Marijuana: Top Ten Reasons for Descheduling, Rescheduling or Not

With apologies to David Letterman, who introduced the first Top Ten List on Late Night with David Letterman on September 18, 1985, we present “Marijuana: Top Ten Reasons for Descheduling, Rescheduling or Not.”*

The wide range of assertions supporting or opposing Health and Human Services’ (“HHS’”) recommendation that the Drug Enforcement Administration (“DEA”) reschedule cannabis federally from schedule I to schedule III would lead an outsider to conclude that commenters are referring to different substances.  We thought that it would be educational and entertaining to list the Top Ten reasons presented in letters from three high profile stakeholder groups to Attorney General Merrick Garland and/or DEA Administrator Anne Milgram on how to handle the scheduling recommendation.  We present the Top Ten Reasons in chronological order of the letters and in order of their appearance in those letters.

Letter 1 is signed by former DEA administrators and Directors of National Drug Policy.  Letter 2 is from twelve Democratic state attorneys general.  Twelve Democratic senators signed the most recent letter.  The three letters together provide the range of actions DEA may take: no rescheduling from schedule I (former drug officials), rescheduling to schedule III (Democratic state attorneys general), or descheduling altogether (Democratic senators).  (We blogged on the December 5, 2023, letter from six Democratic governors to President Biden).

Letter 1: Top Ten Reasons for Not Rescheduling Cannabis from Schedule I

From: Former DEA Administrators and Directors of National Drug Policy
Date: October 2023

Former federal drug officials who served in Republican and Democratic administrations open by expressing their grave concern about rescheduling.  Letter to U.S. Attorney Merrick Garland and DEA Administrator Anne Milgram, from Michele Leonhart, et al., (Oct. 2023).  The letter is signed by six former DEA administrators and five former Directors of National Drug Policy.  The earliest tenured is John Bartels, who served as Administrator from 1973 to 1975.  Not surprisingly, then-presidential candidate Asa Hutchinson, DEA Administrator from 2001 to 2003, did not sign the letter.  The former officials implore following the science demonstrating marijuana’s high addictive potential, its lack of accepted medical use, and the rescheduling impact on prosecuting drug trafficking organizations.  In other words, no rescheduling.

1. There has been no evidence that marijuana’s schedule should change since the last rescheduling review in 2016.
2. FDA has not approved marijuana for medical use because no double-blind, published studies show safety and efficacy for raw marijuana.
3. Marijuana is more addictive than ever, with increasingly potent marijuana becoming the norm.
4. There have been no changes to assert any new conclusions since HHS concluded that marijuana has a high potential for abuse, no accepted medical use in the U.S., and lacks an acceptable level of safety for use even under medical supervision.
5. Three in ten people who use marijuana become addicted and the rate is even higher for those who begin using before age 18.
6. Potency has increased since the last scheduling review, with the average tetrahydrocannabinol (“THC”) potency of marijuana seized by DEA spiking from 3.96% in 1995 to 15.34% in 2021.
7. Few would oppose FDA-approved marijuana-derived medications if marijuana compounds are found to have medical value; the National Institute of Health should continue to fund research on any potential medical value of marijuana and on the harms of highly potent products.
8. The illicit marijuana market remains strong despite state laws legalizing marijuana.
9. Rescheduling marijuana, thereby reducing criminal penalties for marijuana trafficking, removes a key tool of federal agents to prosecute cartels.
10. Rescheduling marijuana to schedule III would supersize the cannabis industry by allowing evasion of IRS Section 280E and deducting business expenses for advertising to youth, sale of kid-friendly gummies, and dramatically increasing the industry’s commercial ability.

Letter 2: Top Ten Reasons for Rescheduling Cannabis to Schedule III

From: Democratic State Attorneys General
Date: January 12, 2024

Twelve state attorneys general representing “state-regulated cannabis marketplaces” are encouraged about HHS’ recommendation to reschedule cannabis to schedule III “in the interest of public health and safety” and “encourage” rescheduling to schedule III based on FDA’s “scientific and medical conclusions.”  Letter to DEA Administrator Anne Milgram, from Phil Weiser, et al., (Jan. 12, 2024). The authors view such rescheduling “as a public safety imperative and write in support of this policy change.”

