The debate over the Schedule I status of cannabis has raged for years. As more states enact reform and federal marijuana legalization looms, the Biden administration has called for an examination of the current scheduling designation.
Rumors of a switch to Schedule III grew louder this week after a letter from a top official at the Department of Health and Human Services (HHS) indicated the agency intends to recommend the move. First reported by Bloomberg, the memo was sent to Drug Enforcement Agency (DEA) Administrator Anne Milgram. The DEA has the ultimate authority on the scheduling of cannabis, and will now conduct further review.
The Controlled Substances Act (CSA) defines a Schedule I drug as having “no currently accepted medical use and a high potential for abuse” (on par with heroin and ecstasy). Schedule III substances, such as Tylenol with codeine and ketamine, are considered to have “a moderate to low potential for physical and psychological dependence.”
Bets are on Schedule III
According to a former top official from the FDA, Schedule III is indeed on the way. Speaking on the Mindset Capital podcast, Howard Sklamberg predicted change is coming days before the HHS announcement.
Skalmber chaired the FDA’s Marijuana Working Group from 2014 to 2017 and now practices law. He believes the Schedule III designation would solve the cannabis market’s issues around safe banking access and taxation
“If I were a betting man, I think the most likely outcome will be Schedule III,” Skalmberg said. “What I think almost certainly won’t happen…is that nothing happens or that cannabis is de-scheduled.”
The last time the FDA debated the Schedule I status of cannabis was in 2016. Skalbmerg says that much has shifted since this time, and the agency now has “real-world evidence” to examine. However, it would be up to the Drug Enforcement Agency (DEA) to make the final decision.
Skalmberg pointed to the critical nature of the presidential election in the FDA’s potential timetable for recommendation. President Biden first ordered a review of marijuana’s Schedule I status nearly a year ago, but no action has been taken since. However, HHS Secretary Xavier Becerra previously said a decision could come “this year.”
“They (the FDA) are aware of the importance of the issue, the interest of the issue, the White House’s interest in the issue—and they’re frankly aware of the election cycle and the administration’s term coming to an end at the end of 2024,” Skalmberg said.
Is Schedule III a win?
Many people within the cannabis industry want to see cannabis completely de-scheduled, which would mean it’s removed from the CSA list and regulated like alcohol.
Some fear that keeping cannabis part of the CSA would perpetuate the divide between adult-use cannabis and the federal government due to language in the law defining certain controlled substances as medications and that it’s illegal “for any person knowingly or intentionally to possess a controlled substance.”
Skalmberg believes it would be “extremely difficult” for the government to de-schedule cannabis due to the complicated regulatory process. He argued that the federal government would not crack down on state programs even if the plant were moved to Schedule III, saying the claim “defies logic.”
A bill to change cannabis to a Schedule III drug was introduced earlier this year by Florida Rep. Greg Steube. With this in mind, along with the HHS recommendation, reform seems imminent. Regardless of the DEA’s decision, any movement would indeed be historic.
