Congressional Research Service: Could be Likely that DEA will Reschedule Marijuana

A recent report by the Congressional Research Service (CRS) indicates a possible rescheduling of marijuana in response to recent guidance from Health and Human Services (HHS).

“DEA has testified in response to questioning at a congressional hearing in 2020 that it is bound by FDA’s recommendations on scientific and medical matters,” the report states, “and if past is prologue it could be likely that DEA will reschedule marijuana according to HHS’s recommendation.”

On August 29, 2023, HHS recommended to the DEA that marijuana move from Schedule I to Schedule III under the Controlled Substances Act (CSA). This recommendation came following an FDA review of marijuana, initiated by President Biden in 2022, with undisclosed findings that could significantly impact federal drug policy.

The report notes that DEA is to conduct its own review of marijuana, and if it opts to move forward with rescheduling marijuana to Schedule III, it would do so through the rulemaking process.

“CRS is unaware of any instance where DEA has rejected an FDA recommendation to reschedule,” states the September 13^th report. “As a comparative example, in September 1998 FDA recommended to DEA that Marinol be rescheduled to Schedule III, and in July 1999 DEA rescheduled Marinol to Schedule III.”

Rescheduling to Schedule III would mark a notable departure from the current federal classification of marijuana as a Schedule I substance, which denotes high potential for abuse and no recognized medical utility. In contrast, Schedule III acknowledges medical applications while maintaining federal oversight. This change could have sweeping effects, including permitting legal production, distribution, and possession of medical marijuana under CSA regulations. It may also lead to closer alignment between state cannabis programs and federal guidelines, potentially prompting increased FDA oversight and resource allocation.

The potential reclassification could impact taxation, housing, visa eligibility, firearm access, research opportunities, employment prospects, military service requirements, and DEA production quotas. It could also encourage more research on marijuana by removing some regulatory barriers. Congress might consider legislative actions, such as retaining the Schedule I status or removing it from controlled substances entirely, which could require additional resources for FDA and USDA to ensure product quality and safety within state markets