Republicans lodge last ditch protest against marijuana rescheduling

Republicans are making a last push against the finalization of the Biden administration’s move to reschedule marijuana, despite advocates saying the fight isn’t worth the effort.

The White House in May began the formal rulemaking process to move marijuana from Schedule I of the Controlled Substances Act (CSA) — drugs considered to have the highest potential for abuse with no accepted medical use — to Schedule III, drugs considered to have a “moderate to low potential” for physical and psychological dependence. 

The comment period for this rule ended last week, with an analysis finding over 40,000 comments had been submitted, a majority in favor of the change.

Among the comments was a 42-page letter from 11 GOP state attorneys general, speaking out against the move to reschedule. 

In their letter to Attorney General Merrick Garland, the attorneys general acknowledged that rescheduling doesn’t remove the roadblocks keeping the marijuana industry from being fully integrated into the U.S. economy but argued that it is a step toward “normalizing” marijuana businesses. 

They cited five specific reasons why marijuana should not be rescheduled: The proposed rule was not signed by DEA Administrator Anne Milgram; rescheduling would violate the U.S.’s international treaty obligations; the proposed rule wrongly asserts that “significant deference” is owed to the determination made by the Department of Health and Human Services (HHS); prior refusals by the DEA to reschedule were decided using the same essential facts in favor of rescheduling; and the decision to reschedule did not satisfy the conditions set by the Controlled Substances Act (CSA). 

Dozens of Republicans in Congress are also resisting the rule through letters to Biden or last-minute amendments in the House and Senate. A bicameral letter from earlier in June was signed by 25 Republicans, led by Sen. James Lankford (R-Okla.) and Rep. Pete Sessions (R-Texas). 

They argued that the proposed rule by the Justice Department (DOJ) was poorly researched and pushed back on the administration’s conclusion that marijuana had a low potential for abuse. 

“Despite marijuana’s prevalence and high rate of use, we still lack adequate and robust research on the drug,” they wrote. 

Both the Congress members and attorneys general also took issue with the two-part test that HHS employed to determine whether marijuana had a currently accepted medical use.  

A drug is considered to have an accepted medical use if it was approved by the Food and Drug Administration or if it passed a five-part test used by the DEA: There are adequate safety studies; its chemistry is known and reproducible; there are adequate and well-controlled studies proving efficacy; the drug is accepted by qualified experts; and the scientific evidence is widely available. 

In lieu of this test, HHS employed a two-part test asking: Whether there is widespread current experience with medical use of marijuana in the United States by licensed health care providers operating in accordance with implemented state-authorized program and if there exists some credible scientific support for at least one of the medical conditions for which the Part 1 test is satisfied. 

In its opinion on the matter, the Office of Legal Counsel determined that the long-held five-part test the DEA used to determine accepted medical use is “impermissibly narrow” while also finding that HHS’s two-part test is “sufficient to establish that a drug has a [currently accepted medical use] even if the drug has not been approved by FDA. 

With the comment period now ended, the CSA dictates that the DEA must provide an opportunity for a hearing on the rule if requested. The Hill has reached out to the DEA for comment on the GOP-led letters and whether a hearing on the rule will be held. 

Karen O’Keefe, director of state polices at the Marijuana Policy Project, called the objection from state attorneys general “shocking and disappointing.” 

“More than 14,000 Americans die every year from fatal overdoses on prescription opioids — Schedule II drugs — while suspected fatal overdoses on cannabis are vanishingly rare. State AGs should not be trying to block progress on acknowledging there is a safer alternative,” O’Keefe said in a statement to The Hill. 

“A staggering 45 states — including eight of those governors’ states — allow some seriously ill patients to use federally illegal cannabis products. It is past time federal law acknowledged reality. These public servants shouldn’t be trying to stand in the way of progress,” she added. 

Recreational marijuana use among adults is legal in 24 states. 

Despite all the pushback, rescheduling to Schedule III still makes the manufacturing, distribution, dispensing and possession of marijuana prohibited under the CSA. 

Subsequently, advocates of marijuana reform have continued to characterize the proposed rule as largely symbolic, apart from some potential tax benefits that marijuana businesses could take advantage of after rescheduling is completed. 

Cat Packer, director of drug markets and legal regulation at the Drug Policy Alliance, called rescheduling a “lateral move.” 

“There are folks who have said it's decriminalization, but I disagree, in part, because the way that the Controlled Substances Act is set up,” said Packer. “'There's no change to criminalization. So, there's a means by which the government can continue criminalization while just simultaneously, for the first time, acknowledging that there's currently accepted medical use.” 

Packer’s organization was part of an effort to facilitate public comments on the proposed rule, which presented an “unprecedented opportunity” for the public to weigh in on federal cannabis policy.  

The Drug Policy Alliance recently released findings from an analysis of the comments submitted on the proposed rule, which found roughly 70 percent were in favor of federal marijuana decriminalization. 

“We found that of those more than 40,000 public comments, 69.3 [percent] of those comments supported descheduling, supported decriminalization or legalizing marijuana at the federal level,” Packer said. “We also found that 42.4 percent of the comments that were submitted had some mention of federal reform needing to advance or address racial inequity, social justice.” 

As recently as 2016, the DEA held that scheduling marijuana to anything other than Schedule I or II would be a violation of international treaties. The proposed rule addressed these concerns, with the DOJ’s Office of Legal Counsel finding that moving the drug to Schedule III could still comply with international treaties if supplemental regulatory action were instituted 

While the attorneys general argued this action is in violation of the CSA, Packer said she agreed with the determination, noting “there's nothing in the international treaties themselves that require the U.S. to place a particular drug in a particular schedule and make no reference to U.S. policy or U.S. drug schedules.” 

“I actually think that it's harmful that we have political leaders who are suggesting, despite the evidence again in the year 2024, that marijuana should be to continue to be classified alongside drugs like fentanyl,” Packer said.  

“I think that through other examples of substances like alcohol or tobacco or coffee or sugar, we can acknowledge that even when substances have some type of public health risk, the way that we can actually best mitigate that risk is to regulate that activity.”