The federal war on marijuana has entered the end game.
Today, President Biden personally announced that his Justice Department will reclassify marijuana to help end the failed war on weed. Watch the video here:
Too many lives have been upended because of our failed approach to marijuana.
— President Biden (@POTUS) May 16, 2024
So today, the @TheJusticeDept is taking the next step to reclassify marijuana from a Schedule I to a Schedule III drug under federal law.
Here's what that means: pic.twitter.com/TMztSyyFYm
“This is monumental,” said President Biden. “Today my administration took a major step to reclassify marijuana from Schedule 1 to Schedule 3—it’s an important move to reverse longstanding inequities.”
The announcement builds on work toward pardoning people for simple possession of weed, and lifting barriers to housing, jobs, and small business loans, the President said.
“Look folks, no one should be in jail for merely using or possessing marijuana. Period. Far too many lives have been upended because of a failed approach to marijuana, and I’m committed to righting those wrongs. You have my word on it.”
President Biden
President Biden said cannabis’ current classification doesn’t hold up, and his Administration has reviewed the science, and it’s time to move it.
“Right now, marijuana has a higher-level classification than fentanyl and methamphetamine – the two drugs driving America’s overdose epidemic. That just doesn’t add up,” stated President Biden.
“At my request, and guided by science and evidence, HHS and DOJ have studied the drug’s medical use and abuse and dependency potential and are recommending rescheduling–concluding reclassification would remove barriers to critical research.”
The President’s decision will begin a 60-day comment period before the re-classification occurs.
Justice Department files historic paperwork
Over at the US Department of Justice, historic reclassification documents have gone live. The Attorney General has filed paperwork to reclassify weed—called a notice of rulemaking. In the documents, the Justice Department notes that cannabis does have medical use. Prior assessments of weed were too “impermissibly narrow“, the DOJ states.
The documents show the Department of Justice moving forward despite Drug Enforcement Administration intransigence. The DEA wanted to make its own medical assessment of weed, and claimed re-scheduling would violate international treaties.
The DOJ rejected those notions, and said the drug cops at the DEA have to listen to the doctors at the US Health and Human Services Agency, and international treaties will be fine.
The HHS is forcefully saying cannabis has a ‘currently accepted medical use’ (“CAMU”) that the DEA can no longer deny. “HHS concluded that marijuana has a CAMU.”
Policymakers have to look at what’s actually going on in the real world—not just through the DEA’s narrow lens of an FDA-approved drug.
According to the supplement to the memo from the Attorney General: “more than 30,000 licensed health care practitioners across 43 jurisdictions are authorized to recommend the use of marijuana for more than six million registered patients for at least 15 medical conditions.”
“HHS concluded after reviewing several studies that there was some credible scientific support that marijuana could be used to effectively treat pain, anorexia, and nausea and vomiting and that using medical marijuana to treat these conditions did not pose ‘unacceptably high safety risks.'”
Christopher Fonzone, Assistant Attorney General, US DOJ: Questions Related to the Potential Rescheduling of Marijuana, April 11, 2204
And finally, the memo shows that HHS wants the DEA to speedily go through rulemaking this summer, and not slow it down by saying they need to start a whole new review of the medical use of weed. The HHS is essentially saying to the DEA—’Don’t even try to slow-roll this.’
The memo states: “We therefore conclude that, to give proper effect to HHS’s scientific and medical determinations, DEA must continue to accord significant deference to those determinations even once formal rulemaking has commenced and may not undertake a de novo assessment of HHS’s findings at any point in the rulemaking process.”
Here is Vice-President Kamala Harris’ video statement:
President Biden and I vowed to address injustices in marijuana policy.
— Vice President Kamala Harris (@VP) May 16, 2024
Today, our Administration takes another major step forward. pic.twitter.com/GxFOFeU0DU
This is a breaking development in the rescheduling story. On April 30, the Associated Press learned that the Drug Enforcement Administration would recommend weed be reclassified as less dangerous. That story is below.
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The Associated Press reports that the US Drug Enforcement Administration (DEA) will move to re-categorize marijuana as having medical use and a low potential for abuse.
For the first time since 1971, the US federal government is seeking to end cannabis’s designation as a “Schedule I” controlled substance—equivalent to drugs like heroin and PCP. Instead, the US intends to consider marijuana a Schedule III substance—on the same level as codeine.
The Associated Press appears to be the first to report the news, with it being picked up by Marijuana Moment.
Legalization polls in the 70s, and medical legalization polls in the 90s. Cannabis champion and congressman Earl Blumenauer (D-OR) stated in an email:
“If today’s reporting proves true, we will be one step closer to ending the failed war on drugs. Marijuana was scheduled more than 50 years ago based on stigma, not science. The American people have made clear in state after state that cannabis legalization is inevitable. The Biden-Harris Administration is listening.”
The rescheduling follows a request that President Biden made to US Health and Human Services Secretary Xavier Becerra in October 2022 to review the scheduling of marijuana under federal law. (Biden had simultaneously issued pardons for federal prisoners convicted on marijuana charges.)
In January, activists learned the US Dept. of Health and Human Services had recommended to the DEA that marijuana move to Schedule III.
The re-scheduling move carries immense consequences, from research opportunities to tax code reform for cannabis businesses. Yet it’s far from a silver bullet: On its own, rescheduling does not decriminalize or legalize cannabis; nor does it facilitate interstate commerce for the industry.
Read on to learn more about the significance of cannabis rescheduling, what it accomplishes, and what it leaves unsolved.
