Feds: Move Pot To Schedule III

The nation’s top health agency has recommended that marijuana be reclassified as a less dangerous drug on the list of controlled substances. The historic recommendation has received mixed responses from cannabis advocates who had hoped the drug would be removed from the list completely.

“I can now share that, following the data and science, [Department of Health and Human Services (HHS)] has responded to [President Joe Biden’s] directive to me for the Department to provide a scheduling recommendation for marijuana to the [Drug Enforcement Agency (DEA)],” wrote HHS Secretary Xavier Becerra in a post on X. “We’ve worked to ensure that a scientific evaluation be completed and shared expeditiously.”

Last October, President Biden instructed Becerra and U.S. Attorney General Merrick Garland to begin a review of cannabis’ scheduling according to the Controlled Substances Act.

The drug is currently designated as Schedule I—drugs that have no accepted medical use and a high potential for abuse. Other drugs in this category include heroin, LSD and MDMA.

The HHS recommendation that was sent to DEA last week called for authorities to instead classify the drug as Schedule III—drugs that have some medical use but also the potential for moderate or low physical dependence and high psychological dependence. Drugs in this category include Suboxone, anabolic steroids and ketamine.

If rescheduled to Schedule III, cannabis would remain federally illegal, but many of the barriers to research would be removed. Notably, the change would also allow cannabis businesses to make business expense tax deductions—a practice that most other businesses are allowed to take part in.

Federal regulations prohibit businesses from deducting expenses from gross income if they are involved in trafficking Schedule I or II drugs. If cannabis is rescheduled to Schedule III, cannabis companies will begin seeing greater profits as they are allowed to retain more of their earnings.

To many, the HHS recommendation is great news as it would loosen restrictions on cannabis and put more money in the pockets of business owners. But some are warning that the change could ultimately damage efforts to legalize or decriminalize the drug.

Senate Majority Leader Chuck Schumer—a legislator who has voiced support for legalizing marijuana but has repeatedly stood in the way of the bipartisan-supported cannabis banking bill—touted the HHS recommendation as a net positive for cannabis advocates.

“HHS has done the right thing and the DEA should now quickly follow through on this important step to greatly reduce the harm caused by draconian marijuana laws,” Schumer said in a statement. “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.”

But some advocates say the move will only help to curtail those efforts.

“While there may be some cannabis proponents who count this as a potential win, especially in terms of nixing IRS Code 280e, rescheduling will only significantly set back true legalization,” wrote New Mexico Cannabis Chamber of Commerce Director Ben Lewinger in an email. “It’s an invitation for big pharma to have a platform in cannabis, completely disregards the decades of work that other states, including New Mexico, have done for cannabis and it does nothing to expunge victims of the racist war on drugs and criminalization of cannabis.”

If cannabis remains prohibited, but research on the drug is made easier, certain lobbyist groups and advocates could become complacent and relieve politicians of the current pressure to reform federal laws.

“This is a distraction of the true goal of descheduling and legalizing cannabis for adults across the U.S.,” said Lewinger.

A move to reschedule marijuana wouldn’t address state and federal policies that are at odds.

“While it is long overdue that HHS recognized that cannabis does not belong in Schedule I, moving it to a different schedule rather than removing it from the Controlled Substances Act altogether simply prolongs the increasingly untenable conflict between state and federal cannabis laws,” wrote NORML Political Director Morgan Fox in an email.

NORML Deputy Director Paul Amentano noted the historical significance of the letter while recognizing its inability to address problems with the state-federal conflict.

“It’s refreshing to see that some 80 years after cannabis was initially removed from the pharmacopeia, that the federal government is once again recognizing its medical utility,” Amentano wrote. “That said, as a matter of policy, this proposed change does little to address the widening divide between state-legal marijuana laws and the federal law. In fact, every state law that is currently in conflict with federal law today would remain in conflict with federal law going forward when or if the administration reclassifies it as a Schedule III substance.”

Americans want cannabis legalized at the federal level. According to recent Gallup polls, 68 percent of Americans are in favor of legalization, that includes a majority of Republicans and near-majority of conservatives.

“This proposed change is out of step with cultural and scientific opinion,” said Amentano. “Americans don’t want cannabis treated like heroin, like it is now, but they also don’t want it treated like ketamine, which is currently a Schedule III substance. A much better policy would be to treat it similar to alcohol, which isn’t scheduled at all—which is why states have greater flexibility in regulating it the manner they see fit without violating federal law.”

The HHS recommendation is by no means the final say on the matter. The DEA says it will now begin its review of the drug with HHS’ letter in mind. The drug agency is not required to follow the HHS recommendation, however, and the final decision will come from the DEA.