Warren, Fetterman, Schumer, Senators Urge Biden Administration to Swiftly Deschedule Marijuana

Letter

We write to urge the Drug Enforcement Administration (DEA) to swiftly deschedule marijuana
from the Controlled Substances Act (CSA). The Department of Health and Human Services
(HHS) has recommended rescheduling marijuana from the CSA’s strictest schedule, Schedule I,
to Schedule III. Earlier this month, in response to a Freedom of Information Act request, HHS
for the first time disclosed its rationale for this recommendation, which made clear that cannabis
does not meet the medical or scientific requirements for Schedule I. While rescheduling to
Schedule III would mark a significant step forward, it would not resolve the worst harms of the
current system. Thus, the DEA should deschedule marijuana altogether. Marijuana’s placement
in the CSA has had a devastating impact on our communities and is increasingly out of step with
state law and public opinion.
Background
The Biden Administration has the power to reschedule or deschedule marijuana administratively,
without congressional action.Under the CSA, HHS is responsible for the medical and scientific
analysis behind scheduling decisions, while the Department of Justice (DOJ), via the DEA, is
responsible for making final drug scheduling decisions. In October 2022, President Biden
directed HHS and DOJ to “review expeditiously how marijuana is scheduled under federal law.” The CSA divides controlled substances into five schedules ranging from Schedule I to Schedule
V. Marijuana is currently a Schedule I drug — a classification reserved for the CSA’s most
dangerous drugs that have a “high potential for abuse,” “no currently accepted medical use in
treatment in the United States,” and “a lack of accepted safety for use of the drug or other
substance under medical supervision.” Thus, marijuana exists in the same category as heroin,
and a more dangerous category than fentanyl or cocaine — even though marijuana is consistently
found to be less dangerous than those substances, and less dangerous than alcohol, which is not
scheduled under the CSA. This scheduling decision was made against the political backdrop of
the early 1970s, reportedly as part of President Nixon’s efforts to use cannabis prohibition to
target “the antiwar left and black people.”

In response to President Biden’s directive, on August 29, 2023, HHS recommended that the
DEA reschedule marijuana to Schedule III. HHS concluded that cannabis satisfies the criteria for
a Schedule III drug, meaning that it has (1) a “currently accepted medical use in treatment,” (2) a
lower potential for abuse than Schedule I or II, and (3) a possibility of abuse that “may lead to
moderate or low physical dependence or high psychological dependence.” HHS noted that
marijuana “does not produce serious outcomes compared to drugs in Schedules I or II,” and “the
vast majority of individuals who use marijuana are doing so in a manner that does not lead to
dangerous outcomes to themselves or others.” Since receiving HHS’s recommendation, the
DEA has said that it is “now conducting its review” of how marijuana is scheduled.

Post-2016 Developments Supporting Removal of Marijuana from Schedule I
Almost a decade has passed since the DEA last considered cannabis’s scheduling. In 2016, the
DEA decided to retain marijuana’s placement in Schedule I. Despite contrary evidence that existed at the time, the agency reasoned that marijuana had a high potential for abuse, no
currently accepted medical use in treatment in the United States, and inadequate safety for use
even under medical supervision.To support its decision, the DEA pointed to a lack of scientific
evidence supporting marijuana’s medical use, although this created a catch-22; as a Schedule I
drug, marijuana is subject to the DEA’s arduous research approval process and restrictions on
federal research funding, which has stymied researchers’ ability to rigorously study marijuana’s
medical uses. At the time, HHS had reached the same conclusion.

However, HHS has now concluded that cannabis does not meet the requirements for a Schedule I
drug and has identified “credible scientific support for the medical use of marijuana” for at least
some medical indications. The DEA is bound by HHS’s recommendations as to “scientific and
medical matters,” including HHS’s expert medical judgment that marijuana “has a currently
accepted medical use in treatment in the United States.” Moreover, experts today generally
agree that marijuana has currently accepted medical uses for several indications. Numerous
studies have identified such medical uses, including to manage pain, spasms, and nausea in
patients undergoing chemotherapy, and to stimulate appetite in patients with weight loss from
AIDS. Studies have also found that marijuana access has second-order public health benefits by
reducing the rates of opioid use and opioid deaths. Multiple medical organizations, including
the World Health Organization and the American Academy of Family Physicians, have
recognized the legitimate medical uses of marijuana. Additionally, since 2016, the FDA has
approved THC- and CBD-based medications, including two medications containing the primary
compound that is responsible for marijuana’s abuse potential. And in 2018, CBD (which is part
of marijuana’s chemical makeup) was legalized in certain forms.

