With the federal government seemingly on track to reschedule cannabis from Schedule I to Schedule III, it’s natural to wonder what this actually means in practice.
Will the rescheduling improve things for users, researchers working on cannabis, or people having legal difficulty because of the illegality of cannabis? Will it help cannabis businesses? Will it bring us closer to ending the war on drugs?
These are big questions, and the DEA has opened their proposal up to public comments to get people’s thoughts on them. But what are the answers? What will it really mean if the plan goes ahead?
We’ve spoken to legal, scientific, economic, and cannabis industry experts to get the answers and help anyone who’s interested submit a well-informed comment on the issues.
If you think cannabis shouldn’t be scheduled at all, or if you think Schedule I was the best place for it, this is your chance to make your voice heard. Here’s a run-down of expert opinion on the issues.
You can read the full transcript of our interviews in this PDF.
Table of Contents
How Should Cannabis Be Scheduled?
Does Cannabis Meet the Definition of Schedule III Substance?
The Law: So Weed Would Still Be Illegal? Isn’t This Just Continuing the War on Drugs?
The Law: How Does Rescheduling Affect the Farm Bill?
The Law: Rescheduling and the 1961 Single Convention on Narcotic Drugs
The Science: Will Rescheduling Make It Easier to Research Cannabis?
The Science: What Are the Most Important Things We Still Need to Learn About Cannabis?
The Science: Is Cannabis More Dangerous Now Because It’s Stronger?
The Economics and Business: What Are the Tax Benefits of Rescheduling?
The Economics and Business: Will the Industry Be Crushed By All the New Regulations?
Conclusion: So… What Comes Next?
How Should Cannabis Be Scheduled? Should It Be Scheduled At All?
This is the core of the discussion. Most people agree that cannabis shouldn’t be treated like heroin by the government, but beyond that, there is a lot of room for disagreement.
A Crash Course in Drug Scheduling
Before we get into the experts’ views, it’s important to understand what the schedules under the Controlled Substances Act (CSA) actually mean.
- Schedule I: These drugs have no currently accepted medical use and have a high potential for abuse. This includes heroin, LSD, MDMA (ecstasy), and psilocybin (magic mushrooms).
- Schedule II: These drugs have a high potential for abuse and dependence but may be useful for some medical purposes. This includes Adderall, OxyContin, Vicodin, methadone, and cocaine (which is also a local anesthetic).
- Schedule III: These have medical uses too, but the potential for dependence is moderate to low. This includes anabolic steroids, ketamine, Suboxone, and Tylenol with codeine (less than 90 mg per dose).
- Schedule IV: These have medical uses with a low potential for abuse and a low risk of dependence. This includes Valium, Xanax, Ativan, Ambien, and Klonopin.
- Schedule V: These have even less abuse and dependence potential than Schedule IV substances, and overall contain low quantities of narcotics. This group includes cough medicines like Robitussin AC with less than 200 mg of codeine per 100 ml of liquid, the diarrhea medicine Lomotil, and Pregabalin.
- Not Controlled: This is basically everything else, including alcohol (which kills almost 180k Americans per year) and nicotine (which, in cigarettes, kills 480k per year). Clearly this group is not necessarily free from risks or addiction potential.
What The Experts Think
So, in an ideal world, where does cannabis fit in this system?
Cannabis Needs to Be Descheduled and Removed From the CSA
By far the most common response to this question was that cannabis should be descheduled.
Dr. Adie Rae, an assistant scientist at RS Dow Neuroscience, argued that “Cannabis needs to be federally descheduled and removed from the Controlled Substances Act (CSA). States should have the ability to regulate its cultivation, distribution, and sale. Cannabis use by adults and medically-authorized pediatric patients should never be a crime. Civil rights for people who use cannabis (employment, housing) should be protected.”
Shawn Hauser, partner at Vicente, also argued for descheduling, “Ideally, marijuana is removed from the controlled substances act and federally regulated for medical and adult-use under a federal framework with manufacturing, safety, and marketing standards, while giving states rights akin to alcohol regulation. Federal law should provide an effective framework for botanical and synthetic cannabis drugs intended to treat medical conditions, and for adult-use cannabis in utilizing effective policies from alcohol and state cannabis programs.”
Likewise, Rod Kight, cannabis attorney at Kight Law, said “Marijuana and THC should be completely descheduled and regulated by a federal agency.”
Olivia Alexander, CEO and Founder of Kush Queen, commented, “Since the hemp and cannabis industry have been a state issue for the last 20+ years, I would like to see cannabis descheduled at a federal level. I believe descheduling to be the only meaningful way to end prohibition in America and respect the states’ rights.”
Cannabis Should Be Regulated Like Alcohol and Tobacco
Andrew Livingston, Director of Economics & Research at Vicente, said, “From my mind the original framing of Colorado’s Amendment 64 and the vision of Steve Fox and Mason Tvert is still the North Star. Regulate marijuana like alcohol. It should be federally legal with uniform, and not overly onerous, regulations on production and packaging. States should be able to regulate retail sales and onsite consumption how they wish.”
Dr. R. Lorraine Collins, Director of the University at Buffalo’s Center for Cannabis and Cannabinoid Research, said “Ideally, I think that cannabis should be regulated in a manner that is similar to the handling of ‘legal’ drugs like alcohol and nicotine/tobacco. There was no science behind the decision to designate cannabis as a Schedule I substance, in the 1930s. Rather, the designation was a function of efforts to control and stigmatize the drug and link it to ‘undesirable’ groups such as Mexicans (hence the use of the Spanish label ‘marijuana’), musicians, and Black people. Many of the links between cannabis and harmful behaviors such as being violent or sexually active were a function of the negative stereotypes about these groups.”
A Note on Terminology: Cannabis vs. “Marijuana”
As a note, like many US laws, our question asked about “marijuana,” and both Dr. Collins and Dr. Rae pointed out the racist origins of this word.
