling of marijuana?
1. If the DEA believes clinical trials testing marijuana are necessary in order to change its scheduling, what is the DEA’s roadmap for developing clinical-trial evidence, in light of roadblocks to accessing funding for such studies?
3. In the course of this review, is the DEA still assessing cannabis’s medical use based on the five-factor test that the agency created for itself in 1992,59 which differs from HHS’s analysis?
4. Specifically, how (if at all) would the criminal enforcement of marijuana by the DEA change if marijuana were moved to another schedule in the CSA? Please provide an answer for Schedule II, Schedule III, Schedule IV, and Schedule V.
5. What specific steps has the DEA taken to ensure that its marijuana-related policies and programs, including its marijuana enforcement strategy, comply with Executive Order 13985 and 14091?
6. To what extent does the DEA’s evaluation of marijuana’s scheduling acknowledge or address the harms of cannabis criminalization and related collateral consequences, and racial disparities associated with federal marijuana enforcement?

We thank you for your attention to this matter, and we look forward to your prompt action.

Sincerely,