DEA Again Declines to Reschedule Cannabis Despite Pressure from Lawmakers

After a summer of speculation, the DEA announced on Thursday morning that it would not be rescheduling marijuana, opting once again to leave it in Schedule I.

The Drug Enforcement Administration (DEA) announced this spring that it would decide by the first half of the year whether it will reschedule marijuana or leave it in Schedule I, reserved only for the most dangerous drugs with no recognized medical value and a high risk of abuse.

Fueled by a pair of reports in the Santa Monica Observer featuring a purported DEA lawyer as source, Americans became convinced that change was on its way, with a move to Schedule II for cannabis an inevitability. However, the DEA’s self-imposed midsummer deadline came and went, and over the past two weeks the internet has been anxiously abuzz with speculation about when a decision would be revealed.

Then, on Thursday morning, the news hit the airwaves when the DEA published a press release stating that “marijuana remains a Schedule I controlled substance because it does not meet the criteria for currently accepted medical use in treatment in the United States, there is a lack of accepted safety for its use under medical supervision, and it has a high potential for abuse.”

The DEA had ultimately declined to reschedule marijuana, opting to keep the longstanding status quo classifying marijuana as more dangerous than methamphetamines, cocaine, and oxycodone, the last of which largely being blamed for creating our nation’s opioid epidemic.

“This decision isn’t based on danger. This decision is based on whether marijuana, as determined by the FDA, is a safe and effective medicine,” said DEA chief Chuck Rosenberg, “and it’s not.”

In reacting to the DEA’s statement, Medical Marijuana, Inc. CEO Dr. Stuart Titus said, “Although it was disappointing to see our DEA continue their 1940’s mentality, this decision has in no way slowed down overall cannabis reform. With over half the US States allowing medical cannabis and nearly 70% of Americans favoring medical access to cannabis if recommended by a doctor – the court of public opinion is moving us toward national reform.”  

The announcement by the DEA marks the fourth consecutive time that the agency responded to petitions to reschedule cannabis with a negative. The current decision is in response to a 5 year old petition by a pair of then governors, Gina Raimondo of Rhode Island and Jay Inslee of Washington, and a nurse practitioner from New Mexico.

The DEA claims they took recommendations by the FDA into close consideration when making their choice, but they did not reveal exactly what that recommendation was. A spokesman for the FDA said the agency shares “an interest in developing therapies from marijuana and its components and have taken aggressive, coordinated action to do so.”

The FDA went on to say that well-controlled clinical trials were the most appropriate way to study a drug’s potential safety and efficacy, hinting that it would not approve of full plant medical marijuana as a medication, favoring instead specific cannabinoid derived pharmaceuticals.

In response, Dr. Titus has remarked, “Synthetic THC that has been developed into a pharmaceutical, including Marinol and Dronabinol, are scheduled as less than Schedule I – yet the botanical version remains a Schedule I federally controlled substance.  When one looks at the harm of many synthetic cannabinoids and the number of deaths attributed – and then sees that no one has ever died of an overdose of natural botanical cannabis, one wonders how a natural plant can be a Schedule I federally controlled substance.”

The public criticism of the DEA’s decision was sharp and immediate.

Oregon Gov. Kate Brown said in a statement on Thursday, “For Oregon, the DEA’s decision only went half the distance. Broadening cannabis research beyond the National Institute on Drug Abuse is an important and necessary step. However, lack of federal guidance on banking and environmental issues has put Oregonians at risk, and today’s decision didn’t address those concerns, as we’d hoped.”

U.S. Representative Earl Blumenauer of Oregon echoed his state’s governor almost word for word in saying the move by the DEA fell short of expectations. He would go on to say, “Marijuana shouldn’t be listed as Schedule I. It shouldn’t be listed at all.”

Ed Perlmutter, a U.S. Representative from Colorado, another recreational marijuana state, remarked, “Today’s announcement is a real missed opportunity. While I appreciate the expanded research capabilities, the fact is, federal law still conflicts with state laws on this issue. I will continue to work with both sides of the aisle in Congress to remedy the inconsistencies, especially with respect to banking.”

Sanjay Gupta of Weed fame, the series of CNN documentaries that brought many aspects of the medical marijuana industry to the forefront of America’s conversations, called the move “a missed opportunity that could further delay potential therapies to countless people.”

If the DEA had rescheduled marijuana to Schedule I, the move could have had caused ripples throughout the cannabis industry, including expanded research opportunities, relaxed banking restrictions, taxation reform, and insurance reimbursement. Such a move would also have brought the FDA much closer into regulation of the medical marijuana industry with possibly detrimental effects.

The one bright point coming from the DEA’s summer is their decision to allow more than one national producer of research grade cannabis. For decades, the University of Mississippi has been the only authorized producer of federally approved marijuana, but the DEA announced it would start to allow additional outlets to begin cultivation.

“As long as folks abide by the rules, and we’re going to regulate that, we want to expand the availability, the variety, the type of marijuana available to legitimate researchers,” Rosenberg said. “If our understanding of the science changes, that could very well drive a new decision.”

Although this would improve upon the delays researchers face in accessing marijuana for their studies, it wouldn’t guarantee that additional research will be approved – especially considering the DEA, which controls the approval process, still views cannabis as having no medical benefit.

“Imagine a product that is in high demand but kept behind a locked door. In response to the demand for the product, someone makes a baffling decision to make more of it but still never unlocks the door,” wrote Gupta. “Marijuana is that product, and its Schedule I designation is that locked door.”

The entire research approval process is fraught with inconsistencies, which is enough to dissuade many studies from ever getting started. Chief among these difficulties is that the National Institute on Drug Abuse must approve all studies requesting research-grade cannabis and accepts far more studies looking at the negative effects of marijuana than the positive.

While most responses to the DEA’s decision were unfavorable, the Clinton campaign praised the DEA’s steps on removing barriers to research. Clinton’s senior policy advisor, Maya Harris said in a statement, “We applaud the steps taken today by the Obama Administration to remove research barriers that have significantly limited the scientific study of marijuana.”

However, she went on to say, “As president, Hillary will build on the important steps announced today by rescheduling marijuana from a Schedule I to a Schedule II substance. She will also ensure Colorado, and other states that have enacted marijuana laws, can continue to serve as laboratories of democracy.” In some ways, this statement further confirms the necessity for an eventual rescheduling of marijuana for there to be any real progress on the issue.

Others argue that rescheduling isn’t nearly enough, and that only removal of marijuana from the federal Controlled Substances Act and full descheduling is enough to undue the damage federal prohibition has wrought.

Bill Piper of the Drug Policy Alliance has explained on the organization’s blog that, “Rescheduling also doesn’t change federal criminal penalties. It would still be illegal under federal law to possess, manufacture or distribute marijuana. The DEA could still raid medical marijuana dispensaries. The Justice Department could still prosecute patients and caregivers and take their property through asset forfeiture.”

In order for marijuana to be removed from the Controlled Substances Act, Congress would need to act legislatively. Attempts have been made by Congress in the past to reform marijuana policy in the U.S., but it is often met with inaction or opposition. One of these attempts at reform is the 2015 Carers Act, which would rescheduled cannabis to Schedule II, remove barriers marijuana industry banking, and remove cannabis from the Controlled Substances Act. Currently, the bill has been introduced to the Senate, but no further action has been taken on it.

The DEA’s decision has no effect on the CBD hemp oil industry, however. Products made from naturally low-THC hemp instead of marijuana are 100% legal to purchase and ship in all 50 states in the U.S., as well as 40 countries internationally. To learn more about the differences between hemp and marijuana, visit our education page.