Colin McCallin Aug. 24, 2016

On August 11, the DEA ruled to not reclassify marijuana from a Schedule I drug to a less restrictive class. What does this mean for states which have medical and/or legal marijuana?

What are the Scheduling Categories?

There are five scheduling categories for controlled substances in the United States.  Schedule I is the most restrictive category. Schedule I drugs also include heroin and LSD; moving marijuana to Schedule II would put it in the same category as fentanyl, cocaine, meth and Vicodin among others. It’s frankly hard to imagine marijuana in this dangerous category much less the highest level. But the categorization is not so much based on a drug’s danger as its effective medical use.

Schedule I means that there is no currently acceptable medical use and a high risk for abuse. Schedule II drugs also have a high potential for abuse but possess some medical benefit. Schedule III drugs only have a moderate risk of abuse and include ketamine, Tylenol with codeine and testosterone. Schedule IV is considered an even lower risk and includes Xanax, Darvocet, Valium and Tramadol. Finally the least risky category is Schedule V and this covers drugs like Robitussin with a lower level of codeine and Lyrica.

This list reveals how differently the DEA views marijuana from how most people and many state governments now view it.

Why Change the Category?

The main argument to reclassify marijuana is to broaden research. The catch-22 of keeping it classified in Schedule I is that any medical benefit it could have is less able to be proven by scientific research. However, in deciding to keep marijuana in the first category, the DEA made a research exception, finally allowing an increase in the federal supply specifically for research.  However, the federal supply is very limited, and research can only be done in a small number of laboratories. While this may increase the amount of medical inquiry, many say it is not enough and changing the categorization would benefit medical research more and faster.

But another area where a less restrictive category would be beneficial concerns banking in states where it is legal, medically or recreationally. Currently, federally regulated banks shun working with dispensaries for fear of losing their federal protections. Less restrictive categorization may have permitted more dispensaries and banks to work together with less fear. And this in turn would benefit the banking industry and keep marijuana businesses safer as they would have smaller amounts of cash on hand. A lower classification would also mean businesses could take advantage of certain tax deductions, which they cannot do now.

Why Keep It in the Highest Category?

There are several claims as to why the DEA refused to make the change. One is the lack of research on the medical benefit. Another is the widespread use. Ironically, this plays into the idea that it is a highly addictive substance in the eyes of the DEA, despite the fact that half the states now allow for medical use. Others say that the DEA is simply behind the times and staffed with old school drug warriors.

The fact is scheduling is based on strict guidelines that marijuana simply does not meet at the moment. It is hoped over time that the research exception leads to more widespread and well controlled studies proving medical benefits that only smaller studies have shown so far. There is also a risk that reclassifying marijuana into a lower category will have international implications, since the US is part of several international treaties regarding drugs.

In the end, while keeping marijuana in the highest category feels like a defeat to marijuana advocates, it is really only a small and symbolic loss. The DEA clearly sees the need for more research and state-by-state attitudes and laws are changing. Further, the 9th Circuit Court recently ruled that federal prosecutors can’t pursue marijuana cases in states with medical marijuana laws as long as state law was not violated. Some say that congress may eventually reclassify marijuana anyway. Regardless of the DEA, changes in marijuana regulation will continue to quickly evolve and federal legalization is simply a matter of time.