1. As state attorneys general, they are concerned about the illicit market, unregulated intoxicating hemp-derived cannabinoids, and the proliferation of dangerous opioids.
2. With thirty-eight states having legalized medical use of cannabis and twenty-four states and the District of Columbia allowing for adult recreational use, states have developed robust regulatory frameworks to protect consumers from health risks in the unregulated market while accounting for recognized risks of marijuana use, especially among youth.
3. A state-regulated cannabis industry better protects consumers than the illicit market or the unregulated intoxicating hemp-derived marketplace.
4. Rescheduling to schedule III will allow the state-cannabis industry to continue setting the standard for legal products and working to eliminate the illicit market and unregulated intoxicating hemp products operating in interstate commerce.
5. Demand for cannabis products will continue, and meeting that demand only in a regulated, legal marketplace better protects consumers.
6. Rescheduling increases the ability to research cannabis to determine the physical and mental impacts of cannabis use.
7. The regulated cannabis marketplace brings in billions of dollars in revenue into state and federal governments, with predictions that cannabis sales will exceed $53 billion by 2027.
8. Rescheduling would eliminate a tax burden on cannabis companies, allowing licensed companies to expand investments into state programs and focus on public health in collaboration with law enforcement efforts.
9. States’ regulatory regimes have sought to balance a safe framework with the health and safety risks, especially among youth.
10. There is a public health and safety mandate to protect the state-regulated industry by rescheduling cannabis to schedule III.

Letter 3: Top Ten Reasons for Descheduling Cannabis Altogether

From: Democratic Senators
Date: January 29, 2024

Twelve Democratic senators signed Letter 3.  Five of the senators (Elizabeth Warren, Cory Booker, Bernie Sanders, Kristen Gillibrand, and Ron Wyden) wrote to the Attorney General, President Joe Biden, and HHS Secretary Xavier Becerra in July 2022, urging cannabis descheduling and pardons for those convicted of non-violent cannabis-related offenses.  Letter to President Joseph Biden, et al. from Senator Elizabeth Warren, et al. (July 6, 2022).  The senators “write to urge” DEA to “swiftly deschedule marijuana” and, while rescheduling to schedule III “would mark a significant step forward, it would not resolve the worst harms of the current system” for marijuana as a controlled substance, which “has had a devastating impact on our communities and is increasingly out of step with state law and public opinion.”  Letter to Attorney General Merrick Garland and Administrator Anne Milgram, from Elizabeth Warren, et al. (January 29, 2024).  They note that, descheduled, marijuana could still be subject to public health regulations.

1. Marijuana as a schedule I substance is in the same schedule as heroin and in a more dangerous schedule than fentanyl or cocaine, even though it is consistently found to be less dangerous than those substances, and less dangerous than alcohol.
2. HHS’ recommendation noted that marijuana “does not produce serious outcomes compared to drugs in Schedules I or II” and “the vast majority of individuals who use marijuana are doing so in a manner that does not lead to dangerous outcomes to themselves or others.”
3. To support its 2016 rescheduling denials, DEA pointed to lack of scientific evidence supporting medical use of marijuana, which created a catch-22 because, as a schedule I substance, marijuana is subject to DEA’s arduous research approval process and restrictions on federal research funding, stymieing researchers’ ability to rigorously study its medical uses.
4. Today, experts generally agree that marijuana has currently accepted medical uses for several indications, including managing pain, spasms, and nausea in patients undergoing chemotherapy and stimulating appetite in patients with weight loss from AIDS.
5. Studies have found that marijuana access has public health benefits by reducing the rates of opioid use and opioid deaths.
6. Thousands of doctors in the 38 states that permit the medical use of cannabis recommend marijuana to their patients and millions of patients consume medical marijuana under healthcare professionals’ guidance each year.
7. The relevant international treaties respect the legal frameworks of signatories and allow for sufficient flexibility for states parties to design and implement national drug policies in light of their priorities and needs.
8. HHS’ recommendation analysis could support descheduling, particularly as marijuana has less adverse outcomes, including less potential for an overdose, and less abuse potential than non-scheduled substances like alcohol or those scheduled lower than schedule III like benzodiazepines.
9. Many criminal penalties for marijuana will continue as long as marijuana remains federally controlled because those penalties are based on the quantity of marijuana involved, not the drug’s schedule status.
10. Without descheduling marijuana, “criminal penalties (including prison sentences, fines, and asset forfeiture) for recreational marijuana use, and for medical use of marijuana products that lack federal approval, would still exist, disproportionately penalizing Black and Brown communities.”

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We presented Top Ten Reasons from three recent letters to the Attorney General and/or DEA Administrator on cannabis rescheduling.  We encourage you to read the letters in their entirety.

*Late Night’s first Top Ten List was “The Top Ten Words That Almost Rhyme with ‘Peas.’”