The Biden administration’s proposed rule to federally reschedule marijuana has officially been posted, kicking off a public comment period that’s expected to elicit a major response from supporters and opponents of cannabis reform alike.
About a week after President Joe Biden and the Department of Justice both confirmed that they are seeking to move cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA), the rule was published in the Federal Register on May 21.
That initiates a 60-day public comment period, after which there may be an administrative hearing to receive additional input before the rule is potentially finalized.
“DOJ is seeking comment on the practical consequences of rescheduling marijuana into Schedule III.”
Cannabis 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 DOJ 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 the “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.
The DOJ said, “marijuana is subject to a number of State laws that have allowed a multibillion dollar industry to develop,” and the department “acknowledges that there may be large impacts related to Federal taxes and research and development investment for the pharmaceutical industry, among other things.”
More broadly, the Federal Register notice says that “DOJ is seeking comment on the practical consequences of rescheduling marijuana into Schedule III under the relevant statutory frameworks.”
When Biden announced the administration’s rescheduling action on May 16, he described it as consistent with his belief that nobody should be jailed over cannabis possession. As a statutory matter, that wouldn’t necessarily apply with simple rescheduling, because it would remain federally illegal. The White House has not publicly commented on the economic impacts of the reform.
On the one hand, many advocates have welcomed the rescheduling determination, given that it represents the first time in over 50 years that the federal government has recognized the medical value and relatively low “abuse potential” of a plant that’s been legalized in some form in the vast majority of states.
On the other hand, activists have emphasized that rescheduling does not federally legalize marijuana or provide corrective relief to people who’ve been criminalized over it. And, of course, prohibitionists have urged the Drug Enforcement Administration to keep marijuana in Schedule I, and are expected to litigate if the agency moves forward with the incremental reform.
Key cannabis reform groups previewed their comment strategy to Marijuana Moment.
“It is important that the voices of both physicians and patients are heard, as the Justice Department clearly weighed the widespread acceptance of medical cannabis.”
NORML Deputy Director Paul Armentano said his organization “is in a unique position to mobilize interested parties to provide their perspectives throughout the public comment period.”
“In particular, I think it is important that the voices of both physicians and patients are heard and considered, as the Justice Department clearly weighed the widespread acceptance of medical cannabis among those in the medical community and among those residing in medical-use states in making their decision to reclassify,” he said.
“In addition, NORML will be submitting our own comprehensive comments substantiating the evidentiary record that cannabis possesses accepted medical utility and comparatively low dependence liability,” Armentano said. “We will also be addressing a number of the issues raised by opponents, as well as the DEA, with respect to cannabis’ impact on public health and making it clear that such concerns do not warrant continuing to classify cannabis as a Schedule I substance.”
“While NORML ultimately favors descheduling rather than rescheduling, we also understand that reclassification is associated with both symbolic and tangible benefits to the cannabis community, both in the short-term and in the long-term,” he said.
“This provides an unprecedented opportunity for the public to demonstrate to federal leaders that rescheduling is not enough.”
Cat Packer, director of drug markets and legal regulation at the Drug Policy Alliance, said that “it’s critically important that individuals and communities adversely and disproportionately impacted by cannabis criminalization, and those that support federal marijuana decriminalization, make their voices heard in the public comment process.”
“While rescheduling would continue federal marijuana criminalization, this public comment period provides an unprecedented opportunity for the public to demonstrate to federal leaders that rescheduling is not enough, and to reiterate the public’s support for reforms beyond rescheduling, including legalization,” she said.
“Even cannabis industry participants, who would benefit from Schedule III’s tax relief, have an opportunity to leverage this public comment process to bring attention to the harms of federal criminalization [and] those impacted, and to advocate for reforms that would acknowledge, end and address the harms of criminalization and shift the federal government towards a federal framework that better promotes public health, public safety, equity and the will of the American people,” Packer said.
Organizations that represent the interests of the marijuana industry are also planning to make their voices heard in the comment process.
“We plan to survey the far-reaching benefits of moving cannabis to Schedule III and highlight the rigor behind the scientific and legal analyses underpinning the shift.”
David Culver, senior vice president of public affairs for the US Cannabis Council, said that the group will be submitting a comment on the proposed rule “shortly.”
“We plan to survey the far-reaching benefits of moving cannabis to Schedule III and highlight the rigor behind the scientific and legal analyses underpinning the shift,” he said. “And we’ll take the opportunity to thank President Biden and his administration for implementing the most significant cannabis reform in American history.”
Adam Goers, co-chair of the Coalition for Cannabis Scheduling Reform, said that the rescheduling proposal “is built upon a foundation of unassailable scientific evidence,” adding that his organization will “use the public comment period to expand upon the overwhelming scientific case for Schedule III.”
Prohibitionist organization Smart Approaches to Marijuana (SAM) meanwhile told its supporters in a recent email blast that it is “working with an esteemed law firm specializing in administrative law to craft the strongest challenge possible.”
SAM launched a fundraising effort to challenge the cannabis rescheduling move, including through potential litigation.
“Together, we are working on our comment and content strategy which we will then ask you to help us with,” the group said. “This is a long game and we will have one shot to present our best arguments. It is better to put forth the strongest possible comment than to submit something quickly, so we do not anticipate having final guidance for you by [May 21]. But we are working overtime to equip you as soon as possible and hope to have it soon after the 60-day period begins.”
SAM previously launched a fundraising effort in support of its plans to challenge the cannabis rescheduling move, including through potential litigation.
DEA Administrator Anne Milgram has acknowledged the possibility of an administrative hearing to gain further input on the decision before it’s finalized. Requests that a public hearing be held must be submitted by June 20.
The Congressional Research Service has also weighed in on the rescheduling development, saying in a report that while it was “likely” that the DEA would enact the policy change, that would not bring state markets into compliance with federal law. It added that Congress still has the authority to address the federal-state cannabis policy gap “before or after” the reform is enacted.
To that end, 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.
Again, a Schedule III reclassification would not legalize cannabis or free people still incarcerated.
Meanwhile, House Minority Leader Hakeem Jeffries (D-NY) 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 moving marijuana from Schedule I to Schedule III under the CSA.
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 over cannabis.
It should also be noted that during his run for the presidency, Biden pledged to move cannabis to Schedule II—a stricter category than what’s now been proposed by his administration.
Photograph by Terrance Barksdale 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.
Show Comments