Drug Czar Overstates Cannabis Rescheduling Impact on Criminalization and Race

May 28, 2024

The White House drug czar says the Biden administration’s move to reschedule marijuana will have “historic and long-lasting impact” that could also make banks more willing to work with state-licensed cannabis businesses via “legitimate interstate commerce.” But for the second time in a week, he seemed to overstate what the reform would accomplish—this time by suggesting it would address the “racial disparity” in cannabis enforcement.

Dr. Rahul Gupta, director of the Office of National Drug Control Policy (ONDCP), weighed in on the proposal to move marijuana from Schedule I to Schedule III under the Controlled Substances Act in an interview with the Star Tribune, published on May 24.

“We’ve had a policy for over half a century where so many lives have been upended because of our failed approach to marijuana. We’ve had so many people arrested, prosecuted and incarcerated,” he said. “We know white, Black and brown people use marijuana at similar rates, but Black and brown incarceration rates are higher.”

Gupta said rescheduling is “going to be really important to remove barriers to critical research and perhaps drug development, and it could also lead to more research into the benefits of medical marijuana.”

However, while he said that “this decision is going to have a historic and long-lasting impact,” he also made several additional comments about the move that appeared to inflate the effects of the reform.

“It happens that Schedule III drugs are a much, much lower priority in that way—Tylenol with codeine and testosterone are in Schedule III,” the official said. “It will have an impact on racial disparity, incarceration and prosecutions. And whether in Massachusetts or West Virginia or Texas, Americans should be able to get treatment for their condition.”

There’s nothing about the potential rescheduling action that would specifically address racial disparities in criminal enforcement.

A Schedule III reclassification would not federally legalize marijuana, and since the Food and Drug Administration (FDA) has not approved the plant as a medicine that could be prescribed, the threat of criminal prosecution would remain in force for any cannabis-related activity.

Gupta similarly oversimplified the idea of marijuana’s potential availability as a prescription drug in another recent interview.

There’s nothing about the potential rescheduling action that would specifically address racial disparities in criminal enforcement. Penalties for certain marijuana-related activities would be reduced—and the policy change could theoretically signal to prosecutors that cannabis charges are an even lower priority—but it would not change the law in a way that would inherently affect the rate of prosecutions overall.

Asked about how a transition to Schedule III could impact the willingness of banks to work with state-licensed marijuana businesses, Gupta said that “we do know the drugs that are Schedule III are in legitimate interstate commerce within the federal system.”

Again, however, he was referring to FDA-approved drugs that can be prescribed by a health professional. The FDA typically does not approve botanical substances as prescription drugs; instead, it has so far only approved synthetic THC and CBD-based medications for the treatment of certain conditions.

A report published by the Congressional Research Service (CRS) earlier in May also clarified that further action from the FDA would be needed before marijuana products become available by prescription.

“I’ll leave it to others to talk about the commercial process,” the drug czar said. “The focus for the president has been making sure Americans are able to get the help they need no matter where they live, and on the other side making sure we’re not [harming] people.”

Gupta was also asked about the possibility of a future administration reversing the rescheduling decision. He started by saying that Biden “has given the opportunity to Congress to take action,” and did so himself “because he could wait no longer.”

“The independent reviews of these agencies followed established processes and procedures in getting to this result. That process is driven through science,” he said. “I can’t provide any hypothetical answers to what may happen. This is a change that is driven by policy, by science, by data, regardless of the political process.”

“Rescheduling is a process that will continue to go on for the remainder of the year,” he said. “The historic nature of the actions we’re taking cannot be minimized.”

“The country’s drug policy overall has caused too many lives to be lost and others to be impacted negatively,” he continued. “The president has been very consistent: No one should be in jail for using or possessing marijuana. These steps to move marijuana from Schedule I to Schedule III is a policy that is consistent with science in the 21st century.”

Former ONDCP Director Gil Kerlikowske said that cannabis is “not medicine” and that rescheduling was “all Big Cannabis.”

A former drug czar who served under President Barack Obama recently took a sharply different position on marijuana rescheduling. Former ONDCP Director Gil Kerlikowske said that cannabis is “not medicine” and that rescheduling was “all Big Cannabis.”

“This isn’t people my age that are just old hippies that want to open up a pot shop somewhere,” Kerlikowske said on the podcast of former United States Rep. Mary Bono (R). “This is a huge business like Big Tobacco. Absolutely.”

Meanwhile, the proposed rule to federally reschedule marijuana was officially posted on May 21, kicking off a public comment period that’s expected to elicit a major response from supporters and opponents of cannabis reform.

Marijuana reform advocates and stakeholders have made clear that they intend to leverage the opportunity, with some planning to support the reclassification while others intend to call for descheduling cannabis altogether. Prohibitionists are expected to oppose the incremental policy change and seek to keep marijuana in Schedule I, and there’s also a looming threat of litigation.

While the Department of Justice will take all public comments submitted by July 22 into consideration as it weighs the reform, it said in the notice that one of the topics it’s especially interested in hearing about is “unique economic impacts” of the rescheduling proposal, given that state-level legalization has created a “multibillion dollar industry” that stands to benefit from possible federal tax relief under the reform.

On Capitol Hill, Senate Majority Leader Chuck Schumer (D-NY) and colleagues have reintroduced legislation to federally legalize cannabis and impose certain regulations. The bill’s prospects are dubious in the current divided Congress, however.

Meanwhile, the top Democrat in the US House said that the Biden administration’s move to reschedule marijuana is a “step in the right direction” but should be followed up with congressional action, such as passing the legalization bill Schumer filed.

In a recent interview with Fox News, former DEA Administrator Asa Hutchinson said it “absolutely looks like” the agency will follow through with rescheduling marijuana.

Biden has separately issued two rounds of mass pardons for people with federal marijuana possession convictions. Again, a Schedule III reclassification would not legalize cannabis or free people still incarcerated.

During his run for the presidency, Biden pledged to move cannabis to Schedule II—a stricter category compared to that now proposed by his administration.

 


 

Photograph by Kindel Media via Pexels

This story was originally published by Marijuana Moment, which tracks the politics and policy of cannabis and drugs. Follow Marijuana Moment on Twitter and Facebook, and sign up for its newsletter.

Kyle Jaeger

Kyle is Marijuana Moment's Los Angeles-based associate editor. His work has also appeared in High Times, VICE and attn.

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