Re-scheduling vs de-scheduling cannabis: what’s the difference
There has been a lot of talk lately about federal marijuana scheduling. Cannabis is currently illegal in the eyes of the federal government due to its status as a Schedule I controlled substance.
But with more and more states deciding to legalize cannabis for medical and/or adult-use purposes, the call for change to the Schedule I designation is becoming louder.
Last year, President Biden announced that his administration would review the plant’s Schedule I listing, which many advocates saw as a sliver of hope toward federal marijuana legalization. The Biden administration also pardoned certain federal cannabis offenders and softened their stance on past consumption for federal employees.
At this point, the Biden administration has three options: keep cannabis a Schedule I drug, re-schedule the plant to a different category, or de-schedule it completely. But what exactly is the difference between de-scheduling and re-scheduling, and what does it mean for you?
The Controlled Substances Act: how cannabis became Schedule I
In 1970, President Nixon signed the Controlled Substances Act (CSA) into law. The bill was meant to encompass all previous federal drug laws in order to regulate narcotic substances. Any compounds on the CSA are regulated and monitored by the Drug Enforcement Administration (DEA) and the Department of Health and Human Services (HHS).
There are currently five schedules in the CSA:
Schedule I substances are defined as “drugs with no currently accepted medical use and a high potential for abuse.” Drugs on this list include heroin, LSD, ecstasy, and cannabis.
Schedule II drugs are classified as dangerous and have a “high potential for abuse, with use potentially leading to severe psychological or physical dependence.” Some examples of Schedule II drugs are cocaine, methamphetamine, fentanyl, and Adderall.
Schedule III substances have “a moderate to low potential for physical and psychological dependence.” Some drugs on the Schedule III list are ketamine, anabolic steroids, and Tylenol with codeine.
Schedule IV drugs are defined as “drugs with a low potential for abuse and low risk of dependence.” Many benzodiazepines and sleep aides are on this list, including Xanax, Valium, and Ambien.
Schedule V substances are considered to have a “lower potential for abuse than Schedule IV” and typically contain “limited quantities of certain narcotics.” Drugs on this list include many common medications, such as Robitussin AC, Lomotil, and Motofen.
When determining which schedule a substance should fall into, the drug is critiqued regarding its “medical use, potential for abuse, and safety or dependence liability.”
What would re-scheduling cannabis look like?
If the Biden administration decides that Schedule I is no longer fitting for cannabis (which they should seriously consider, given all of the peer-reviewed studies coming out regarding its medical potential), they may decide to “re-schedule.” This means that the plant would remain a controlled substance under the purview of the DEA.
Moving cannabis to the Schedule III, IV, or V list would indeed be historic. It would also ease a bit of the burden currently facing legal cannabis operators and consumers. The plant would be treated like a prescription drug and regulated by the Food and Drug Administration (FDA). Medical cannabis companies would no longer be burdened by high taxes caused, and prosecutors in prohibition states would likely make marijuana enforcement a lower priority.
However, re-scheduling would not be a silver bullet for the cannabis industry. According to the CSA, it’s against the law “for any person knowingly or intentionally to possess a controlled substance.” Under the Schedule V listing, companies are forbidden from “distributing or dispensing Schedule V substances for other than medical purposes.”
The Coalition for Cannabis Scheduling Reform (CCSR), a group of cannabis and hemp operators, argues that this language would mean that adult-use cannabis would still be illegal in the eyes of the federal government. This means they would still face many of the challenges associated with being a Schedule I narcotic.
The CCSR, along with other advocacy groups, argue that de-scheduling cannabis would be the best outcome.
De-scheduling cannabis: making the plant more like alcohol and tobacco
If cannabis were to be removed from the Controlled Substances Act altogether (aka de-scheduled), it would be regulated more like tobacco, alcohol, and dietary supplements. Individual states would be given the power to determine how the plant is distributed and would be able to craft their own rules.
While this is pretty much the case now, the difference is that cannabis companies operating in legal states are still considered illegal on the federal level. This leads to a long list of challenges, including a lack of banking services and small-business loans, and much higher taxes than other industries.
Consumers are also at-risk of breaking federal law when possessing cannabis in legal states. One high-profile example was recently demonstrated in a memo released by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), reminding gun owners of the federal ban on the plant. The memo, directed at citizens of Minnesota (where adult-use cannabis was just legalized), said:
“An individual who is a current user of marijuana is still federally defined as an ‘unlawful user’ of a controlled substance and therefore is prohibited from shipping, transporting, receiving, or possessing firearms or ammunition.”
While it’s unclear what action the Biden administration will take with regard to scheduling cannabis, the call for reform has never been stronger. The majority of Americans support marijuana legalization, and more people are openly consuming the plant than ever before. Given the evidence before them, it would only make sense that the federal government update its policies.