Behind Schedule

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Some bloggers and alternative news media outlets are all in a tizzy over the prospect of the DEA’s current review of marijuana’s status under the Controlled Substances Act (CSA) and the possible rescheduling of marijuana to a less restrictive category.

The reason for all the excitement concerns a rescheduling petition (the fourth, after three previously unsuccessful attempts dating back to 1972) currently in the final stages of DEA review, for which the DEA has acknowledged that a final decision is imminent in 2016 or early 2017.

Most commentators acknowledge that a transfer of marijuana from Schedule I (the current regulatory category) to Schedule II would not have much impact on marijuana’s current legal status regarding either medical or recreational use. After all, current state-level legalization laws conflict with both marijuana’s current Schedule I status and a proposed Schedule II status as well.

But rescheduling is welcomed by some as a step that would help facilitate further research on marijuana’s medical use and also make it easier for pharmaceutical companies to enter and perhaps monopolize the medical marijuana market. One way for the federal government to regain control over medical marijuana is to co-opt state level reform with a national market subject to current regulatory requirements for pharmaceutical drugs, requirements that can really only be met, due to their cost, by the pharmaceutical industry.

The pharmaceuticalization of medical marijuana is a 20th century remedy to a 21st century phenomenon, obsolete, inadequate and unrealistic. The appropriate cliché here is that contemporary medical marijuana markets are a genie that can’t be put back in the bottle.

However, rescheduling, should it occur, will have some dramatic and profound significance, with “profound” here being used in its literal sense—intense, deep or far reaching impact.

Under the CSA, a drug’s scheduling is based on three determinations. They involve the drug’s potential for abuse, it’s medical use in the United States and whether it is safe for use under medical supervision. The DEA has determined in three prior rescheduling proceedings, based on guidance from the Food and Drug Administration and its own review of relevant information, that marijuana has the highest potential for abuse compared to other scheduled drugs and that it has no accepted medical use in the United States. As such, they also have concluded that it is not safe for use under medical supervision.

So, actually, there are two important issues here—abuse potential and medical use. The DEA’s current and past position is that the scientific record indicates that marijuana has an abuse potential as severe as that of heroin and that marijuana has no accepted medical use in the United States.

If the DEA decides to reschedule marijuana, that means they will have to acknowledge that one or both of those prior determinations was wrong. That will have profound consequences.

Now, on one hand, the DEA could merely acknowledge that there is finally enough scientific evidence that marijuana has an accepted medical use in the United States. This would allow them, theoretically, to save face in that their position in the past was based on a lack of scientific evidence. It’s good spin, but one contradicted by both historical and scientific record. While not the only development of importance here, the cannabinoid receptor system was discovered long ago in 1988.

If the DEA takes this route, they would then reschedule marijuana into Schedule II, which seems to be the wishful thinking of most commentators. But this approach is still fraught with difficulty for the DEA.

Leave aside the clash between federal and state law, leave aside the impact Schedule II status would have in respect to research and leave aside the positive development that the DEA would have finally acknowledged what is obvious under laws of over half of the states in the nation (that marijuana has medical use). Schedule II status is for drugs that have an accepted medical use AND have the highest potential for abuse of all the drugs regulated by the CSA. In other words, if the DEA places marijuana in Schedule II, they are still insisting that marijuana has a similar abuse potential as heroin.

Schedule II status for marijuana still leaves the DEA in the position of taking a politicized view of science—accepting whatever science is politically convenient and ignoring that which is not.

On the other hand, an honest assessment of the scientific record would acknowledge that both past determinations were wrong—that marijuana not only does have accepted medical use in the United States but also that it does NOT have an abuse potential similar to heroin. This would mean that marijuana would have to be placed in Schedule III, or more realistically, in Schedule IV (with most tranquilizers) or even taken out of the schedules entirely.

In either case, rescheduling involves the federal government of the United States acknowledging that it has been wrong about marijuana, that it really does have medical use and (if they’re are going to be honest for a change) that it really isn’t as addictive as heroin. What happens next is that reform advocates put together a long list of exaggerated claims about marijuana made by reform opponents over the last 50 years, indicating one by one how these claims have now been acknowledged as inaccurate and disproven by science, according to the DEA.

In any event, rescheduling by the DEA is an admission of error on their part, an admission that reformers have been right and the government has been wrong. Nonetheless, it won’t do the government much good in their losing war to preserve prohibition. They are way behind schedule and on the wrong side of history no matter how the DEA tries to salvage their use of the CSA to maintain authority over marijuana.

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