Implications of Re-scheduling Marijuana from Schedule I to Schedule II

By: Tamra Pelleman – Hofstra Law School – Law Student Contributor

Currently, Marijuana is a schedule I drug in the United States. Over the years, the topic of re-scheduling marijuana has become more and more prevalent and the Drug Enforcement Administration (“DEA”) has been asked to re-schedule marijuana two times in the past fifteen years—which both times the recommendations to re-schedule marijuana ended with rejections. Massachusetts Senator Elizabeth Warren sent a letter to the DEA asking the government to conduct further research on the benefits of marijuana.

In response to the Senator Warren’s letter, the DEA is currently reviewing all documents and all other relevant data to make a scheduling determination in accordance with the Controlled Substances Act as to whether there should be a re-scheduling of marijuana. The DEA is expected to have a decision on this issue by summer 2016. One of the two pending rescheduling petitions currently under review was filed in 2011 by then-Governor Christine Gregoire of Washington State and then-Governor Lincoln Chafee of Rhode Island—both states have legalized medical marijuana.

A Schedule I drug means that the drug currently has no accepted medical use and the drug has a high potential for abuse. Schedule I drugs are the most dangerous drugs of all the drug schedules with potentially severe psychological or physical dependence.[1] It seems mind boggling that marijuana remains in this schedule with other drugs with more serious effects such as heroine and LSD.

 

Schedule II is for drugs that have a high potential for abuse. Schedule II drugs are currently accepted for medical use in treatment in the United States or currently accepted for medical use with severe restrictions—with use potentially leading to severe psychological or physical dependence.[2]

The United States now has 23 states, Washington D.C. and Guam, where medicinal marijuana usage is legal and four states and Washington D.C. have legalized recreational usage of marijuana as well.[3] All of this has occurred since 1996 when California became the first state to legalize marijuana for medical purposes.  While re-scheduling marijuana to Schedule II seems like a rational idea to some, to others it may seem as though re-scheduling the drug will essentially undo all that has been created thus far.

A beneficial outlook at re-scheduling the drug to Schedule II would be the reduction of risk of the marijuana industry would certainly be enticing. Business owners would no longer face the hardship of not being able to take tax deductions under Section 280(e) of the internal revenue code from their cannabis companies and would also make it easier for business owners to obtain financial assistance from banks that may be less reluctant to lend to business owners involved in the marijuana industry.

Implications still exist even if marijuana is re-scheduled as a schedule II drug. If marijuana is deemed by the DEA and the National Institute of Health (“NIA”) to be a drug with “medical use” and therefore a schedule II drug would allow more research to be conducted on the plant.

With the political force driving the legalization or criminalization of marijuana—the upcoming Presidential campaign certainly has its interests in marijuana—whether recreational, medical marijuana, or criminalizing the drug and enforcing action against federal law violators. Specifically, Hillary Clinton maintains the position to re-schedule marijuana to schedule II in order for medical research to be conducted.[4] On the other hand, the other democratic contender Bernie Sanders is taking the stance to de-schedule marijuana completely and remove it from the Controlled Substance Act and allow recreational use of marijuana.[5] Interestingly, Bernie Sanders also supports his stance on the issue because of the significant negative impact that occurs from marijuana arrests and how it destroys lives. It should be noted that even if marijuana is re-scheduled as a schedule II drug—arrests will still continue for individuals who do not have a prescription for the drug.

Although some individuals argue that if marijuana is re-scheduled as a schedule II drug, it will set back recreational marijuana laws which have been passed. More importantly, it will allow the pharmaceutical industry to gain domination over the marijuana industry. Since the drug would be regulated under Schedule II and medical research conducted in order to determine the content of the product, it will give an opportunity to big pharmaceutical companies to jump in on the opportunity. Once this occurs, essentially all of the marijuana dispensaries will cease to exist because no dispensary can compete with the power of the pharmaceutical industry.

I believe that the laws should be up to the states as to whether they want to legalize recreational marijuana usage within the states—I think it is far more beneficial for marijuana to be regulated and studied at a federal level in order to help eliminate barriers that currently exists to individuals who need medical marijuana that have no access to it because they live in states that prohibit it.

Specifically, one of the largest groups of individuals who need access to medical marijuana and are unable to obtain it due to their health insurance is Veterans. It is no shock that medical marijuana can help many symptoms that many veterans suffer from. However—veterans face a difficult task in obtaining medical marijuana, even in states that provide for it because their health insurance will not allow other treatments if the individual is using medical marijuana. De-scheduling the drug will help veterans use medical marijuana and allow them to still have access to their other benefits that they need—on the other note, re-scheduling the drug will not necessarily help them either.

While it seems unlikely that the DEA will re-schedule marijuana as a schedule II drug since it has consistently rejected numerous petitions to re-schedule the drug in the past, this time seems a different because of the political backing and numerous states legalizing its use for medical marijuana and recreational use as well. It seems as though the country is at a difficult fork in the road when it comes to marijuana—and although it seems beneficial to re-schedule the drug to Schedule II—the only way to have true benefits is to de-schedule the drug altogether—which seems far-fetched given that it currently sits as a Schedule I drug.

 

[1] Drug Scheduling, DEA, http://www.dea.gov/druginfo/ds.shtml (last visited, Apr. 9, 2016).

[2] Id. (other schedule II drugs are cocaine, Adderall, Ritalin, methamphetamines).

[3] State Medical Marijuana Laws, (Apr. 6, 2016), http://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx.

[4] Mollie Reilly, Hillary Clinton Proposes Reclassifying Marijuana As A Less Dangerous Drug, Huffington Post (Nov 7, 2015), http://www.huffingtonpost.com/entry/hillary-clinton-marijuana-reform_us_563e5fc4e4b0307f2cadb82a.

[5] Richardo Baca, Bernie Sanders talks candidly about the multiple times he tried marijuana, Cannabist (Mar. 9, 2016), http://www.thecannabist.co/2016/03/09/bernie-sanders-marijuana-heroin/49799/.

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