The Justice Department plans to recast marijuana as a lower-risk drug

Originally published: 30 APR 24 2:17 PM ET

Updated: 30 APR 24 6:48 PM ET

By Alicia Wallace, Katherine Dillinger, Kevin Liptak, Jeff Zeleny and Kayla Tausche, CNN

(CNN) — The Biden administration decided Tuesday to reclassify marijuana as a lower-risk drug, a person familiar with the plans told CNN. the industry as a whole.

The U.S. Department of Justice has recommended that marijuana be reclassified as a Schedule III controlled substance, a classification shared by prescription drugs such as ketamine and Tylenol with codeine.

“Today, Attorney General Merrick Garland circulated a proposal to reclassify marijuana from Schedule I to Schedule III,” Xochitl Hinojosa, director of public affairs for the DOJ, said in a statement. “Once published by the Federal Register, it will initiate a formal rulemaking process as directed by Congress in the Controlled Substances Act.”

The formal rulemaking process is lengthy, typically includes a period of public comment, and can take months to complete.

The redistricting recommendation, first reported Tuesday by the Associated Press, was praised by lawmakers on both sides of the aisle, including Republican Rep. Nancy Mace of South Carolina, who praised it on X as “important news for companies, tax deductions and research barriers.”

Democrat Earl Blumenauer of Oregon said in a statement that realignment is “one step closer to ending the failed war on drugs.”

An accepted medical practice

For more than 50 years, marijuana has been categorized as a Schedule I substance – drugs such as heroin, bath salts and ecstasy that are considered to have no accepted medical use and a high potential for abuse – and subject to the strictest restrictions.

The expected recommendation comes after the U.S. Department of Health and Human Services, following a thorough review by the U.S. Food and Drug Administration under President Joe Biden, sent a letter to the Justice Department in 2022 supporting the reclassification to Schedule III.

Last fall, members of the FDA’s Controlled Substance Staff wrote in the documents that the agency recommended rescheduling marijuana because it meets three criteria: a lower potential for abuse than other Schedule I and II substances; a currently accepted medical use in treatment in the US; and a risk of low or moderate physical dependence in abusers. The National Institute on Drug Abuse agreed with the recommendation.

Although marijuana has a “high prevalence of non-medical use” in the US, it does not appear to have serious consequences compared to drugs such as heroin, oxycodone and cocaine, the researchers said. “This is especially notable given the availability” of products containing very high levels of Delta 9-tetrahydrocannabinol (THC), the main active compound in cannabis.

A thriving industry

Since the first adult-use cannabis sales in Colorado in 2014, cannabis has grown into a multi-billion dollar industry that has attracted the attention of multinational companies in industries such as alcohol, agriculture, pharmaceuticals and tobacco.

Cannabis, and especially the way it is viewed by the public and politicians, has undergone a major change in the past decade.

Currently, 24 states, two territories and DC have legalized cannabis for adult recreational use, and 38 states allow medical use of cannabis products, according to data from the National Conference of State Legislatures. According to estimates from MJBiz, a trade publication and event organizer, state-licensed cannabis dispensaries and stores are expected to generate $32.1 billion in sales this year.

Public sentiment has soared: In November, a record 70% of Americans polled by Gallup said they supported the legalization of cannabis. In 2014 that share was 51%.

US lawmakers have also become more aware of the plant and have drafted dozens of cannabis-related bills, including bills that would completely remove marijuana from the Controlled Substances Act while preserving state-run markets.

Still federally illegal

Removing marijuana from Schedule I could open more avenues for research; mitigate some of the more punitive criminal justice consequences; potentially enabling cannabis companies to bank more freely and openly; and, perhaps most significantly for state-licensed operators, result in companies no longer being subject to a 40-year-old tax law that prohibits credits and deductions on income generated from the sale of Schedule I and II substances.

Rescheduling marijuana, however, will not resolve the federal-state conflict, the Congressional Research Service noted in a Jan. 16 letter. The production, distribution and possession of recreational marijuana would remain illegal under federal law and potentially subject to enforcement and prosecution regardless of state legality, the CRS wrote.

“Beyond the tax implications, this is hugely symbolic,” Andrew Freedman, the former Colorado cannabis czar who now serves as executive director of the Coalition for Cannabis Policy, Education and Regulation, told CNN in an interview. “It is rare for the federal government to back down on an issue on which it has taken a stand and arrested countless people for the past 100 years.”

States with medical marijuana programs currently have a number of federal protections through appropriations legislation that prohibit the Department of Justice from interfering with those programs. The Schedule III status does not affect that rider, the CRS said.

The Agriculture Improvement Act of 2018, better known as the Farm Bill, defined and decontrolled hemp and hemp-derived cannabidiol, removing it from the definition of marijuana – and from regulatory control – under the Controlled Substances Act. The FDA’s scientific and medical review of marijuana did not include products containing plant-derived cannabidiol, commonly known as CBD.

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