A Brief History of The DEA’s Battle Against Cannabis Rescheduling

Marguerite Arnold

June 5th, 2017

Policy, Top News

There is another bill in Congress to reschedule marijuana. The bill, introduced in the House of Representatives in April by two Florida representatives Matt Gaetz (R) and Darren Soto (D) would reschedule cannabis as a Schedule III drug. It would do so by amending the Controlled Substances Act. Similar bills have been introduced and even debated in Congress every session of this decade. It is also not the only bill this session to address the issue.

DEA rescheduling of cannabis has been a hot topic for years. For two generations in fact. Ever since 1972, repeated efforts have been made to change the classification of a drug for which there was always evidence of medical efficacy. And ever since that time, those efforts have failed. They have failed at the agency itself. However they also foundered at the executive and legislative level. Today, this ongoing history of denial has become a focal point if not urgent drumbeat for action for reformers if not the growing industry. Even the agency’s own classification system works against its stand on cannabis at this point.

However, there is another subtext to this conversation. The Controlled Substances Act has also never worked the way it was intended to – certainly when it comes to pot. The CSA does two things. It provides a classification system for medical drugs. It also provides a process mechanism to remove a substance from this scheduling by petition. By 1995, the original petition filed in the early 70’s lost its numerous court challenges to remove cannabis from its Schedule I classification. At that point a new petition, also bound for failure, was filed by High Times. Subsequent appeals filed in 2002, 2009 and 2011 by advocacy groups and legislators also failed.

That said, in 1985, as a direct outcome of such appeals, synthetic THC known as dronabinol was rescheduled to a Schedule II and later as a Schedule III drug. The main reason? AIDS.

Since even 2010, the entire marijuana world has shifted dramatically. However the federal DEA maintains its stance at a time when the majority of U.S. states have taken another road. There is more and more evidence of the real medical efficacy of the drug. Further, the enormous lengths the U.S. federal government has gone to deny this fact are no longer effective. Why a government that has even funded medical trials (particularly in Israel and Canada) would deny such results has been a growing hypocrisy that these days is more easily contested with hard science – including from these countries. At this point, there are over 50 years of medical data supporting the contention that marijuana does have medical efficacy. Further, there is even more research as of this century, that shows how and where cannabis can either abate symptoms or cure conditions no other drugs can.

In the interim, every president from Nixon to Trump has also been faced with this issue, one way or another. Most have relied on the knowledge that while the DEA fiddled, Congress would never move to force the issue. President Obama, despite his initially cannabis-friendly rhetoric on the campaign trail, oversaw a ramped up federal raids in the states in his first term, and moved reluctantly even to allow a legalization platform on the national level. He also appointed one of the most reactionary, anti-marijuana bureaucrats in Washington to head the agency. From 2009-2015 in fact, Michele Leonhart, who Obama inherited from Bush, led a series of blunders that not only exacerbated an already difficult situation on cannabis but later embarrassed the entire agency.

However, it was during Obama’s term that this situation began to change.

Fast forward to today, and the situation is decidedly different.

What Rescheduling Means & What It Accomplishes

There are several reasons why rescheduling cannabis has become the next “low hanging” fruit of reform on a federal level.

The first has nothing to do with patients and everything to do with states’ rights. Whether or not they personally support cannabis consumption, everyone from citizens to state legislators is getting tired of defending state-legal and legitimate businesses from federal raids and prosecutions. The Rohrabacher-Farr amendment passed in 2014 and further federal court decisions appeared to have put this issue to bed two years ago.

However, everything changed with the election of Donald Trump. Despite saying his administration supports state reform, his new Attorney General Jeff Sessions has made ominous statements since appointment to the federal Justice Department earlier this year. The marijuana industry in every state is beginning to get worried. They are not the only ones. In fact, Congress has already explicitly extended the ban on DEA state raids through the end of 2017. However, the fact that Congressional action was again required on an issue many assumed was now dead, has revitalized federal efforts to force decriminalization of the drug permanently.

What rescheduling would also do is move the industry into a different place – and at every level. It is also clear that the DEA is continuing to reschedule other medicines containing THC while leaving decisions about the whole plant alone. In March of this year, in fact, the agency signalled that the liquid form of dronabinol will be reclassified as a Schedule II. However on a biochemical level, what this means is that the DEA considers pill forms of the synthetic form of the drug a Schedule III, the liquid form a Schedule II and the raw plant a Schedule I. This is not what “scheduling” was intended for. It is also not how the drug works. Further, the idea that the chemicals in the plant would somehow be dangerous but a processed medication is a different animal sounds like a dog that won’t hunt anymore.

A reform of this process, as part of legalization, would not only change the issues the marijuana industry is having to face. It would change the industry for the better.

The second issue that would immediately raise its head after rescheduling is the coverage of medical cannabis under health insurance – starting at the Department of Veteran’s Affairs. In Germany and Canada right now, this is exactly the conversation on the table at the moment. And while insurers are not rushing to the plate, both legal decisions and national legislation are pushing them there. There is no reason why this would be any different in the United States. However, it will require federal rescheduling to even begin this conversation.

Rescheduling would also remove the remaining largest roadblocks put in the way to date of wider acceptance and medical use of the drug. This starts with the ability to use regular banking services to buy the drug, since dispensaries would finally be able to transact in a tender other than cash.

The other place rescheduling would make a difference of course is institutional investment in both the medical and recreational side of the industry. Until there is federal rescheduling, larger investors will avoid the vertical. Once federal reform occurs, not only will larger pools of money move into a burgeoning high tech industry. The volume of the industry itself at that point will be so large that more tests, trials and studies will be funded to understand how the drug interacts with the human body.

The Future From Here

The big fight over scheduling that is going on in most countries right now is actually the issue of approving either “whole plant” medication or only processed drugs containing cannabinoids. On the face of it, this is scientifically if not economically dubious.

Most industry experts and analysts expect the United States to reschedule cannabis sometime between now and 2020. This will happen much faster if Congress wants to find a way to send a message to Donald Trump. However, even if a rescheduling bill is passed in this session of Congress, it is unlikely to see much implementation before the next presidential election.

That said, the stage is certainly set for the federal government to finally reschedule a drug which is on the verge of fundamentally changing the face of modern medicine globally.

About Marguerite Arnold

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