US President Joe Biden announced that his administration is taking significant steps to reclassify marijuana under federal law. In a statement released via his official X account, Biden emphasized the need for this change due to the disproportionate impact of the current classification on American lives and the inconsistency with how other, more dangerous drugs are regulated.
“Too many lives have been upended because of our failed approach to marijuana,” Biden stated. “Right now, marijuana has a higher-level classification than fentanyl and methamphetamine – the two drugs driving America’s overdose epidemic. That just doesn’t add up.”
The move, led by the Department of Justice (DOJ) and guided by recommendations from the Department of Health and Human Services (HHS), aims to reclassify marijuana from a Schedule I to a Schedule III drug. This reclassification would acknowledge the drug’s medical uses and reduce the regulatory barriers that have hindered research into its potential benefits.
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“At my request, and guided by science and evidence, HHS and DOJ have studied the drug’s medical use and abuse and dependency potential and are recommending rescheduling – concluding reclassification would remove barriers to critical research,” Biden added. “No one should be in jail just for using or possessing marijuana.”
The announcement builds on Biden’s previous actions, including the pardoning of a record number of federal offenses for simple possession of marijuana. He reiterated his commitment to addressing the injustices caused by previous marijuana policies.
The Office of Legal Counsel (OLC) recently published an opinion supporting the reclassification. The opinion argues that the current approach used by the Drug Enforcement Administration (DEA) to determine a drug’s medical use is too restrictive. It supports a new two-part inquiry proposed by HHS, which would establish a drug’s medical use based on widespread medical experience and credible scientific support.
The OLC concludes that the DEA’s existing five-part test for determining a drug’s currently accepted medical use in treatment (CAMU) is “impermissibly narrow.” Instead, the opinion suggests that a drug can be deemed to have a CAMU if it meets the two-part criteria recommended by HHS: widespread current medical use and credible scientific support for at least one of its medical applications. This conclusion holds even if the drug has not been approved by the Food and Drug Administration (FDA) and does not meet the DEA’s five-part test.
The opinion further clarifies the roles of HHS and the DEA in the reclassification process. While HHS’s recommendations on a drug’s medical use are binding on the DEA until formal rulemaking begins, they are not binding thereafter. However, the DEA must still give significant deference to HHS’s scientific and medical findings during the rulemaking process. The Controlled Substances Act (CSA) does not permit the DEA to re-evaluate HHS’s findings de novo once rulemaking has started.
Additionally, the opinion addresses concerns about international treaty obligations, specifically the Single Convention on Narcotic Drugs. It concludes that neither the Single Convention nor the CSA necessitates marijuana’s classification in Schedule I or II. Instead, both frameworks allow for the drug to be placed in Schedule III, provided that additional regulatory controls are implemented to bridge any modest gaps between the treaty’s requirements and the specific restrictions of Schedule III.
“In sum, DEA may satisfy the United States’ Single Convention obligations by placing marijuana in Schedule III while imposing additional restrictions pursuant to the CSA’s regulatory authorities,” the opinion states.
The US Cannabis Council also called the reclassification a “necessary and critical step” toward full federal legalization.
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