'Rescheduling Is Not Enough,' Advocates Say of HHS Cannabis Recommendation

Cannabis reform advocates and industry representatives on Wednesday renewed demands for legalizing marijuana at the federal level as U.S. Health and Human Services Secretary Xavier Becerra confirmed his department's rescheduling recommendation.

Marijuana is currently a Schedule I drug—the most restricted category under the Controlled Substance Act (CSA)—but President Joe Biden ordered Becerra and Attorney General Merrick Garland to initiate a review last October, when he issued a mass pardon for simple federal cannabis possession.

Bloomberg initially reported Wednesday that a Department of Health and Human Services (HHS) official on Tuesday wrote to Drug Enforcement Administration (DEA) chief Anne Milgram to recommend reclassifying cannabis Schedule III, a development Becerra confirmed on social media at 4:20 pm ET.

"Following the data and science, HHS has expeditiously responded to President Biden's directive to HHS Secretary Becerra and provided its scheduling recommendation for marijuana to the DEA on August 29, 2023," an HHS spokesperson toldMarijuana Moment. "This administrative process was completed in less than 11 months, reflecting this department's collaboration and leadership to ensure that a comprehensive scientific evaluation be completed and shared expeditiously."

A DEA spokesperson confirmed to the outlet that it received the HHS letter and said: "DEA has the final authority to schedule or reschedule a drug under the Controlled Substances Act. DEA will now initiate its review."

Asked about Bloomberg's reporting on Wednesday, White House Press Secretary Karine Jean-Pierre stressed to reporters that Biden requested the scheduling review, "it's going to be an independent process," and "it's going to be guided by evidence." She declined to comment regarding Biden's position on decriminalization.

NORML declared in an email that "rescheduling is not enough," and in response to the letter, deputy director Paul Armentano said that "it will be very interesting to see how DEA responds to this recommendation, given the agency's historic opposition to any potential change in cannabis' categorization under federal law. Further, for decades, the agency has utilized its own five-factor criteria for assessing cannabis' placement in the CSA—criteria that as recently as 2016, the agency claimed that cannabis failed to meet. Since the agency has final say over any rescheduling decision, it is safe to say that this process still remains far from over."

Armentano argued that "the goal of any federal cannabis policy reform ought to be to address the existing, untenable chasm between federal marijuana policy and the cannabis laws of the majority of U.S. states," and rescheduling "fails to adequately address this conflict."

"Just as it is intellectually dishonest to categorize cannabis in the same placement as heroin, it is equally disingenuous to treat cannabis in the same manner as anabolic steroids," he added. "The majority of Americans believe that cannabis ought to be legal and that its hazards to health are less significant than those associated with federally descheduled substances like alcohol and tobacco. Like those latter substances, we have long argued the cannabis plant should be removed from the Controlled Substances Act altogether, thereby proving state governments—rather than the federal government—the ability to regulate marijuana in the manner they see fit without violating federal law."

Medicinal use of cannabis is allowed by 38 states, three U.S. territories, and the District of Columbia while recreational adult use is permitted in 23 states, two territories, and D.C., according to the National Conference of State Legislatures.

Under the HHS plan, "state medical and adult-use marijuana programs will still remain federally illegal, meaning patients, consumers, and workers would remain subject to federal arrest; noncitizens would remain subject to deportation simply for possessing marijuana or working in the industry; and federal marijuana arrests and prosecutions will continue, previous arrests will not be expunged, and thousands will remain incarcerated in federal prison for marijuana violations," emphasized Cat Packer, director of drug markets and legal regulation at the Drug Policy Alliance.

"It also means that federal benefits, such as housing and nutritional assistance, will still be denied to certain people with previous marijuana convictions and the federal government will continue to be unable to foster a fair business environment that allows small and minority-owned marijuana businesses to compete with large corporate marijuana operators," noted Packer, urging the president to "limit the harms of marijuana criminalization" and work with Congress to pass the Cannabis Administration and Opportunity Act (CAOA).

U.S. Senate Majority Leader Chuck Schumer (D-N.Y.)—an advocate of federally legalizing cannabis and an original CAOA co-sponsor—said in a statement that "HHS has done the right thing and DEA should now quickly follow through on this important step to greatly reduce the harm caused by draconian marijuana laws."

"While this is a step forward, there is still much more that needs to be done legislatively to end the federal prohibition on cannabis and roll back the War on Drugs," Schumer added. "I am committed to continuing to work in Congress to pass important marijuana legislation and criminal justice reform."

U.S. Cannabis Council "enthusiastically" welcomed the HHS recommendation, saying on social media: "We believe that rescheduling to Schedule III will mark the most significant federal cannabis reform in modern history. President Biden is effectively declaring an end to [former President Richard] Nixon's failed war on cannabis and placing the nation on a trajectory to end prohibition."

While recognizing the range of benefits from the potential rescheduling—from making research easier to tax deductions for businesses—the industry group also emphasized its commitment to full cannabis legalization at the federal level.

National Cannabis Industry Association CEO Aaron Smith said that "moving cannabis to schedule III could have some limited benefit but does nothing to align federal law with the 38 U.S. states which have already effectively regulated cannabis for medical or adult use. The only way to fully resolve the myriad of issues stemming from the federal conflict with state law is to remove cannabis from the Controlled Substances Act and regulate the product in a manner similar to alcohol."

This post has been updated with comment from the Drug Policy Alliance.