Unfortunately, this term is unavoidable in much of the US discussion of this topic, with even “medical marijuana” being a more common term than “medical cannabis.” However, we try to avoid using this term where possible, and you should too.
Alcohol Is More Dangerous Than Cannabis, So Why the Double-Standard?
Dr. Collins also pointed out that there are many accepted medical uses for cannabis, such as the CBD-based drug Epidiolex, and then made a point we hinted at above, “One final thought, from a scientific perspective, alcohol and nicotine meet criteria for being designated Schedule I drugs. If we apply the definition of Schedule 1, then there is little or no evidence of acceptable medical use and high potential for abuse. In fact, the mortality and abuse rates for either of these ‘legal’ drugs is higher than that for cannabis.”
Dr. Carrie Cuttler, Associate Professor at The Health & Cognition (THC) Lab at Washington State University, said, “I think it should be federally legal as it is in Canada (I am also Canadian). I believe alcohol and tobacco are more harmful than cannabis and neither of them are scheduled drugs.”
Cannabis Needs a New Regulatory Framework
Aaron Smith, Co-Founder and CEO of the National Cannabis Industry Association also made the comparison with alcohol, “Ideally marijuana should be removed from the Controlled Substances Act and governed by a new federal regulatory framework altogether. Intoxicating cannabis products, both hemp-derived and marijuana-derived, should be regulated in a manner more similar to alcohol and non-intoxicating health and beauty products should be regulated like dietary supplements or cosmetics.”
Likewise, Dr. Benjamin Caplan, Founder and Chief Medical Officer at CED Clinic, argued that the current fragmented system needs an overhaul:
In the ideal, cannabis should be treated as a unique entity under federal law. Unlike any other natural medicine, cannabis has been a part of human history for as long as we have records. The U.S. government’s historical stance—holding a patent for cannabis while obstructing access for U.S. citizens—is problematic and calls for reparations.
I’ve personally seen the medical benefits of cannabis, from eliminating the need for other medications to increasing survival times and reducing suffering from various diseases.
Dr. Benjamin Caplan, Founder and Chief Medical Officer at CED Clinic
Dr. Caplan described the current system as “chaotic,” with the FDA handling prescription cannabis medications, the DEA classing it as Schedule I, the USDA handling hemp production and the FTC monitoring marketing claims. He continues:
It doesn’t seem reasonable for any one part of this disjointed system to assume complete control, as each has only partially addressed the issue. Ideally, the federal government should establish a new framework to manage cannabis. This framework should address intellectual property needs, support expedited national-scale research, and ensure safeguards for regional production. Without such a system, federal legalization could harm local economies that rely on state-specific, vertically integrated systems.
Dr. Benjamin Caplan
Cannabis Isn’t Just One Thing, So We Shouldn’t Treat It Uniformly
Some respondents had slightly more nuanced takes on the issue, generally focusing on the unique aspects of cannabis that aren’t captured by a simple classification.
Dr. Ryan Vandrey, Professor of Psychiatry and Behavioral Sciences at Johns Hopkins University, is a good example of this, arguing that:
Ideally we stop talking about ‘marijuana’ or cannabis as if it is a singular product category. The best path forward is to operationally define different product types, based on chemical composition and intended route of administration. THC-dominant products intended to be inhaled (smoked or vaporized) or oral ingested pose a very different public and individual health risk profile than THC dominant topical products (e.g. lotions, patches, balms) or products that contain negligible or no THC or other intoxicating cannabinoids (e.g., CB1 receptor agonists). Similarly, it makes no sense that delta-8-THC and other semi-synthetic/synthetic cannabinoids purportedly derived from hemp are not currently controlled, but delta-9-THC is because these chemical entities have near identical pharmacology and can produce the same acute effects.
Thus, the entire approach needs to be reconsidered with federal regulation focused on 1) establishing and enforcing minimum quality control requirements (ensure purity and reliability of the drug substance and absence of contaminants), 2) establishing evidence-based requirements for product categorization and labeling, and 3) constraining advertising and health-related claims. The federal control and regulations must also be compatible with the current state-level control of cannabis products.
Dr. Ryan Vandrey, Professor of Psychiatry and Behavioral Sciences at Johns Hopkins University
Schedule III Isn’t a Good Fit for Cannabis
Dr. Vandrey also made a strong argument specifically against Schedule III as the “right” place for cannabis:
The main reasons why the current proposal to move cannabis to Schedule III of the Controlled Substances Act does not make sense is that 1) not all cannabis products have abuse liability that requires Schedule III level of control/restriction, 2) this model is not compatible with states that allow for adult non-medicinal use of cannabis products, and 3) aside from the pharmaceutical formulations dronabinol, nabilone, and epidiolex, no cannabis products are FDA approved and can be prescribed, as is the case with other Schedule III medications.
Dr. Ryan Vandrey
The Farm Bill Splits Cannabis Into Two Groups, Then Applies Different Rules
Craig Small, Senior Counsel at Clark Hill and Vice Chair of their Cannabis Industry Group, pointed out that the Farm Bill already split cannabis into two categories, hemp and “marijuana,” with only the latter being subject to controlled substance laws:
This effectively legalized all cannabinoids and shifted the burden to different federal regulatory agencies to enact rules and regulations around these legal cannabinoids. It is now incumbent on federal regulatory agencies to reasonably regulate the various products that come from the plant cannabis sativa L.
The Department of Agriculture regulates cannabis sativa L. cultivation and harvest. These regulations have been in place for several years now and have been very successful in monitoring and controlling cannabis cultivation. There is always room for improvement but, on the whole, they are working.
Craig Small, Senior Counsel at Clark Hill
He argued that the FDA can regulate cannabis that comes in under the delta-9 threshold for hemp and that they will be able to apply Schedule III restrictions on products that do not.
