The Biden administration’s Health and Human Services Department has recommended that the Drug Enforcement Administration move cannabis from Schedule I — a drug category that includes heroin and LSD — to Schedule III, where it will be considered roughly as addictive as Tylenol with codeine. It’s a big deal: the first time in history that an arm of the federal government has formally suggested reclassifying the substance since Congress stuck it there in 1971, at the beginning of the War on Drugs. While the move, which must be approved by the DEA before it would become official, falls short of the total delisting that advocates have long pushed for, it would still have far-reaching implications.
First of all, how plausible is it, really, that the federal government will make the change?
It’s still a big ‘if’! The DEA is the final authority on the matter, and, according to the National Organization for the Reform of Marijuana Laws (NORML), it has rejected the idea of rescheduling no less than four times before: “In the past, the DEA has employed its own five-factor test (which differs from HHS’ criteria) to determine whether or not cannabis ought to be rescheduled. On four prior occasions, the agency has determined that cannabis failed to meet any of its five criteria.”
As recently as 2016, NORML notes, the DEA maintained that, “Based on the established five-part test for making such determination, marijuana has no ‘currently accepted medical use’ because … the drug’s chemistry is not known and reproducible; there are no adequate safety studies; there are no adequate and well-controlled studies proving efficacy; the drug is not accepted by qualified experts; and the scientific evidence is not widely available.” Much has changed since 2016, though. Back then, recreational weed was only legal in four states and the District of Columbia; today, 23 states have legalized recreational use, while medical marijuana is legal in 38 states — and a whole research industry has cropped up around it.
Let’s say someone has a prior conviction for marijuana possession — would this change anything about that person’s criminal record? (Asking for a friend.)
Sorry to your friend, but no, relocating cannabis from Schedule I to Schedule III will not clear their record, nor is it likely to change any state laws regulating marijuana.
“It would not have an immediate criminal justice impact,” Brian Vicente, a lawyer and decriminalization advocate, tells Rolling Stone. “Ninety-nine percent of cannabis arrests and convictions are at the state and local level, and this would not impact those individuals with records. But for that one percent of federal crime — which tends to be folks with 1,000 pounds, like, really, really big cases — there is some potential that we could see a downgrading of some of those offenses moving forward. And perhaps an expedited expungement for people that have been busted consuming cannabis on, say, national parkland.”
If it were rescheduled, weed would be in the same category as some types of Tylenol — does that mean I could pick it up at my local pharmacy?
Yes, actually! It’s likely that this move could mean weed would be made available at a drugstore near you in the not-too-distant future. “If the proposal to move to Schedule III were to be fully adopted, there would be a path where, after FDA research, cannabis could be sold through pharmacies,” Vicente says. Right now, of course, that’s not the case — it’s currently sold only through licensed dispensaries. And that reality is a ways away, he adds. “I think we’re talking years for the FDA to study this product and to get it, essentially, behind the counter at Walgreens.”
So, is this good or bad news for folks in the weed industry?
It’s good. For one thing, moving cannabis from one schedule to another would have a significant impact on the tax obligations of marijuana business owners. “This would remove cannabis from the 280E tax provision that has absolutely crippled cannabis business owners for years,” Vicente explains. (Section 280E prohibits business owners from deducting business expenses from income derived from the “trafficking” of Schedule I or II substances.) “You’re gonna see these business owners pay a typical tax rate, instead of a 60 percent tax rate. There would be a very significant business impact,” he says.
It wouldn’t do much to immediately solve the banking issues that many businesses in the cannabis space face, though, since most banks still won’t lend to weed businesses out of fear of aiding a federal crime. “This change we’re talking about would send a real message to banks that this is a product that’s being increasingly accepted as a legitimate industry, and they should look at banking it, but it would not have an overnight impact on how banks approach this issue,” Vicente says.
But, wouldn’ total legalization be, um, better than this half-measure? What would that look like?
If the government chose that route instead, Vicente says, the way weed would be regulated in this country would look a lot like the way we regulate alcohol. “We would have the federal government engaged in a limited amount of regulation of cannabis, similar to how they regulate alcohol in a limited fashion. The bulk of regulation would go on at the state level, and the bulk of criminalization would go on to state level too,” he says. “So for instance, it could be illegal for adults to use in Alabama — they could [even] make it the death penalty if they want, right? — whereas it would be fully legal in Colorado.”