The DEA (Drug Enforcement Administration) has recently acknowledged the legitimacy of a new two-part test used to evaluate whether a drug has an accepted medical use, specifically in the context of cannabis rescheduling.
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This comes as federal health officials have recommended moving cannabis from Schedule I to Schedule III of the Controlled Substances Act. A Schedule I drug is classified as having no currently accepted medical use, but this new test could change that for marijuana.
Previously, the government used a five-part test to determine a drug's medical use, looking at factors like the drug’s chemistry and available research. However, the Department of Health and Human Services (HHS) introduced a simpler two-step test earlier this year when proposing the rescheduling of cannabis. The new approach asks two main questions: first, whether there’s widespread medical use by licensed providers under state regulations, and second, whether there’s credible scientific support for at least one of the medical uses.
While opponents of marijuana reform, like Smart Approaches to Marijuana (SAM), have criticized the new two-step process, accusing it of being politically motivated, the DEA seems to have accepted it. In a recent notice regarding the scheduling of two synthetic opioid drugs, the DEA acknowledged this new test, signaling that they must defer to the Department of Justice’s (DOJ) Office of Legal Counsel (OLC), which found the two-part test sufficient.
This acknowledgment marks a significant shift. While the DEA may not fully support the new standard, they are bound by the OLC’s legal authority. As a result, the agency must follow the two-part test unless overruled by a higher authority like the Attorney General, the President, or a federal court.
This new method of assessing medical use could also have broader implications beyond marijuana. For instance, future drug rescheduling efforts, including those related to psychedelics like psilocybin, might be influenced by this two-step test. Essentially, the precedent set here could guide how other substances are evaluated in the future.
The cannabis rescheduling process is ongoing. The DEA has scheduled an administrative hearing in December to gather more input before finalizing any changes. The timing means the process could stretch into January, potentially leaving room for the next presidential administration to impact the outcome.
Although President Joe Biden has taken steps toward marijuana reform, like issuing pardons for past cannabis-related offenses, he’s been relatively quiet about the rescheduling process. In contrast, Vice President Kamala Harris has been more vocal about the administration’s marijuana platform, though she’s faced criticism for overstating the progress made. Despite these political dynamics, the DEA’s recent recognition of the two-part test is an important development in the evolving discussion around cannabis policy in the U.S.
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