A series of documents from US Department of Health and Human Services (HHS) officials published on Friday made public the agency’s recommendation that cannabis be reclassified to Schedule III of the Controlled Substances Act, which would allow cannabis to be prescribed by medical professionals. The grounds for the rescheduling recommendation, said officials in a formal communication contained within the file, is the “currently accepted medical use” of the drug.
The recommendation from HHS was sent by way of a letter to Drug Enforcement Agency (DEA) Director Anne Milligram, and it is the DEA who will make the final decision on the issue, subject to the approval of President Joe Biden.
Currently classified as a Schedule I controlled substance, cannabis is considered under federal law to have no permitted uses. Despite that status, several states throughout the US have adopted some form of cannabis legalization—either in the form of medical or adult-use programs. Those states operate in a legal grey area induced by an overlapping web of confusion surrounding Congress’ Dormant Commerce Clause Power and Supreme Court precedent from 2005 related to medical cannabis.
In turn, a change in cannabis’ federal classification would have a major impact on not only federal prosecutions but, also, the flow of cannabis between states in the US. Industry lawyer Brady Cobb, speaking on social media, said the change would have an impact on corporate profits in a positive manner. “Schedule III will be/is a big deal. Not a savior to the industry, there will be a trade and then there is investing. What barbarians at the gate benefit most from schedule III with existing infrastructure and a ready made regulatory framework?” asked Cobb to his social media followers.
Some cannabis policy experts, however, previously cautioned that a rapid shift to Schedule III would prompt market consolidation and oligopoly concerns, such as Shaleen Title of the Parabola Center. “Without anti-monopoly protections hardwired into federal regulations from the start, we can expect a revolving door of regulators going back into the industry, endless lobbying to eliminate regulations that are obstacles to profit, and the progressive undermining of permitting and licensing,” wrote Title in a public essay from 2022.
The documents released Friday were provided via a FOIA request to lawyer Matt Zorn, following a protracted legal battle dating to September of 2023. Zorn, who posted the documents via his blog “On Drugs” late Friday, said he claimed “100% credit” for forcing the release of the files for public inspection.
On Friday, industry publication MarijuanaMoment reported that the release of a decision from HHS was imminent and that these efforts may lead to pressure on the Biden Administration to expedite plans to federally legalize cannabis, in some form, during the 2024 election campaign.
A further decision on the classification of cannabis by the DEA is expected in the coming months.
