A Belated Bureaucratic Reversal on Pot

Marijuana's classification has always been a political question, not a medical one.

Since 1970, marijuana has been listed in Schedule I of the Controlled Substances Act, a category supposedly reserved for drugs with "a high potential for abuse" that have "no currently accepted medical use" and cannot be used safely even under a doctor's supervision.

The Drug Enforcement Administration (DEA) has consistently rejected petitions asking it to reclassify marijuana, citing advice from the Department of Health and Human Services (HHS). But HHS changed that advice in August 2023, and its rationale, explained in a document it released five months later, confirms that marijuana's classification has always been a political question, not a medical one.

HHS was responding to an October 2022 directive from President Joe Biden, who instructed the department and Attorney General Merrick Garland to "initiate the administrative process to review expeditiously how marijuana is scheduled under federal law." Biden noted that "we classify marijuana at the same level as heroin" and treat it as "more serious than fentanyl," which he said "makes no sense." After conducting its review, HHS recommended that the DEA move marijuana to Schedule III, which includes prescription drugs such as ketamine, Tylenol with codeine, and anabolic steroids.

As recently as 2016, HHS was still saying marijuana should remain in Schedule I. Its turnaround was not based on new scientific evidence. It was based on a reinterpretation of the criteria for Schedule I that could have been implemented much sooner.

The DEA had long maintained that a substance can have a "currently accepted medical use" only if there is enough evidence to satisfy the Food and Drug Administration's requirements for approving a prescription drug. HHS replaced that dubious understanding of the law with a two-part test that takes account of clinical experience with marijuana in the 38 states that have approved medical use and asks whether there is "credible scientific support" for one or more applications. HHS found such support for treatment of pain, nausea and vomiting, and "anorexia related to a medical condition."

Regarding abuse potential and safety, HHS noted that marijuana compares favorably to "other drugs of abuse," such as heroin (Schedule I), cocaine (Schedule II), benzodiazepines like Valium and Xanax (Schedule IV), and alcohol (unscheduled). "The vast majority of individuals who use marijuana," it said, "are doing so in a manner that does not lead to dangerous outcomes to themselves or others."

This was not news to most Americans. Way back in 1988, the DEA's chief administrative law judge concluded that marijuana did not meet the criteria for Schedule I, only to be overruled by the agency's head. This time around, given the belated reversal at HHS, the outcome is apt to be different.