After the Drug Enforcement Administration (DEA) proposed rescheduling marijuana under federal drug law and opened the issue up to public comments earlier this year, tens of thousands of people weighed in. While the overwhelming majority seemed to support loosening marijuana laws, prohibitionist lawmakers won’t go down without a fight.
In May, the DEA submitted a rule to the Federal Register, proposing to change marijuana’s classification under the Controlled Substances Act from Schedule I—drugs categorized as having “no currently accepted medical use and a high potential for abuse”—to Schedule III, meaning those with “a moderate to low potential for physical and psychological dependence.” With the change, marijuana would no longer be regulated as a dangerous substance akin to heroin or ecstasy and would instead be under the same rubric as testosterone and Tylenol with codeine.
A move from Schedule I to Schedule III would not mean full legalization or even be particularly close to that: While the change would open up the possibility that doctors could prescribe marijuana or its derivatives as medicine, it would still be regulated as a controlled substance, and anyone selling weed in states where it’s recreationally legal would still be running afoul of federal law.
The Department of Health and Human Services (HHS) first requested a rescheduling in August 2023, stating in a letter to DEA Administrator Anne Milgram that “marijuana has a currently accepted medical use in the United States.” In its new rule, the DEA said a change is “consistent” with the HHS’ view.
When an executive branch agency proposes a new rule, there typically follows a 60-day public comment period, in which members of the public can weigh in on the proposal. The public comment period on the rescheduling of marijuana was set to expire last week, and the DEA has posted 42,916 comments—with the overwhelming majority either supporting the measure or saying it did not go far enough.
According to an analysis by the Drug Policy Alliance, 29,750 comments, or 69.3 percent of the total, “support descheduling, decriminalizing, or legalizing marijuana at the federal level.” To reach this conclusion, the group searched all comments for dozens of key terms, like deschedule, decriminalize, and legalize it, then ran the results through ChatGPT to check for accuracy.
Headset, a cannabis industry data analytics company, conducted a similar analysis and found that 92.45 percent favored some sort of change in marijuana’s classification. Of that total, 61.7 percent “advocated for complete descheduling of cannabis” and 38.3 percent supported “rescheduling to a less restrictive category.”
“This comment period has shattered previous DEA records, surpassing even the highly contentious 2020 telemedicine rules that garnered approximately 38,000 comments,” the Headset report noted. “To put this into perspective, recent DEA proposals typically receive anywhere from a few hundred to around 1,500 comments, even on significant issues like scheduling new substances or adjusting production quotas for controlled substances.”
These numbers should be unsurprising: A Pew Research poll from March 2024 found that 57 percent of respondents said marijuana should be legal for both medical and recreational use, while another 32 percent favored only medical legalization.
The results paint a clear picture: Americans are ready for marijuana to no longer be completely illegal at the federal level. But of course, lawmakers are likely to drag it out as long as they can.
“The circumstances surrounding this proposed rule are unusual, and we are concerned by the process that led to this determination,” wrote Reps. Cathy McMorris Rodgers (R–Wash.), chair of the House Energy and Commerce Committee, and Brett Guthrie (R–Ky.), chair of the Energy and Commerce Subcommittee on Health, in a letter last week to Attorney General Merrick Garland and HHS Secretary Xavier Becerra.
McMorris Rodgers and Guthrie note that as recently as 2016, “Both the DEA and HHS agreed that marijuana continued to meet the criteria to be considered a Schedule I substance. In fact, HHS concluded that ‘[…]marijuana has a high potential for abuse, has no accepted medical use in the United States, and lacks an acceptable level of safety for use even under medical supervision.’ Less than a decade later, President Biden made a public statement on October 6, 2022…requiring HHS and the Department of Justice (DOJ) to begin the administrative process to quickly review marijuana’s scheduling status under federal law.”
The lawmakers are right that the DEA’s and HHS’ positions are a stunning about-face. But the government’s prohibitionist position has long been flimsy and stacked against reclassification. The DEA has long held that marijuana lacked “currently accepted medical use,” though the very fact of its Schedule I classification made research into its potential medical uses nearly impossible.
In its 2023 recommendation, HHS bucked this standard, instead concluding based on “widespread clinical experience” that there was “credible scientific support” in using marijuana to treat certain ailments. And as Reason‘s Jacob Sullum has noted, the Food and Drug Administration (FDA) approved drugs containing THC, the psychoactive component in marijuana, as far back as 1985, first on Schedule II before then being lowered to Schedule III.
While the government’s change of heart was almost certainly spurred on by Biden’s public insistence in 2022, the fact remains that its previous position was increasingly untenable, especially in the face of public opinion and the increasing number of states and territories that are legalizing marijuana for medical and recreational use. Rather than a troubling trend, a shift to Schedule III classification should be the bare minimum.
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