Marijuana Moment: Biden Drug Czar Says Marijuana Rescheduling Is ‘Based On Science And Evidence’ But Misstates Impact On Prescription Access

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The Biden administration’s drug czar said this week that the Justice Department’s recommendation to move marijuana from Schedule I to Schedule III of the Controlled Substances Act (CSA) is one “based on science and evidence,” adding that the change will ease research restrictions around the use of cannabis to treat “chronic illnesses, chronic pain and diseases like cancer.” But he appears to have oversimplified what the change will mean for legal prescription access to medical marijuana.

“It’s been quite a bit of science that has developed over the last few years, certainly since more than a half century ago when those placements happened, that show us that this may not be where it belongs,” Rahul Gupta, the director of the Office of National Drug Control Policy (ONDCP), said in comments to WGCU, referring to cannabis’s current Schedule I status.

“So the move to Schedule III, where there are recognizable medical benefits to a substance, is one that is a recommendation based on science and evidence,” he added. “It does make sense to make sure that we’re pursuing science and evidence when it comes to medications and use those medications for Americans with chronic illnesses, chronic pain, diseases like cancer.”

It appears the drug czar may have oversimplified the process of accessing medical marijuana once the rescheduling move takes place, however, suggesting that the change itself could make cannabis federally legally available to patients.

“Any drug that is between Schedule II and Schedule V can be prescribed when appropriate by a licensed provider who has a DEA registration, like I do,” Gupta told WGCU. “For a full Schedule I, there is no approved medical use. So this change would allow providers, clinicians across the country to be able to prescribe marijuana as a Schedule III drug.”

As @POTUS said, too many lives have been upended because of our failed approach to marijuana.

That’s why our Administration is taking historic action to reform our nation’s outdated laws. https://t.co/a9F9611w7g

— Rahul Gupta (@DrGupta46) May 21, 2024

A report published by the Congressional Research Service (CRS) earlier this month disagrees. It says further action from the Food and Drug Administration (FDA) would be needed before marijuana products become available by prescription.

“If marijuana were moved from Schedule I to Schedule III, it could in theory be dispensed and used by prescription for medical purposes,” the report from congressional researchers says. “However, prescription drugs must be approved by FDA. Although FDA has approved some drugs derived from or related to cannabis, marijuana itself is not an FDA-approved drug.”

CRS has also noted that rescheduling would not legalize cannabis or bring state-regulated markets—including medical marijuana systems—“into compliance” with federal law.

Broadly, Gupta in the recent interview positioned Schedule III as a middle ground between making marijuana legally available to medical patients while preventing drug use by young people.

“Today, the science takes us in a direction that there are some medical uses of marijuana. We must allow Americans to take advantage of that, for example, those who are suffering from chronic pain, other chronic illnesses, cancer, this may be something of a better option for them,” he said. “At the same time, we must understand that for children whose brains are still developing, up to the age of 22 to 25, it’s important that any illicit substance, whether it be marijuana or others, not interfere in the development of the brain.”

“Prevention for young people of any drugs is still important and key,” he continued. “But at the same time, allowing us to be able to have appropriate science-based categorization of drugs that can help Americans is important. Of course, the increasing concentrations of THC and others are something that concerns all of us. And one way to address that is by having it as Schedule III.”

Gupta also said that “too many lives have been upended because of our failed approach to marijuana over the past more than a half century.”

“That’s why, back in 2022, President Biden had requested that Department of Justice and Health and Human Services services conduct this review,” he said.

Biden administration officials have been touting the president’s actions on cannabis since 2022, including rounds of pardons he’s granted to people with past drug-related federal convictions. Vice President Kamala Harris last month, for example, reiterated at an event last month she doesn’t believe “people should have to go to jail for smoking weed.”

“We have issued—as an administration with President Biden’s leadership—more pardons and commutations than any recent administration at this point in their term,” she said. “For example, on marijuana: We have pardoned all people for federal convictions for simple marijuana possession.”

Advocates have been encouraged to see the administration continue to grant and promote clemency for people criminalized over drugs, but they’ve also emphasized that thousands of people remain incarcerated over federal marijuana offenses.

In March, 36 members of Congress implored Biden to grant clemency to all Americans currently in federal prison over non-violent cannabis convictions by commuting their sentences, pointing out that the pardons he’s issued to date for simple possession cases did not release a single person from incarceration.

A former drug czar who served under President Barack Obama recently took a sharply different position on marijuana rescheduling than Gupta. Former ONDCP Director Gil Kerlikowske recently said that cannabis is “not medicine” and that rescheduling was “all Big Cannabis.”

“This isn’t people my age that are just old hippies that want to open up a pot shop somewhere” Kerlikowske said on the podcast of former U.S. Rep. Mary Bono (R). “This is a huge business like Big Tobacco. Absolutely.”

Meanwhile, the proposed rule to federally reschedule marijuana was officially posted last week, kicking off a public comment period that’s expected to elicit a major response from supporters and opponents of cannabis reform.

Marijuana reform advocates and stakeholders have made clear that they intend to leverage the opportunity, with some planning to support the reclassification while others intend to call for descheduling cannabis altogether. Prohibitionists are expected to oppose the incremental policy change and seek to keep marijuana in Schedule I, and there’s also a looming threat of litigation.

While DOJ will take all public comments submitted by July 22 into consideration as it weighs the reform, it said in the notice that one of the topics its especially interested in hearing about is the “unique economic impacts” of the rescheduling proposal given that state-level legalization has created a “multibillion dollar industry” that stands to benefit from possible federal tax relief under the reform.

When Biden announced the administration’s rescheduling action last week, he described it as consistent with his belief that nobody should be jailed over cannabis possession. As a statutory matter, that wouldn’t necessarily apply with simple rescheduling because it’d remain federally illegal. But the White House has not publicly commented on the economic impacts of the incremental reform.

On Capitol Hill, Senate Majority Leader Chuck Schumer (D-NY) and colleagues have reintroduced legislation to federally legalize cannabis and impose certain regulations. The bill’s prospects are dubious in the current divided Congress, however.

Meanwhile, the top Democrat in the U.S. House said that the Biden administration’s move to reschedule marijuana is a “step in the right direction,” but it should be followed up with congressional action such as passing the legalization bill Schumer filed.

In a recent interview with Fox News, former DEA Administrator Asa Hutchinson said it “absolutely looks like” the agency will follow through with moving marijuana from Schedule I to Schedule III under the CSA.

Biden has separately issued two rounds of mass pardons for people who’ve committed federal marijuana possession offenses. Again, a Schedule III reclassification would not legalize cannabis or free people still incarcerated over cannabis.

During his run for the presidency, Biden pledged to move cannabis to Schedule II—a stricter category compared to what’s been proposed by his administration.

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