Rescheduling Cannabis Is Pointless

The discussion of “rescheduling” marijuana is confused because most of the people engaged in it don’t know how the law works.

Jacob Sullum, always willing to let his ignorance be the measure of other people’s knowledge, utterly unwilling to let mere facts get in the way of libertarian ideology, and eager to please his paymasters by slagging a Democratic President, illustrates my point in his response to the latest CNN Obama interview.

Rather than reviewing the bidding about who said what, let me simply lay out the actual state of affairs.

The Controlled Substances Act is a law. It cannot be changed by administrative fiat. That law provides that any substance with abuse potential be put into one of five schedules. Schedule I is for drugs without accepted medical use. Schedules II-V are for drugs with accepted medical use but with abuse potential, with less abusable drugs placed in the lower schedules. Alcohol and tobacco, both highly abusable drugs with no accepted medical use, would be Schedule I, but they are explicitly exempted in the text of the law:

The term [controlled substance] does not include distilled spirits, wine, malt beverages, or tobacco.

“Marihuana,” by contrast, is placed by name in Schedule I. That placement tracks its treatment in the international conventions governing drug policy.

Yes, authority to reschedule cannabis lies with the Administration. If the DEA Administrator decided that the drug had “accepted medical use,” that would move it to Schedule II, making cannabis legally available by prescription. Selling it without a prescription would remain the same crime it is today. (Recall that cocaine and methamphetamine are Schedule II drugs.)

But prescriptions can only be written for FDA-approved drugs. And the FDA can’t approve “marijuana,” because “marijuana” isn’t something that can be put through clinical trials. The New Drug Application would have to be for a specific cannabis preparation, to be given in a specific dosage regimen via a specific route of administration for the treatment of a specific condition. That “new drug” could be a single molecule a combination, an herbal preparation, or an extract. In any case, it would have to have a known and reproducible chemical composition and be produced using “Good Manufacturing Practice.” Producing cannabis without FDA approval would still be the illegal manufacture of a Schedule II controlled substance.

So administrative rescheduling would not make “medical marijuana,” or any other kind, legal at the federal level. Its practical effect would be identically zero.

What’s actually needed in the way of administrative action is to get the DEA and the Public Health Service out of the way of medical research, by breaking the University of Mississippi monopoly on research cannabis and eliminating the requirement that researchers using cannabis (but no other controlled drug) have the material “granted” to them by a federal agency rather than just going out and buying it. The Obama Administration can and should be criticized for not having taken those steps.

But “rescheduling” is a red herring dragged across the trail of policy reform.

Update Tom Angell’s feelings are hurt because I was mean to poor widdle Jacob Sullum. And he insists that I mention that, if marijuana were downscheduled to Schedule III rather than Schedule II (a scheduling decision that wouldn’t make much sense, given that something more than 2 million people in the U.S. meet diagnostic criteria for cannabis abuse or dependency at any one time), marijuana sellers would be able to deduct their business expenses in calculating their federal income taxes. Since that trivial impact on the cannabis problem isn’t the same as “identically zero impact,” Angell demands that I retract.

OK. Rescheduling to the appropriate schedule would have identically zero impact, but excessive downscheduling could somewhat increase the after-tax incomes of marijuana retailers and perhaps lead to slightly lower retail cannabis prices in state-legal stores.

[Cross-posted at The Reality-Based Community]

Mark Kleiman

Mark Kleiman is a professor of public policy at the New York University Marron Institute.