12 State Attorneys General Tell DEA To Reschedule Marijuana As ‘Public Safety Imperative’

A coalition of 12 Democratic state attorneys general is urging the Drug Enforcement Administration (DEA) to move forward with federal marijuana rescheduling, calling the policy change a “public safety imperative.”

In a letter led by Colorado Attorney General Phil Weiser (D) that was sent to DEA Administrator Anne Milgram on Friday, the top state law enforcement officials said they were “encouraged” to see the U.S. Department of Health and Human Services (HHS) recommend moving cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA) “in the interest of public health and safety.”

“For these reasons, we encourage the DEA to implement a final rule rescheduling cannabis to Schedule III based on the Federal Drug Administration’s [sic] scientific and medical conclusions,” they wrote. “We see this as a public safety imperative and write in support of this policy change.”

“As state attorneys general, we have a responsibility to protect consumers and defend public safety,” they said, adding that they remain concerned about the illicit cannabis market, unregulated sales of intoxicating hemp-based cannabinoid products and the “continuing proliferation of dangerous opioids.”

“State-sanctioned cannabis markets provide access to regulated products that are clearly safer to what individuals can buy on the street—and supporting the effective operation of these regulated markets thus fits with our commitment to addressing the opioid crisis and rising overdose deaths,” the officials said.

“The undersigned appreciate that rescheduling to Schedule III will allow the state-regulated cannabis industry to continue to set the standard for legal products and work to eliminate the illicit market and unregulated intoxicating hemp products that currently operate in interstate commerce. Regardless of the policy choices made, demand for these products will continue. Meeting this demand only in a regulated, legal marketplace better protects consumers.”

The letter also notes that tax revenue from regulated cannabis sales is “material,” contributing “billions of dollars” to state coffers. Moving cannabis to Schedule III would further allow licensed businesses to take federal tax deductions after being excluded form the scope of the 280E provision, which would help them “expand their investments into the state programs and focus on public health and safety in collaboration with law enforcements efforts.”

Attorney General Phil Weiser today led a group of 12 state attorneys general on a letter encouraging the U.S. Drug Enforcement Agency to reschedule cannabis to Schedule III under the federal Controlled Substances Act in the interest of public health and safety.

— Colorado Attorney General (@COAttnyGeneral) January 13, 2024

“It is critical to acknowledge that use of cannabis, especially among youth, still incurs health and safety risks. Our regulatory regimes have sought to balance the mandate to create as safe a framework as possible with the reality of these risks,” the attorneys general said. “Juxtaposed against the dangers of the illicit market and unregulated hemp-derived cannabinoids, moreover, we believe that there is a public health and safety mandate to protect the state-regulated industry by rescheduling cannabis to Schedule III.”

Rescheduling cannabis is “the next step in the move towards a more accountable cannabis policy,” the letter concludes. “We stand ready to continue work with your Agency to ensure that the state regulatory programs continue to exist under evolving federal cannabis policies.”

In addition to Colorado’s AG, the other signatories serve as attorneys general of California, Connecticut, Delaware, Illinois, Maryland, Massachusetts, Nevada, New Jersey, Oregon, Pennsylvania and Rhode Island.

It’s unclear when DEA will make its scheduling decision, but it has maintained a number of times that it holds “final authority” in the matter and is not bound by the HHS recommendation. The Congressional Research Service (CRS) said that it’s “likely” DEA will go along with the Schedule III recommendation from HHS, but it’s not guaranteed.

“DEA has the final authority to schedule, reschedule, or deschedule a drug under the Controlled Substances Act, after considering the relevant statutory and regulatory criteria and HHS’s scientific and medical evaluation,” the agency said in a letter to lawmakers last month. “DEA is now conducting its review.”

DEA’s statement came in response to an earlier letter from 31 bipartisan lawmakers, led by Rep. Earl Blumenauer (D-OR), that implored the agency to consider the “merits” of legalization as it carried out its review. That initial letter also criticized the limitations of simply placing cannabis in Schedule III, as opposed to fully removing the plant from CSA control.

DEA has received a number of messages from different sides of the cannabis policy debate in recent months, including a recent letter from 29 former U.S. attorneys who urged the Biden administration to leave cannabis in Schedule I.

Last month, the governors of six U.S. states—Colorado, Illinois, New York, New Jersey, Maryland and Louisiana—sent a letter to Biden calling on the administration to reschedule marijuana by the end of last year.

Meanwhile, six former DEA heads and five former White House drug czars sent a letter to the attorney general and current DEA administrator voicing opposition to the top federal health agency’s recommendation to reschedule marijuana. They also made a questionable claim about the relationship between drug schedules and criminal penalties in a way that could exaggerate the potential impact of the incremental reform.

Signatories include DEA and Office of National Drug Control Policy heads under multiple administrations led by presidents of both major parties.

In October, Advocates and lawmakers who support cannabis reform marked the one-year anniversary of Biden’s mass marijuana pardon and scheduling directive this month by calling on him to do more—including by expanding the scope of relief that his pardon had and by expressly supporting federal legalization.

Two GOP senators, including the lead Republican sponsor of a marijuana banking bill that cleared a key committee in September, also filed legislation late last year to prevent federal agencies from rescheduling cannabis without tacit approval from Congress.

A coalition of 14 Republican congressional lawmakers, meanwhile, has urged DEA to “reject” the top federal health agency’s recommendation to reschedule marijuana and instead keep it in the most restrictive category under the CSA.

Separately, DEA recently announced that it is taking another shot at banning two psychedelics after abandoning its original scheduling proposal in 2022, teeing up another fight with researchers and advocates who say the compounds hold therapeutic potential.

The agency has separately warned Georgia pharmacies that dispensing THC is unlawful because it remains a Schedule I drug after the state became the first in the U.S. to allow pharmacies to sell medical marijuana, with nearly 120 facilities applying to sell cannabis oil.

Meanwhile, DEA recently affirmed that spores that produce so-called magic mushrooms are not, on their own, federally prohibited prior to germination.

More information about the specific scientific findings and recommendations that HHS shared with DEA for the cannabis scheduling review is expected to come to light soon after the federal government told an attorney that it would be releasing the materials “in their entirety” amid a FOIA lawsuit.

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Photo courtesy of Philip Steffan.