In early 2023, President Joe Biden directed the U.S. Department of Health and Human Services (HHS) and FDA to take a serious look at marijuana from a scientific and medical perspective. He referred to it as a ‘scheduling review‘. At the time, people suspected the president wanted to reschedule marijuana from Schedule I to Schedule II. But will the review lead to complete legalization instead?
It is worth exploring what the schedule review could mean to medical cannabis at the state level. The eventual outcome hinges on competing agencies. HHS science findings are binding. However, the Drug Enforcement Administration (DEA) still makes the final call over legalization vs. rescheduling.
Rescheduling Marijuana and THC
All the substances on Schedule I – and there are not very many of them – are pretty much banned in the U.S. due to the belief that they are highly addictive and offer very little medicinal benefit. Therein lies the first question the HHS needs to answer.
Science suggests that marijuana can be addictive to some degree. However, the general consensus is that it is not as addictive as drugs like heroin and methamphetamine. The real sticking point is medical efficacy.
In all likelihood, HHS will determine that marijuana does have medicinal value. Otherwise, there is no way to justify federal authorities turning a blind eye to state-legal medical cannabis over the last decade or so. The HHS is not going to allow Washington to take a hit on this one.
Ultimately, the chances are pretty good that marijuana will be moved to Schedule II or lower. But without congressional action legalizing marijuana, that may be the best pro-marijuana activists can hope for. They might not get complete legalization for at least a few more years.
A Change to State Regulations
Let us assume rescheduling is the final outcome. Once marijuana makes it to Schedule II or lower, it will become legal as a prescription medication. But then what? Will the FDA give blanket approval to medical cannabis rather than requiring producers to put their products through up to 10 years of clinical trials to prove efficacy or safety?
Going that route is a political hot potato given the fact that more than three dozen states have already legalized medical cannabis. So in all likelihood, blanket approval would come from the FDA. That would leave Congress to determine how to regulate medical cannabis moving forward.
States Rights Will Be a Question
Rescheduling will ultimately lead to a question of states’ rights. Will Utah, a state with one of the most restrictive medical cannabis laws in the country, still be allowed to maintain its own regulatory standards? Will Salt Lake City’s Beehive Farmacy remain one of fewer than two dozen pharmacies to serve the entire state, or will rescheduling open the floodgates to pharmacy and dispensary licenses statewide?
Beyond the business and economic aspects, rescheduling immediately raises questions about qualifying conditions. Other prescription medications have off-label applications, meaning doctors can prescribe them for conditions other than those the drugs were originally developed for. Will that be the case with medical cannabis? Will state qualifying conditions lists be thrown out the window?
Legalization Changes Everything
Should Congress, by some miracle, manage to completely legalize marijuana by the end of 2023, it will change everything. Questions about rescheduling will immediately be moot. Complete legalization would likely lead to marijuana being regulated just like alcohol. But again, where will that leave the states?
Biden’s scheduling review has created a lot more questions than answers. Time will give us the answers so many people are patiently waiting for.
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