Marijuana

Marijuana's Mystifying Misclassification

A logic-defying law lets the DEA keep cannabis in a more restrictive category than morphine, cocaine, PCP, and methamphetamine.

|

On August 11, when the Drug Enforcement Administration (DEA) rejected two petitions asking it to reclassify marijuana, Fox News anchor Shepard Smith did not try to conceal his contempt. "LSD, MDMA, a plant that grows in the yard—all one thing," he said sarcastically. "The DEA announced today it will keep marijuana on the list of the most dangerous drugs in all the world, along with heroin, LSD, and MDMA….Thanks, DEA, you've really got a lot of credibility."

Smith's dismay was echoed by activists, scientists, commentators, and members of Congress from both major parties, who said the DEA's decision was at odds with what we know about marijuana's hazards and benefits. There is a lot of truth to that critique, and the DEA can reasonably be faulted for stubbornly refusing to remove marijuana from Schedule I of the Controlled Substances Act (CSA), a category that is supposedly reserved for drugs with "a high potential for abuse," "no currently accepted medical use," and "a lack of accepted safety for use…under medical supervision."

But bureaucratic intransigence is only part of the story. The other part is the CSA itself, a legal morass that leaves crucial phrases undefined, gives the DEA wide discretion to decide where drugs belong, and establishes arbitrary, inconsistent rules that make it impossible to properly classify many drugs.

Since Schedule I is the CSA's most restrictive category, people tend to assume it's supposed to be a list of "the most dangerous drugs in all the world," as Shepard Smith put it. But Chuck Rosenberg, the DEA's acting administrator, says that's a misleading way of describing Schedule I. In fact, he says, the decision to keep marijuana in that category did not involve an assessment of its relative hazards. While the DEA's determination that marijuana belongs in Schedule I was widely interpreted to mean it thinks marijuana is about as dangerous as other drugs in that category and more dangerous than drugs in lower schedules, the head of the DEA insists that is not what the decision means.

"Schedule I includes some substances that are exceptionally dangerous and some that are less dangerous (including marijuana, which is less dangerous than some substances in other schedules)," Rosenberg writes in an August 11 letter to Rhode Island Gov. Gina Raimondo and Washington Gov. Jay Inslee, whose predecessors filed one of the rescheduling petitions that the DEA rejected this month. "That strikes some people as odd, but the criteria [sic] for inclusion in Schedule I is not relative danger….It is best not to think of drug scheduling as an escalating 'danger' scale—rather, specific statutory criteria (based on medical and scientific evidence) determine into which schedule a substance is placed."

Rosenberg's concession that marijuana "is less dangerous than some substances in other schedules" stands in stark contrast with his predecessor's refusal to say whether heroin is more dangerous than marijuana. A year ago, Rosenberg admitted that "heroin is clearly more dangerous than marijuana," and now he is taking the further step of saying some drugs in lower schedules are also more dangerous. But he argues that such observations do not mean marijuana should be reclassified.

According to the DEA's official explanation of its decision, the only factor that mattered was whether marijuana has a "currently accepted medical use." The agency says meeting that criterion requires the sort of large, expensive clinical studies that the Food and Drug Administration (FDA) demands before approving a new medicine. 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. So unless the DEA was willing to reconsider its longstanding, court-approved definition of "currently accepted medical use," it was inevitable that it would once again say no to rescheduling.

Why does the DEA say medical use is the only criterion that matters? Because that is the main distinction between Schedule I and Schedule II, which includes tightly controlled medications such as opioid painkillers, methamphetamine, PCP, and cocaine. Under the CSA, Schedule II drugs have the same abuse potential as Schedule I drugs, but they have countervailing medical benefits.

The DEA maintains that the CSA does not allow it to move marijuana lower than Schedule II. The agency's position is based on the CSA's requirement that administrative scheduling decisions be consistent with "United States obligations under international treaties, conventions, or protocols in effect on October 27, 1970." The Single Convention on Narcotic Drugs of 1961 requires restrictions on cannabis, including import licenses and production quotas, that do not currently apply to drugs in schedules lower than II. The DEA maintains that it would not have the authority to impose those restrictions on marijuana if the drug were moved to Schedule III or lower.

The CSA's deference to international agreements can lead to puzzling consequences, since the law says scheduling decisions should be made "without regard to" its usual criteria for classifying drugs when treaty obligations require a different result. That means the DEA can be required to put a drug into a category where it plainly does not belong. And according to the DEA's reading of the law, marijuana must be put in Schedule I or II even if it does not meet the criteria for those schedules. The DEA nevertheless argues that marijuana does meet the criteria for Schedule I.

