“Advocates and other stakeholders should remain optimistic that the end of marijuana’s Schedule I prohibition status is more likely than unlikely.”

By Paul Armentano, NORML

Many advocates have expressed dismay at the Drug Enforcement Administration’s (DEA) decision to hold hearings on marijuana reclassification. While this reaction is understandable, it is arguably an overreaction.

Although some stakeholders had suggested that the Biden-Harris administration’s promise to move the process forward expeditiously would lead bureaucrats to choose to bypass hearings, such hopes were never more than wishful thinking. Previous rescheduling requests took several years – not several months – to move through the administrative process.

Moreover, it was always unlikely that the DEA – which has opposed marijuana reclassification in the past – would change course and approve such a change without initiating legal proceedings. Such proceedings are a traditional part of the administrative process and should not be interpreted as unexpected or unusual.

In fact, administrative law hearings represent another opportunity for advocates to bolster the argument that the Department of Health and Human Services has already made convincingly: that cannabis does not meet the legal criteria for a Schedule I controlled substance.

Schedule I substances, by definition, must have “no recognized medical use in the United States.” They must also have a “high potential for abuse” and be “not recognized as safe,” even when used under medical supervision.

The Department of Health and Human Services (HHS) and other agencies involved in this process acknowledge that cannabis does not meet any of these criteria.

More than two-thirds of practicing physicians nationwide believe cannabis has medicinal benefits, and over a quarter have approved it for their patients, according to data from the U.S. Centers for Disease Control. Thirty-eight states regulate access to medical cannabis, and more than 30,000 health care professionals participate in these state programs. Many states now offer continuing education on medical marijuana, and a growing number of universities and graduate schools offer degrees and certificates in cannabis medicine.

In addition, decades of practical experience in jurisdictions where cannabis is legal for medical or recreational use demonstrate that it has a safety profile superior to many other substances. As the HHS specifically acknowledged in its review, “the public health risks posed by marijuana are small compared to other drugs,” such as heroin (Schedule I), cocaine (Schedule II), benzodiazepines (Schedule IV), and alcohol (not listed).

These facts are indisputable and it is unlikely that the opposing party’s witnesses, whoever they may be, will be able to convincingly refute these facts.

Finally, it should be noted that the DEA has already conducted administrative litigation on this issue. In fact, between 1986 and 1988, DEA Administrative Law Judge Francis Young heard days of testimony both for and against the reclassification of cannabis.

After the hearings, Young concluded: “Marijuana, in its natural form, is one of the safest therapeutic substances known to man. By any rational analysis, marijuana can be used safely as part of a supervised medical routine. Given the evidence at hand, it would be unreasonable, arbitrary and capricious for the DEA to continue to stand between these sufferers and the benefits of this substance.”

In short, nearly 40 years ago, advocates argued before the DEA judge that cannabis did not meet the definition of a Schedule I controlled substance. Today, their argument is exponentially stronger.

Of course, the agency’s director ultimately overturned Judge Young’s 1988 decision for ideological reasons. Is there a chance that the DEA, which has the final say in this decision, will once again put politics first? Absolutely. Since the rescheduling process began, that risk has always been a distinct possibility.

Unlike in years past, however, the DEA is now under legitimate pressure from the cannabis industry, advocates, and arguably the Biden administration to comply with the rules, and the agency is under far greater public scrutiny than ever before.

For these reasons, advocates and other stakeholders should remain optimistic that the end of marijuana’s prohibited status as a Schedule I drug is more likely than unlikely.

Paul Armentano is deputy director of NORML and co-author of the book Marijuana is safer: so why do we make people drink?

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Photo courtesy of Chris Wallis // Side Pocket Images.