Count me among the many who assumed that marijuana would be moved to Schedule III of the Controlled Substances Act by the end of the year. I still think there is an outside chance it will happen. But if President Biden is to be believed, there are no guarantees. In recent comments about marijuana reform, the president made it clear that rescheduling is not a done deal yet.
HHS Ordered to Review Marijuana
The president directed the department of health and human services (HHS) to take a look at marijuana rescheduling more than a year ago. Following their review, HHS formerly recommended that the Department of Justice (DOJ) reschedule marijuana. The DOJ didn’t take up the issue until this past March.
DOJ regulators set the wheels in motion for rescheduling by starting the rulemaking process. After coming up with an initial rule, they conducted the obligatory public comment period. Following public comments, it was expected that the DOJ would conduct its final hearing before implementing a rule sometime before November. That is not going to happen.
The final hearing is not scheduled until December. At that hearing, regulators will discuss a proposed rule set that, if approved, likely would not go into effect until next year. So right now, it appears as though rescheduling will not happen in 2024.
It might not happen at all if the final hearing does not go as many expect it will. I cannot say for sure, but I am willing to bet that the results of the November election will weigh heavily on what regulators decide.
Not Necessarily on Board
It is no secret that the DOJ and DEA do not agree with HHS’s recommendation to reschedule marijuana. They also resent the implication that they are bound to that recommendation even though federal law gives the final authority over rescheduling to the DEA.
Perhaps the DOJ is waiting to see how America votes before reaching a final decision. If one side wins, I can see regulators acquiescing and proposing a final rule that moves marijuana to Schedule III. But if the other side wins, I can just as easily see the department giving into DEA officials who want things left alone.
Unfortunately, what we have here is a political situation that will ultimately be decided by politics. The losers in all of this are industry players and consumers. My primary concern is with medical cannabis users.
It Has Worked So Far
The current medical cannabis environment is far from ideal. But what the states have done within their borders has worked so far. It has worked well enough that even Utah has given medical cannabis the green light. Companies like Salt Lake City’s Beehive Farmacy do a particularly good business serving tens of thousands of Utah patients. Meanwhile, patients have access to high quality, regulated cannabis.
Rescheduling would likely not hurt either patients or medical cannabis pharmacies. In fact, rescheduling would probably help medical cannabis in the long run. Yet it could prove detrimental to the recreational market for the simple fact that rescheduling would get the FDA involved in regulating things like product quality, marketing, and labeling.
The FDA could theoretically put a hard thumb on the marijuana industry similar to what they’ve done to the vaping industry. That would open the door to a corporate takeover and the end of mom-and-pop businesses.
Time will tell whether marijuana is rescheduled. But according to the president, it is not a done deal yet. That tells me there is at least a slight possibility that the DOJ will maintain its current position.