The FDA can then regulate the cannabinoid product through public safety measures. There would be a variety of different levels of regulations depending on the cannabinoid profile of the products and their levels of D9-THC but the FDA has these levels of regulation already sorted out; food safety, dietary supplements, prescription and over the counter pharmaceutical medications, etc.
Once cannabinoid products have worked their way through the above federal regulatory agencies there is still work to be done to reconcile state cannabis regulatory frameworks with the federal regulatory framework but that can be done in a variety of different ways.
In the end, the cannabis industry, hemp and marijuana want a federal and state regulatory path that legalizes and supports the industry while fundamentally addressing public safety concerns.
Craig Small
Nobody Really Agrees with the Government’s Proposal
While there are certainly a range of viewpoints on this issue, nobody we spoke to would put cannabis in Schedule III in its current form.
However, these answers were prompted by what the experts would want to happen, but frankly, we are a substantial way through the process of rescheduling and descheduling may still be a pipe dream right now.
Does Cannabis Meet the Definition of Schedule III Substance?
It should go without saying that we don’t necessarily live in such an ideal world. Based on what’s happened so far, we may well continue with this fragmented system whereby the plant is treated hugely differently depending on whether it contains more or less than 0.3% delta-9 THC.
Given that Schedule III is still the most likely outcome of this process – does that even fit with cannabis?
The devil’s advocate would argue that there is a risk of dependence to cannabis, even if it’s not as addictive as heroin, and Schedule III acknowledges the widespread and accepted medical use. So isn’t this actually the perfect place for it, objectively speaking?
There is disagreement here even among the legal and scientific experts.
Schedule III Strikes the Right Balance for Cannabis
Dr. Benjamin Caplan put forward a strong case that Schedule III is appropriate:
Scientifically speaking, cannabis does fit the criteria for Schedule III. This category includes substances with a moderate to low potential for dependence and recognized medical uses. Cannabis has a lower potential for dependence compared to Schedule I and II substances like heroin and cocaine, and substantial evidence supports its medical benefits for conditions such as chronic pain and epilepsy. While cannabis does carry a moderate risk of dependence, it is generally less habit-forming than substances like Xanax and Valium, which are classified as Schedule IV.
Schedule V substances have an even lower potential for abuse and typically include limited quantities of certain narcotics in over-the-counter products. Cannabis’s higher THC content makes it unsuitable for Schedule V because it carries a higher risk of abuse. By placing cannabis in Schedule III, we can maintain tighter control over its distribution and use, ensuring it is managed responsibly while still acknowledging its medical benefits. This classification would also facilitate research and make it easier for patients to access cannabis under medical supervision.
Essentially, Schedule III strikes the right balance between regulation and accessibility. Unlike Schedule IV and V, which would not provide sufficient controls, and Schedule I and II, which overly restrict its medical use and research potential, Schedule III offers a middle ground that recognizes both the medical benefits and the need for regulation.
Dr. Benjamin Caplan
And Dr. Carrie Cutler agreed, “Schedule III drugs are those with a moderate to low potential for physical and psychological dependence which is consistent with what we know about cannabis.”
Comparing Substances Shows Schedule III Is Inappropriate…
However, there are still many open issues with this classification, and Dr. R. Lorraine Collins underlined the most important one:
Given the notion that the risks for cannabis use may be lower than substances that the DEA does not schedule (i.e., alcohol and nicotine), then I do not think that cannabis should be considered as a Schedule III drug. The Schedule III designation is for drugs with a low to moderate potential for dependence. They include ketamine, anabolic steroids and testosterone. Even given its ‘moderate’ potential for dependence, ketamine has been studied in randomized clinical trials, including to treat pain. Similar research needs to be done to better understand the benefits of the variety of cannabis products that contain THC and to document the benefits of cannabis for treating pain and other medical conditions.
Dr. R. Lorraine Collins, Director of the University at Buffalo’s Center for Cannabis and Cannabinoid Research
… And Even the FDA Can See It
Shawn Hauser also pointed out the quite serious issue that arises from a simple comparison of substances on different schedules.
“While there is certainly some risk and abuse potential for marijuana, (underscoring its need to be appropriately regulated and not sold to minors), evidence indicates it is safer than many drugs on schedules IV and V (i.e, benzodiazapines) and, as the FDA/HHS points out itself, it is safer than alcohol (which is not scheduled).”
She points to a quote from the FDA in its recommendation (page 21), where they wrote:
“However, as a relative finding on abuse liability, when comparing marijuana to heroin, oxycodone, hydrocodone, fentanyl, cocaine, ketamine, benzodiazepines, zolpidem, tramadol, and alcohol in various epidemiological databases that allow for some or all of these comparisons, marijuana is not typically among the substances producing the most frequent incidence of adverse outcomes or severity of substance use disorder.”
It’s especially important that alcohol (no schedule), tramadol (Schedule IV), and benzodiazepines (like Xanax and Valium, Schedule IV) are on this list.
This acknowledges, pretty clearly, that there are huge issues with just placing cannabis in Schedule III – if Schedule IV is defined as having a lower risk of dependence than Schedule III, how can we reconcile this with their words? Frankly, we can’t.
Rod Kight added, “Based on my experience as legal editor of a cannabis medical journal, I believe that schedule III is too restrictive.”
Schedule III Isn’t Totally Wrong, But Cannabis Doesn’t Fit Into the System Neatly
Dr. Adie Rae argued that there is a conflict between the ostensible definition of Schedule III substances and the reality when it comes to regulation, and this breaks the system for cannabis:
To some extent, cannabis does fit the definition of a Schedule III drug because it does pose risks for addiction and dependence, for some people. However, it fails to fit nicely into this category because of the overlap between the DEA’s drug regulation and the FDA’s medication regulation. Because cannabis does not fit nicely into the FDA’s framework, it is therefore incompatible with this system entirely. Thus, practically speaking, the path of least resistance is to remove it from the CSA.
