DEA Issues a Trifecta of Significant Marijuana and Industrial Hemp Decisions, Including Rejecting Rescheduling for Legitimate Medical Use

August 12, 2016

By John A. Gilbert, Jr. & Larry K. Houck

In separate notices published today, the Drug Enforcement Administration (“DEA”) issued three major decisions on marijuana and industrial hemp. The most significant, in a move running counter to most state action, includes DEA rejecting a petition to reschedule marijuana thereby affirming marijuana’s continued status as an illicit schedule I controlled substance. However, DEA also announced a policy change that could increase the number of authorized marijuana cultivators for research. Finally, the DEA concurred with the Department of Agriculture (“USDA”) and Department of Health and Human Services (“HHS”) in issuing a statement of principles on industrial hemp. These federal actions come as 25 states and the District of Columbia allow some medical use of marijuana, four states allow marijuana for recreational use and nine states will vote on marijuana medical or recreational use in November.

The following is a brief summary of these notices. We will provide further analysis in the days to come. 

Denial of Marijuana Rescheduling Petitions/Affirmation as Schedule I

Responding to two petitions to reschedule marijuana, one of which was filed by the then-governors of Rhode Island and Washington, DEA denied the petitions (here and here) to initiate proceedings to reschedule marijuana. In a letter to petitioners and shared with the public, DEA Acting Administrator Chuck Rosenberg explained that scheduling decisions are based partly on medical and scientific data reviewed, analyzed and assessed by HHS, the Food and Drug Administration (“FDA”) , and National Institute on Drug Abuse (“NIDA”), known as the “eight factor analysis.” These conclusions are legally binding on DEA. Acting Administrator Rosenberg stated that based on the FDA scientific and medical evaluation, there is no statutory basis under the CSA to grant the petitions and initiate rulemaking proceedings to reschedule marijuana. Significantly, DEA stated that there is no currently accepted medical use for marijuana and the substance has a high potential for abuse and lacks accepted safety for use under medical supervision. In other words, it still meets the schedule I criteria.

Increasing the Number of Authorized Marijuana Cultivators for Research

In what could be viewed as a move to placate the expected criticism of the denial of the rescheduling petitions, DEA also announced a change of policy that expands the number of registered marijuana cultivators and manufacturers for research.  The University of Mississippi, under contract with NIDA, has been the only entity authorized to cultivate and supply marijuana to U.S. researchers. DEA’s new policy, consistent with CSA requirements and treaty obligations, will allow additional entities to apply for and obtain registrations. Until recently a single cultivator could meet the demand for research-grade marijuana. DEA has concluded, based on discussions with NIDA and FDA, that “the best way to satisfy the current researcher demand for a variety of strains of marijuana and cannabinoid extracts is to increase the number of federally authorized marijuana growers” by allowing additional growers to apply and register with DEA.  The policy statement provides information on the factors that DEA will consider in evaluating a registration to cultivate marijuana for research. Significantly, one factor that DEA identified that would potentially weigh against a registration would be past conduct in violation of Federal law, despite whether such activity was legal under State law. Thus, current cultivators operating under State law may find it difficult to obtain a DEA registration for research.

Statement of Principles Concerning Industrial Hemp

Finally, the USDA in consulting with DEA and FDA, released a statement of principles on the cultivation of industrial hemp under the Agricultural Act of 2014.  Section 7606 of the Agricultural Act legalized growing and cultivating industrial hemp in limited circumstances but left a number of questions. The statement of principles outlines how federal law applies to industrial hemp growth and cultivation activities for individuals, institutions and states who wish to participate in the industrial hemp growth and cultivation legalized by Section 7606.

Please stay tuned for further analysis of these important notices.