Huge news yesterday. Huge! The U.S. Department of Health and Human Services (HHS) has officially recommended that marijuana be rescheduled, from Schedule I to Schedule III of the federal Controlled Substances Act (CSA). This means that the country’s top health agency has finally conceded that cannabis has medical value, and isn’t a drug of abuse on par with fentanyl or heroin. We haven’t yet seen the HHS letter so we’re not sure what changed from the last “medical and scientific” evaluation undertaken by the Food and Drug Administration (FDA) and HHS in 2015, but hey, we’ll take it.
Griffen Thorne in our office recently predicted that administrative action, and not Congressional action, would be the course of reform at hand. Kudos to him and others who shared that view. Rescheduling is not the best possible outcome, however. It’s really not. We’d like to see marijuana descheduled entirely, like alcohol or tobacco– which are demonstrably harmful substances. Still, moving marijuana down to Schedule III would be monumental progress.
The internet is full of hot takes on yesterday’s news, of course. They range from 0% accurate to 100% accurate. This blog post aims to dispel a few myths around rescheduling, and trot out some interesting facts.
Myth 1: It’s a done deal
It’s not a done deal! This all looks pretty good right now, but the Drug Enforcement Administration (DEA) and ultimately the Attorney General (AG) have final say on whether to schedule or reschedule marijuana following the HHS recommendation. As an HHS spokesperson explained:
“While HHS’s scientific and medical evaluation is binding on DEA, the scheduling recommendation is not. DEA has the final authority to schedule a drug under the CSA (or transfer a controlled substance between schedules or remove such a drug from scheduling altogether) after considering the relevant statutory and regulatory criteria and HHS’ scientific and medical evaluation. DEA goes through a rulemaking process to schedule, reschedule or deschedule the drug, which includes a period for public comment before DEA finalizes the scheduling action with a final rulemaking.”
Here, the spokesperson is paraphrasing the CSA at 21 USC § 811(b). That CSA section references the Attorney General (AG) rather than DEA (and refers to the AG only as a “he”, embarrassingly). In any case, the DEA Administrator reports to the AG (through the Deputy AG). The HHS spokesperson is correct that DEA will have to instate rulemaking. The AG could then reschedule.
So, will DEA actually commence the rulemaking process? It seems inconceivable that DEA wouldn’t, but DEA has taken many bad positions on controlled substances over the years. This includes ignoring orders from its own administrative law judges to reschedule marijuana back in the day. Without having seen the HHS letter, I strongly believe that DEA will commence rulemaking to reschedule marijuana to III. Biden himself requested this HHS review, after all, for better or worse.
A couple of other, very important questions include: Will DEA drag its feet? How long will the rulemaking process take? What will the proposed rule actually say? How much testimony will be entertained, and from whom? Will the rulemaking be litigated? I could go on. Overall this is not a done deal, and although it feels imminent, this may take some time.
Myth 2: State marijuana businesses would be clear of federal enforcement
Nothing is going to change here, legally speaking. Practically speaking, same story: not much will change on federal enforcement exposure. This is because moving marijuana to Schedule III would have no effect on the federally verboten status of state-licensed marijuana businesses. These businesses would still be in violation of federal law if the AG reschedules, similar to any other business selling Schedule III drugs like methamphetamines or anabolic steroids. For a fuller analysis, check out this old chestnut from 2016.
But would moving marijuana to Schedule III make the risk of federal enforcement even more unlikely? I suppose. Truth be told, we haven’t worried much about federal law enforcement against state-licensed cannabis businesses since the days of notorious cannabis dingus Jeff Sessions. Moving the plant to Schedule III can’t hurt, though.
The only way state-licensed cannabis businesses will become insulated from all risk of federal enforcement is for marijuana to be removed from the CSA entirely, as half of Congress has voted to do and as Senators have recently petitioned the Attorney General to do (citing yours truly). Let’s hope we get there eventually.
