How the DEA Could End the Marijuana Debate Once and for All

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Should marijuana be completely legal all across the nation? Should it be legal for medical use but illegal for recreational consumption? Should the federal government regulate it or leave it to the states? As the debate rages, one agency has the power to end it once and for all. That agency is the Drug Enforcement Agency (DEA).

The Controlled Substances Act (CSA) gives the DEA authority to schedule, reschedule, and deschedule substances at its discretion. Think about that for a minute. The only reason marijuana is federally illegal is because the DEA added it to Schedule I back in the 1970s. There was never any congressional action to ban marijuana.

Knowing that is critical to understanding the importance of the HHS recommendation to move marijuana to Schedule III. With that recommendation, HHS officially put the ball in the DEA’s court, so to speak. The DEA now has three options.

Option #1: Leave Things as They Are

The first option is to leave things as they are. Marijuana is a Schedule I controlled substance and federally illegal. Despite state actions to legalize it, federal regulators still maintain the authority to prosecute marijuana crimes related to production, processing, distribution, and interstate transport.

Should the DEA reject the HHS recommendation, very little would change in the short term. However, such a decision could spur Congress to pursue marijuana reform more aggressively. My personal opinion is that leaving things as they are is the least attractive option to federal regulators under immense pressure to do something.

Option #2: Reschedule Marijuana

HHS recommends moving marijuana from Schedule I to Schedule III. The DEA defines Schedule III drugs as follows:

“Schedule III drugs, substances, or chemicals are defined as drugs with a moderate to low potential for physical and psychological dependence. Schedule III drugs abuse potential is less than Schedule I and Schedule II drugs but more than Schedule IV.”

Examples include anabolic steroids, ketamine, and codeine – provided that a codeine drug has less than 90 milligrams of the substance. If you have ever been prescribed a Tylenol-codeine pain reliever, you have had experience with a Schedule III drug.

Rescheduling marijuana would ultimately force medical cannabis to transition from its current model to a prescription model. As things currently stand, a patient hoping to purchase medical cannabis from Utah’s Beehive Farmacy dispensary must have a state-issued card. He could purchase a variety of products and use them as he sees fit.

Under a prescription model, that same patient would have to obtain a marijuana prescription from a doctor. The prescription would dictate the exact drug, its dosage, and its frequency of use.

Option #3: Deschedule Marijuana

The third option available to the DEA is considered the nuclear option: descheduling marijuana altogether. Completely dropping it from the CSA would automatically legalize marijuana nationwide. Restricting it in any way thereafter could only be done by way of legislative action.

This option is not entirely out of the question. There are rumors of descheduling coupled with federal legislation that regulates marijuana in a way that is eerily similar to alcohol. Under such a scenario, Washington would control interstate commerce and federal excise taxes. Meanwhile, states would maintain control over how marijuana is produced and distributed within their borders.

All eyes are now on the DEA. It has been suggested that the HHS admitting it has recommended rescheduling signifies that a final decision is imminent. No one really knows. But we do know a decision will be made sooner rather than later. We just don’t know which way the DEA will go.

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