Justice Department Submits Proposed Regulation to Reschedule Marijuana

The Justice Department today announced that the Attorney General has submitted to the Federal Register a notice of proposed rulemaking initiating a formal rulemaking process to consider moving marijuana from a schedule I to schedule III drug under the Controlled Substances Act (CSA).

While moving to Schedule III is not what the industry, advocates and consumers want – which is to de-schedule, it is the most we can expect from the Biden administration.

In reading the Attorney General’s opinion on reschudeling, it is clear that the medical marijuana movement was a smart (and slow) way to convince the Justice Department and DEA that marijuana has benefits – which is necessary for the rescheduling to occur.  The AG’s opinion points out that over 40,000 doctors have stated in wriitng that marijuana may help their specific patients.

The rulemaking process has now started, and the public can comment.  The public comment period is at a minimum 30 days.  I expect it to be longer.  Click on the links below to view the Notice and the mechanics of rule making.

Marijuana has been classified as a schedule I drug since Congress enacted the CSA in 1970. On Oct. 6, 2022, President Biden asked the Attorney General and the Secretary of Health and Human Services (HHS) to launch a scientific review of how marijuana is scheduled under federal law. After receiving HHS’s recommendations last August, the Attorney General sought the legal advice of the Justice Department’s Office of Legal Counsel (OLC) on questions relevant to this rulemaking. In light of HHS’ medical and scientific determinations, and OLC’s legal advice, the Attorney General exercised his authority under the law to initiate the rulemaking process to transfer marijuana to schedule III.

The rescheduling of a controlled substance follows a formal rulemaking procedure that requires notice to the public, and an opportunity for comment and an administrative hearing. This proposal starts the process, where the Drug Enforcement Administration will gather and consider information and views submitted by the public, in order to make a determination about the appropriate schedule. During that process, and until a final rule is published, marijuana remains a schedule I controlled substance.

The notice of proposed rulemaking submitted by the Department can be viewed here, and the OLC memorandum regarding questions related to the potential rescheduling of marijuana can be found here.

Learn more about the rulemaking process here

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