Schedule I drugs are supposed to lack "accepted safety for use…under medical supervision." Contrary to Rosenberg's position, that criterion certainly sounds like it has something to do with marijuana's relative hazards. But the DEA seems to think that if a drug has no "accepted medical use," it cannot be safe to use under medical supervision.

That does not logically follow, especially for a drug that an administrative law judge who evaluated an earlier rescheduling petition called "one of the safest therapeutically active substances known to man." More than 1 million patients across the country are using marijuana at the recommendation of their doctors under state laws that allow medical use. They typically find that its side effects compare quite favorably to those of many FDA-approved pharmaceuticals—as Rosenberg concedes when he says marijuana is "less dangerous than some substances in other schedules."

Both Schedule I and Schedule II drugs are supposed to have "a high potential for abuse." As far as the DEA is concerned, the fact that many people like marijuana is enough to satisfy this criterion, since nonmedical consumption of a controlled substance automatically counts as abuse. The DEA notes that the FDA, which conducted a scientific review as part of the scheduling process prescribed by the CSA, "concluded that marijuana has a high potential for abuse based on a large number of people regularly using marijuana, its widespread use, and the vast amount of marijuana that is available through illicit channels." Those three factors collapse into one: Marijuana is popular, which you might think would count in its favor.

A narrower, harm-based definition of abuse would suggest that marijuana is not comparable to Schedule II drugs such as fentanyl, PCP, and methamphetamine. Nor is its potential for abuse "high" compared to those of Schedule III substances such as the anesthetic ketamine or the narcotic buprenorphine, or Schedule IV substances such as the benzodiazepine Rohypnol, the barbiturate phenobarbital, or the opioid painkiller Tramadol. Under the CSA, drugs in those categories are supposed to have lower abuse potential than drugs in Schedule I or II.

Schedule III, by the way, includes Marinol, which contains a synthetic version of THC, marijuana's main psychoactive ingredient. The FDA's report to the DEA, which the DEA published in the Federal Register along with its response to the rescheduling petitions, defends that inconsistency, arguing that orally ingested THC has less abuse potential than marijuana because recreational users prefer smoking pot. "The delayed onset and longer duration of action for Marinol may be contributing factors limiting the abuse or appeal of Marinol as a drug of abuse relative to marijuana," the FDA says. Never mind that THC-treated foods have proven very popular in states where marijuana is legal, or that critics of those products say the same factors the FDA thinks reduce abuse potential make edibles especially dangerous.

According to the CSA, abuse of Schedule II drugs "may lead to severe psychological or physical dependence." But that is not a requirement for the completely prohibited drugs in Schedule I, which in addition to marijuana include LSD and MDMA, neither of which invites heavy use because maximizing their enjoyable effects requires waiting between doses. In any case, the FDA says "marijuana produces physical dependence that is mild, short-lived, and comparable to tobacco withdrawal," which suggests it does not belong in Schedule II. The FDA also found "little evidence" to support the "gateway hypothesis" that marijuana consumption makes people more likely to abuse other drugs.

The FDA nevertheless argues that it does not make sense to contrast marijuana's hazards with those of Schedule II drugs such as morphine, amphetamines, and cocaine. It says "differing mechanism(s) of action result in vastly different behavioral and adverse effect profiles, making comparisons across the range of pharmacologically diverse C-II substances inappropriate." That's a puzzling argument, since the CSA requires comparisons across "pharmacologically diverse" substances as part of the scheduling process.

The difficulty in finding an appropriate schedule for marijuana reflects a broader problem with the CSA's classification scheme. If a controlled substance does not have an accepted medical use (however that's defined), it has to go in Schedule I, even if it has a low potential for abuse and is safer than over-the-counter drugs such as aspirin, acetaminophen, or diphenhydramine. The only alternative is to take the drug out of the schedules entirely, which in the case of marijuana can be done only by Congress, given the CSA's deference to the Single Convention, which allows medical use of cannabis but calls for strict regulation.

Although the DEA has the power to move marijuana from one schedule to another, it was Congress that put it in Schedule I to begin with. The CSA was not intended to regulate recreational intoxicants, which are banned unless Congress omitted them from the law's schedules, as it did with alcohol, tobacco, and caffeine. The DEA's assumption that all nonmedical use of marijuana constitutes abuse may be absurd, but it's an absurdity that Congress demanded.

This article originally appeared at Forbes.com.

