The DEA Can't Legalize Medical Marijuana

An imminent rescheduling decision is bound to disappoint anyone hoping for pot by prescription.


Rumor has it that the Drug Enforcement Administration (DEA) plans to legalize marijuana any day now. Rumor also has it that Barack Obama is secretly a foreign-born Muslim and that the CIA had a hand in the attack that brought down the World Trade Center. Unfortunately, that first claim is about as likely to be true as the other two.

It is true that the DEA has not responded yet to a pair of petitions asking it to reclassify marijuana, which since 1970 has sat in Schedule I of the Controlled Substances Act (CSA), the law's most restrictive category. Schedule I supposedly is reserved for drugs with "a high potential for abuse" and "no currently accepted medical use," drugs that cannot be used safely even under a doctor's supervision. It is doubtful that marijuana meets any of those criteria, let alone all three. But the DEA, which has wide discretion to interpret and apply the CSA criteria, has always insisted that marijuana must stay in Schedule I until its medical utility is proven by the sort of large, expensive, randomized clinical trials the Food and Drug Administration (FDA) demands before approving a new pharmaceutical.

While such studies have been conducted with marijuana's main active ingredient (which is how Marinol, a capsule containing synthetic THC, was approved by the FDA in 1985), and are under way with Sativex, an oral cannabis extract spray, they have not been conducted with the whole plant. The DEA's definition of "currently accepted medical use" creates something of a Catch-22, since marijuana's Schedule I status, together with the government's monopoly on the supply of cannabis for medical studies, makes conducting such research difficult. But there is little reason to think the DEA, having rejected three other rescheduling petitions, will change its mind now.

Even if the DEA did decide to remove marijuana from Schedule I, the result would not be, as the Santa Monica Observer reported on June 18, "legalizing medicinal cannabis in all 50 states with a doctor's prescription." Staff writer Stan Greene's article was based entirely on the claims of an unnamed "DEA lawyer" who said the agency intends to move marijuana from Schedule I to Schedule II on August 1, which he said "will have the effect of making THC products legal with a prescription in all 50 states." A lawyer familiar with the CSA—let alone one employed by the DEA—would know that is not how the law works, because any cannabis-derived medicine would have to be approved by the FDA (based on the same kind of evidence the DEA has always demanded in response to rescheduling petitions) before a doctor could legally prescribe it.

Moving marijuana to a lower schedule would make research easier, especially if it were combined with competition in the provision of cannabis to researchers. A move to Schedule III or lower would make it possible for state-licensed marijuana suppliers to deduct their business expenses, thereby solving one of the newly legal industry's major financial problems. Even a move to Schedule II would eliminate criminal penalties for marijuana ads and make publications that carry them officially "mailable." At least as significant as the immediate practical effect, the federal government's implicit recognition of marijuana's medical value could have an important impact on the public policy debate at the national and state level.

But rescheduling would not by itself make marijuana legally available as a medicine. Even in the 25 states that let people use marijuana for symptom relief, patients and their suppliers would still be breaking federal law.

In short, the Observer article was based on a verifiably false claim about the consequences of reclassifying marijuana, casting doubt on its source's legal expertise as well as his knowledge of the DEA's plans. The story was nevertheless echoed by various blogs and news outlets, including The Daily Caller, which credulously reported that "the U.S. Drug Enforcement Administration is on the cusp of legalizing marijuana use across the country," citing "a lawyer acting as counsel to the agency"—i.e., the same "DEA lawyer" quoted in the Observer piece. Daily Caller reporter Christian Datoc does not seem to have independently interviewed that source, instead relying on the earlier article. The Daily Caller report appeared the day after The Daily Chronic's Scott Gacek dismissed the Observer story as "speculation and rumor" based on a single unidentified source and warned that "the cannabis community should not be duped by this misinformation."

The Santa Monica Observer and The Daily Caller are not the only news outlets promoting unrealistic expectations about the consequences of the DEA's decision regarding marijuana. The day before the Observer's supposed scoop, Inc. staff writer Will Yakowicz claimed "the plant could be de-scheduled completely like alcohol or tobacco." A June 25 Motley Fool post (which seems to have been taken down) likewise reported that the DEA "could completely deschedule marijuana, putting the plant on par with tobacco and alcohol." But it's pretty clear such a change, unlike moving marijuana from one schedule to another, would require congressional action, because the CSA says scheduling decisions must comport with international drug control treaties, which allow medical use of cannabis but call for strict regulation. The Motley Fool also erroneously reported that "if the [DEA] were to reclassify marijuana as anything other than a schedule 1 substance, then medical marijuana would immediately become legal throughout the U.S."

