President Biden took two historic actions to "end" the federal government's "failed approach" to marijuana shortly before last year's midterms. He granted mass pardons for federal convictions of simple marijuana possession and urged governors to follow suit for state-level offenses. Additionally, he directed Xavier Becerra, the Secretary of Health and Human Services, to swiftly initiate the administrative process to review the scheduling of marijuana under federal law.
Many characterized the announcement as primarily political, not a significant shift in policy from an administration that has never fully supported marijuana reform (which we anticipated before the 2020 election). Regrettably, since then, no actions have been publicly taken to re-schedule or downgrade the classification of marijuana. The Controlled Substances Act continues to list it as a Schedule I substance. Despite the FDA's approval of Epodiolex, the federal government continues to view marijuana as a drug with a high potential for abuse and no therapeutic value.
The Legal Difference Between Re-Scheduling and De-Scheduling
Cannabis is under the Schedule I drug category, a Controlled Substances Act subgroup. It implies that cannabis is deemed to have no recognized medicinal purpose and a high chance of abuse. Hence, marijuana re-scheduling and de-scheduling have serious consequences.
If the federal government de-schedules cannabis, it means cannabis would be removed from the entail list of banned substances, implying that it would no longer be unlawful under federal law. This would allow each state to decide how to control cannabis independently, like how alcohol is already handled. This might lead to states having marijuana laws with some federal oversight and control, similar to how alcohol is regulated.
On the other hand, moving cannabis to a different schedule under the Controlled Substances Act is known as re-scheduling. This would alter its classification and impose new restrictions and regulations. Re-scheduling marijuana would keep it under the Controlled Substances Act but allow consumer access based on specific criteria.
For instance, shifting cannabis from Schedule I to Schedule II would acknowledge its medical potential and foster more research on pharmaceuticals. A prescription from a licensed physician is required for most controlled substances. However, it may also raise regulatory hurdles and costs for cannabis producers.
The Practical Difference Between Re-Scheduling and De-Scheduling
This is a crucial matter. Existing marijuana operators have a strong preference for de-scheduling rather than re-scheduling. If de-scheduling happens, these operators would probably continue to function similarly to how they operate now, with a regulatory framework similar to alcohol.
The regulations governing the newly de-scheduled cannabis industry would mainly be based on current state laws, and the interstate commerce of marijuana would probably become legal after fifty years. Additionally, federal oversight in this industry could provide much-needed consistency and assurance nationwide, particularly in advertising restrictions, labeling, testing mandates, and food-related items.
If marijuana is re-scheduled as a controlled substance, there could be a need for stricter FDA regulations that marijuana companies must comply with. Additionally, physicians may still face uncertainty about whether they can prescribe marijuana.
Compliance with FDA requirements can be expensive, including costs associated with research, development, and testing, and this could potentially result in existing marijuana operators being priced out of the market. If marijuana is re-scheduled to a Schedule II or III substance, it's possible that it could be brought to consumers through larger pharmaceutical companies. For instance, AstraZeneca might introduce Kush Kontrol!
Depending on whom you ask, the possibility of Big Pharma gaining control over the marijuana industry could have advantages and disadvantages. The positive aspect is that large pharmaceutical corporations possess the resources to conduct advanced clinical trials and manufacture mandatory products to be safe and efficient for consumers. However, this may lead to negative repercussions for current marijuana operators, as handing over the industry to pharmaceutical firms would go against how it has evolved and could endanger the survival of numerous existing operators.
Not The Only Player
Big Pharma wouldn't be the solitary significant player in a cannabis industry that has been de-scheduled or re-scheduled. A week ago, the Wine & Spirits Wholesalers of America (WSWA) publicly stated that "it's time for Congress to legalize and regulate adult-use cannabis comprehensively at the federal level." The WSWA lays out the case for federal legalization and regulation by outlining what it refers to as the "Four Principles of Safe and Responsible Adult-use Cannabis Regulation" in its memo. These four principles include:
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Authorizing the production, importation, testing, and distribution of cannabis
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Regulating and approving cannabis products
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Facilitating the collection of federal excise tax in an efficient and effective manner
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Implementing measures to guarantee public safety
Although the Wine & Spirits Wholesalers of America's proposal acknowledges the existence of a "shared state-federal regulatory structure," it places a more significant portion of the regulatory responsibilities for a federally legal cannabis industry in the federal government's control rather than individual states.
Ultimately, many hold on to the belief that this could be merely an academic exercise in the short term. It seems that neither Congress nor the White House is inclined to modify marijuana's legal status. However, this perception is incorrect, any potential changes could have far-reaching and significant implications.
Conclusion
President Biden's announcement before the 2020 election to review the scheduling of marijuana under federal law was met with skepticism as no significant policy shift has been observed since then. For current operators and users, the contrast between de-scheduling and re-scheduling cannabis under the Controlled Substances Act has important practical ramifications.
The Wine & Spirits Wholesalers of America's recent bill for federal regulation and legalization of adult-use cannabis could shift legal functions to the federal government instead of individual states, even though Big Pharma may gain control over the cannabis industry through re-scheduling. Notwithstanding the current political stagnation, any prospective modifications to the status of marijuana legalization could have profound and far-reaching effects.
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