Dr. Adie Rae, an assistant scientist at RS Dow Neuroscience
Dr. Ryan Vandrey made a similar point but with more of a focus on the huge variety of cannabis products around:
Synthetic Delta-9-THC is currently a Schedule III prescription medication, so, yes, this is an appropriate place for other products containing delta-9-THC that are intended to be inhaled, orally ingested, or used as a suppository. It is not appropriate for topical products (THC is very poorly absorbed transdermally) or for products that do not contain doses of THC or other THC-like CB1 receptor agonists that can produce intoxication/impairment and have abuse liability commensurate with a Schedule III designation.
Dr. Ryan Vandrey
Schedule III Is the Most Restrictive Schedule That’s Still Appropriate
Craig Small suggests that while the issue is complex, Schedule III is the most restrictive class that could be appropriate:
The bulk of scientific literature supports placing cannabinoid products containing marijuana in no stricter a Controlled Substance schedule than Schedule III. Under the Controlled Substance Act Schedule III drugs, substances, or chemicals are defined as drugs with a moderate to low potential for physical and psychological dependence. The National Institutes of Health thoroughly investigated marijuana in the context of CSA Scheduling and firmly recommend it be listed as a Schedule III drug. Therefore, the current state of federal review deems it legally appropriate for marijuana to be listed as a Schedule III Drug. There is still controversy where marijuana belongs within the Controlled Substance Act Schedules and whether it is appropriate to Schedule marijuana at all but that controversy is not going to resolve itself within this debate today.
Craig Small
Schedule III Is a Loose Fit (If You Don’t Look Too Closely)
Overall, it’s clear from the expert commentary that there are some elements of Schedule III that ostensibly fit with cannabis. It can be moderately addictive, and it does have medical uses.
However, as soon as you dig a little deeper and start looking at other substances in the same Schedule, and especially those in Schedules IV, V, and ones that are unscheduled, the logic falls apart pretty quickly.
Weed isn’t as dangerous as heroin, but it’s not as dangerous as ketamine, Valium, or alcohol either.
The Law
While the whole issue is related to the law, there are some specific legal issues stemming from the rescheduling that are worth considering in detail.
So Weed Would Still Be Illegal? Isn’t This Just Continuing the War on Drugs?
After over 50 years of the “war on drugs,” many people have come to realize that it is really a war on drug users, and yet the current proposal arguably allows this to continue.
Groups such as United for Decriminalization make this exact argument, pointing out that the current proposal is not enough to address the long-standing discrimination and injustice created by the Nixon government back in 1971.
Arrests Will Continue and Racial Disparities Will Still Exist
Aaron Smith from the National Cannabis Industry Association makes this same point:
“Rescheduling doesn’t solve any of our nation’s social justice or racial disparity issues. The vast majority of all marijuana arrests and prosecutions are happening at the state level.”
But Aaron also acknowledges that it is a step in the right direction, “Rescheduling does not legalize whole plant cannabis or the state-regulated industry already operating throughout the nation. We need Congress to remove cannabis from the Controlled Substances Act in order to harmonize state and federal law. Rescheduling, however, is a good first step toward that goal and really the furthest one could expect the administration to go without Congress.”
We also asked Vicente’s Shawn Hauser specifically about how penalties under the Controlled Substances Act (CSA) will be affected by the change, “Rescheduling would not automatically reduce criminal penalties associated with cannabis violations under federal law, which are generally tied to weight and not schedule in the case of marijuana. Mandatory minimums would still apply in certain circumstances.”
But It Is a Step in the Right Direction
Craig Small of Clark Hill points out:
Currently, the vast majority of cannabis criminal and civil enforcement is performed by the states and prosecuted under state law. That is not likely to change unless states choose to reduce their penalties for violating cannabis law. Any federal enforcement of cannabis law is minimal as it applies to hemp products but marijuana prosecutions currently fall under Schedule I violations of the Controlled Substance Act. By moving marijuana to Schedule III, the federal government is drastically reducing the criminal penalties violators face if they break the law. This does not eliminate exposure to federal criminal penalties but lowers the sentencing and fine parameters.
Craig Small
Shawn Hauser also emphasizes that state laws and federal penalties will remain, but adds that “It is important incremental movement towards descheduling, which is the end goal. […] Rescheduling will likely increase momentum for more state and federal reforms by bringing medical legitimacy and engagement by the medical community, as well as shifts in public opinion. The removal of cannabis from the purview of 280E and likelihood to attract investors will free up industry capital that is needed to fund further reform efforts to achieve this.”
It seems hard to summarize these comments in any other way than that the war on drugs will indeed continue, just with a strong signal that we are moving towards the end of the war on cannabis.
This is good, but if you’re in one of the groups that are disproportionately affected by the war on drugs, the “signaling” this move represents likely won’t be much consolation.
How Does Rescheduling Affect the Farm Bill?
The issue of the Farm Bill has already come up in a few responses, but it’s worth considering specifically.
Whether lawmakers like it or not, there is already descheduled cannabis in the US, just with the proviso that it has to be less than 0.3% delta-9 THC.
But doesn’t this undermine the discussion? Why is the movement on cannabis so tentative when hemp was legalized over five years ago?
Hemp Is Missing from the Conversation, But Is a Crucial Ally
Rod Kight described this issue clearly and insightfully:
Strangely, the hemp/marijuana dynamic does not seem to be part of the overall discussions with rescheduling. In one context (ie, hemp), the cannabis plant and all cannabinoids, including delta-9 THC in concentrations up to 0.3%, have been completely descheduled since 2018, yet we are still engaged in debates and legal procedures to move cannabis and cannabinoids to schedule III in another context (ie, marijuana). Obviously, this is a bizarre situation.