What was so bad about Schedule 1?
Marijuana’s Schedule I has proved catastrophic over the decades. In 1971, with a hefty push from the hardcore prohibitionist President Richard Nixon, the DEA added cannabis to the nascent list of Schedule 1 Controlled Substances. Authorities deemed it to have no medical value, and high potential for abuse. Schedule 1 drugs include heroin, ecstasy, and quaaludes.
Police arrested millions of Americans for marijuana since 1971. Drug arrests became the No. 1 type of arrest police made, and pot became the No. 1 type of drug arrest. You could lose your children, housing, education, job, and more under the Schedule I designation.
Also, scientists could not study cannabis easily. Furthermore, a drug’s Schedule 1 status prevents its legalization; even today, states that allow for recreational or medical marijuana sales are technically in violation of federal law.
What will Schedule III change?
Cannabis’ new classification puts it on par with ketamine, Tylenol with codeine, and testosterone.
According to the DEA’s own definition, Schedule III substances present “a moderate to low potential for physical and psychological dependence.” Cannabis’ new classification puts it on par with ketamine, Tylenol with codeine, and testosterone.
One of the most potentially consequential impacts of rescheduling is also one of the wonkiest: Thanks to a line in federal tax code referred to as 280e, cannabis businesses pay crippling taxes, sometimes upwards of 65-75%. It also prevents businesses from deducting many of their expenses from their taxes. Thanks to rescheduling, the 280e policy will no longer apply; it could open the door to new growth and investment.
As a Schedule III substance, scientists will have easier access to researching cannabis as well. Furthermore, as Marijuana Moment points out, rescheduling could loosen restrictions around federal employees consuming cannabis.
What does rescheduling leave unfixed?
In short, rescheduling cannabis to Schedule III is just a step toward full legalization. It does not decriminalize personal possession in prohibition states like Texas, nor does it facilitate interstate commerce.
“Marijuana’s current scheduling is inappropriate, arcane, and out-of-touch with the will of the American people,” stated Congresswoman Barbara Lee. “This announcement is a step in the right direction. But to be clear: cannabis must be fully descheduled in order to end the War on Drugs and repair harm to communities of color. This move is progress for businesses, but we can’t let it undermine comprehensive reform.”
Matthew Schweich, executive director of the Marijuana Policy Project, the nation’s leading cannabis policy reform organization, stated, “It is a rather modest step given the strong support among American voters for comprehensive cannabis reform.”
What’s next?
The DEA’s recommendation for rescheduling now goes up for public comment—likely for several months through the General Election on Nov. 4. President Biden will likely campaign on promises kept. One poll shows the incumbent President receiving an 11 percentage-point bump in voter approval for rescheduling. Medical marijuana polls at 90% approval, while Gallup has legalization polling at 70%.
The rescheduling news offers the chance to increase pressure for bigger change as well, said longtime cannabis tax expert Henry Wykowski. He heads to Washington DC in May to lobby for reform, and said this provides ammo.
“This is good opportunity to keep the pressure up to make sure they really do follow through on it this time,” said Wykowski.
Experts react to the news
Experts applauded the DEA’s rescheduling move, and looked back on the hard-fought win.
Brian Vicente helped lead America into legalization from Colorado and is the founding partner of national cannabis law firm Vicente LLP, which has been actively engaged in the Coalition for Cannabis Scheduling Reform. He said the move is a big effing deal.
We have entered a new era of dialogue and policy around this historically maligned plant.”
Brian Vicente, Vicente LLP, Colorado
“This is a remarkable about-face by the DEA, which spent decades denying the true medical value of the cannabis plant. While a strong case can be made for removing cannabis from the federal drug schedules entirely, rescheduling marks a huge step forward for commonsense cannabis policy in our country. This action will have massive impacts, both practically for the cannabis industry and symbolically for the reform movement. We have entered a new era of dialogue and policy around this historically maligned plant.”
Shawn Hauser, partner at Vicente LLP who closely follows the federal scheduling process called ther move, “likely the best outcome possible, given the realities of the federal administrative review process. This historic action by the Biden administration has the potential to embolden Congress to finally pass legislation that federally legalizes and regulates cannabis for medical and adult use.”
Cannabis industry tax relief also seems imminent
The top cannabis tax attorney Wykowski affirmed rescheduling offers relief to embattled cannabis licensees. Their taxes would go down. They would be able to take business deductions for the first time.
“[The tax code section 280E] been a terrible, unfair burden on the whole licensed industry—people who are really trying to comply with the law. It favored people in the illicit market who continued to sell without being licensed, regulated, tested, or taxed.”
Cannabis industry mogul and rapper Berner celebrated, stating to his Instagram followers: “This is such a major step in the right direction. I couldn’t be more excited to say goodbye to 280E which made operating a business in our space unfair and almost impossible.”
A new political win for President Biden and Vice-President Kamala Harris
The rescheduling move championed by the White House bookends a revolutionary journey for both the President and Vice President.
Both advanced politically in Tough on Crime eras. Now, they go down in history as dealing the near-fatal blow to pot prohibition.
Wykowski has watched that journey over decades and said, “I think President Biden’s progression has been the progression that we’ve seen with the country as a whole.”
“For a long time, people thought this was a gateway drug, and that was largely based on inaccurate information put out by the government. It’s just now shown to be wrong. Cannabis when used appropriately can have some beneficial effects for people—they’ve just been slow to recognize them.”
