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self-study / Administrative/Regulatory

Sep. 18, 2023

Beyond rescheduling: reimagining cannabis policy for a more just society

Allison B. Margolin

Allison B. Margolin PLC

Email: allison@allisonmargolin.com

Allison is a founding partner of Allison B. Margolin PLC. The firm represents and advises cannabis businesses and individuals on compliance, licensing, zoning, criminal defense, and other matters at the local, state, and federal levels.

Warren Arndt

Law Clerk, Allison B. Margolin, PLC

Although the rhetoric around rescheduling marijuana is a positive sign, the notion of rescheduling cannabis to a lower schedule - which has been tossed around by the Biden administration - does nothing to correct the injustices created by the war on drugs nor does it prevent them from continuing.

On Oct. 6, 2022, the White House released a "Statement from President Biden on Marijuana Reform," in which President Biden enumerated three steps that his administration would be undertaking in order to end the government's "failed approach to marijuana."

Steps 1-2 of President Biden's Statement were a pardon for all previous Federal charges for simple possession of marijuana, an order for the Attorney General to initiate such processes necessary for these pardons, and a formal request that all state Governors do the same in regards to state convictions.

The third and final step of President Biden's statement is a request for the Secretary of Health and Human Services (HHS) and the Attorney General to begin a systematic review of marijuana's status as a Schedule I substance under federal law. President Biden justified how this step would be constructive towards a new, more successful, approach to marijuana by remarking that the Schedule I designation is meant to be reserved for "the most dangerous substances." ("Statement from President Biden on Marijuana Reform," whitehouse.gov, Oct. 6, 2022.)

Congress, as well as the Attorney General (who directs the Drug Enforcement Administration (DEA), each have unilateral authority to reschedule drugs. HHS - a Cabinet position - would be involved in the administration of any cannabis medicine if it were rescheduled. On a good note, as the HHS memo says, rescheduling to Schedule III would allow those who use medical marijuana (not recreational) to be eligible for firearms, public housing, and visas. Incredibly, now using medical marijuana is a basis to be denied public housing (just one of many contributions to homelessness).

On a mixed note, attorneys who currently face repercussions from financial institutions who will not hold their accounts if they advertise to the cannabis industry or take funds from cannabis businesses, even those legal under state law, would be able to advise legally regarding medical marijuana. This is better than the current status but not wonderful, as most cannabis activity in California involves recreational, as well as medical licensing (medical marijuana activity generally is allowed if recreational is allowed).

The federal law which President Biden makes reference to in his aforementioned statement is the Controlled Substances Act (CSA), passed in the early 1970's, which has laid the framework for the crusade against drugs - which the US government has championed since. The CSA places all substances which fall under federal regulation into one of five Schedules of varying severity. The Drug Enforcement Agency (DEA) has final say in all substance scheduling and rescheduling, which they determine based on their own multi-criteria evaluation. (Dea.gov/drug-information/csa).

Two substances which are significant both in their cultural relevance and that they are exceptions to the regulatory classifications of the CSA and DEA are alcohol and tobacco. Although it has been widely accepted for some time that both alcohol and tobacco pose significant health risks, potential for abuse, and have nearly no contemporary medical appeal, these two substances have managed to carve out a niche existence of declassification whilst still having federal, state, and sometimes even county regulations existing simultaneously without being at odds with each other.

In the final days of August 2023, Bloomberg News reported that their journalists had seen a letter from a top official at the HHS that was given to an administrative head at the DEA recommending that marijuana be rescheduled under the CSA as a Schedule III Substance. A DEA spokesperson later confirmed to the same source that their department had in fact received such a letter of recommendation from the HHS.

Many have applauded the administration's efforts to make up for the injustices of the drug war, Marijuana stocks have shot up at the news ("US Health Officials Urge Moving Pot to Lower-Risk Tier," Riley Griffen, Ike Swetlitz, and Tiffany Kary, Bloomberg News, Aug. 30, 2023), and investors in the space are excited at the potential ease on banking, insurance, and tax relaxations that would be implied under Section 280 of the Internal Revenue Code were such a rescheduling to be approved. ("What rescheduling to Schedule III would mean for the cannabis industry," Alex Malyshev and Sarah Ganley, Reuters, Sept. 12, 2023.)

