Rescheduling marijuana under the provisions of the Controlled Substances Act is no longer a viable option in the effort to modernize marijuana policy in the United States and/or satisfy the legitimate needs of medical marijuana users in the various states that authorize medicinal marijuana use.

There has been some talk recently of rescheduling marijuana, that is, having Congress remove marijuana from Schedule I of the Controlled Substances Act where it is subject to the most stringent regulations, and place it in a less restrictive schedule. The Obama Administration has signaled that they would be willing to work with Congress to accomplish this.

This author, along with HIGH TIMES and other supporters, filed legal papers in 1995 and 2001 to compel the federal government to reschedule marijuana. In both attempts the Drug Enforcement Administration (DEA) denied our petition and the US Court of Appeals upheld the decision. The DEA’s position was, and remains, that marijuana is a drug with a high potential for abuse and no accepted medical value in the United States. The Obama Administration has recently taken the position that it would not object to Congress rescheduling the drug, presumably because that would bypass the DEA and its opposition to such a change.

Interestingly, the DEA is part of the Obama Administration, and its director is a presidential appointee. But let’s leave the notion that the President is trying to get Congress to do something that he refuses to order his own administration to accomplish aside.

Marijuana does not belong in the Controlled Substances Act. Any scheduling of marijuana in the Controlled Substances Act is a threat to medical marijuana use and state medical marijuana laws. Rescheduling is an obsolete remedy, once long overdue but now its only value would be to provide a pretext to roll back or eliminate the advances brought about by state level reform.

The CSA is intended to regulate pharmaceutical products, manufactured by corporations, and provided to patients according to prescriptions issued by doctors. Marijuana is not a pharmaceutical product, it is grown not manufactured, and no doctor in the United States can write a prescription for a substance that remains unapproved by the Food and Drug Administration. 

State medical marijuana laws challenge the premise that marijuana should be subject to this federal regulatory framework. State medical marijuana law are part of a process, governed by the principles of federalism, to develop alternative regulatory approaches that better serve the needs of patients and caregivers.

Rescheduling is advanced today as a means of expediting research on medical marijuana that would provide the means to successfully challenge the DEA’s opposition to recognizing the therapeutic benefits of cannabis. Some also hope the provisions of any bill passed by Congress to change marijuana’s placement in the CSA would include protections for state medical marijuana programs and patients.

This poses an obvious question. If Congress is willing and able to pass a law providing protection for state programs and medical cannabis users, then why not just remove marijuana from the CSA and provide such protections? Also, as a related but perhaps separate matter, if Congress is willing and able to pass a law to expedite research on the medical use of cannabis, why not establish appropriate regulations outside the framework of the Controlled Substances Act?

The reader may have noticed that this discussion has not included any explanation of the differences in the various schedules of the CSA and how placement in one schedule or another would affect research or medical availability. This is because it doesn’t matter. A different schedule for marijuana would make research easier, but Congress could accomplish that with specific legislation. As long as marijuana is subject to the CSA, there will be no legal medical use under federal law until there is FDA approval of corporate, patented, pharmaceutical cannabis products.

There was a time when the symbolic ramifications of rescheduling would have helped to advance reform of the nation’s marijuana laws. That time is past. Passage of state-level medical marijuana laws has accomplished that, and much more – they have provided legitimacy, access and legal protections. At the federal level it is time for substantive changes in federal law and policy, not symbolism, nor half-measures, nor tinkering around with the CSA to provide the appearance of action without providing any significant relief for patients.

Imagine the following scenario. Marijuana is rescheduled and the DEA then aggressively attempts to make all medical marijuana access in the US subject to the regulatory restrictions established by the CSA. Access to medical marijuana under state programs is reduced and made much more complicated as tighter controls are enacted. Within a few years Sativex, a cannabis pharmaceutical product, will be approved for sale in the US by the Food and Drug Administration. The DEA will probably make it a Schedule III substance, like Marinol (the THC pill) or maybe even something less restrictive. The DEA will then argue that while access to medical marijuana may have been necessary in years past, this new pharmaceutical product has rendered medical marijuana obsolete.

Is this the Obama Administration’s plan? Maybe, but probably not. However, Obama will only be in office until 2016. What then? Who knows? What we do know is that the CSA is not a practical regulatory framework for medical cannabis and that it can be used to roll back or eliminate medical cannabis access. Right now, everybody involved in medical cannabis distribution can be indicted under federal law, if not now under this Attorney General then later under another one.

Rescheduling marijuana once had potential to advance marijuana law reform. It no longer does. State level reform has changed the playing field in significant and profound ways. It’s time to change federal law to address the legitimate needs of patients in every state. This means removing marijuana from the Controlled Substances Act and federal passage of a new piece of legislation granting every American access to marijuana in a legal regulated market.