Rod Kight, cannabis attorney at Kight Law
Rod continued, “The most straightforward act would be to remove marijuana and THC from the CSA entirely, which no one expects to happen anytime soon. However, since cannabis in the form of hemp has been completely descheduled, the cannabis industry should embrace this fact and work within the hemp framework to further the goals of full cannabis legalization. Unfortunately, some misguided cannabis advocates contend that we should ‘close the hemp loophole,’ which would have the effect of rescheduling cannabis and cannabinoids. This is illogical. Why would any cannabis advocate propose to reschedule cannabis while simultaneously advocating for legalization? It does not make any sense.”
The Farm Bill Shows That We’ve Reached the Tipping Point for Cannabis
Shawn Hauser also criticized the “outrageous” Schedule I classification for marijuana in contrast to hemp, adding “The Farm Bill finally allowed us to study the cannabis plant and innovate, which research the DEA blocked for decades. This research and innovation related the development of many cannabinoids and products that a growing number of consumers use for medical and adult-use purposes. It really emphasizes that we have reached the tipping point that we must legalize and regulate, which is what Congress must now vigorously pursue.
This process does not apply to hemp, which is excluded from the definition of marijuana (As a schedule 1 or schedule 3 substance) under the controlled substance act.”
A Collective Approach Is the Only Solution
The current proposal is essentially ignoring the Farm Bill and its various consequences for cannabis as a whole.
As both Rod and Shawn argued, the obvious solution to this contradiction is to legalize and regulate the plant as a whole.
However, the status quo appears to be essentially pretending that the Farm Bill doesn’t exist and the issues it creates for the current proposal don’t need to be considered.
Craig Small added, “All legislative and regulatory efforts surrounding the plant Cannabis sativa L. are interrelated and need to be approached in a collective manner. Unfortunately, our governing system does not promote the legislative and executive branches working in tandem and resolving cannabis issues with global legal solutions.”
Myth-busting: Rescheduling and the 1961 Single Convention on Narcotic Drugs
One slightly more technical issue that is sometimes raised alongside rescheduling discussions is the impact of the 1961 Single Convention on Narcotic Drugs.
This was raised by the International Narcotics Control Board in a press release, which argued that legalizing the non-medical use of the drug contravenes the convention.
We asked Shawn Hauser and Rod Kight about this. Shawn explained the issue:
The US can clearly meet its obligations under the international treaties through rescheduling and adopting additional regulations to meet its Single Convention obligations, exactly as it did in the case of Epidiolex. The OLC Memo and Proposed Rule make this clear as well. DEA has cited the treaties as an obstacle in the past, but this argument is not legally sound.
Treaties do not require a substance to be placed in any particular schedule so long as certain reporting, quota, and other requirements are met. International treaty system allows Parties to interpret and apply Treaty requirements in the manner they deem most appropriate, including by prioritizing reforms designed to promote public health, safety, and welfare. In light of the failed war on drugs, devastating impacts on communities of color, and the public health risks associated with a dangerous illicit market, placing Marijuana in Schedule III would further the public health, safety, and welfare better than Schedule I or II could.
Shawn Hauser, partner at Vicente
Rod called this “an overblown response to a hyper-technical issue. My understanding is that rescheduling will not violate the Single Convention. Even if it did, there is no enforcement mechanism for it and cannabis legalization is already happening across the globe by signatories. The Single Convention, at least as it relates to cannabis, is antiquated and out of touch with reality.”
In a nutshell, this concern is not legitimate from a legal perspective and is clearly not a concern practically since many signatories have already legalized cannabis.
The Science
Theoretically, rescheduling will bring the law more in line with scientific knowledge of cannabis, and it may even enable researchers to find out about THC and other cannabinoids more easily.
But is this really the case? How will rescheduling really affect scientists working in the field?
Will Rescheduling Make It Easier to Research Cannabis?
One of the most commonly cited benefits of rescheduling is that it will make it easier to conduct scientific research on cannabis.
The importance of this can’t really be overstated: the more research we can conduct, the more we learn and the more it (should) become clear that cannabis doesn’t even deserve the restrictions imposed by Schedule III.
However, the big question is: does rescheduling really make a difference when it comes to research? Is this another myth?
How Hard Is It to Study Cannabis Under Schedule I?
CED Clinic’s Dr. Benjamin Caplan explained the current process of researching cannabis under Schedule I, “To begin with, researchers must obtain a Schedule I research license from the Drug Enforcement Administration (DEA). This is not a straightforward task; the application process requires detailed information about the research project, security protocols, and the qualifications of the research team. The approval process can extend over several months, sometimes exceeding a year.”
He explained that you also need Institutional Review Board (IRB) approval to ensure the study is ethical, an application which often takes “several months.” In terms of sourcing the cannabis, he points out that you need to get it from federally-approved suppliers, which adds even more waiting time.
Dr. Collins also described the existing challenges of studying cannabis, pointing at the DEA registration “involves a multistage application and review process that can include having inspectors visit to verify the storage and security of the drug. Access to cannabis products is limited and is managed by the National Institute on Drug Abuse (NIDA).”
Dr. Caplan concluded that “Rescheduling cannabis to Schedule III would alleviate many of these challenges. It would streamline the licensing process, reduce the number of regulatory approvals required, and potentially shorten wait times, making it more feasible for researchers to study cannabis and its effects.”
How Will It Work in Practice? The Devil Is in the Details
Unfortunately, many of the scientists we spoke to drew attention to how these potential benefits are dependent on how exactly this change is handled in practice.
Dr. Adie Rae said: “There is no guarantee that the NIH will make medical cannabis research a funding priority. There is no guarantee that the DEA will issue any Schedule III licenses to cannabis growers to address the deficiencies in the supply of cannabis for research purposes.”
Dr. Ryan Vandrey acknowledged the benefit of not needing a Schedule I license and DEA approval, but echoed Dr. Rae’s comments:
“There is no guarantee that these changes will make research easier or that research with commercially-available products will be possible. Right now, the FDA has established incredibly stringent safety criteria for cannabis products to be used in human research that exceed that required for retail sale in any state. Over the past 10 years or so it seems that every policy change that is intended to improve research on cannabis has actually made things more challenging for us on the regulatory front. Thus, I cannot say with any certainty what impact this change will have on research until we know exactly how the rescheduling will be implemented and interpreted by the FDA and other regulatory agencies involved.”
