Loosening restrictions on marijuana may not lead to boon cannabis advocates seek
Federal authorities are weighing whether to stop classifying marijuana among the riskiest drugs, a move that cannabis advocates have long hoped would result in more research on its health effects, businesses having an easier time selling it and fewer people going to jail.
But experts warn the August recommendation by the Department of Health and Human Services to strip marijuana's designation as a Schedule I drug may not fulfill those hopes.
The proposal before the Drug Enforcement Administration to reclassify marijuana as a Schedule III substance - in the same category as prescription drugs such as anabolic steroids, ketamine and testosterone - would free marijuana from some of the restrictions that apply to Schedule 1 drugs such as heroin and LSD. A decision is expected in coming months.
While marijuana advocates have cast the proposal as a step forward, some contend it doesn't go far enough and would like to see the drug removed from the schedule system entirely, treated like tobacco and alcohol, and eventually legalized at the federal level.
Rescheduling marijuana would amount to a symbolic win in the quest to normalize the drug.
"A recognition from the federal government after all these years that marijuana is safe and effective as a therapeutic agent for patients is significant because obviously that would be a reversal of a very long-standing and very public position," said Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws (NORML), an advocacy group. "When it comes to the practical elements, I don't think anyone knows because we have never gone down this road before."
The implications are mired in legal complications, especially because cannabis is caught in a convoluted system for regulating the drug across different levels of government as both medicinal and intoxicating. Here's a rundown of what we know about rescheduling and the concerns swirling around different aspects of marijuana in the United States.
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What does drug scheduling mean?
The Controlled Substances Act regulates drugs and categorizes them into one of five "schedules" depending on their medical benefits and potential for abuse.
The schedules aren't a ranking of how bad the drugs are for you or society, but instead are a guide for how limited access to the drug should be for doctors, pharmacists and patients. (For example, LSD, which rarely kills users, is scheduled higher than opioid painkillers, which causes tens of thousands of fatal overdoses, because painkillers are routinely used in treating patients.)
Marijuana's designation as a Schedule I substance means the federal government thinks there is no accepted medical use and a high potential for abuse. Federal law prohibits the cultivation and possession of Schedule I drugs, except for approved research studies.
A Schedule III designation under consideration for marijuana means the drug has moderate to low potential for physical and psychological dependence. Federal health officials have declined to answer questions about how they have assessed marijuana's potential for abuse and dependence.
Here's where things get really tricky: Federal officials have previously said they are obligated to classify marijuana as a Schedule I or II substance under an international treaty to fight drug trafficking by tightly controlling narcotics. That's one of the issues the DEA would have to sort out before deciding whether to reschedule the drug.
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Effects on health research
All controlled substances come with restrictions on research, but marijuana and other Schedule I substances have the toughest requirements. Experts say it's imperative to conduct more research on marijuana to understand its benefits and risks as legal markets flourish and consumer use soars.
To gain access to pot, researchers need to register with the DEA under rules that would not apply if they studied Schedule II substances like cocaine and fentanyl. They must submit research protocols to the DEA that need to be reviewed by the Food and Drug Administration. And they must meet stringent requirements for drug storage in electronic safes or vaults that some researchers say are too expensive and burdensome to follow.
"It's incredibly excessive and totally unnecessary," said Ryan Vandrey, a cannabis researcher at Johns Hopkins Medicine. "I can run an entire study with an amount of cannabis that's less than $100 in street value and bought by an adult in the state of Maryland at any of the different dispensaries."
Researchers have to obtain marijuana from growers that follow federal restrictions. But they say such restrictions on growing marijuana for studies make it harder to examine the effects of high potency products and other forms of cannabis now popular among consumers.
Some researchers have found ways to get around these rules, but their studies have limitations.
For example, Washington State University researchers studying the cognitive effects of cannabis had to use Zoom to observe participants who just used marijuana they bought at dispensaries. The ideal study would involve researchers providing high-potency cannabis from dispensaries, including a placebo to a control group, and participants coming to a lab to provide blood samples and record physiological data points such as heart rate variability and cortisol levels that cannot be measured over Zoom.
The university risks losing federal funding if researchers administer cannabis themselves even though marijuana is legal in Washington, said Carrie Cuttler, an associate professor of psychology who directs The Health & Cognition (THC) Lab at Washington State.
"It's absurd, absolutely absurd," she said, "to treat cannabis as pretty much the most dangerous narcotic available in the world."
Despite these restrictions, there is still plenty of research done on marijuana without ever handling the physical drug.
