By Paul Armentano

A memorandum issued this week by representatives of the U.S. Drug Enforcement Administration to several U.S. Senators indicates that the agency is finally prepared to respond, imminently, to a five-year-old petition seeking to amend marijuana’s status as a schedule I prohibited substance.

Under the U.S. Controlled Substances Act of 1970, the cannabis plant and its organic cannabinoids are classified as schedule I prohibited substances — the most restrictive category available under the law. By definition, substances in this category must meet three specific inclusion criteria:

1. The substance must possess “a high potential for abuse;”
2. It must have “no currently accepted medical use” in the United States; and,
3. The substance must lack  “accepted safety for use … under medical supervision.”

Substances that do not meet these criteria must, by law, be categorized in less restrictive federal schedules (schedules II through V) and are legally regulated accordingly. Alcohol and tobacco, two substances that possess far greater dangers to health than does cannabis, are not subject to federal classification under the Controlled Substances Act.

Federal law grants power to the U.S. Attorney General to reclassify a controlled substance if the available scientific evidence no longer supports that drug’s classification. In practice, however, this power has been delegated to the DEA, with input from both FDA and the Department of Health and Human Services. Federal law also allows third parties to petition these agencies to consider reclassifying controlled substances.

The petition now before the DEA was filed in 2011 by then-governors Christine Gregoire of Washington and Lincoln Chafee of Rhode Island. Other recent petitions, such as a 2002 petition filed by a coalition of marijuana law reform and health advocacy organizations, have been rejected outright by the agency. In 1990, the DEA set aside the decision of its own administrative law judge, who had responded in 1988 to a similar effort initiated by NORML, after he called for reclassifying the plant.

While it remains unknown how DEA will respond to this current rescheduling effort, it is apparent that reclassifying cannabis from I to II – the same category as cocaine – falls woefully short of the sort of federal reform necessary to reflect America’s emerging reefer reality.

Specifically, reclassifying the pot plant from I to II (or even to schedule III) continues to misrepresent the plant’s safety relative to other controlled substances such as methamphetamine (schedule II), anabolic steroids (schedule III), or alcohol (unscheduled), and fails to provide states with the ability to regulate it free from federal interference.

Further, the federal policies in place that make clinical trial work with cannabis more onerous than it is for other controlled substances — such as the requirement that all source material be purchased from NIDA’s University of Mississippi pot program — are regulatory requirements that are specific to cannabis, not to Schedule I drugs in general. Simply rescheduling cannabis from I to II does not necessarily change these regulations.

In addition, the sort of gold-standard, large-scale, long-term Phase III safety and efficacy trials that are typically necessary prior to bringing drugs to market are prohibitively expensive. As a result, trials of this kind are typically are funded by private pharmaceutical companies aspiring to bring a new product to market. In some cases, the federal government may assist in sharing these costs.

However, political reality dictates that neither entity is likely to pony up the tens of millions of dollars necessary to conduct such trials any time soon, if ever, regardless of the plant’s federal scheduling.

This is not to say that rescheduling cannabis would not have any positive tangible effects. At a minimum, it would bring an end to the federal government’s longstanding intellectual dishonesty that marijuana “lacks accepted medical use.” It would also likely permit banks and other financial institutions to work with state-compliant marijuana-related businesses, and permit employers in the cannabis industry to take tax deductions similar to those enjoyed by other businesses.

But ultimately, such a change would do little to significantly loosen federal prohibition or to make herbal cannabis readily accessible for clinical study. These goals can only be accomplished by federally descheduling cannabis in a manner similar to alcohol and tobacco, thus providing states the power to establish their own marijuana policies free from federal intrusion.