Regulators at the federal Drug Enforcement Agency (DEA) had an opportunity in 2016 to move marijuana into a less restrictive category of controlled substances. This could have ended the ongoing conflict between federal law, which considers the sale of marijuana illegal in all cases, and the laws of the states, almost all of which consider some form of marijuana legal. The DEA, however, rejected petitions to reclassify marijuana.
The agency based its decision on a scientific evaluation provided by another agency, the Department of Health and Human Services (HHS), which found that marijuana had no accepted medical uses. The main problem is that the HHS report is incorrect, but binding for DEA, leaving states and sick people in a precarious situation. The HHS assessment also violates the Information Quality Act, which is why today the Competitive Enterprise Institute today submitted an official “correction request” to HHS in an effort to set the record straight.
America has evolved on the question of marijuana. State lawmakers have updated their laws to reflect the opinions and needs of their constituents. Currently, 33 states and the District of Columbia have legalized medical marijuana and, of those states, eleven have legalized marijuana for adult recreational use. Yet Congress has remained stubbornly recalcitrant. Though several members of Congress have offered bills to address the issue, partisanship has thwarted all attempts to resolve the conflict between federal and state law.
Resolving this conflict, however, does not necessarily require congressional action, because the U.S. attorney general has the authority to reschedule controlled substances. Thus, instead of remaining a “schedule I” drug (along with heroin, LSD, and ecstasy), it could instead be moved to “schedule II” (alongside opioids) or even removed from the Controlled Substances Act altogether.
Rescheduling Marijuana Administratively
To administratively reschedule (or unschedule) marijuana, however, there’s a process that must be followed. The attorney general would need the DEA to first request a “scientific and medical evaluation” from HHS. The catch is that HHS’s scientific and medical determinations on controlled substances are binding. This is where the current problem started. In the case of marijuana, the scientific evaluation provided to DEA by HHS in 2015 asserted that there was “no currently accepted medical use in treatment in the United States…”
One could argue that the mere fact that most U.S. states, D.C., and four territories have legalized medical marijuana defies the conclusion that there is no accepted medical use for cannabis. But, if that isn’t enough, numerous medical organizations in the U.S. and internationally explicitly recognize medicinal uses of marijuana.
Not only is the HHS evaluation wrong about medical uses of marijuana, but also, as CEI’s request for correction alleges, it fails to meet the standards required for such a scientific assessment. Those standards are there for a reason—to protect people against unfounded rules and regulations. In particular, HHS ignored the requirement that influential scientific information disseminated by the federal government or used in a regulatory process be peer-reviewed. HHS, in fact, never peer-reviewed its scientific evaluation of marijuana. As such, it should not have been relied upon by DEA in making its determination about how or whether marijuana ought to be scheduled under the Controlled Substances Act.
What Happens Next?
HHS must withdraw its scientific evaluation of marijuana until it is peer-reviewed. The evaluation must take into account new scientific evidence, successfully complete peer-review, and then DEA can reconsider petitions to reschedule marijuana on the basis of HHS’s scientific evaluation. Under such circumstances, it’s unlikely the DEA would be able to reach the same conclusion it did in 2016. If that happens, it will be a two-fold victory. A regulatory agency would no longer get away with a shoddy assessment; and millions of Americans with health problems would have the option of exploring the benefits of medical marijuana without interference from the federal government.