A Department of Justice spokesperson said the government has nothing further to provide beyond its confirmation of review.
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Clarity on the U.S. Drug Enforcement Administration’s (DEA) review process of a recommendation to reschedule cannabis under federal law remains murky.
Cannabis Business Times reached out to the Department of Justice, of which the DEA is a component, on Feb. 23 to inquire about the DEA’s timeline for its review of the U.S. Department of Health and Human Services’ (HHS) August 2023 recommendation to relist cannabis from Schedule I to Schedule III under the Controlled Substances Act (CSA).
CBT also inquired about the following topics:
Is the DEA specifically reviewing a Schedule III listing for cannabis, or is it also reviewing the possibility of Schedule II, IV and/or V listings, and/or decontrolling cannabis altogether?
Do U.S. treaty obligations under the Single Convention on Narcotic Drugs of 1961 prevent the DEA from rescheduling cannabis lower than a Schedule II substance?
Is the DEA conducting its own analysis on cannabis’ accepted medical use and potential for abuse, or is it relying on the FDA/HHS’ eight-factor analysis that was already conducted? Why?
Roughly how many DEA officials are involved in the rescheduling review process?
Peter Carr, a senior communications adviser for the DOJ, responded: “The Justice Department has received the recommendation from HHS and it’s under review.”
DEA Acting Chief Michael Miller, from the Office of Congressional Affairs, already confirmed this in a Dec. 19 letter to Rep. Earl Blumenauer, D-Ore., as first reported by Punchbowl News.
Instead of answering specifics, Carr directed CBT to a 2020 DEA resource guide on “Drugs of Abuse,” a 112-page document that predates Joe Biden’s presidency (the DOJ is headed by the U.S. attorney general, who reports directly to the president and is a member of the president’s Cabinet). The current cannabis rescheduling review process was directed by Biden himself, a White House first.
When asked if the DOJ is declining to answer questions from the media regarding cannabis rescheduling, Carr told CBT, “We don’t have anything further to provide.”
This lack of transparency in the department’s review process follows a pattern of silence on the issue. Notably, the DEA and Attorney General Merrick Garland missed a Feb. 12 deadline to respond to 12 U.S. senators (who asked six questions about the DEA’s review), CBT confirmed with multiple congressional staffers earlier this month.
Many other federal, state and local leaders as well as various interest groups, from law enforcement to veterans, have also penned letters to the DEA, Garland and the president regarding the rescheduling process.
The 112-page DEA resource guide Carr sent CBT provides an overview of the process “to add, delete, or change the schedule of a drug or other substance.”
Once the DEA receives a medical and scientific evaluation regarding a drug or substance from the HHS, the resource guides states: “The medical and scientific evaluations are binding on the DEA with respect to scientific and medical matters and form a part of the scheduling decision.”
Many with ties to the cannabis industry already know this, but it’s a key element of the DEA’s review process considering that HHS and Food and Drug Administration (FDA) officials conducted an eight-factor scientific analysis prior to the August 2023 recommendation, finding that cannabis does in fact have medicinal value and a lower risk for potential abuse.
When the DEA denied NORML’s first rescheduling petition—one that lasted from 1972 to 1994 amid a series of court appeals—part of the reasoning behind its decision was that there was “currently no acceptable medical use of marihuana in the United States.” After the HHS/FDA 2023 analysis, this position no longer holds standing.
The DEA’s 2020 resource guide also outlines each of the eight factors used in determining what schedule a drug or substance should be placed, or whether a substance should be decontrolled or rescheduled—again, common knowledge in the cannabis industry that was widely reported when HHS made its recommendation in August.
And although drugs that do not have a potential for abuse cannot be controlled under the DEA’s guidelines, the CSA omits a definition for the term “potential for abuse.” However, according to the DEA resource guide, the following items are indicators that a drug or other substance has a potential for abuse:
There is evidence that individuals are taking the drug or other substance in amounts sufficient to create a hazard to their health or to the safety of other individuals or to the community;
There is significant diversion of the drug or other substance from legitimate drug channels;
Individuals are taking the drug or other substance on their own initiative rather than on the basis of medical advice from a practitioner; and/or
The drug is a new drug so related in its action to a drug or other substance already listed as having a potential for abuse to make it likely that the drug will have the same potential for abuse as such drugs, thus making it reasonable to assume that there may be significant diversions from legitimate channels, significant use contrary to or without medical advice, or that it has a substantial capability of creating hazards to the health of the user or to the safety of the community.
So, how is cannabis abused?
The answer, according to the DEA resource guide, is that “marijuana is usually smoked as a cigarette (called a joint) or in a pipe or bong. It is also smoked in blunts, which are cigars that have been emptied of tobacco and refilled with marijuana, sometimes in combination with another drug. Marijuana is also mixed with foods or brewed as a tea.”
The DEA resource guide also acknowledges that there are a number of substances that are abused but not regulated under the CSA. Alcohol and tobacco, for example, are specifically exempt from control by the CSA.
“In addition, a whole group of substances called inhalants are commonly available and widely abused by children,” the DEA resource guide states. “Control of these substances under the CSA would not only impede legitimate commerce, but also would likely have little effect on the abuse of these substances by youngsters. An energetic campaign aimed at educating both adults and youth about inhalants is more likely to prevent their abuse.”
Will the same someday hold true for cannabis?
That decision currently falls under the authority of DEA Administrator Anne Milgram, who is responsible for evaluating “all available data” to make a final decision whether to reschedule or decontrol cannabis following HHS’s recommendation.
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