Congresswoman Tells DEA To ‘Reject Any Argument’ That Marijuana Rescheduling Would Violate International Treaties

A Democratic congresswoman is imploring the Drug Enforcement Administration (DEA) to “reject any argument” that rescheduling marijuana under federal law would constitute a violation of international treaty obligations. She is also asking the agency to reveal a list of any “outside partners” it has met with to discuss the global implications of a potential cannabis reclassification.

As DEA works to complete its cannabis scheduling review, Rep. Sydney Kamlager-Dove (D-CA) sent a letter to Administrator Anne Milgram that zeroes in on the treaty discussion, where prohibitionists have insisted that the U.S. must adhere to decades-old global agreements on drug policy that experts have contested.

“I write to urge you to reject any argument in support of maintaining marijuana in Schedule I or Schedule II based on U.S. Treaty obligations,” Kamlager-Dove wrote, adding that the treaties “neither require the U.S. to keep marijuana in Schedule I or II nor do they preclude the DEA from accepting” the Schedule III rescheduling recommendation from the U.S. Department of Health and Human Services (HHS).

“Cannabis should be removed from the Controlled Substances Act (CSA) schedule entirely,” the congresswoman said in the letter, which was sent earlier this month but which her office announced in a press release on Monday. “However, I acknowledge that the rescheduling of cannabis is a historic first step to addressing the harms of the War on Drugs, which is why I want to ensure that U.S. Treaties are not considered as a potential reason against rescheduling or de-scheduling marijuana.”

“Rescheduling marijuana to Schedule III is a welcomed move towards mitigating the devastating impacts that marijuana’s place on the CSA has caused. As an advocate for the removal of marijuana from the CSA, I recognize that rescheduling serves as an initial stride toward achieving the ultimate goal of decriminalization. Therefore, at minimum, I ask that you follow HHS recommendations and reschedule marijuana to Schedule III and reject any argument in support of maintaining marijuana in Schedule I or Schedule II based on U.S. Treaty obligations.”

In 2016, DEA did deny an earlier marijuana rescheduling petition, noting that, “in view of United States obligations under international drug control treaties, marijuana cannot be placed in a schedule less restrictive than schedule II.”

Legal experts recently released an opinion that disputes that assessment. In fact, they argued that a move to Schedule III would better uphold the country’s broader obligations under international law to regulate cannabis in a way that protects public health and safety.

“As an advocate for the removal of marijuana from the CSA, I recognize that rescheduling serves as an initial stride toward achieving the ultimate goal of decriminalization,” the new letter from Kamlager-Dove says. “Therefore, at minimum, I ask that you follow HHS recommendations and reschedule marijuana to Schedule III and reject any argument in support of maintaining marijuana in Schedule I or Schedule II based on U.S. Treaty obligations.”

The congresswoman’s letter also included three questions that she’s asking DEA to answer “at their earliest convenience.” 

1. Is it the DEA’s position that applicable treaty obligations preclude the agency from adopting HHS’s recommendation to transfer marijuana to Schedule III?
2. Who has attempted to influence the DEA’s views on applicable treaty obligations and the proposed reclassification of marijuana? Please provide a log of all meetings DEA staff have taken with outside partners on this matter.
3. Has the DEA consulted with the U.S. Department of State or any expert agency outside of the U.S. Department of Justice regarding treaty obligations and the pending administrative process to reconsider marijuana’s Schedule I classification?

Among those who’ve raised concerns about treaty obligations blocking a move to Schedule III is Rep. Andy Harris (R-MD), who raised the issue in a letter sent to DEA Administrator Anne Milgram late last month, claiming that any reclassification that puts marijuana outside of Schedule I or Schedule II “would constitute a violation of the Single Convention,” referring to the 1961 United Nations (UN) Single Convention on Narcotic Drugs.