Dr. Collins summed it up the best, “The devil is in the details as to the specific rules that the DEA will propose and implement.”
Will Researchers Be Able to Study Commercial Cannabis Products?
Despite how bizarre it may seem, studying commercial cannabis products is not so easy, even if they’re available freely from dispensaries in your state.
Dr. Caplan said that rescheduling will help with this, “As for studying commercially-available cannabis products, rescheduling would facilitate this as well. It would likely lead to more standardized testing and quality controls, ensuring that these products are consistent and reliable for research purposes. While some states have already implemented regulations to allow the study of commercially available products, federal rescheduling would provide a more uniform framework.”
But Dr. Rae made an important point that would likely severely limit the advantages of rescheduling for researchers, “Commercial producers/manufacturers/retailers would need to possess a Schedule III license to transfer cannabis to a researcher with a Schedule III license.”
Dr. Collins made a similar point, “It is possible that the DEA will allow commercially available cannabis products to be included in research or they could decide to continue to limit the specific products and maintain NIDA as a gatekeeper for access to cannabis products for research.”
Overall, while there are clearly some benefits to researchers in terms of license requirements, many of the potential benefits depend on the specifics of the implementation. Calling this a clear “win” for the proposal is not quite so simple.
What Are the Most Important Things We Still Need to Learn About Cannabis?
The discussion around scheduling would ideally be based on scientific facts about cannabis.
Is it really as “addictive” as Schedule III substances, and more prone to abuse than something like Xanax? Do we really know enough about its medical benefits and how it can be safely administered?
In short, what are the gaps in our knowledge we need to address, either to make this decision more effectively or just to maximize the benefits of weed while reducing the downsides?
Where Do We Need Research the Most? Dr. Caplan’s Wish List
Dr. Benjamin Caplan really gave us a fantastic answer to this question, laying out five key areas that could use increased research:
“There are several critical areas of research that deserve a sharpened focus to help us make more informed decisions about the appropriate scheduling and regulation of cannabis. Prioritizing these areas will not only aid policymakers but also help the public feel more comfortable exploring cannabis:
- Long-term Health Effects: We need more studies on the long-term clinical impacts of chronic cannabis use, particularly with high-THC products. While public health data suggests that cannabis is relatively benign compared to other treatments, the public deserves concrete data on its long-term effects.
- Dependence and Abuse Potential: More research is necessary to compare cannabis with other substances regarding dependence and abuse potential. From my experience overseeing data collection from hundreds of thousands of cases, cannabis has a relatively low risk of dependence, comparable to caffeine, exercise, and binge-watching TV. However, the definitions of overuse, misuse, and abuse need a complete overhaul, as they are based on outdated measurement tools and a fundamental misunderstanding of cannabis.
- Medical Efficacy: Rigorous clinical trials are essential to better understand the full range of medical benefits cannabis can offer. Recent studies indicate that at least 20% of primary care patients use cannabis regularly for symptom management. We need to better understand what the public uses cannabis for and the associated risks and benefits, both short-term and long-term.
- Public Health Impacts: It’s crucial to study how widespread cannabis use affects public health, including mental health and driving safety. We need better methods to measure intoxication, functional alteration, and how individual differences in genetics, consumption, experience, recovery, and metabolism influence these factors.
- Product Safety and Quality: Research is needed to ensure that commercially available cannabis products are safe and of high quality. Different states have different testing parameters, providing a natural experiment we can learn from to improve safety standards nationwide.”
With a sharpened focus on these areas, we can address the embarrassing knowledge gaps that currently exist and make more informed decisions about the appropriate scheduling and regulation of cannabis. This will help ensure that cannabis is used safely and effectively, which benefits both the medical community and the general public.”
We Need Much More Knowledge About Cannabis Overall
Dr. R. Lorraine Collins also stressed that there are many gaps in knowledge about cannabis because of its designation as a Schedule I substance:
Given the decades of federal limits on human cannabis research, we need research on just about every topic. Similar to what we see with alcohol and nicotine, there already is recognition of the development of dependence and cannabis use disorder (CUD) as potential harms, particularly for persons who frequently use cannabis, especially in larger quantities. […] We need to better understand the effects of different products, ways of using cannabis (e.g., vaping, eating) and doses/potencies of cannabis products which vary in THC content.
Dr. R. Lorraine Collins
Dr. Collins finished with a very important point, “Finally, let us not forget research questions in areas such as the longstanding social justice harms to individuals and communities, and the need to remove stigma and prioritize the mitigation of those harms. It is difficult for me to prioritize research areas; you name a cannabis-related topic and there will be research questions that we need to pursue.”
Risks Probably Vary By Product Type, But the Solution Is the Same
Dr. Adie Rae pointed out that while we know a lot, there are some areas where more information would be valuable:
We know plenty about cannabis’ risks for dependence and abuse. We certainly need more research about high potency products (concentrates, ‘dabs’ etc.), novel cannabinoids (HHC) and novel delivery systems (like vaping). The risks are probably even higher for these new products. The National Institute on Drug Abuse should prioritize research funding for this kind of research. But again, this has very little to do with rescheduling. Alcohol kills 178,000 people every year, and it fits the definition of a Schedule I drug perfectly (no medical value, high risk for abuse). But we tried prohibition with alcohol, and it very quickly failed. When it comes to scheduling any substance, it’s not just the evidence that matters. We need to balance the evidence with the practical matters at hand, and practically speaking, prohibition doesn’t work.
