Reasons Behind the HHS Recommendation to Reschedule Cannabis

by | Sep 7, 2023 | Florida, Medical Marijuana

Reasons Behind the HHS Recommendation to Reschedule Cannabis

On Wednesday, August 30th, the Department of Health and Human Services (HHS) announced a recommendation to reschedule cannabis from Schedule I on the Controlled Substances Act to Schedule III.

The Health and Human Services Secretary Xavier Becerra said that the agency had responded to President Biden’s request to provide new scheduling recommendations to the Drug Enforcement Administration (DEA). Senate Majority Leader Chuck Schumer (NY) has advocated for federal law reform for years. Schumer has referred to the federal cannabis laws as “Draconian” and indicated that rescheduling cannabis would reduce the harm caused to American citizens. Specifically, reducing arrests for personal-use cannabis possession and making expungement of past charges easier for Americans.

President Joe Biden initiated the review and new recommendations in October 2022. Now that the Department of Health and Human Services has provided the recommendation to reschedule marijuana and classify it as a Schedule III drug, many people are wondering whether the Drug Enforcement Administration (DEA) will agree and comply. And if so, what the changes to federal marijuana laws will mean for Americans who use cannabis for medicinal or recreational use?

When Was the Controlled Substances Act Created?

The Comprehensive Drug Abuse Prevention and Control Act of 1970 became the Controlled Substances Act. It was signed into law by President Richard Nixon, and it established the federal government’s policy to regulate all controlled substances or drugs.


There were two international treaties designed to enhance public health and safety. The first was the Single Convention on Narcotic Drugs (1961) and the Convention on Psychotropic Substances (1971). The United States created the Controlled Substances Act to comply with both treaties and create the legal foundation for the “War Against Drugs.”

What Are Schedule I Drugs?

Controlled substances or drugs are categorized based on their use, medicinal potential, and threat to human health and safety. Based on the scheduling of the drug, legal penalties are also established that vary according to the classification of the substance. It also defines how individuals acquire the drugs and use them, such as prescription-only or over-the-counter medications.

Cannabis was classified as a Schedule I drug in the Controlled Substances Act in 1971. According to 21 USC § 812, a Schedule I drug must meet three criteria:

1. The drug or substance has a high potential for abuse.

2. The drug or other substance has no currently accepted medical use in treatment in the United States.

3. There is a lack of accepted safety for use of the drug or other substance under medical supervision.

What is interesting is that in 1970, when Congress labeled cannabis as a Schedule I drug, it was suggested by then Assistant Secretary of Health Roger O. Egeberg. In a letter to Harley O. Staggers, then Chairman of the House Committee on Interstate and Foreign Commerce, the Schedule I classification of cannabis was meant to be temporary.

What Types of Drugs Are Classified As Schedule I?

State laws and federal prohibition of cannabis do not align. California was the first state to legalize medical cannabis in 1996. By 2000, Oregon, Alaska, Washington, Maine, Hawaii, Nevada, and Colorado also created medical cannabis programs. In 2014, Colorado became the first American state to legalize recreational (adult) use.

No matter how many states have proceeded to legalize medical cannabis and recreational use since then, cannabis has remained a Schedule I prohibited substance.

Drugs included in Schedule I on the Controlled Substances Act include:

  • Heroin.
  • Lysergic Acid Diethylamide (LSD).
  • Peyote.
  • Methaqualone.
  • 3,4 – methylenedioxymethamphetamine (Ecstasy).

When you compare cannabis to other drugs, also classified as Schedule I, there are some big differences, which has always been the argument for rescheduling cannabis. Can you compare cannabis to the life-threatening potential of other Schedule I drugs?

Does Cannabis Belong on Schedule II?

Other drugs that have a higher substance use disorder (SUD) potential are on Schedule II, which also supports the belief that cannabis does not really fit the hazard classification of drugs in that category either.