But as a coalition of 12 senators pointed out in a separate letter to Milgram a week earlier, the UN has since revised global cannabis scheduling policies and allowed other member states, such as Canada, to legalize and regulate marijuana without penalty. Those lawmakers urged DEA to legalize marijuana completely.

To that point, authors of the recent legal opinion organized by the Coalition for Cannabis Scheduling Reform (CCSR) have pointed to Canada and Uruguay in support of their reading that international drug treaties broadly support regulating drugs for safety, research and medical applications.

“Rescheduling Marijuana to Schedule III would better promote the Treaties’ general goal of prioritizing the health, safety, and welfare of humankind and their specific goal of advancing medical and scientific research of controlled substances,” the memo says. “Similar considerations led Uruguay and Canada to proceed with full adult-use legalization (a step far beyond HHS/FDA’s Schedule III recommendation). Neither country viewed their Treaty obligations as an obstacle to such a move, and neither has suffered repercussions from the international community as a result.”

DEA itself “has previously relied on this scheduling flexibility when it rescheduled Epidiolex, a Marijuana-based drug” that consists of purified CBD, it adds.

DEA recently asserted that the agency has “final authority” on the rescheduling decision, though officials so far have given no indication of the current status of their review, despite urging by lawmakers.

While many lawmakers have pushed DEA to accept the HHS recommendation by moving marijuana to Schedule III, Congressional Cannabis Caucus co-chair Rep. Barbara Lee (D-CA) told Marijuana Moment last week that she’s “opposed” to the modest reform, arguing that it could set the country back on the path to federal legalization “another 50 years.”

The Biden administration was also recently pressed to move marijuana to Schedule III by two coalitions representing military veterans and law enforcement—including a group that counts DEA’s Milgram among its members.

Rep. Earl Blumenauer (D-OR), the founding Cannabis Caucus co-chair, has also urged DEA to release more information about its own ongoing review, including what its “planned deadline” is for finishing and whether it will take into account the fact that many states have already legalized cannabis.

The correspondence came in response to a recent assertion from DEA that it has “final authority” on the rescheduling decision—which itself was a reply to a separate letter from Blumenauer and 30 other bipartisan lawmakers.

Meanwhile, HHS Secretary Xavier Becerra said last month that his agency has “communicated” its “position” on marijuana rescheduling to DEA and has continued to offer additional information to assist with the final determination.

Prior to HHS releasing a trove of documents concerning its cannabis recommendation, a coalition of 12 Democratic state attorneys general implored DEA to move forward with federal marijuana rescheduling, calling the policy change a “public safety imperative.”

In another letter in December, 29 former U.S. attorneys called on the Biden administration to leave cannabis in Schedule I.

Also that 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.

A coalition of 14 Republican congressional lawmakers, meanwhile, separately 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.

A recent poll found that about one-third of marijuana consumers say they would go back to the illicit market if cannabis was rescheduled and only made legally available as an FDA-approved prescription drug.

Another recent survey found that President Joe Biden stands to make significant political gains if marijuana is rescheduled under his administrative directive. Of course, Biden doesn’t directly control the final outcome.

The president has routinely touted his 2022 scheduling directive, as well as a mass pardon he granted for people who’ve committed federal marijuana possession offenses. He followed up on that action in December with a renewed and expanded pardon proclamation. The Justice Department has already begun issuing certifications for people who applied under the second round.

Vice President Kamala Harris’s office has been reaching out to people who’ve received a cannabis pardon—seeking assurance that the Justice Department certification process is going smoothly and engaging in broader discussions about cannabis policy reform, according to a pardon recipient who was contacted.

Separately, FDA recently highlighted its scientific review into marijuana that led the agency to recommend rescheduling—a process that involved a comprehensive analysis of research, as well looking at hundreds of posts on social media platforms to see how consumers described cannabis’s therapeutic impact.

Read the congresswoman’s letter to DEA on marijuana scheduling and international treaties below: 

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Photo courtesy of Mike Latimer.