NORML Op-Ed: DEA’s Marijuana Hearing Is a Good Opportunity for Advocates to Make the Case for Rescheduling

Many advocates have expressed consternation over the Drug Enforcement Administration’s (DEA) decision to hold hearings on the matter of marijuana’s reclassification. While this response is understandable, it’s arguably an overreaction.

Although some stakeholders had suggested that the Biden–Harris administration’s pledge to advance the process expeditiously would result in bureaucrats choosing to bypass hearings, such hopes were never more than wishful thinking. Prior rescheduling petition efforts took several years—not several months—to work their way through the administrative process.

Further, it was always unlikely that the DEA—which has historically opposed efforts to reclassify marijuana—would reverse course and sign off on such a change without convening legal proceedings. Such proceedings are a traditional part of the administrative process, and they should not be interpreted either unexpected or out of the ordinary.

In fact, administrative law hearings present yet another opportunity for advocates to reinforce the case—previously and compellingly made by the Department of Health and Services—that cannabis does not meet the legal criteria of a Schedule I controlled substance.

Schedule I substances, by definition, must have “no accepted medical use in the United States.” They must also possess a “high potential for abuse” and “lack accepted safety,” even if used under medical supervision.

As acknowledged by the Department of Health and Human Services (HHS) and others who have weighed in on this process, cannabis meets none of these criteria.

More than two-thirds of practicing clinicians nationwide believe that cannabis has medical utility, and over a quarter have authorized it for their patients, according to data compiled by the U.S. Centers for Disease Control. Thirty-eight states regulate medical cannabis access, and more than 30,000 healthcare practitioners participate in these state-run programs. Many states now provide continuing medical education training on medical marijuana, and a growing number of universities and graduate schools offer degrees and certificates in the field of cannabis medicine.

Further, decades of real-world experience in jurisdictions where cannabis is state legal for either medical or adult-use purposes shows that it possesses a safety profile that is superior to many other substances. As explicitly acknowledged by HHS in its review, “The risks to the public health posed by marijuana are low compared to other drugs of abuse,” such as heroin (Schedule I), cocaine (Schedule II), benzodiazepines (Schedule IV) and alcohol (unscheduled).

These facts are not in dispute, and it is unlikely that opponents’ witnesses, whoever they may be, will be able to convincingly undermine them.

Finally, it bears repeating that DEA has held administrative law proceedings on this matter before. In fact, between 1986 and 1988, DEA Administrative Law Judge Francis Young heard days of testimony both for and against reclassifying cannabis.

Following the hearings, Young concluded: “Marijuana, in its natural form, is one of the safest therapeutically active substances known to man. By any measure of rational analysis marijuana can be safely used within a supervised routine of medical care. It would be unreasonable, arbitrary and capricious for DEA to continue to stand between those sufferers and the benefits of this substance in light of the evidence in this record.”

In short, nearly 40 years ago, advocates made the case to the DEA’s own judge that cannabis did not meet the definition of a Schedule I controlled substance. Their case is exponentially stronger now.

Of course, the agency’s administrator ultimately set aside Judge Young’s 1988 decision for ideological reasons. Is there a possibility that the DEA, which has final say in this determination, could once again put politics first? Absolutely. Since the initiation of the rescheduling review process, this risk has always been a distinct possibility.

However, unlike in past years, there is now legitimate pressure—from the cannabis industry, from advocates and even arguably from the Biden administration—being placed upon DEA to play by the rules. The agency is also under far more public scrutiny than ever before.

For these reasons, advocates and other stakeholders should continue to remain optimistic that the end to marijuana’s Schedule I prohibitive status is more likely than not.

This op-ed was originally published by Marijuana Moment.