Myth 3: Marijuana businesses would be taxed like other businesses
This is almost correct. If marijuana goes to Schedule III, the margins-crushing statute known as IRC § 280E would not apply, and the cannabis industry would change forever. That said, state-level taxation of cannabis will not change. Or, it may change for the worse, as states feel emboldened to raise cannabis-related taxes in the absence of § 280E.
Do states tax cannabis heavily? Yes they do. Although several states have passed laws designed to mute the effects of § 280E at the state return level, most states (and many cities and counties) levy significant taxes on cannabis in some form or other. These taxes usually accrue at the point of sale and are borne by the consumer. They are designed to raise prices, however, and place downward pressure on sales. For that reason, cannabis businesses tend to oppose them.
Still, I cannot emphasize enough that removal of § 280E would change the industry forever. Having worked with cannabis businesses for 13 years, I view taxation as the largest affront to marijuana businesses— more than banking access, intellectual property coverage, lack of bankruptcy, you name it. This would be HUGE.
Fact 1: Marijuana rescheduling would give industry more leverage with investors
The cannabis industry is depressed and starved for capital. The last big investment spike came in on the COVID wave; since that point equity has been cheap and investors hold all the cards. With § 280E gone, many struggling cannabis outfits should begin producing better financial statements. The most efficient cannabis businesses would look sexy as all get-out.
Cannabis businesses also would have an easier time explaining their models, and we’d see fewer people scheming to do things like move to Puerto Rico or build these types of rats’ nests. It is also worth noting that U.S. small business lending has held up recently despite higher costs of credit. More of those available dollars could flow to cannabis businesses. They would have more value overnight (the pubcos already got a jolt), and could generate financial statements on par with other industries.
Fact 2: Marijuana rescheduling wouldn’t fix the banking thing
The banking thing will not be fixed. At Schedule III, marijuana would still be a controlled substance and state-licensed businesses would still be “trafficking” in a controlled substance, contrary to federal law.
As someone who has advised many banks and credit unions on cannabis, including the federal government, I’m here to tell you that the analysis for financial institutions won’t fundamentally change. We need the perpetually stalled SAFE Banking Act or some other act of Congress to fix this, so long as cannabis remains on any CSA schedule. Even if marijuana is moved to Schedule III, cannabis businesses would be stuck with current options (which aren’t as bad as advertised.)
Fact 3: Marijuana would become easier to research, and subject to the morass of health care regulation (kind of)
These are probably two different facts. Oh well. Due to its Schedule I status, marijuana has always been incredibly difficult to research (see: How to Study Schedule I Controlled Substances). That paradigm changed a bit with passage of the Medical Marijuana and Cannabidiol Research Expansion Act last July, but a move to Schedule III would open the floodgates. Substances on lower schedules are simply more accessible from a DEA licensing perspective.
Related to this, the plant would “officially” have medical value if placed on Schedule III. That would be great and not so great. As a law firm with a substantial ketamine practice, for example, we’ve seen how the morass of health care regulation is brought to bear on controlled substances fit for medical use (ketamine is also a Schedule III drug). Granted, ketamine is an FDA approved drug, but the classification of a substance as something with medical value opens the door to any number of opportunities for medical application and attendant regulation.
The cannabis industry has always been worried about Big Pharma moving in. That fear has been somewhat irrational in my view, especially given the size and staying power of the non-pharmaceutical market. With a Schedule III placement, however, we would see more FDA drug development opportunities, which means more FDA drugs, which means off-label uses, etc. Expect to see a dual-track market for cannabis going forward, including an intensive regulatory structure.
Wrapping up on marijuana rescheduling
Again, really great news. In the absence of descheduling we’ll gladly take it. Keep your fingers crossed for a smooth and speedy process. In the meantime, we’ll continue to share thoughts and track this crucial development, as I’m certain we’ll have much more to say in coming weeks and months. For now, it’s time to celebrate!