Advertisement

NEXT: How Safe Is Our Food Supply?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Canada’s medical marijuana laws are in full compliance with the SCTs. Ditto Uruguay and Israel. I’m sure there are others but I can’t speak to that. E.g. I can’t even imagine Switzerland being out of compliance. They did manage to get their limited legalization of heroin to comply.

    Quick show of hands—how many people other than myself have actually read the SCTs? [crickets] In the actual documents the parts about cannabis are nowhere nearly as all encompassing as some people believe.

    1. I was going to read the SCTs, but then I got high.

      I was going to add more snark to my reply, but then I got high.

      1. I’m missing a line of lyrics due to fat fingers from a non-controlled medicine for nerve issues that does get me high.

        1. I was gonna go to work, but then I got high, but then I went to work.

      2. I was going to shoot up a public place, but then I got high. Then I said, Let’s go get some Chee-Tohs.

      3. I was going to reply to your comment but…oh! “Big Trouble in Little China” is on! Cool…

    2. What is “SCT”? Google is giving me no plausible meanings.

      1. Single Convention Treaties, I would assume

      2. Schmidt Cassegrain Telescope, of course.

    3. I’m making over $7k a month working part time. I kept hearing other people tell me how much money they can make online so I decided to look into it. Well, it was all true and has totally changed my life. This is what I do… http://goo.gl/NNM5id

  2. It’s not on Schedule I because it’s dangerous, see? It’s on Schedule I because the large scale studies that we won’t allow haven’t happened. Or something. Anyway we don’t give up an iota of power very easily. By which I mean at all.

    1. this exactly. It is Sch. I because of all the substances on the list, it is the one people want access to. Taking it off the list is a total power castration for the DEA.

      1. It’s a total budget, prestige, and personal finance castration. Job security, pensions, ability to run around in US society armored, carrying fully automatic weapons among civilians, riding around in something that looks like a tank, being lauded as a hero despite holding a low-risk high-paying job, opportunity to accept bribes or steal (directly or by asset forfeiture) unaccounted-for cash and dope, etc…

  3. Is Chuck Rosenberg related to Alfred?

  4. Go back to why hemp was outlawed in the first place. The timber lobby bought off our politicians. If hemp was legal the timber industry would tank and the world would environmentally better off. Can’t let that happen now can we

        1. It is much better for paper than wood pulp from what I can gather. Wood lumber probably isn’t too threatened by it.

          Some people go a bit overboard on how hemp will save us from everything, but it is a pretty damn useful plant for a lot of things.

      1. Eh, you could probably use hemp fibers in engineered structural members.

        1. Help fibers could be combined in a structural matrix with cured epoxy resins, fashioned into a big club with metal spikes, and then used to smash some stupid out of some DEA numskulls!

  5. There’s nothing mysterious going on. Illegal cannabis is big business and gives the federal government a lot more power.

    1. The DEA would probably make more money and possibly expand its power if it would SELL dope.

      1. You think it doesn’t?

        1. I think if the DEA were in charge of distributing dope, it would be worse quality (cut), more expensive and harder to find.

  6. If the DEA reclassifies marijuana then most of the employees will be out of a job. It’s that simple.

  7. There also the matter of optics. They would put cigarettes on Schedule I if they could.

    1. That was acknowledged by Congress when they exempted tobacco from controls. They knew the statutory control criteria, even administered more permissively than for pot, would result in tobacco’s getting onto schedule 1.

  8. Part of the problem lies in the mistaken belief that abuse potential some sort of magical property of the drug. The abuse potential of any drug depends on many factors including the person using it, the environment, what they expect to happen, the dose, the period of time in their life. It’s too simple to just ignore all that and try to schedule it. We need to get rid of the schedule altogether.

    1. It’s worse than that: an idiosyncratic idea of what “abuse” of a product means. Nowhere else in the law on commercial products of any kind does the concept of “abuse” of a product encompass using it exactly the way it’s intended by its purveyor.

      1. Seems like the definition of “drug abuse” for a lot of people is the use of any drug for recreational or self-medication purposes. Basically, if your betters don’t give you permission to use a drug, you are abusing it.

        1. That is exactly correct. If you are not asking permission or obeying orders, then you are doing something wrong.

    2. Well, we need to get rid of drug prohibition altogether because it is absolutely immoral.

      As for “abuse potential”, you are right that there is no magic property in a drug that means that anyone who tries it is likely to become addicted to it. But empirically, some drugs are more likely to be the subject of an addiction than others, overall, so it’s not completely meaningless.