Dr. Adie Rae
Not All Cannabinoids Were Created Equal
Dr. Vandrey also drew attention to the variety of “cannabis” constituents and product types:
THC and related CB1 receptor agonists absolutely have abuse potential. However, many other phytocannabinoids like cannabidiol (CBD), cannabigerol (CBG), and delta-9-tetrahydrocannabiverin (THC-V) show little to no abuse liability and others have not been evaluated. The biggest thing needed right now is to differentiate product types using categorization metrics that make sense and are evidence-based and to establish regulations appropriate to the different product categories. Use of the umbrella term ‘cannabis’ or ‘marijuana’ is no longer appropriate in any setting.
Dr. Ryan Vandrey
On the whole, it’s clear there are many areas where knowledge is limited, but the biggest issue that is currently poorly addressed is the huge range of products and methods of delivery.
And that’s before we even get onto all of the minor and lesser-known cannabinoids on the market today.
Myth-busting: Is Cannabis More Dangerous Now Because It’s Stronger?
Some voices opposed to rescheduling cannabis point out that weed is much stronger than it used to be, and this is a sign that reducing penalties is misguided.
Dr. Kevin Sabet, CEO of Smart Approaches to Marijuana, said to CBN News, “This is not your Woodstock weed; we’re seeing products up to 99.9 percent pure THC. And if you smoked marijuana 20, 30 years ago, you wouldn’t even recognize these products.”
THC Concentrations Are Increasing, But Doses Are Not
We asked the scientists we spoke to about this point. Dr. Ryan Vandrey gave the clearest response:
This is focused on the concentration of THC in a given product, which is often mistaken for dose. The reality is that people adjust the amount of the product they use relative to the concentration of THC. The higher the concentration, the less that is used. This is an opportunity for research, education and regulation related to product labeling to prevent over consumption, but there is no science that currently shows definitively that cannabis products that contain higher concentrations of THC pose greater risks than those with lower concentrations, or whether there is a threshold concentration limit that should be imposed for public health purposes.
Dr. Ryan Vandrey
Dr. Vandrey added, “Though there are studies that show greater abuse and cannabis-related problems for those who use very high THC containing products, these studies cannot account for individual differences in the types of people that elect to use these kinds of products versus those that elect to use lower THC products. Randomized, controlled research studies have not been done.”
It is technically true that cannabis is getting stronger, as Dr. Carrie Cuttler emphasized before making the same point about concentration vs. dosage:
Yes this is true! In the 70s cannabis had around 1-2% THC. Today most flower has at least 20% THC and some concentrates exceed 90% THC. However, my research indicates that people just use lower doses of higher potency products so this may not increase the risks of THC. Nevertheless, this is still an open research question as it is nearly impossible to study high potency market products under the current regulations.
Dr. Carrie Cuttler, Associate Professor at The Health & Cognition (THC) Lab at Washington State University
Smoking Reduces the THC Concentration Even More
Dr. Caplan made the same distinction, but added another crucial point, “Additionally, many individuals smoke cannabis, which burns off a significant portion of the THC, meaning the actual consumption might not be as high as lab tests indicate. Without taking these factors into account, it’s difficult to argue that the increased potency seen in lab tests translates directly to higher risks in real-life use.”
Dr. Caplan continued that this does “add complexity” to the conversation around descheduling, “Stronger cannabis products can increase the risk of dependence and other adverse effects, which necessitates a more cautious approach to regulation and public education. Proper regulation and comprehensive public education are essential to ensure that these more potent cannabis products are used safely and responsibly. This includes clear guidelines on dosage, potential risks, and safe consumption practices to mitigate any adverse effects associated with higher THC levels.”
Weed Is Stronger, But Not More Dangerous
So it is certainly not a myth that cannabis is getting stronger, but people who use cannabis are not blindly consuming the same amount regardless of THC concentration.
This is analogous to worrying about people drinking whisky instead of beer because if you drink a 12 oz serving of it you’ll be totally wasted rather than just slightly buzzed. Obviously you would be, but that’s why you drink smaller servings of whisky.
The Economics and Business
Like it or not, the cannabis industry is a huge stakeholder in this conversation, and the change is purported to help them out a lot.
But what are the realities of the day-to-day business impacts and the overall economics of the change?
What Are the Tax Benefits of Rescheduling?
The biggest benefit we’ve been hearing about is that it will help businesses because Section 280E will no longer apply to cannabis businesses.
This part of the US code prevents businesses “trafficking in controlled substances” (Schedules I and II) from getting deductions or credit on their taxes, representing a huge expense for cannabis businesses that others – for example, the alcohol industry – do not have to contend with.
The Tax Benefits of Rescheduling Will Make a Big Difference
Andrew Livingston explained:
The tax benefits associated with Schedule III removing the applicability of 26 U.S. Code § 280E on state-licensed cannabis businesses are huge. It will make cannabis businesses, and most notably small independent retailers and delivery services, significantly more profitable. This will hopefully result in a major boost to business reinvestment and expansion of the number of people gainfully employed in the cannabis industry.
Andrew Livingston, Director of Economics & Research at Vicente
Andrew also pointed out that this could benefit the industry in terms of investment, “cannabis businesses will be much more profitable and a much more attractive investment opportunity for those seeking to finance state-licensed cannabis operators. This will hopefully attract additional investors into the space thereby increasing the supply of capital and lowering interest rates for licensees.”
But Existing Business Owners Remain Skeptical
We also spoke to Kush Queen’s Olivia Alexander about her experience running a business under Schedule I:
Look, running profitable businesses in this space is one of the hardest things you can do. Can it be done? Yes. I have run a profitable business for years. Is that what big cannabis corporations want people to say? No. Does the federal scheduling of cannabis negatively affect our businesses? Yes. We see issues around funding, banking, merchant processing, and even social media which are all directly related to the Schedule I status of cannabis. But can you run a profitable business under Schedule I? Yes, you very much can.
Olivia Alexander, CEO and Founder of Kush Queen
But Olivia wasn’t so certain about the tax benefits, noting that, “We have no idea that there will even be tax benefits. Just because 280e would go away, does not mean we would have any tax benefits related to cannabis and how the industry would be taxed at a federal level.”