Furthermore, since the DEA’s last review, the landscape of state marijuana law has changed
significantly. In 2016, only eight states had legalized recreational marijuana. That number has
grown to 24 states today, and 53 percent of Americans now live in a state where recreational
marijuana is legal under state law. Americans’ widespread support for medical marijuana use is
even clearer: a total of 38 states permit the medical use of cannabis.Accordingly, thousands of
doctors in those states recommend marijuana to their patients, and millions of patients consume
medical marijuana under healthcare professionals’ guidance each year. This widespread
acceptance of marijuana in medical practice strengthens the HHS’s conclusion that cannabis has
a currently accepted medical use. And more states will likely follow suit as public opinion
continues to favor ending the criminalization of marijuana use, with 88 percent of Americans
now in support of legalizing marijuana in some form. Furthermore, roughly 50 percent of
Americans say they have tried marijuana, making the federal government’s one-off arrests for
marijuana possession increasingly arbitrary and inequitable. Without descheduling at the
federal level and protecting state regulatory programs, consumers and workers in those states
remain at risk of arrest and prosecution.
Finally, in 2016 the DEA considered its international treaty obligations a bar to rescheduling
marijuana to anything less restrictive than Schedule II. Since then, cannabis has been
rescheduled under international law — a change that the United States and the World Health
Organization supported, in light of “the legitimate medical use” of certain cannabis products.
Now, the relevant treaty, the Single Convention on Narcotic Drugs of 1961 (Single Convention),
has removed cannabis from the most restrictive schedule and placed it in a schedule that requires countries to limit the drug’s use to only “medical and scientific purpo ses.”Additionally, since2016, the DEA has found that placing the first cannabis-based FDA-approved drug in Schedule V (and later descheduling it altogether) was consistent with the Single Convention. The United States can persuasively argue that decriminalizing marijuana activity is consistent with its treaty obligations. As the U.S. State Department and United Nations have clarified, the relevant
narcotics treaties are “highly respectful of the legal frameworks of states party” and “allow for
sufficient flexibility for States parties to design and implement national drug policies according
to their priorities and needs.” Furthermore, the treaties are primarily concerned with the
trafficking of narcotics “having an international dimension,” rather than purely domestic
matter — and research has found that marijuana legalization may actually reduce violent
international drug trafficking. As it has done in the past, the DEA can in good faith reinterpret
its obligations under the Single Convention. It could argue that even adult-use marijuana
legalization would still permit a civil regulatory regime that prevents abuse and international
trafficking while satisfying the country’s domestic policy need to advance an evidence-based
harm reduction approach, protect the settled expectations of U.S. states, and comply with
international human rights obligations that weigh against the disproportionate criminalization of
people of color. The United States would not be the first mover; many fellow signatories of the
Single Convention have legalized cannabis for medical and non-medical uses. And arguably,
the United States is already among them as a country that has largely permitted cannabis at the
state level.
The Case for Descheduling Marijuana
The case for removing marijuana from Schedule I is overwhelming. The DEA should do so by
removing cannabis from the CSA altogether, rather than simply placing it in a lower schedule.
Although HHS recommended rescheduling, its analysis could support a decision to deschedule
— particularly its emphasis on the fact that marijuana has less adverse outcomes (including less
potential of an overdose) and less potential of abuse than substances that are descheduled
(alcohol) or scheduled below Schedule III (such as benzodiazepines). The DEA has final
decision-making authority and should ultimately deschedule marijuana.

