Attorney General Moves to Reclassify Marijuana as Lower-Risk Drug

The Washington Post / David Ovalle, Michael Scherer, Tyler Pager, Dan Diamond, Fenit Nirappil

17:20 JST, May 1, 2024

Attorney General Merrick Garland on Tuesday recommended loosening restrictions on marijuana, a historic shift in federal drug policy that could broaden access to the drug for medicinal use and boost cannabis industries in states where it is legal.

The measure, if enacted, would not legalize marijuana at the federal level but still represents a milestone that could prove to be a political win for President Biden, who is campaigning for reelection and has sought to ameliorate racial and criminal justice inequities wrought by the nation’s long war on drugs.

The Justice Department submitted the formal recommendation to the White House on Tuesday, an agency spokeswoman said in a statement. It follows the Drug Enforcement Administration’s approval of a federal health agency recommendation that marijuana be reclassified.

The White House’s Office of Management and Budget must review the measure, according to people familiar with the matter who spoke on the condition of anonymity to discuss internal administrative matters. The proposal, if accepted, would be formally published and would not go into effect for months until the public has a chance to comment.

The DEA’s approval was first reported Tuesday by the Associated Press. The DEA, the Justice Department and the White House declined to comment.

For more than five decades, marijuana has been classified as a Schedule I controlled substance with a high potential for abuse and no accepted medical use, in the same tier as heroin. Under the Justice Department’s proposed change, marijuana would go to the less risky Schedule III – in the same category as prescription drugs such as ketamine, anabolic steroids and testosterone.

The historic policy shift comes as marijuana is easier than ever to obtain and has become an industry worth billions of dollars in the United States. The majority of Americans now live in states where they can legally buy weed. Thirty-eight states and D.C. have legalized medical marijuana programs, and 24 have approved recreational marijuana.

In October 2022, Biden directed health officials to expedite a review of whether marijuana should remain a Schedule I substance. In August, the Department of Health and Human Services notified DEA that it was recommending marijuana be reclassified. The agency relied on a Food and Drug Administration scientific analysis that found marijuana has an accepted medical use and evidence it can treat certain conditions, including nausea and vomiting. It also cited studies showing “moderate benefit” of smoking marijuana for pain.

The reclassification may have only a limited impact on criminal justice cases involving marijuana. Biden has granted pardons for federal marijuana possession cases, and federal prosecutors generally prioritize drug dealers involved with deadly substances such as fentanyl.

Cannabis advocates Tuesday hailed the potential change as a milestone that will transform how the federal government treats marijuana, signaling that the dangers have been overblown and that criminal cases should assume a lower priority.

“This is going to help to normalize cannabis more than anything that’s ever occurred in the U.S. since they started the war on drugs,” said David Culver, senior vice president of public affairs at the U.S. Cannabis Council, an industry advocacy group. “This is the most significant federal cannabis reform in modern history, and I think sets us on a path for the ultimate goal of federal legalization.”

Still, cannabis advocates – who want to see marijuana regulated like tobacco and alcohol – point out that even if the drug is reclassified, it remains a federally controlled substance subject to prosecution.

“Those involved in the state legal marijuana industry and the tens of millions of Americans who patronize that industry are all acting in a manner that is inconsistent with federal law,” said Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws, an advocacy group. “Theoretically, if the federal government wished to do so, all of these players could be prosecuted for being in violation of the federal law.”

At the state level, the rapid legalization of marijuana has facilitated the rise of a booming industry of growers, processors, dispensaries and other cannabis companies. But the industry has struggled in recent years as it faced continued competition from the illicit market along with a glut of supply in some states that drove down prices. States collected $3.77 billion in cannabis taxes in 2022, down from $3.86 billion in 2021 in the first-ever decline in revenue, according to a report from the Marijuana Policy Project.

Under IRS code 280E, businesses that sell Schedule I substances cannot deduct business expenses, resulting in a substantially higher tax rate for companies that grow and sell marijuana. But with marijuana reclassified, they will be eligible for the tax breaks.

Kaliko Castille, former board president of the Minority Cannabis Business Association, said many cannabis companies have struggled to become profitable in part because of high taxes.

“This will potentially help small businesses who are struggling around the country get into the black,” Castille said. “My concern is although this will provide some relief for small businesses, it may actually lead to more consolidation and smoking out smaller players.”

The long-expected recommendation could have political implications for the Biden campaign.

Democratic senators have pushed Biden to go further and completely decriminalize marijuana.

“Congress must do everything we can to end the federal prohibition on cannabis and address longstanding harms caused by the War on Drugs,” Senate Majority Leader Charles E. Schumer (D-N.Y.) said in a statement Tuesday.

Biden’s top advisers have long viewed marijuana rescheduling as a potential political win, particularly among younger voters not yet engaged in the election at levels that Democrats want. While the policy shift wouldn’t make recreational use legal under federal law, it has the potential to signal to users of the drug and those who seek decriminalization that he is on their side.

Vice President Harris has been holding events recently to emphasize the need for “marijuana reform” – including a March event at the White House with the musician Fat Joe and a January event in the swing state of Nevada, where recreational marijuana is legal, to announce a policy change that will make it easier for people with criminal convictions to get federal business loans.

“Trump and his administration took marijuana reform backwards,” the Biden campaign announced last week, citing a 2018 decision by Trump’s Justice Department to empower prosecutors to more aggressively prosecute marijuana in states where the drug is legal.

Former president Donald Trump, who is expected to be the Republican nominee for president again, has campaigned in the past on allowing states to set their own policies for marijuana, saying he supports the legal use of marijuana for medical purposes. He has not weighed in on whether he supports a reclassification of marijuana under federal law.

The potential reclassification has drawn criticism from some former federal law enforcement officials, and conservative members of Congress have said stripping marijuana’s Schedule I status would hinder attempts to prosecute drug traffickers and harm public health. While marijuana has been shown to have medicinal benefits, some studies have found the drug has downsides, including addiction and negative effects on the developing brain.

“If the Biden Administration follows through with rescheduling, this decision will be anti-science and harmful to public health and safety,” Rep. Andy Harris (R-Md.), among the most vocal cannabis critics in Congress, posted on X.

One of the nation’s most prominent marijuana critics, Kevin Sabet, blasted the move, saying that “politics and industry influence have loomed over this decision from the very beginning.”

In a statement, Sabet blasted the FDA’s scientific analysis and noted that marijuana has never passed federal safety and efficacy protocols. “A drug isn’t medicine because it’s popular,” said Sabet, president of Smart Approaches to Marijuana, a group that advocates decreasing marijuana use.

It remains unclear what the FDA’s role will be in regulating marijuana as a Schedule III substance.

The move could facilitate much-needed research into the health benefits – and harms – of marijuana, scientific study that has been historically stifled by the drug’s status as the riskiest of controlled substances.

Reclassification could persuade more doctors to recommend marijuana, despite the lack of FDA approval for marijuana plant products as prescription medications. The agency has approved only one cannabis-related drug, Epidiolex, made from CBD, a cannabis extract that does not induce a high; it is used to treat rare forms of severe epilepsy. The agency has approved three other drug products made from synthetic versions of THC to treat nausea.

Some legal experts say that under federal law, if marijuana is moved to Schedule III, doctors or state-authorized dispensaries can distribute medical marijuana – without FDA drug approval – directly to patients without a prescription, as long as the system does not involve interstate commerce.