Governors’ Push President on Cannabis Rescheduling But Overlook What Schedule III Would Require

Last week, in a letter thanking President Joe Biden for his leadership to federally reschedule cannabis, Democratic governors sought to make the case for rescheduling.  Letter to President Joseph R. Biden, Jr., from Governor Jared Polis et al., Dec. 5, 2023.  The governors (of Colorado, Illinois, Louisiana, Maryland, New Jersey and New York) thanked the President for his leadership in directing the Department of Health and Human Services (“HHS”) to reconsider the current scheduling of cannabis and HHS’ August 2023 rescheduling recommendation to the Drug Enforcement Administration (“DEA”).  Quoting a Pew Research poll, the governors expressed their “hope” that DEA reschedules cannabis to schedule III “this year” because 88% of Americans favor legalization for medical or recreational use.

However, anyone reading the letter would take away the impression that rescheduling to schedule III would legalize cannabis for medical and recreational use.  As explained more fully below, that impression would be partially correct, but partially incorrect.

In October 2022 President Biden asked the Secretary of HHS and the Attorney General to “initiate the administrative process to review expeditiously how marijuana is scheduled under federal law.”  Statement from President Biden on Marijuana Reform, White House (Oct. 6, 2022).  HHS and DEA officials confirm that HHS recommended rescheduling cannabis from schedule I to schedule III in August.  Riley Griffin et al., US Health Officials Urge Moving Pot to Lower-Risk Tier, Bloomberg News (Aug. 30, 2023).

The governors, acknowledging that while the Food and Drug Administration (“FDA”) based its recommendation “solely on science and medicine,” asserted that rescheduling “also increases public health and safety, is sound public policy, and is a big win for states,” particularly for the 38 states that authorize cannabis for medical or recreational use, or both.  Authorized cannabis activities in those states, the governors wrote, have delivered $15 billion in tax revenue for education, law enforcement and other historically underfunded programs.

Conceding that they may disagree whether legalization of recreational cannabis or cannabis use is a “net positive,” the governors agreed that the cannabis industry is permanent, that states have implemented “strong regulations,” and supporting the state regulated cannabis marketplace “is essential for the safety of the American people.”

Rescheduling cannabis to schedule III, the governors asserted, would protect the public against more dangerous drug use because legal cannabis products sold in states where they are legal “are significantly safer than myriad alternatives, including opioids.”  They contended that access to cannabis is associated with reduced rates of:

• Opioid use and abuse;
• Opioid-related hospitalizations;
• Opioid-related traffic fatalities;
• Opioid-related drug treatment admissions; and
• Opioid-related overdose deaths.

Citing a DEA publication, the governors asserted that “cannabis use killed no one.”  The governors observed that the U.S. needs “real solutions to our addiction epidemic” and while not expressly stating as much, believe cannabis rescheduling is the safer alternative.  Rightly or wrongly, the governors seem to be saying that with the U.S.’ addiction problem, it is preferable to promote state-regulated cannabis products as an alternative to illegal opioid and non-regulated cannabis use.

The governors expressed confidence that rescheduling cannabis will ensure enhanced regulation and oversight of cannabis use while decreasing the use of unregulated cannabis and hemp products, noting that unregulated, untested hemp products are being sold to kids in convenience stores.  They observed that unregulated cannabis products have been found to contain fentanyl, high levels of heavy metals, contaminants, and even high delta-9 tetrahydrocannabinol (“THC”) concentrations.  The governors contended that regulated cannabis is safer than opioids and the unregulated illicit cannabis market and safer than hemp-derived THC products.

As justification, the governors argued that state-regulated cannabis would require age verification, packaging and labeling standards, testing and warning symbols or statements, and allow for tracking products from seed to sale.  The governors noted that the public safety requires protection of the state-regulated marketplace by ensuring regulated companies are able to operate efficiently.

The governors concluded that it is time to act like “the greatest nation on earth” that the United States is by promoting safe products, taking enforcement action against dangerous products and entities that violate state law and focusing on the real problems the states face as a community “with opioid use at the top of the list.”  The governors further asserted that FDA’s and HHS’ recommendation to reschedule cannabis is a “signal” of their faith in state regulators and the regulations they have promulgated to keep their citizens safe.  We believe it is a reach to conclude that FDA’s and HHS’s rescheduling recommendation is a signal of faith in state regulators and regulations.

The governors appear to have the best interests of their constituents, the public and the authorized cannabis industry in their states at heart.  While they sent their letter to President Biden, we note that the rescheduling analysis based on the “eight factors” is in DEA’s court, not the President’s.

Lastly, the governors wrote as if rescheduling cannabis to schedule III will authorize unfettered adult access for medical and recreational use.  It will not.  While rescheduling cannabis to schedule III would more closely align federal law with that of the 38 states that allow for some form of cannabis for medical use (depending upon the state), it would still conflict with the laws of the 23 states that legalize cannabis for recreational use.  Obtaining cannabis as a schedule III substance would require a prescription “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.”  21 C.F.R. § 1306.04.  In other words, a prescription written by a DEA-registered, state-licensed practitioner.  In addition, cultivators, manufacturers, distributors and dispensers would have to obtain DEA registrations, create and maintain transaction records, file certain reports and maintain adequate security.  Federally rescheduling cannabis to schedule III would not create the unlimited public access the governors alluded to in their letter.