Senate’s New Weed Bill Cuts through the Fed’s Drug Scheduling Maze

March 11, 2015 | Kimberley Richards

On Tuesday, senators from both sides of the aisle introduced a groundbreaking bill that would federally legalize medical weed. The bill, presented by Sens. Cory Booker (D-NJ), Kirsten Gillibrand (D-N.Y.) and Rand Paul (R-KY), would reclassify weed from a Schedule I drug to a Schedule II; allow doctors of the Department of Veterans Affairs to recommend medical weed to veterans in states where weed is legal; remove federal prohibition of medicinal weed when in compliance to respective state laws; and allow bank institutions to properly work with legitimate medical weed facilities.

As a Schedule I drug, pot is considered a substance as harsh as heroin and LSD with a “high potential for abuse” that has “no currently accepted medical use in the United States.” The classification has major impacts on weed usage: For medicinal purposes, it restricts the facilitation of research to explore weed’s potential medicinal benefits. The strict scheduling also enables discriminatory practices currently used against weed-related businesses, stemming from a 1982 tax code that does not allow deductions or credits for any trade or business dealing with Schedule I or Schedule II drugs.

Unless higher powers, like Congress, intervene, the fate of medicinal weed remains in the hands of labyrinthian federal agencies. Under the Controlled Substances Act, change would have to be initiated by the DEA, the Department of Health and Human Services or by a petition from any interested party. Then a DEA administrator has to request a medical and scientific evaluation and recommendation from the HHS. HHS would then have to provide a recommendation on the drug–its possible removal or schedule. The DEA is bound by the recommendation, which comes from the HHS agency known as the FDA.

There’s a common public misconception that the DEA can change the scheduling at whim. “The DEA are police officers, we enforce the law,” said DEA spokesperson Barbara Carreno. “The people who review the actual research are the FDA. The FDA has to sign off to prospective research [but] the researchers have security requirements. The DEA moves forward if the researchers’ protocols meets requirements of CSA [Controlled Substances Act].” (Carreno was referring to the research protocols listed in the Title 21 Code of Regulations by the U.S Department of Justice.)

Rusty Payne, a representative from the DEA, explains that if the FDA deems a substance to be medicine, however, then the DEA is “bound” to list that substance in either the II, III, IV, or V schedules. “If the FDA issues an official finding tomorrow that marijuana or whatever in Schedule I is indeed a medicine, then we will be bound by that,” Payne said.

Currently, the FDA does not approve weed as a safe and effective drug. For the FDA to make a recommendation of a schedule change to the DEA, the agency must consider an 8-factor analysis when determining whether a drug’s schedule should be changed. The drug schedule change process also involves the National Institute on Drug Abuse (NIDA). The DEA is required to register the substance with NIDA, the agency designated to responsibly oversee the cultivation of weed. The DEA, FDA and NIDA have to all work together to essentially consider any changes and developments.

Interestingly enough, NIDA has shown to be receptive to the idea of medicinal weed use. The organization released a statement in December stating, “the weed plant contains several chemicals that may prove useful for treating a range of illnesses or symptoms, leading many people to argue that it should be made legally available for medical purposes.”

With NIDA’s apparent open-minded view to the prospects of medicinal weed, it’s unclear where the hold up is. When asked where in the process weed’s schedule change lives, the FDA could only respond that it’s “under review,” explained Jeff Ventura senior advisor for the FDA’s Office of Media Affairs.

In an e-mail to ANIMAL, Ventura, said:

“We are currently working on this scientific review, but given several factors, including the substantial number of published articles on the uses of marijuana, the need for review by other Agencies and the importance of the issue, a completion date for the review has not yet been determined.”

“Note that to be placed in Schedule II of the CSA, a drug must have an accepted medical use in treatment in the United States or an accepted medical use in treatment in the United States with severe restrictions,” wrote Ventura in a separate email. “A product is considered to have accepted medical use if it meets the requirements for marketing under the FFD&C Act, as determined by the FDA. For products that don’t meet this requirement, the DEA developed a five-point test for establishing that a drug has ‘a currently accepted medical use in the USA.'”

In response to two public citizens’ petitions in 2001 and 2006, the FDA said there wasn’t enough research to reclassify weed. It is currently being reevaluated again. According to Payne, the DEA and NIDA apparently have hundreds of researchers registered with both agencies, and that, in terms of researching weed, the DEA, NIDA and FDA are “always in evaluation mode.”

As the three agencies work together to ultimately decide on a schedule determination, weed still lives as a Schedule 1 drug in the interim. If Tuesday’s Compassionate Access, Research Expansion and Respect States (CARERS) Act is passed, the federal government could step in and take over the rescheduling. This would yield victories for research and medicinal weed, but it’s important to note that it would not federally legalize weed for recreational use. “The whole process of medicine is different than making something legal for recreational use,” Carreno said. “That is a different process and thus a different issue.”

That’s why weed supporters and policy organizations like the Marijuana Policy Project continue to fight to completely end the weed prohibition. “While rescheduling marijuana would make research easier, it would ultimately not do much to end marijuana prohibition,” said MPP Communications Manager Morgan Fox. “Marijuana is objectively safer than alcohol, and should be treated as such at the state and federal level. This would entail federal marijuana policy and interstate commerce being placed under the purview of an agency similar to the BATFE (Bureau of Alcohol, Tobacco, Firearms and Explosives).”

Congressmen Jared Polis (D-CO) and Earl Blumenaur (D-OR) are siding with many in favor of legalization and regulation to just completely strip the DEA of its jurisdiction over weed altogether. They recently introduced new bills to “to end the federal prohibition on marijuana, remove it from the Controlled Substances Act, and create a sensible tax and regulatory framework.” If federal lawmakers weigh in favor of legalization, that would mean no CSA, no DEA Scheduling, and no Schedule I assignment for weed. Regardless of whether either of these bill passes, one thing is certain — things are shaking up in weed policy.

(Photo: Thomas Hawk)