Federal Marijuana Rescheduling: States Get Ready

States better get ready,
Rescheduling may be coming,
You may need to make changes,
You may need to do more,
Than just get on board.
(With apologies to Curtis Mayfield)

By the close of the public comment period for the Drug Enforcement Administration’s (“DEA’s”) proposal to reschedule marijuana two weeks ago, the agency had received over 43,500 comments.  Governors, state cannabis regulators, law enforcement groups and local governments weighed in, as did marijuana advocates and opponents, marijuana industry associations, Members of Congress, federal law enforcement groups, healthcare and human rights groups, unions and trade associations, and private individuals.  Comments ranged from single sentence declarations to lengthy, cogent treatises, expounding on whether to reschedule marijuana from schedule I to schedule III or another schedule under the federal Controlled Substances Act (“CSA”), to leave marijuana in schedule I, or to deschedule altogether.  Regardless of whether DEA holds a public hearing, the issue will not be resolved for some time.

Rescheduling or descheduling from the most stringent schedule under the CSA, should one of those actions occur, would loosen federal manufacturing, import/export, distribution, and security requirements.  Rescheduling out of schedule I would allow for the medical use of FDA-approved prescription drugs dispensed by DEA-registered, state licensed pharmacies pursuant to prescriptions issued by similarly DEA-registered, state licensed practitioners.

While DEA is the primary federal authority that enforces the CSA and its regulations, the states, commonwealths, and territories also regulate marijuana and other controlled substances within their borders.  What has been overlooked is how rescheduling or descheduling may impact how the states and the District of Columbia might have to regulate marijuana.

Every state has enacted its own controlled substances statutes and regulations, many of which mirror the federal CSA and DEA regulations.  While states regulate most controlled substances similarly to regulation at the federal level, DEA and the states often diverge with marijuana.  Marijuana has been in schedule I of the CSA, the most stringent schedule for substances of abuse, since 1970.  21 U.S.C. § 812(c)(c)(10).  Schedule I substances have a high potential for abuse, no currently accepted medical use in treatment in the U.S., and lack accepted safety for use under medical supervision.  21 U.S.C. § 812 (b)(1).  In the most recent eight factor analyses prior to August 2023, in 2016 HHS and DEA concluded that marijuana continued to meet criteria for remaining in schedule I.  Denial of Petition To Initiate Proceedings to Reschedule Marijuana, 81 Fed. Reg. 53,688 (Aug. 12, 2016); Denial of Petition To Initiate Proceedings to Reschedule Marijuana, 81 Fed. Reg. 53,767 (Aug. 12, 2016).

The states, through their own controlled substance authorities, pharmacy boards, departments of health or legislatures schedule and impose regulatory requirements on substances of abuse and the legitimate entities that handle them.  Some states have authorities that regulate marijuana exclusively.  To date thirty-eight states authorize marijuana in different dosage formulations for specific qualifying medical conditions and twenty-four states authorize adult recreational use of marijuana.  Marijuana use remains illegal in a handful of states.

Depending upon the state, substances of abuse are scheduled, rescheduled or descheduled if, as under the federal CSA, they meet certain criteria.  State scheduling criteria, though differing by state, are also generally consistent with CSA criteria.  About half the states require the same eight factor scheduling analysis as the CSA, and while some states require analysis of additional factors, others require analysis of fewer factors.

States’ controlled substances acts generally mirror the federal CSA.  This internal mandate may conflict with the state’s current allowance of marijuana for medical or recreational uses.  Federal scheduling actions may automatically trigger a number of states to control the substance consistent with the federal CSA.  In some states the regulatory authority is required to take action within a certain period of time, say thirty or sixty days following the final scheduling notice appearing in the Federal Register, or the federal action becomes effective in the state.  Some of those states require a public hearing, after which the state publishes its decision to follow or not follow the federal scheduling action.  States required to automatically schedule, reschedule or deschedule based on what DEA does may lack the authority to schedule marijuana more independently.  A number of states have discretional scheduling authority not tied to federal scheduling.

The federal CSA does not preempt state law unless there is positive conflict between one of its provisions and state law such that they cannot stand together.  21 U.S.C. § 903.  DEA has historically taken the position that in conflicts between the CSA and state law, the stricter governs.

DEA rescheduling marijuana in either schedules II or III may not represent a big change for states that already authorize marijuana for medical use.  However, for states that allow for recreational use of marijuana, even federal rescheduling from schedule I to a less restrictive schedule may trigger a sea change and potential culture shift.

At least half of the states currently regulate marijuana as a schedule I substance under their controlled substances act.  Other states variously control marijuana as a schedule III (Minnesota), schedule VI (Arkansas, Massachusetts, North Carolina and Tennessee), schedule VIA (Alaska), or schedule Z (Maine).  There are some states that do not control marijuana, or they regulate it outside of their controlled substances act.

Were DEA to reschedule marijuana to schedule II or III, or leave it in schedule I, and the states regulate it in a less restrictive schedule or allow continued recreational use, how will the U.S. Department of Justice (“DOJ”) and DEA respond?  Will DOJ and DEA continue to exercise the enforcement discretion generally shown since the Cole Memo was issued in August 2013?  Merrick Garland may not be Attorney General if DEA takes scheduling action on marijuana, but if he is, he may have provided a clue during his confirmation.  He said at that time that it was not the best use of DOJ’s limited resources to prosecute those complying with laws in states that have legalized marijuana and are “effectively regulating marijuana.”  Merrick Garland, Responses to Questions for the Record to Judge Merrick Garland, Nominee to be United States Attorney General 24 (Feb. 28, 2021).  We wonder if the Cole Memo was a holding pattern of sorts until DOJ and DEA resolved the federal/state marijuana divide and having done so, determine that states are not “effectively regulating marijuana” if they regulate marijuana less restrictively.

Rescheduling or descheduling, should either occur, will likely not become effective anytime soon.  In the meantime, authorities should take stock of potential federal rescheduling ramifications by assessing and understanding how it may impact how they regulate marijuana their state.