A leaked letter between a top official from the U.S. Health and Human Services Department (HHS) and Anne Milgram, head of the Drug Enforcement Administration (DEA), revealed in September that the health department had recommended to the DEA that it reclassify cannabis from Schedule I to Schedule III (Weed Between the Lines, “Promises, promises,” Sept.14, 2023). It was the first time a major federal agency recognized cannabis was misclassified as a drug with no “accepted medical use and a high potential for abuse.”
Following the release of the HHS letter, lawyers and journalists sprang into action. Matt Zorn, a lawyer who coauthors the blog On Drugs, submitted a Freedom of Information Act (FOIA) request to HHS. On Dec. 7, the agency responded, releasing a cache of highly redacted documents related to new research and inner-agency discussion on the drug and its recommendation to reclassify it.
Out of 252 pages of documents that HHS reviewed in response to Zorn’s FOIA, it released only two pages without any redactions; 236 were redacted in part, and the agency withheld another 14 pages entirely. Despite the redactions, the documents provide revealing insights into the government’s shifting perspective on cannabis.
The roots of this story go back to October 2022, when President Joe Biden announced he was “taking steps to end [the government’s] failed approach” to cannabis and laid out three steps he intended to take to make that happen. The first was to pardon more than 6,500 prior offenses of federal marijuana possession; the president then also encouraged all state governors to similarly pardon state marijuana possession offenders. He requested Attorney General Xavier Becerra initiate the process of “reviewing” how cannabis is scheduled as a narcotic.
In June 2023, Bacerra told Marijuana Moment that HHS and DEA were working together on that review. He said they were basing their conclusions on science and evidence and predicted that sometime around the end of 2023, the two agencies would be finishing up.
Here we are in the final month of 2023, and the recently released documents outline the very scientific and evidence-based approach that brought HHS to its conclusion to recommend the reclassification of cannabis.
“The current review is largely focused on modern scientific considerations on whether marijuana has a CAMU [currently accepted medical use] and on new epidemiological data related to the abuse of marijuana,” HHS representatives wrote.
A large part of the HHS review analyzed data on the abuse potential of marijuana. The department concluded that it’s a complicated consideration.
“Determining the abuse potential of a substance is complex with many dimensions,” department staffers wrote, “and no single test or assessment provides a complete characterization. Thus, no single measure of abuse potential is ideal.”
While the documents are highly redacted, it is still taking Zorn and his co-author at On Drugs, Shane Pennington, some time to sort through it all. When they posted the breaking update on their FOIA request to their blog they wrote, “We haven’t had a chance to wade through it all but are putting it up here now and will follow up as soon as we’ve studied everything more deeply.”
The HHS completed a previous scientific and medical evaluation of marijuana in 2015, using an eight-factor analysis statutorily required by the Controlled Substance Act (CSA). But the science at the time wasn’t robust enough for HHS to justify a rescheduling recommendation, so the rescheduling petition failed.
Now, as indicated by the recently released documents, HHS has changed its tune. The agency suggests that research published in the nine years since that previous analysis necessitates the drug’s rescheduling. It’s a radical development in the story of cannabis prohibition. It’s made even more exciting by the prediction congressional researchers made in September that the DEA is likely to follow whatever HHS recommends.
If the DEA were to do that and reduce the status of cannabis to a Schedule III drug, it would mean considerable change for the national landscape of cannabis. But it would not be the same as decriminalization or legalization. Schedule III drugs still have to be acquired through a pharmacist at a pharmacy with a prescription. So any dispensary selling cannabis and cannabis products recreationally would still be violating federal law.
Even if changes actually manifest, many of the same problems facing the state industries today would persist. The IRS 280E tax law would still prevent cannabis businesses from deducting business taxes, and they’d still face banking problems. So while these rumblings of change are hopeful, and the rescheduling of cannabis would be demonstrative progress, it wouldn’t be the end of the story.
