Senators to DEA: Consider Treaty Obligations In Marijuana Rescheduling

Administrator Anne Milgram has been on the receiving end of high-level support for and against rescheduling marijuana since the Food and Drug Administration (“FDA”) and Health and Human Services (“HHS”) recommended the Drug Enforcement Administration (“DEA”) reschedule from schedule I to schedule III last August.  We blogged in February about the October 2023 letter from former DEA Administrators, Ms. Milgram’s predecessors, and Directors of National Drug Policy urging not to reschedule; the January 2004 letter Democratic state attorneys general pushing for rescheduling to schedule III; and the January 2024 letter from Democratic senators requesting descheduling altogether.  Democratic senators also weighed in, supporting rescheduling to schedule III in December 2023.

Administrator Milgram received another letter last month from Republican senators Mitt Romney (Utah), Pete Ricketts (Nebraska), and James Risch (Idaho), who sit on the Senate Foreign Relations Committee.  The Senators implore efforts to reschedule marijuana be driven by facts, “not the administration’s favored policy,” and question whether rescheduling would violate the Controlled Substances Act (“CSA”) and U.S. treaty obligations under the Single Convention on Narcotic Drugs, 1961.  Letter to Administrator Anne Milgram, from Mitt Romney, Pete Ricketts and James Risch, March 27, 2024.

The senators write that the U.S. ratified the Single Convention in 1967 and must impose certain domestic controls on marijuana and other drugs controlled by the treaty.  Marijuana is a schedule I drug under the Convention.  They write that the CSA implements treaty obligations in U.S. domestic law and that 21 U.S.C. § 811(d) specifically requires the Attorney General to control marijuana in the schedule he deems most appropriate for carrying out U.S. obligations under the Single Convention.

The senators note that DEA determined in prior rescheduling proceedings that 21 U.S.C. § 811(d) required classification of marijuana as a schedule I or II substance to comply with U.S. treaty obligations under the Single Convention, opining that it is important that DEA continue “to follow the law and abide by our treaty commitments.”

When DEA denied marijuana rescheduling petitions in August 2016, cannabis was listed as a schedule I and schedule IV substance under the Single Convention.  Schedule IV substances are highly addictive and rarely used in medical practice while schedule I substances are also highly addictive, liable to abuse or convertible to drugs similarly addictive and liable to abuse.  The Single Convention imposes more stringent controls on schedule IV substances than on schedule I substances.  The UN Commission on Narcotic Drugs removed cannabis and cannabis resin from schedule IV of the Single Convention in December 2020.  While FDA recommended rescheduling to schedule III, we think it more likely that if DEA reschedules marijuana it would be to schedule II because the Single Convention still requires manufacturing quotas for cannabis (which are not required for schedule III substances under the CSA).  In addition, the Single Convention requires import and export permits for international transactions involving cannabis, while the CSA requires permits for schedule I and II substances and schedule III narcotic substances.  The CSA does not require permits for non-narcotic schedule III substances.  Were DEA to reschedule marijuana in schedule III, the agency and registrants would have to straddle the requirements of two schedules by requiring manufacturing quotas and import/export permits.  On a final note, as a signatory to the Single Convention, U.S. marijuana manufacturers, importers, exporters, and distributors will be required to obtain DEA registrations, and prescriptions will be required for dispensing marijuana to individuals.

In response to their letter, the senators asked DEA:

• Whether DEA still holds the position as it did in 2016, when it declined to remove marijuana from schedule I, that marijuana must be a schedule I or II substance to comply with 21 U.S.C. § 811(d) and U.S. treaty obligations, and, if not, why has DEA’s position changed?
• Whether DEA believes the U.S. can meet its treaty obligations under the Single Convention if marijuana is rescheduled to schedule III?
• Whether DEA is consulting the Department of State about treaty obligations regarding marijuana and diplomatic implications of rescheduling?
• Whether DEA consulted “with key counterdrug partner nations about our shared obligations under the Single Convention and their views regarding a potential rescheduling” by the U.S.?
• What impact a potential failure by the U.S. to uphold its treaty obligations would have on our ability to ensure other countries enforce their drug controls under the Single Convention, including fentanyl?

The senators requested responses to their questions by April 12th.  The senators’ position through their statements and questions makes clear to DEA that U.S. treaty obligations under the Single Treaty must be part of the agency’s rescheduling considerations.