Federal Marijuana Rescheduling Is Just A ‘Step’ On The Path To Legalization, Congressional Lawmakers Say

Congressional lawmakers might be encouraged by news that the top U.S. health agency is recommending marijuana rescheduling—but some like Sens. Elizabeth Warren (D-MA) and John Hickenlooper (D-CO) are also stressing that this is just a “step” in the right direction as they pursue legalization.

Scores of legislators, including Republican members, have applauded the U.S. Department of Health and Human Services (HHS) for advising the Drug Enforcement Administration (DEA) to move cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA). And some have even claimed credit for the move, pointing to their years of advocacy around marijuana reform.

But while there’s largely consensus around the idea that cannabis does not belong in Schedule I alongside drugs like heroin, marijuana would still remain generally prohibited under federal law as a Schedule III substance. It would remove research barriers and allow state-licensed cannabis businesses to make federal tax deductions, among other political implications. But advocates, as well as key lawmakers, don’t view rescheduling as the end goal.

“I’ve long urged federal action to begin repairing the harms from unjust drug laws & build a more equitable  cannabis industry,” Warren said on Friday. “This move by [HHS] is an important step, and we must do more to end the federal government’s harmful criminalization of cannabis.”

Hickenlooper, who represents one of the first states to enact adult-use legalization, also said that the rescheduling recommendation is “definitely a step in the right direction.” However, “if we truly want to regulate marijuana while prioritizing social equity, descheduling it is the only option.”

Sen. Jacky Rosen (D-NV) said HHS’s cannabis recommendation to DEA, which was based on an 11-month scientific review that was carried out under a directive from President Joe Biden, is “another important step towards rescheduling cannabis.”

In Nevada, “we’ve seen the positive impacts of regulating cannabis since 2017,” the senator said. “I’ll keep working in the Senate to make sure we act on commonsense cannabis reform.”

Rep. Dina Titus (D-NV) also called the rescheduling recommendation “a step in the right direction.”

“As a member of the Cannabis Caucus, I know that Nevada has shown regulating marijuana like alcohol works, and that’s where we should be headed at the federal level,” she said.

State officials like California’s top marijuana regulator have also weighed in on the potential loosening of federal cannabis restrictions.

“HHS’s recommendation follows the science and comes to the same conclusion California reached decades ago: cannabis has medical value,” California Department of Cannabis Control (DCC) Director Nicole Elliot said in a statement to Marijuana Moment on Wednesday.

“This recommendation is important—it’s the most progress made to date in modernizing federal laws related to cannabis, and it’s a symbol of more progress to come,” she said. “As this process remains underway, we will continue our work building a legal market that best serves California, and eventually the nation.”

HHS Secretary Xavier Becerra confirmed the news that his agency had sent its cannabis rescheduling recommendation to DEA in a post at exactly 4:20 PM ET on Wednesday—one of the latest examples of the Biden cabinet official sharing marijuana news at the symbolic time.

“I can now share that, following the data and science, [HHS] has responded to [Biden’s] directive to me for the Department to provide a scheduling recommendation for marijuana to the DEA,” Becerra, who told Marijuana Moment in June that his agency planned to complete its work this year, said in the post. “We’ve worked to ensure that a scientific evaluation be completed and shared expeditiously.”

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While there’s significant excitement about the development, nothing is final about the scheduling decision. DEA said it “will now initiate its review” taking into account FDA’s findings, but it makes the final call and isn’t required to follow through on a Schedule III reclassification.

A White House spokesperson told Marijuana Moment on Wednesday that the “administrative process is an independent process led by HHS and DOJ and guided by the evidence,” so president’s team will not be commenting on the agency’s recommendation at this time.

Politically, moving marijuana from Schedule I to Schedule III would allow the president to say that he’s helped accomplish a major reform, facilitating an administrative review that may result in rescheduling more than 50 years after cannabis was placed in the most restrictive category as the federal government launched a war on drugs.

This could also bolster momentum for congressional efforts to further reform federal cannabis laws, like a marijuana banking reform bill that Senate Majority Leader Chuck Schumer (D-NY) listed among his legislative priorities for the remainder of the year in a Dear Colleague letter on Friday.

While there’s excitement among advocates about the prospect of rescheduling, some have also voiced concerns that a Schedule III reclassification could negatively impact state markets, with FDA potentially assuming a more hands-on role with respect to cannabis. But others insist that the agency will maintain its hands-off approach to the industry.

Meanwhile, last week, Rep. Matt Gaetz (R-FL) pressed DEA Administrator Anne Milgram to expand on her recent remarks about the origin and timeline of the president’s marijuana scheduling review directive. Specifically, he’s asking for a copy of a letter that Milgram said the president sent to the attorney general and HHS secretary last year directing the review. He also wants an update on whether the administrator asked HHS about the timetable for their work, as she told him she’d do during a recent House Judiciary subcommittee hearing.

As far as the alleged rescheduling letter from Biden is concerned, an attorney filed a Freedom of Information Act (FOIA) request with HHS in an effort to obtain a copy of the letter. But earlier this month, the department said it had “no records” of such a document.

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Photo courtesy of Mike Latimer.

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