What’s the Reality of Removing Cannabis from Schedule I?


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Now that 23 states have legalized cannabis for medical use and more appear likely to do so in 2016, the conflict between federal and state laws has become especially glaring. Would it not make sense, as advocates have been arguing for years, to either re-schedule or de-schedule cannabis?

Sadly, this is easier said than done.  But new solutions are emerging. A compelling idea advanced by the Harmonious Code Council (“HCC”) would permit Congress to bypass the scheduling conundrum by amending the Controlled Substances Act (“CSA”) to “harmonize” state and federal laws, rather than making significant changes to or ignoring either one.

Does Federal Prohibition Still Matter?

On one hand, some might take the position that—in the states where it is legal—no issue exists because cannabis can be bought and consumed, patients have access to medicine and marijuana-based businesses are thriving. To those in the industry, the fact that cannabis remains illegal under federal law seems to be less and less relevant.

In fact, though, federal prohibition does still matter. U.S. Attorneys have a great deal of discretion within their jurisdictions to prosecute as they see fit, and the risk of federal enforcement action remains. A change in the White House could bring an end to the Department of Justice’s current policy of benign neglect and force patients back into the black market.

Even under the status quo, businesses that are duly licensed under state law find it very difficult to establish a banking relationship. They do not have the ability to protect intellectual property under federal trademark and copyright laws. Neither do they have the benefit of the fresh-start provisions of federal bankruptcy laws nor may they take business deductions under federal tax laws as other businesses may.

Finally, on a philosophical level, permitting and even encouraging medical marijuana patients and businesses to ignore federal law undermines the basic norm of voluntary compliance that supports civil society.


Why is Removing Cannabis from Schedule I so Hard?

On paper, it’s not. Basically, the process can occur one of two ways.

First, Congress can amend the CSA, as it has considered doing on several occasions since 1981. This is the solution recently advocated by the United States District Court for the District of Colorado in the case of Fourth Corner Credit Union v. Federal Reserve Bank of Kansas City. It is also the solution preferred by President Barack Obama.

Alternatively, the executive branch of the federal government may act administratively. That process would begin with a request for reconsideration initiated by a private party, the Secretary of Health and Human Services or the U.S. Attorney General. The attorney general would then direct HHS, through the Food and Drug Administration, to study the issue. The FDA would evaluate the petition using an eight factor test that includes scientific evidence of pharmacological effect, risk of abuse, public health risk and the potential for dependency.

There is, of course, something of a Catch-22 with this process, since the Schedule I status of cannabis makes the scientific research that might support its reclassification nearly impossible to conduct in the United States.

In any event, assuming the FDA recommended it, the recommendation would then make its way back through administrative channels to the attorney general who would decide whether to initiate rulemaking processes to transfer cannabis to a lower Schedule or remove it from the CSA Schedules entirely.

That is decidedly unlikely.


Harsh Political Reality

On the first day of her confirmation hearing, Attorney General Loretta Lynch took an explicit stance against marijuana legalization. Last month, president Obama made it clear that marijuana reform is not on his list of end-of-term priorities.

The administrative route also has a long and bitter history of failure. The first petition was filed in 1972 only to be finally denied after 22 years of court challenges. A second was denied in 2001. A third, filed in 2002, was ultimately denied in 2011. An appeal of that third denial was, itself, denied in 2013.

Hope springs eternal, but it is safe to conclude that efforts to remove cannabis from Schedule I may yet be a long, hard struggle. The process appears to have much in common with persistent efforts to legalize gay marriage or the civil rights revolution of the 20th century. Victory is not yet at hand.

As a half-way step, some advocate moving cannabis to Schedule II or lower. A synthetic form of THC, the psychoactive ingredient in marijuana, is already classified as a Schedule III drug and marketed as Marinol. Why not the whole plant?

Re-scheduling cannabis as a Schedule II drug would make it easier to conduct scientific research, but might actually make medical cannabis less available to patients in the short run. Substances classified in Schedules II-V are subject to research, testing, manufacture and dispensing constraints. By itself, this might not be a bad thing, but current state regulatory schemes might require extensive re-tooling.


Back to the Congressional Alternative

HCC has proposed a way out of this dilemma. Under the organization’s proposal, Congress would amend the CSA to allow the use of medical marijuana in those states and jurisdictions that vote to make it legal. Should a state legalize medical marijuana or decide instead to re-institute prohibition, the drug’s status under the CSA would automatically change.

This “harmonization” solution is an elegant recognition of the political principle of federalism and would essentially codify current administrative practice at the Department of Justice. It also displays a certain economy of design, in that it would not require either Congress or the executive branch to repeatedly revisit the issue of cannabis classification.


What Can You Do?

We look forward to working with you to unlock the potential of the legal marijuana industry and to solve the peculiar and unnecessary legal dilemma that hamstrings it today.

If you like the idea, here are two important things you can do:

First, stay in touch. Building momentum around a good idea takes time, talents and organization. You can add the HCC website to your RSS feed or you can contact the organization via email at harmoniouscodecouncil@gmail.com.

Secondly, contribute. To add some financial muscle to the cause of harmonizing state and federal marijuana laws, visit the HCC website to find out how you can make a difference.

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