      1. The body can process a lot of opiates but the development of tolerance increases the quantity and cost of the drugs required to fend off the horrors of withdrawal. Eventually, the actions taken for the acquisition of drug money are of the “problematic” territory. Note that none of the “harms” are the result of addiction,but rather from the economic effect of prohibition.

        There are always personal consequences and externalities, but minus that economic pressure, the effect of addiction on society is more “culling” and less “awful crimes committed by desperate people”.

  9. RE: Marijuana’s Mystifying Misclassification
    A logic-defying law lets the DEA keep cannabis in a more restrictive category than morphine, cocaine, PCP, and methamphetamine.

    No. This classification of keeping MJ in a restrictive category is correct. As we all know, MJ is just the first step toward addiction. But it doesn’t start there. It starts with drinking milk as a child. From there, the urchin will start putting ketchup in his french fries, which is one of the leading addictions in Amerika. Don’t think so? The DEA has identified millions of people who put ketchup on potatoes, especially french fries. Ketchup is one of the leading drugs in Amerika, supplying their criminal cartels billions of dollars for decades, yet the public wants it. Next is drinking the life ruining soft drinks. How many people live in the back alleys of Amerika started out on a cola only to waste their lives years later strung out on alcohol? Then there are the nefarious eggs. Amerikans are so strung out on eggs they cannot imagine a breakfast without them. How pathetic is that? We have all seen grown adults shooting up egg whites and egg yokes in public restaurants to get their fix, and the worst part of it all , there were children present. Next came, MJ, heroin, voting for republicans and democrats, saving for retirement, working hard and spending their money on needless items, and it all started out with an addiction to milk.
    Let that be a lesson to everyone.

    1. You forgot about the Oreos.

      1. bassjoe,

        It’s the Alzheimer’s.
        Hopefully, the methadone will work for all oreo junkies.
        Time will tell.

  10. Big pharma can make a buck on Marinol but not cannabis. Big pharma are known for preventing common readily available and cheap substances from being advertised or labeled with their well known potential medical benefits for the same reasons. They have to extract the beneficial compound, patent it, and sell it in pill form so they can profit heavily from it. Any more questions?

  11. I mean, I sort of have to agree with the DEA on this point: under the US’s treaty obligations, marijuana has to be scheduled pretty strictly and Congress has to pass a statute to override those obligations.

    That said, I’m not entirely sure who would have standing to challenge a less-strict scheduling (it’s not like we don’t regularly ignore international law when it doesn’t suit our immediate needs).

  12. Nothing mystifying about it at all. They do it because they can.

  13. If Maryjane don’t complain when you hit her then does it violate the NAP?

    1. “than” FTFM. Hate to lose credibility for a typo that would be immediately seized upon.

  14. Cara Mengobati Nyeri Lutut Secara Alami – Thank you for the article was very helpful, I liked his discussion and hopefully a lot of other people who may read this article. http://www.obatnyerisenditerba…..ai-tuntas/

  15. Fuck the DEA and fuck Obama who can reclassify marijuana.

    As Jacob wrote:

    Obama, Who Evidently Has Not Read The Controlled Substances Act, Denies That He Has The Power To Reclassify Marijuana.

    http://www.forbes.com/sites/ja…..2f685542c6

  16. $89 an hour! Seriously I don’t know why more people haven’t tried this, I work two shifts, 2 hours in the day and 2 in the evening?And i get surly a chek of $1260??0 whats awesome is Im working from home so I get more time with my kids.
    Here is what i did

    ===============>>>>>>>>>>>>>> http://www.factoryofincome.com

  17. Facebook gives you a great opportunity to earn 98652$ at your home.If you are some intelligent you makemany more Dollars.I am also earning many more, my relatives wondered to see how i settle my Life in few days thank GOD to you for this…You can also make cash i never tell alie you should check this I am sure you shocked to see this amazing offer…I’m Loving it!!!!
    ????????> http://www.factoryofincome.com

  18. They’d classify aspirin as Schedule I if they thought they could get away with it The better for the thugs to fuck with you.

  19. “They” should be entertaining the idea that they CAN get away with just about anything. I mean, why not?

    Me: “It’s a corrupt system. The powerful operate a crony-capitalist kleptocracy rigged in their favor.”
    Lib Friend: “Boyhowdy they sure do.”
    Me: “And Hillary Clinton has been elbows-deep in this gross charade for 40 years.”
    Lib Friend: “Yeah, right on up in there.”
    Me: “?…???”
    Lib Friend: “Aaaannd…what? What’s your point?
    Me: “I…ack…”
    Lib Friend: “Oh, misogyny. Of course.”

Please to post comments

Comments are closed.