Department of Justice Publishes Proposed Rule in Federal Register To Reclassify Cannabis

The federal government is finalizing the reclassification of cannabis. The U.S. Department of Justice published a proposed rule in the U.S. Federal Register to reclassify cannabis from Schedule I of the federal Controlled Substances Act (CSA) and move it to Schedule III.

For over 50 years, cannabis has been classified as a Schedule I controlled substance, a classification reserved for drugs with “no medical value.” Many critics from the cannabis industry have criticized the reclassification, saying that only decriminalization is enough and that moving cannabis to Schedule III only puts it in a slightly less restrictive category.

Then on Oct. 6, 2022, President Biden asked the Attorney General and the Secretary of Health and Human Services (HHS) to launch a review of how cannabis is classified. After receiving HHS’s recommendations last August, the Attorney General first sought legal advice from the Justice Department’s Office of Legal Counsel (OLC). Then, based on the HHS’ medical and scientific determinations, and OLC’s legal advice, the Attorney General exercised his authority under the law to initiate the rulemaking process to reclassify cannabis.

The proposed rule was first announced by the DOJ Office of Public Affairs on May 16, and follows a series of recommendations and approvals.

“The Department of Justice proposes to transfer marijuana from schedule I of the Controlled Substances Act (CSA) to schedule III of the CSA, consistent with the view of the Department of Health and Human Services (HHS) that marijuana has a currently accepted medical use as well as HHS’s views about marijuana’s abuse potential and level of physical or psychological dependence,” the proposal for the federal register reads. “The CSA requires that such actions be made through formal rulemaking on the record after opportunity for a hearing.”

“If the transfer to schedule III is finalized, the regulatory controls applicable to schedule III controlled substances would apply, as appropriate, along with existing marijuana-specific requirements and any additional controls that might be implemented, including those that might be implemented to meet U.S. treaty obligations,” the proposal reads. “If marijuana is transferred into schedule III, the manufacture, distribution, dispensing, and possession of marijuana would remain subject to the applicable criminal prohibitions of the CSA. Any drugs containing a substance within the CSA’s definition of “marijuana” would also remain subject to the applicable prohibitions in the Federal Food, Drug, and Cosmetic Act (FDCA). DOJ is soliciting comments on this proposal.”

The National Organization for the Reform of Marijuana Laws (NORML) offered cautious enthusiasm for change, finally at the federal level.

“NORML is in a unique position to mobilize interested parties to provide their perspectives throughout the public comment period and we will be encouraging advocates and experts to do so in the coming weeks,” said NORML’s Deputy Director Paul Armentano. “In particular, it is important that the voices of both physicians and patients are heard and considered, as the Justice Department weighed the real-world experiences of doctors and their patients in medical cannabis states when making their recommendation to reclassify.”

“Additionally, NORML will be submitting our own comprehensive comments substantiating the evidentiary record that cannabis possesses accepted medical utility and comparatively low dependence liability,” Armentano continued. “We will also be addressing a number of the issues raised by political opponents with respect to cannabis’ impact on public health, making it clear that these concerns do not warrant the continued classification of cannabis as a Schedule I substance. While NORML ultimately favors descheduling rather than rescheduling, we understand that reclassification is associated with both symbolic and tangible benefits to the cannabis community, both in the short-term and the long-term.”

Public Comment Period on Reclassification Move

Now that the rule proposal has been published on the Federal Register, the public comment period will kick off and run for about 60 days.​​

The rescheduling of a controlled substance must undergo a formal rulemaking procedure that requires a notice to the public, informing them of an opportunity to comment and an administrative hearing. Then the DEA will gather and consider information and views submitted by the public, in order to make a determination. During that process, and until a final rule is published, marijuana remains a schedule I controlled substance.

Comments must be submitted electronically or postmarked on or before July 22, 2024. Interested persons may file a request for a hearing or waiver of an opportunity for a hearing or to participate in a hearing pursuant to 21 CFR 1308.44 and in accordance with 21 CFR 1316.47 or 1316.49, as applicable, which must be received or postmarked on or before June 20, 2024.

The DOJ encourages that all comments be submitted through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or to attach a file for lengthier comments. Individuals can go to the regulations website and follow the online instructions at that site for submitting comments.