The DEA's Decision Not to Reclassify Marijuana Means Almost Nothing

08/18/2016 10:32 pm ET Updated Aug 19, 2017
Medical marijuana. Used by patients with varying health symptoms. This is a Cannabis Sativa, also known as Skunk.
Medical marijuana. Used by patients with varying health symptoms. This is a Cannabis Sativa, also known as Skunk.

In the wake of the DEA's decision against rescheduling marijuana, the super-majority of the American people who support legalizing medical marijuana might properly wonder, "How bad is this news?"

As the leader of the largest marijuana-policy-reform organization in the nation, my answer might surprise you: It barely mattered which way the DEA ruled.

Back in 1970, Congress and President Nixon placed marijuana in Schedule I, along with LSD and heroin, defining these drugs as having no therapeutic value and a high potential for abuse. Simultaneously, drugs like cocaine and methamphetamine were placed in Schedule II, which are defined as having therapeutic value.

This "Flat Earth Society" view of marijuana has been challenged numerous times since 1970, but the DEA and federal courts have rejected all such attempts, including the Washington and Rhode Island governors' 2011 petition that the DEA just rejected.

To be sure, moving marijuana to Schedule II would have had symbolic value, showing that prohibitionists were wrong to stubbornly claim for decades that sick people were merely imagining or lying about the medicinal benefits they experienced. However, there are federal criminal penalties for marijuana possession that are imposed regardless of its schedule. Even if the DEA had moved marijuana to Schedule II, growing 100 marijuana seedlings would still land you in federal prison for a minimum of five years.

But rescheduling marijuana would not have allowed doctors to prescribe marijuana nationwide. Coca leaves, from which cocaine is derived, are listed in Schedule II, but physicians cannot prescribe coca leaves -- and pharmacies cannot sell these leaves -- because no one has moved coca leaves through the FDA approval process to make them available by prescription.

For marijuana (or any drug) to become available by prescription, you need to conduct FDA-approved clinical trials that demonstrate that a particular strain of marijuana is both safe and effective. If you were successful in doing so, that particular strain of marijuana would be available by prescription in pharmacies nationwide -- not just in the 25 medical marijuana states.

While dozens of FDA-approved studies have shown that marijuana has medicinal value in the treatment of cancer, multiple sclerosis, epilepsy, AIDS, and pain,
the problem is that no single, reproducible strain of marijuana has moved all the way through the FDA approval process. As such, the FDA must claim that marijuana hasn't yet been proven to have medical value, which led the DEA to conclude the same thing. To be fair, the DEA did announce that they will end NIDA's monopoly on marijuana grown for research purposes, which could help lead to the types of research the FDA is seeking.

Next year, the FDA is expected to approve the first formulation of marijuana-derived cannabidiol -- known as "Epidiolex" and patented by GW Pharmaceuticals in England -- for physicians to prescribe to treat chronic seizures. This will be good news for epilepsy patients, but this won't legalize medical marijuana in all its forms; relatedly, this FDA approval of one specific combination of molecules won't affect the legal status of the hundreds of other marijuana strains that are legal in 25 states.

So, contrary to common belief, if the DEA had rescheduled marijuana -- or if the FDA approves Epidiolex as a prescription medicine -- it's not that important. The FDA wouldn't have the authority to raid medical marijuana dispensaries (and the FDA doesn't have its own cops anyway). And even if the DEA had rescheduled marijuana, it could still raid the thousands of businesses that are growing or selling marijuana legally under various state laws.

Also contrary to common belief, federal law doesn't trump the state laws that allow marijuana to be used for medical or social use in 25 and four states, respectively. Federal law specifies that state governments have the authority to determine their own criminal penalties for state and local courts to mete out. At the same time, the federal government can -- and does -- impose its own set of penalties, which are meted out in federal courts.

State and federal laws are simply two coexistent systems. But 99 percent of all marijuana arrests are made under state and local laws, not federal law. There simply aren't enough DEA agents and other federal enforcers to wage an inclusive war on marijuana users, and the federal government cannot require states to enforce federal law on behalf of the federal government.

Back to rescheduling: The one benefit of moving marijuana to Schedule II is that it would reduce the amount of paperwork that clinicians must fill out in order to conduct research. But, even so, if you want to study marijuana with human subjects, you still need approval from the FDA, the DEA, and the Institutional Review Board of the institution where you want to conduct your research -- regardless of what Schedule marijuana is in.

So we don't really care whether marijuana is in Schedule I or II. In fact, my organization and other advocates of marijuana legalization don't desire rescheduling, but rather the removal of federal penalties for marijuana and, furthermore, an explicit recognition that states should be able to determine their own policies without federal interference.

In other words, we seek to have the federal government treat marijuana like alcohol. And if that includes a federal marijuana tax that parallels the existing federal alcohol tax, then so be it.