The US Drug Enforcement Agency will legalize medical cannabis nationwide on August 1, 2016, according to an unnamed DEA lawyer quoted in a Santa Monica Observer report a few hours ago.
In February, DEA officials said they were considering whether cannabis should remain a Schedule I drug, the DEA’s strictest designation. Examples of other Schedule I drugs in the US are LSD, cocaine, methamphetamine and Ecstasy, drugs believed to have high abuse potential and little or medical value.
But if this latest report is true, the DEA has made the decision to put medical marijuana in the same league as legal, prescription-only drugs like Abilify, Oxycontin, Xanax and Percoset. The DEA “plans to reclassify marijuana as a Schedule II drug” on Aug. 1, the source told the paper, adding:
“Whatever the law may be in California, Arizona or Utah or any other state, because of federal preemption this will have the effect of making THC products legal with a prescription, in all 50 states.”
The reclassification might also force Colorado, Washington, Alaska, Oregon and Washington DC — which have have made cannabis legal for recreational use — to revert to prescription-only cannabis status, the DEA lawyer suggested.
Downgrading Schedule I drugs is exceedingly rare, according to this Brookings Institution report. The DEA has only done so five times before.
We await comment from DEA reps and cannabis business analysts and leaders.
So what does it mean?
The term “federal preemption” is a key legal doctrine to understand in this developing story. It describes the legal cannabis situation we have in the US today, where some 39 US states have legalized cannabis in some form, even though the federal government has since 1971 has made it illegal in every respect by classifying it as a Schedule I substance.
That is why the US government can override state and local cannabis laws as it sees fit.
The US has indicated that it will continue to allow states to decide for themselves whether to allow cannabis for medicinal or recreational use, provided they properly regulate it.
But the feds are free to change their minds at any time. After all, medical marijuana has been permitted in California for years now, but federal authorities have on multiple occasions seized property, raided clinics and attempted to prosecute growers. That is not an easy reality to forget.
And even if the US stays committed to its fairly new hands-off attitude to state-legalized cannabis, there are other factors.
Cannabis’ Schedule I classification makes research dicey for scientists and pharmaceutical companies interested in examining cannabis’ known and unknown health benefits and contraindications. They have to jump through all sorts of legal hoops just to do their jobs.
But if cannabis is reclassified as a Schedule II substance, everything changes, the DEA lawyer quoted in the report emphasized. Schedule I drugs are always illegal. But Schedule II drugs are always legal and available by prescription.
That’s why, he said, once cannabis is reclassified, the federal “war on medical marijuana” is over.
Will legal medical cannabis clinics fight the DEA’s plan?
That was the opinion of the unnamed DEA lawyer quoted in the report. He said he thought many current medical marijuana clinics, like the many in Los Angeles County, will fight the reclassification because “the rule change will eliminate any reason for people to visit medical marijuana clinics.
Then again, the market could bifurcate naturally. “In my opinion,” the source said, “CVS pharmacy, Rite-Aid and Walgreens will sell Schedule II THC products similar to what users call “edibles,” but will not sell smokable weed because of the health risk smoking anything entails.”
In the news report, the DEA source also predicted that, as the result of this decision, every Rite-Aid in California will be dispensing medical marijuana by year’s end.
Why now? “Marijuana enforcement is a big drain on DEA resources,” the source said.
Fair enough. But that has been the case for years and years.
Another answer might just be that the time is right. It is not as if the DEA is springing a reclassification on anyone, if the report is true, that is. As we’ve already noted, DEA officials back in February said they were reconsidering the Schedule I classification for marijuana.
Another contributing factor might be that the DEA wants to make the decision before a new US president arrives is sworn into office in January 2017. Maybe there are too many unknowns. Presumptive Republican nominee Donald Trump, for example, has long said he approved of decriminalizing cannabis and that he supported federal legalization. But in recent months, he has flip flopped.
Incidentally, it seems the DEA does have the authority to reclassify cannabis and make it legally available by prescription, even without congressional interference. That’s because the DEA has the authority to make and change drug classification rules. Again, we await comment and expert analysis on this and other aspects of this developing story.