It seems unlikely that the DEA will take even the relatively modest step of moving marijuana from Schedule I to Schedule II. In a September 30 letter to Rep. Earl Bluemenauer (D-Ore.), the Justice Department (which includes the DEA) mentioned that the DEA had "recently received" a scientific evaluation and a scheduling recommendation from the Department of Health and Human Services, which is part of the process prescribed by the CSA for scheduling decisions. In an April 4 response to questions from members of Congress, the DEA said it "hopes to release its determination in the first half of 2016." But DEA spokesman Rusty Payne recently told Vice News, "We don't have a timeline on the decision."

Presumably it will happen before President Obama leaves office in January. But Obama himself has indicated that his administration will not reclassify marijuana, even implying that it does not have the statutory authority to do so. "What is and isn't a Schedule I narcotic is a job for Congress," Obama told CNN's Jake Tapper in 2014. "It's not something by ourselves that we start changing."

Last January, White House Press Secretary Josh Earnest reiterated that Obama had no interest in administratively rescheduling marijuana: "There are some in the Democratic Party who have urged the president to take this kind of action. The president's response was, 'If you feel so strongly about it, and you believe there is so much public support for what it is that you're advocating, then why don't you pass legislation about it, and we'll see what happens.'"

Eric Holder, Obama's attorney general until last year—and therefore the official directly charged with deciding how controlled substances should be classified, a task that he, like his predecessors, delegated to the DEA—took the same line. Even when Holder said, 10 months after leaving the Justice Department, that marijuana "ought to be rescheduled," he added that "Congress needs to do that."

If the DEA nevertheless reschedules marijuana, it will be contradicting all of those signals, not to mention more than four decades of its own intransigence, including its longstanding, court-approved interpretation of the CSA—as well as DEA Acting Administrator Chuck Rosenberg's dismissal of medical marijuana as "a joke." Although a DEA reversal would surprise me, I won't say it's impossible. But it clearly is impossible that the DEA's decision, whatever it is, will suddenly make marijuana a legal medicine throughout the country.

Update: In a follow-up article published on July 4, the Santa Monica Observer's Stan Greene offers a notably different account of what would happen if the DEA moved marijuana from Schedule I to Schedule II. While the original "groundbreaking article" (as Greene modestly describes it) said that change "will have the effect of making THC products legal with a prescription in all 50 states," the new article, which features quotes from a second interview with the unidentified "DEA lawyer," says "moving marijuana to Schedule II is all about allowing people to do clinical research." The lawyer, whom Greene calls "Deep Throat," notes that any cannabis-derived medicine will "have to go through the same trials as anything else," saying "exhaustive scientific studies" will be required to survive "the FDA wringer." In other words, rescheduling marijuana will have no immediate impact on its availability as a medicine. The production, distribution, and consumption of marijuana for medical purposes (or any other purpose) will still be prohibited by federal law, regardless of what state law says.

Deep Throat also casts doubt on whether the change he predicts will actually happen, saying, "There's a reason I'm talking to you today, and it's to float a few trial balloons." Federal officials floating trial balloons usually do not announce that is what they're doing, and they usually do not do it in the Santa Monica Observer. Nor is it clear exactly whose trial balloons these are, since the lawyer "was not authorized to speak to the press." Furthermore, the idea that Deep Throat is floating trial balloons seems inconsistent with his claim that "the decision has already been made."

That's not the only thing about the quotes from the DEA lawyer that rings false. He refers to "TBD oil," by which he presumably means CBD (cannabidiol) oil. That is not the sort of mistake you would expect a lawyer working for the DEA to make, although maybe it was Greene's transcription error.

"I will remind everyone that Congress vested the DEA with authority to enforce the nation's drug laws," says Deep Throat. "Don't even think of challenging our authority. Because ultimately, what you will get to use is only what we will allow." That seems a bit over the top, even for a DEA official, and it's obviously not true, inasmuch as millions of people across the country are already using marijuana for medical purposes. Putting marijuana in Schedule II won't change that, and it won't stop the movement toward full legalization, which renders the DEA's notional control over what people do with this plant even more patently absurd.

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