The U.S. Drug Enforcement Administration (DEA) recently made waves by telling lawmakers that it holds “final authority” over the decision to reschedule cannabis—no matter what the Department of Health and Human Services (HHS) recommends. The agency says it is now conducting its rescheduling review.
In 2022, President Joe Biden ordered the HHS secretary to begin the process of reviewing cannabis for rescheduling. Cannabis is categorized as a Schedule I drug in the federal list of controlled substances, meaning it’s considered to be a dangerous substance with a high potential for abuse and no recognized medical use.
Last August, the HHS finally finished its review and sent its final recommendation to the DEA. The federal health authority recommended that the DEA reschedule cannabis to Schedule III. Drugs in this category are said to have low potential for abuse and some medical use.
If cannabis is rescheduled, its legal status at the federal level will not change, nor will the laws around prohibition. However, it will open the door to clinical research and could be an incremental step toward real reform.
The DEA accepted the recommendation and presumably began its own review of the evidence sent by the HHS. Since then, the agency has stayed mostly quiet about the subject. It was assumed that the DEA will follow through with the rescheduling since the HHS is considered the federal authority on science and health, but a recent letter that the DEA sent to congressional lawmakers has some concerned that the agency might be planning something else.
The December letter from the DEA, addressed to Rep. Earl Blumenauer (D-OR) and recently made public by Punchbowl News, reasserted the agency’s authority over rescheduling marijuana.
“DEA has the final authority to schedule, reschedule or deschedule a drug under the Controlled Substances Act after considering the relevant statutory and regulatory criteria and HHS’s scientific and medical evaluation,” the letter reads.
It was sent in response to an October letter sent to DEA Administrator Anne Milgram and signed by a coalition of 31 bipartisan House legislators that called for the agency to consider legalization efforts at both the state and federal level as it makes its review, noting that rescheduling the drug would help fix the “federal-state policy gap on cannabis.”
The letter also called for the agency to consider completely removing marijuana from the list of controlled substances.
“Moving marijuana to Schedule III would be an important step in the right direction, but it is not sufficient to correct the wrongs of federal prohibition or to meaningfully address the federal-state gap on cannabis policy,” wrote the lawmakers.
The original letter was two pages long and cited the thriving cannabis markets in legal states, the law-abiding businesses that support them and the hundreds of thousands of employees that make their living from the industry.
It also highlighted congressional efforts to find a legislative path to legalization at the federal level.
The DEA’s response letter, by contrast, was six sentences long. It did not address the lawmakers’ concerns nor did it give an update on the agency’s progress.
“DEA is now conducting its review,” it reads. “We appreciate your ongoing interest in DEA’s work, and we welcome the opportunity to work together on these important issues.”
The letter has raised red flags among advocates, who note that the DEA should be nearly six months into its review already. The agency’s authority on the matter had not been questioned by the lawmakers’ earlier letter, making the DEA’s defensive and dismissive response puzzling.
The response is also puzzling in that the DEA is expected to follow the HHS recommendation since the health agency represents the highest authority on health science. In September, the Congressional Research Service, a public policy research institute that works for Congress, reported that the DEA would likely follow the HHS’s lead as it has in the past.
“CRS is unaware of any instance where DEA has rejected an FDA recommendation to reschedule,” wrote the service in its report. Yet the recent letter seems to imply that the DEA could make history by choosing to disregard the health agency’s recommendation.
Earlier this month, Rep. Steve Cohen (D-TN) sent a new letter to Milgram calling for the DEA to follow the recommendation. Cohen reminded Milgram of a DEA oversight hearing in the House Judiciary Subcommittee on Crime and Federal Government Surveillance in which the legislator expressed the necessity of conducting the review expeditiously.
Cohen wrote that the DEA should move “as swiftly as possible” and said he hoped to see a Notice of Proposed Rulemaking on the matter soon.
“Marijuana never belonged in Schedule I,” wrote Cohen. “Its inclusion resulted in harsh and disproportionate prison sentences, particularly for communities of color.”
Meanwhile, the HHS review that was sent to DEA has not been made fully public. Following a FOIA request for the document, a highly redacted version of the report was posted on the blog On Drugs last month. Most of the 252-page report was redacted.
The HHS cited FOIA Exemption 5—which protects “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency”—for the redactions.
The agency drew criticism for the move and is now facing a lawsuit filed by Matthew Zorn, one of the attorneys who runs the On Drugs blog. The lawsuit accuses the HHS of failing to provide its response to the FOIA request in a timely manner and calls for the full report to be released.
According to Zorn’s blog, the redacted version of the report says that fully disclosing the recommendation could cause harm.