Rumor has it that the Drug Enforcement Administration (DEA) plans to legalize marijuana any day now. Rumor also has it that Barack Obama is secretly a foreign-born Muslim and that the CIA had a hand in the attack that brought down the World Trade Center. Unfortunately, that first claim is about as likely to be true as the other two.
It is true that the DEA has not responded yet to a pair of petitions asking it to reclassify marijuana, which since 1970 has sat in Schedule I of the Controlled Substances Act (CSA), the law’s most restrictive category. Schedule I supposedly isreserved for drugs with “a high potential for abuse” and “no currently accepted medical use,” drugs that cannot be used safely even under a doctor’s supervision. It is doubtful that marijuana meets any of those criteria, let alone all three. But the DEA, which has wide discretion to interpret and apply the CSA criteria, has always insisted that marijuana must stay in Schedule I until its medical utility is proven by the sort of large, expensive, randomized clinical trials the Food and Drug Administration (FDA) demands before approving a new pharmaceutical.
While such studies have been conducted with marijuana’s main active ingredient (which is how Marinol, a capsule containing synthetic THC, was approved by the FDA in 1985), and are under way with Sativex, an oral cannabis extract spray, they have not been conducted with the whole plant. The DEA’s definition of “currently accepted medical use” creates something of a Catch-22, since marijuana’s Schedule I status, together with the government’s monopoly on the supply of cannabis for medical studies, makes conducting such research difficult. But there is little reason to think the DEA, having rejected three other rescheduling petitions, will change its mind now.
Even if the DEA did decide to remove marijuana from Schedule I, the result would not be, as the Santa MonicaObserver reported on June 18, “legalizing medicinal cannabis in all 50 states with a doctor’s prescription.” Staff writer Stan Greene’s article was based entirely on the claims of an unnamed “DEA lawyer” who said the agency intends to move marijuana from Schedule I to Schedule II on August 1, which he said “will have the effect of making THC products legal with a prescription in all 50 states.” A lawyer familiar with the CSA—let alone one employed by the DEA—would know that is not how the law works, because any cannabis-derived medicine would have to be approved by the FDA (based on the same kind of evidence the DEA has always demanded in response to rescheduling petitions) before a doctor could legally prescribe it.
Moving marijuana to a lower schedule would make research easier, especially if it were combined with competition in the provision of cannabis to researchers. A move to Schedule III or lower would make it possible for state-licensed marijuana suppliers to deduct their business expenses, thereby solving one of the newly legal industry’s major financial problems. Even a move to Schedule II would eliminate criminal penalties for marijuana ads and make publications that carry them officially “mailable.” At least as significant as the immediate practical effect, the federal government’s implicit recognition of marijuana’s medical value could have an important impact on the public policy debate at the national and state level.
But rescheduling would not by itself make marijuana legally available as a medicine. Even in the 25 states that let people use marijuana for symptom relief, patients and their suppliers would still be breaking federal law.