And experts caution there would still be hurdles in conducting the kind of research that's now off-limits even if marijuana is reclassified as a Schedule III substance. That's because the drug would still be treated as a therapeutic rather than an increasingly popular recreational product. It would still be difficult to study all the new marijuana products flooding the market, particularly edibles, vape cartridges and highly concentrated forms such as waxes and shatter.
Kevin Sabet, president of Smart Approaches to Marijuana, which opposes marijuana legalization, said his organization has proposed creating a new schedule category that would relax research restrictions on marijuana while maintaining other restrictions from its Schedule I status.
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Unclear future for the cannabis industry
One of the toughest questions to answer about rescheduling is what it would do to the thousands of marijuana companies operating in a legal gray zone.
It is expected they would be able to deduct business expenses from their tax obligations for the first time, boosting their bottom lines. Beyond that, it gets complicated.
Industry advocates hope rescheduling might encourage more banks to work with marijuana companies, but a bill in Congress to shield financial institutions from punishment is the more direct path for achieving that goal.
There is no precedent for reclassifying a drug that is legal in states, and the booming marijuana industry, and its broad network of direct-to-consumer sales, is nothing like the markets for other Schedule III drugs such as ketamine and testosterone, which require a prescription.
In some ways, the status quo of treating marijuana as one of the riskiest drugs may actually be better for business.
Because marijuana is a Schedule I substance, the FDA has punted to the DEA to regulate it, and the DEA is not in the business of overseeing industries and markets.
A group of marijuana organizations raised concerns that treating marijuana as a Schedule III substance meant for medicinal purposes could upend the industry. They fear the FDA would prohibit recreational marijuana and hold therapeutic products to the high bar needed to sell medicine - requirements only large pharmaceutical companies may realistically be able to overcome - but leading experts dismiss that concern as unfounded.
Some experts argue that it is unlikely the FDA will suddenly crack down on marijuana after taking a largely hands-off approach for years, given the disruption it would cause and the resources it would take. Advocates counter that there's no guarantee the winds won't shift - for example, if Florida's Republican governor, Ron DeSantis, wins the presidency after railing against marijuana.
"There is no way anyone could know or predict in our current political climate what the risk of FDA enforcement is," said Shaleen Title, a former Massachusetts marijuana regulator who runs a cannabis think tank. "What I worry about is by trying to relax marijuana laws, we would inadvertently end up in a situation where we would be criminalizing existing state operators in a new way."
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Limited impact on federal pot prosecutions
Marijuana is illegal at the federal level regardless of how it's classified, and rescheduling alone would not change penalties for major federal marijuana cases.
Possession of Schedule I substances is a federal crime, but few people go to federal prison just for having marijuana. Federal marijuana trafficking charges have plunged 90 percent in a decade as authorities make fentanyl their top priority. Under federal law, rescheduling would not affect penalties for trafficking convictions, said Shane Pennington, a D.C. attorney who specializes in cannabis law.
"It's going to be a lot less of a boon for criminal justice reform than people think," Pennington said.
Marijuana prosecutions tend to happen in state courts, and there were at least 209,000 arrests for possession last year, according to FBI statistics.
Along the Interstate 40 corridor that cuts across the Texas Panhandle between New Mexico and Oklahoma, local police officers routinely arrest motorists transporting marijuana loads from illegal grow operations in California, said Texas defense attorney Adam Tisdale, who specializes in marijuana cases. The loads are typically headed to Florida, and the drivers are charged in state court with possession of marijuana, which becomes a felony depending on the weight of the marijuana. Tisdale predicts local officers won't stop making those arrests, which usually result in hefty fines, not jail time.
"It won't make any difference in my neck of the woods," Tisdale said of rescheduling.
Proponents of rescheduling, such as the U.S. Cannabis Council, say it would send a powerful signal to law enforcement agencies that marijuana cases should be a low priority.
Critics, including the former DEA and White House officials who signed a letter organized by the anti-marijuana organization Smart Approaches to Marijuana, argue that rescheduling removes a "key tool" that federal agents have in prosecuting cartels.
Experts are split on what impact rescheduling would have on the nation's criminal justice systems, which for decades have punitively targeted people - particularly Black and Latino people - for possessing or trafficking in a drug that is now legal for recreational use in 23 states. The Minority Cannabis Business Association and other advocates for racial equity in marijuana policy contend rescheduling alone continues the war on drugs.
"I don't know if it's worth the trade-off to be stuck in this murky middle," said Kaliko Castille, board president of the Minority Cannabis Business Association. "You are still going to have business owners making millions of dollars and others in prison for a plant."
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