To be sure, rescheduling marijuana to Schedule III would have some important policy benefits. It
would pave the way toward increasing scientific research of marijuana’s medical uses,
eliminating barriers to federal employment for medical marijuana users, and permitting the
Department of Veterans’ Affairs to prescribe marijuana to veterans. It would allow marijuana
businesses to access standard tax deductions for ordinary business expenses. Rescheduling
would also represent the first federal acknowledgment of marijuana’s legitimate medical uses — though, importantly, it would not automatically permit marijuana to be used as a medicine;
medical marijuana would still have to undergo FDA drug approval, the DEA registration process
for manufacturers, and compliance with prescription regulations in order to be legally prescribed
under federal law.

However, rescheduling would do little to rectify the most severe harms of the current system.
Many of the CSA’s criminal penalties for marijuana will continue as long as marijuana remains
in the CSA, because those penalties are based on the quantity of marijuana involved, not the
drug’s schedule status. Thus, criminal penalties (including prison sentences, fines, and asset
forfeiture) for recreational marijuana use, and for medical use of marijuana products that lack
federal approval, would still exist, disproportionately penalizing Black and Brown
communities. Similarly, non-citizens could still be denied naturalization and green cards, and
even deported, based on most marijuana offenses. Furthermore, rescheduling marijuana would
not restore access to public housing or nutrition assistance for individuals who use marijuana
recreationally or engage in other marijuana activity against federal law. Nor would
rescheduling resolve the growing inconsistency between federal and state law; states’ regulatory
systems for the recreational marijuana industry — and for medical marijuana products that have
not been federally approved — would continue to lack federal legal recognition.

These harms could be remedied only through fully descheduling marijuana. Once descheduled,
marijuana can still be subject to public health regulations, drawing from lessons learned through
the regulation of alcohol and tobacco. And here, the federal government has the rare opportunity
to shape the new cannabis industry from the ground up, designing a federal regulatory system
untainted by the corporate capture that has influenced alcohol and tobacco regulations, and
advancing federal cannabis reforms that acknowledge and repair the harms of cannabis
criminalization.
Conclusion
The DEA has never kept a drug in Schedule I after HHS recommended removing it, and it must
not do so now. It is imperative that the DEA remove marijuana from Schedule I as several
members of Congress and state attorneys general have urged. The DEA should do so promptly;
its past record of taking years to resolve rescheduling petitions should not be repeated here.
Furthermore, the DEA and HHS should be fully transparent about the evidence relied upon in the
course of their review processes. The Biden Administration has a window of opportunity to
deschedule marijuana that has not existed in decades and should reach the right conclusion —
consistent with the clear scientific and public health rationale for removing marijuana from
Schedule I, and with the imperative to relieve the burden of current federal marijuana policy on
ordinary people and small businesses.

Questions
To help the American people understand what steps the DEA is taking to act on HHS’s
rescheduling recommendation, we request responses to the following questions no later than
February 12, 2024:
1. What is the current status of the DEA’s review of marijuana’s scheduling, pursuant to
President Biden’s 2022 directive and HHS’s 2023 recommendation?
a. What is the DEA’s timeline for removing marijuana from Schedule I?
2. What evidence does the DEA intend to consider in reaching its decision regarding the
scheduling of marijuana?
a. If the DEA believes clinical trials testing marijuana are necessary in order to
change its scheduling, what is the DEA’s roadmap for developing clinical-trial
evidence, in light of roadblocks to accessing funding for such studies?
3. In the course of this review, is the DEA still assessing cannabis’s medical use based on
the five-factor test that the agency created for itself in 1992,59 which differs from HHS’s
analysis?
4. Specifically, how (if at all) would the criminal enforcement of marijuana by the DEA
change if marijuana were moved to another schedule in the CSA? Please provide an
answer for Schedule II, Schedule III, Schedule IV, and Schedule V.
5. What specific steps has the DEA taken to ensure that its marijuana-related policies and
programs, including its marijuana enforcement strategy, comply with Executive Order
13985 and 14091?60
6. To what extent does the DEA’s evaluation of marijuana’s scheduling acknowledge or
address the harms of cannabis criminalization and related collateral consequences, and
racial disparities associated with federal marijuana enforcement?

We thank you for your attention to this matter, and we look forward to your prompt action.