Wait – Doesn’t Removing 280E Make Legalization Less Profitable for the Government?
As an aside, one issue immediately comes to mind. When we advocate for cannabis legalization, one of the major benefits that’s particularly useful when talking to people who don’t necessarily like cannabis is the huge amount of tax money it will bring in.
But won’t removing the applicability of 280E make this less of a selling-point, by reducing the tax income it brings in?
Andrew Livingston told us he’d thought about this a lot, and explained how it isn’t likely to be as big an issue as it may seem. In fact, it’s a benefit:
Rescheduling prior to adult-use legalization will make it easier to show that cannabis is tax revenue positive without requiring extraordinarily high federal tax rates. When you analyze a future legalization bill from the vantage point of the Congressional Budget Office (CBO), removing 280E through administrative rescheduling processes a few years before full federal legalization means the CBO must no longer score the tax implications of the bill in a way that considers the loss from 280E.
All federal legalization bills remove the applicability of 280E because cannabis would no longer be a scheduled substance (like alcohol and tobacco). But if this descheduling was part of the same bill that taxed and regulated cannabis federally, the CBO would have to look at the loss of revenue from 280E no longer applying as well as the regulatory costs of implementation and weigh that against the tax revenue the bill would generate. But with 280E being removed prior to legalization through an administrative process, all future legalization bills would only have to weigh the costs of implementation against the tax revenue generated.
Andrew Livingston
In a nutshell, all legalization proposals will ultimately reduce the government’s tax revenue from cannabis, because they will be able to make deductions that they currently can’t.
The benefit of doing it now is that the next step, hopefully to full legalization, will not have to account for this “loss” when weighing the pros and cons. It’s basically already lost.
Will the Industry Be Crushed By All the New Regulations?
The proposed move to Schedule III has made some people nervous because it could mean that the FDA would have to regulate cannabis in a similar way to other Schedule III substances.
Increased Regulation Is a Real Concern For Businesses
Olivia Alexander expressed this concern when CBD Oracle spoke with her:
Since I lived and ran a business through the major changes around proposition 64 in California’s regulated market, it’s hard to not fear the cripping realities of increased regulation. The federal government and its agencies have long been bloated, ineffective, and bad for most American industries. Not to mention, increased regulatory oversight often eliminates small businesses and stifles innovation with increased paperwork, fees and lack of streamlined resources. As a small company, known for innovation I fear changes at the federal level would threaten some of our competitive advantages at Kush Queen.
Olivia Alexander
But Advocates Are Working on It, And the FDA Probably Won’t Change Their Approach
However, NCIA’s Aaron Smith points out that advocates are already hard at work addressing this potential issue:
“NCIA is working to address this concern by advocating within the administration for enforcement guidelines to instruct the DOJ and FDA not to interfere with cannabis businesses that are compliant with state law, even if they are selling a Schedule III drug without FDA approval. We are also lobbying Congress to include similar protections in the federal budget.”
Shawn Hauser also commented that, “State marijuana businesses will remain in non-compliance with federal FDA and DEA regulations, but we don’t expect any changes in federal enforcement priorities where state businesses are operating in compliance with state marijuana laws.”
In reality, it seems unlikely that these concerns will be borne out in practice.
Notably, under Schedule I the same industries still exist, and yet there has been no action from the federal government about them.
As former FDA official Howard Sklamberg said to Politico, “Why would FDA all of a sudden want to enforce those when it hadn’t in the past under Schedule I?”
Conclusion: So… What Comes Next?
First, and most importantly, the comment period for the proposed changes ends on July 22nd.
If you have any comments you would like to make about the proposed move, this is one of your only chances to make your voice directly heard.
We have featured many well-informed comments in this post, with a diversity of viewpoints and different concerns expressed by each expert.
Leave Your Comments on the Proposal Now
We would strongly encourage anybody interested to make a comment.
United for Decriminalization has a suggested comment which they encourage you to edit with personal messages, and if any of the points raised in this post resonate with you, they can also easily be included.
That said, it seems unlikely that anything other than a transfer to Schedule III will happen at the end of the process.
Decriminalization or (hopefully) full legalization will certainly be the end-point, but unfortunately, this is probably still some time away.
Without getting too deep in the political weeds, the election in November could lead to drastic change on this front, but this is far from clear.
Why Has Cannabis Reform Taken So Long?
We asked Aaron Smith why, when the majority of Americans support the legalization of cannabis (and have for some time), it has taken so long to inch forward on the issue:
Congress doesn’t exactly move quickly on anything and cannabis reform simply hasn’t been a priority. That’s why it’s vitally important the more businesses with a stake in federal legalization make some kind of meaningful investment in the federal lobbying needed to see that through. NCIA membership is a way for businesses to participate in that federal advocacy without the high cost of hiring a lobbyist.
Aaron Smith, Co-Founder and CEO of the National Cannabis Industry Association
But with the rescheduling likely to go through, isn’t there a danger that lawmakers will consider this issue “settled” and go back to ignoring it? Aaron responded optimistically:
“We are working hard to ensure our allies in Congress know that rescheduling is not the end of the road. If the industry keeps its eyes on the prize, we can leverage the momentum of the moment to expedite congressional action on this issue.”
We Need to Keep Fighting for Justice
The most crucial thing for all advocates is to not get complacent and to keep on fighting for justice.
The hemp and cannabis industries must realize that they are allies, not enemies, and advancing the rights of one helps all of us.
Every legislative win, no matter how small, moves us closer to a day when nobody, in any state, will go to jail for possession of cannabis.
One day, hopefully not too far in the future, we will have a true change, and stoners across the country will be able to light one up, take an edible, or vape in celebration. That day won’t come as a result of this rescheduling, but you would have to be blind to not see it somewhere on the horizon.
Acknowledgments: We would like to thank everybody who commented for this article and shared their expertise and experience. Without you, this would not have been possible.