Where things stand with Biden's marijuana scheduling review

Carl Olsen is the founder of Iowans for Medical Marijuana.

One of President Joe Biden’s campaign promises was to consider reforming federal marijuana laws. Recently, in fulfilling his promise, Biden pardoned all federal simple marijuana possession cases and requested that Secretary of Health and Human Services Xavier Becerra begin a scheduling review.

Marijuana is in the most restrictive of the five schedules in the Controlled Substances Act of 1970. 21 U.S.C. §§ 801 et seq. Schedule I is for substances that have no accepted medical use in treatment in the United States. Substances in schedules II through V are prescription drugs. 

The major obstacle to rescheduling marijuana has always been that marijuana can’t be proven to have accepted medical use because it cannot be prescribed.

That Catch-22 has not escaped Biden’s attention. The president released the following statement on October 6:

Third, I am asking the Secretary of Health and Human Services and the Attorney General to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law. Federal law currently classifies marijuana in Schedule I of the Controlled Substances Act, the classification meant for the most dangerous substances. This is the same schedule as for heroin and LSD, and even higher than the classification of fentanyl and methamphetamine — the drugs that are driving our overdose epidemic.

In response, Secretary Becerra told reporters,

“The president was very clear — he wants this done as quickly as possible,” Becerra said.  “It’s not new science, but there’s a lot of information to gather because in many states marijuana has been legalized for either medical purposes or recreational purposes.”

Typically, petitions are filed with the Drug Enforcement Administration (a branch of the Department of Justice) which refers the petition to the Food and Drug Administration (a branch of the Department of Health and Human Services). A large number of such petitions have been filed in the past, typically arguing that marijuana has accepted medical use. Even state governments have tried, to no avail. 

So, the fact that Biden asked Becerra to kick this off is an unusual twist, because that hasn’t been done before.

Here are the various statutes involved, found in 21 U.S.C. § 811: (1) A petition for scheduling review “ . . . may be initiated . . . at the request of the Secretary, . . .“ 21 U.S.C. § 811(a)

Here is the unusual twist I just mentioned: “ . . . if the Secretary recommends that a drug or other substance not be controlled, the Attorney General shall not control the drug or other substance.” 21 U.S.C. § 811(b).

But then, the federal code stipulates,

If control is required by United States obligations under international treaties, conventions, or protocols in effect on October 27, 1970, the Attorney General shall issue an order controlling such drug under the schedule he deems most appropriate to carry out such obligations, without regard to the findings required by subsection (a) of this section or section 812(b) of this title and without regard to the procedures prescribed by subsections (a) and (b) of this section.

So, now we’ve just eliminated the secretary. Could that be why Biden asked the Secretary to start the scheduling review process?

The relevant international convention is the Single Convention on Narcotics Drugs, 1961. Marijuana was placed in the most restrictive schedule of that convention, but it was removed from that schedule in 2020 at the request of the United States. Hmm, . . .

Here are the most recent public comments from Becerra, as Kyle Jaeger reported for Marijuana Moment on December 2.

… the government won’t be using “20th century modalities and ways of thinking to drive what we do if we have evidence that tells us we go a different direction.”

“We would not be the ones who would be proposing [decriminalization], but we certainly would weigh in on any issue involving decriminalization of any controlled substance,” he said before specifically addressing President Joe Biden’s marijuana scheduling directive.

… “at the end of the day, we should all be about keeping people alive and letting those people thrive.”

What are those 20th century modalities, you ask? Well, that would be the 1961 Single Convention and the 1970 Controlled Substance Act. Stay tuned.

Top image: U.S. Secretary of Health and Human Services Xavier Becerra speaks on December 1, 2021, in this official White House photo by Cameron Smith.

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