Some examples of drugs that are listed as Schedule II include:

  • Cocaine.
  • Hydromorphone (Dilaudid).
  • Methadone (Dolophine).
  • Meperidine (Demerol).
  • Oxycodone (Oxycontin and Percocet).
  • Fentanyl (Sublimaze, and Duragesic).
  • Methamphetamine (Desoxyn).
  • Methylphenidate (Ritalin).
  • Pentobarbital (and Amobarbital).

Some of the drugs on Schedule II are opioids, and there is a great deal of clinical evidence to support the addiction potential, mental health, and physical harm that opioids can cause, particularly when used daily and for long periods of time.

Cannabis addiction rates are very low in comparison to Schedule I and Schedule II drugs. According to the Substance Abuse and Mental Health Services Administration (SAMHSA), 1 in 10 people may become addicted to cannabis. If consumption of cannabis begins before the age of eighteen (18) years, that rate rises to 1 in 6 patients who may form a cannabis addiction.

The rate of addiction to opioid drugs such as oxycontin is over 30%. Clinical studies suggest that cocaine use results in an average 20% addiction rate. Heroin is highly addictive, and some studies suggest the risk of addiction among first-time users is over 30%. Approximately 20% of heroin users develop an opioid substance use disorder (SUD).

What Would Happen if Cannabis Became a Schedule III Drug?

If cannabis is moved to Schedule III on the Controlled Substances Act, it would be in the company of drugs that many people use safely every day. That includes therapeutic steroids, Tylenol (with codeine), and testosterone. Ketamine is also a Schedule III drug that has been federally legalized for off-label use (doctor-prescribed only) since the early 1970s.

Four immediate things could change if cannabis is rescheduled:

1. Medical Use Recognition and Possible Health Insurance Coverage

Federal rescheduling would legitimize the medicinal use of cannabis. That means barriers that still exist to cannabis research would be removed, and more funding would be available for clinical studies and more evidence-based data about cannabis and health.

Health insurance providers may start to cover some of the costs of medical evaluation for doctor-supervised cannabis. Right now, as it is federally prohibited, insurers cannot provide even partial coverage for expenses like doctor visits, equipment, or products used as part of a treatment plan. That could change.

2. May Lead to Standardized Dosing Regulations for Medical Cannabis

Because of obstacles to clinical studies (until very recently), there is little evidence-based data that focuses on strains of cannabis for specific health disorders or a guide to optimized potency levels for patients.

If cannabis is rescheduled, it could result in more clinical studies that identify best-practice for dosing, time of day for medical cannabis intake, and other guidelines that may help patients get better results. It could also provide more information on long-term use to help patients make informed decisions about medical cannabis.

3. Less Strict Penalties for Cannabis Use (And Reduced Incarceration)

If cannabis becomes a Schedule III drug, the incidents of misdemeanor or felony offense charges for people who use medical marijuana would drop significantly. It would also make it easier for people with prior charges for non-violent crimes and possessing small amounts to expunge offenses.

4. More Regulations But Fewer Barriers for the US Cannabis Industry

Cannabis businesses operate in an uncomfortable legal gray area. While medical cannabis (and often recreational marijuana) is legalized by the majority of American states, those rights and privileges are in direct conflict with the federal government.

Cannabis businesses are unbanked and face crippling payment processing and financial management fees. Chartered banks will not do business with any entity that is breaking federal law; that causes tremendous problems for cannabis companies.

5. The Ability to Travel With Medical Cannabis

Currently, there are few states that offer reciprocity or jurisdictions that will allow patients who are visiting to legally purchase, possess, and consume medical cannabis. Possession of cannabis on any federal property is currently a felony offense. This could change if cannabis is moved to Schedule III.

What Will the Drug Enforcement Administration (DEA) Do?

Historically, the DEA has held the original definition of cannabis as a controlled substance with no medicinal value. However, as scientific and medical evaluation has progressed and cannabis has become a legalized and accepted medical use option for patients, it may be time to part ways with draconian marijuana laws.

The Drug Enforcement Agency is opposed to rescheduling cannabis. Nonetheless, moving cannabis to Schedule III may still be ultimately implemented. But first, the DEA will conduct a review of the proposed changes, and the Drug Enforcement Administration has final authority on the decision.

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