In the ongoing theater of state regulation, the Department of Health and Human Services’ (HHS) recent recommendation to reclassify marijuana from Schedule I to Schedule III under the Controlled Substances Act (CSA) has raised eyebrows. Is this change a meaningful stride toward personal freedom, or is it a nuanced adjustment that keeps the core power dynamics intact?
The Controlled Substances Act, found in 21 U.S.C. § 812, has long been a tool for the government to regulate substances, including marijuana. The proposed shift to Schedule III would change the legal standing of cannabis but would not remove the government’s role in its regulation. In essence, the state continues to hold the reins, albeit with a lighter grip. Further, cannabis is not excluded from the CSA like alcohol, “The term [controlled substance] does not include distilled spirits, wine, malt beverages, or tobacco, as those terms are defined or used in subtitle E of the Internal Revenue Code of 1986.” (§ 812(6))
The reclassification would open new regulatory pathways. For example, the federal government could establish a tax system based on THC content, similar to alcohol taxation. The Drug Enforcement Agency (DEA) might also introduce strict licensing requirements, which could disproportionately benefit larger corporations due to the complexities and costs of compliance. Additionally, the government could enact stringent marketing regulations, akin to those for tobacco.
However, the move to Schedule III would ease restrictions on cannabis research, potentially leading to FDA-approved medications. It could also positively impact the SAFE Banking Act by reducing legal risks and providing clearer regulations, thereby potentially attracting more institutional investment. Yet, it’s important to note that these are separate legislative efforts, and the success of one doesn’t guarantee the success of the other.
The HHS recommendation comes in response to President Biden’s call to reevaluate the federal status of marijuana. While some view this as progress, it’s crucial to recognize that Schedule III still subjects marijuana to federal oversight. Most cannabis-related activities would remain federally regulated, leaving the state with significant control over the sector.
The reclassification also doesn’t directly address longstanding issues of racial and class disparities in marijuana law enforcement. For instance, during her time as San Francisco district attorney, Kamala Harris oversaw more than 1,900 marijuana convictions that disproportionately affected minority communities.
President Biden, whose legislative history includes the controversial Violent Crime Control and Law Enforcement Act of 1994, announced a comprehensive pardon for prior federal and D.C. marijuana possession offenses in October 2022. However, the slow implementation of this pardon raises questions about the administration’s commitment to meaningful reform.
While government intervention can distort market dynamics, the proposed reclassification doesn’t fundamentally alter this reality. The state would still have the ability to withhold certain benefits from those with prior marijuana convictions, as the pardons do not include expungements, including the 1,900 convictions overseen by Kamala Harris that disproportionately affected minority communities. This continues to stifle the growth of small and minority-driven cannabis enterprises.
Based on past regulatory changes, full implementation could be a lengthy process. The reclassification would require a formal rule-making process, including public comment, which could take several months to a year. Subsequent federal and state regulatory adjustments could extend this timeline by another 1-2 years, making a 2- to 5-year timeframe for full implementation plausible.
In summary, while reclassification may appear as a significant leap forward, it’s more of a cautious step that doesn’t fully address the core issues. True progress would require not just rescheduling but descheduling marijuana, allowing for greater individual choice and market autonomy, free from extensive state control. Only such a comprehensive shift could begin to heal the wounds left by years of uneven marijuana criminalization.