The United States is on the brink of a groundbreaking shift in its approach to marijuana policy. However, a significant obstacle stands in the way of this reform: the Drug Enforcement Administration (DEA).
Recognizing marijuana’s medical value, the U.S. Department of Health and Human Services ( HHS) recommended reclassifying marijuana as a Schedule III controlled substance in response to President Joe Biden’s call for a comprehensive review of marijuana scheduling last year. This pivotal moment in federal government policy places the key marijuana decision in the hands of the DEA, an agency historically associated with the country’s war on drugs.
The timeline for the DEA’s response remains uncertain, but experts speculate that an initial proposed rule could emerge by the year’s end, with finalization expected in the following spring. While the DEA cannot outright reject the HHS recommendation, its evaluation must encompass both legal and policy considerations, aligning with U.S. obligations under international drug-control treaties.
Barring an unlikely rejection of the HHS recommendation, the DEA must propose a federal law change consistent with the comprehensive scientific evaluation of marijuana. However, once the DEA suggests the change, more hurdles await, including a public comment period lasting typically 30 to 60 days, the DEA’s review of comments and potential lawsuits that could further delay implementation.
This marks the first time a president has ordered the DEA to review marijuana law, a significant departure from previous rejections of rescheduling petitions. The journey of marijuana through Capitol Hill bureaucracy began on Oct. 6, 2022, when President Biden instructed Cabinet-level agencies to expedite the review of marijuana scheduling.
Since 1970, marijuana has been classified as a Schedule I substance, defined as having no medicinal value and high potential for abuse. This designation poses significant challenges to legal marijuana businesses, including limited tax deductions, restricted access to mainstream banks and U.S.-based stock exchanges, and the constant threat of DEA raids. The federal ban also hampers research, product development, workplace safety regulations and health insurance matters. Previous efforts to challenge marijuana’s classification came through petitions or court actions by state governors and advocacy groups, such as NORML.
The DEA faces the challenge of creating a meticulous administrative record for impending lawsuits. Those lawsuits could potentially be filed by a wide range of individuals and organizations, from those wanting to maintain marijuana’s illegality to advocates seeking its descheduling. Regardless of the DEA’s recommendation, conflicts between state and federal laws will persist, necessitating congressional action in the long-term. Nonetheless, a significant change in marijuana policy appears inevitable and more imminent than ever before.
Industry companies such as Cresco Labs Inc. (CSE: CL) (OTCQX: CRLBF) will probably be waiting with bated breath to see what decision the DEA makes regarding the change in the scheduling of marijuana.
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