While the optimism around this potential imminent step forward is certainly tangible in the public discourse, many others who have worked for years embedded in the intricacies of existing marijuana regulations have highlighted the numerous problems with the rescheduling proposition.

One main problem with the HHS's recommendation to reschedule marijuana to the DEA is only that: a recommendation. Although the FDA conducts its own eight-part evaluation of substances, and this is what the HHS relies upon for its recommendation; the DEA, on the other hand, disregards the results of these FDA evaluations and conducts its own five-factor test according to its own criteria. In fact, this is not the first time that the federal rescheduling of marijuana has been brought to the DEA's attention, far from it. The DEA has, on four prior occasions, including as recently as 2016, reevaluated marijuana according to their criteria and each time determined that it fails to meet a single one of the five criteria. Additionally, the DEA has made the claim that international treaty obligations prevent marijuana from being labeled federally as anything other than Schedule I or Schedule II. (Report: "Leaked HHS Letter Calls Upon DEA to Reschedule Cannabis," NORML, Aug. 30, 2023.)

One misconception many optimists of rescheduling discuss is that marijuana's Schedule demotion would result in a mass liberation of opportunities to conduct clinical research on the plant. Unfortunately, the federal restrictions which heavily restrict the limitations around marijuana research are regulations specific to cannabis and not overarching restrictions on Schedule I substances -- therefore any rescheduling of marijuana, or anything else less than repealing the specific research restrictions on marijuana, would do little if anything to catalyze the creation of any substantive research data.

Aside from these issues, there is one central problem with the rescheduling of marijuana that would continue to exist even if these other factors did not; any rescheduling of marijuana would mean it remains under the umbrella of the CSA, the groundworks of which are wholly incompatible with the established state-legal structures. Marijuana as a botanical plant is organically inconsistent with any classification, I-V, under the CSA. The state-legalization of medicinal marijuana has generally been a predecessor to the acceptance of recreational approval, and this has grown as a local reaction directly in response to the egregious and non-effective drug policies of the federal government. These existing local systems grew out of the failures of the DEA and CSA, and will continue to clash directly with these federal restrictions no matter which Schedule marijuana falls under.

The most successful state legalization projects have treated marijuana much more as an unscheduled substance like alcohol and tobacco, where the specifics of the law and its enforcement can vary to the county level, as opposed to the broad pharmacy-based framework of the CSA. In December 2018 Congress enacted legislation which designated cannabis-crops which fell below the 0.3% THC threshold to be exempt from the CSA and effectively descheduled, leaving the regulation of such crops as one which could coexist with both federal and supplemental local regulation -- much like alcohol and tobacco. To entirely deschedule a plant which lacks a degree of THC potency, while keeping any plant above 0.3% as a Scheduled substance, is wholly nonsensical and unethical. ("How to End Marijuana Prohibition with Regard to the Controlled Substances Act," NORML)

While any progress towards freeing those unjustly in jail for marijuana, and to adjust public policy to account for the failures of the federal government of the past, is commendable, it also is certainly not immune from objective criticism. What sounds great can still be good, even if it's not as great as you might have been led to believe. In order to truly and expeditiously right the wrongs of the previous administrations, President Biden must advocate for the immediate de-scheduling of marijuana, and abolish the Controlled Substances Act. In order to allow for existing and successful legal markets to continue to survive and evolve.

The Controlled Substances Act is irrational to begin with. It creates five categories of drugs that are evaluated according to criteria. Meanwhile, "there is no data to support the notion that drugs are different in kind from any other thing, like food or sex, that may become the subject of an addiction." (Allison Margolin, Harvard Electronic Library, "On the Right to Get High," p. 14).

The Controlled Substances Act classifies drugs based on the drug's abuse potential, accepted medical use, and safety. Each drug is listed in a schedule, from I to V; drugs listed in Schedule I are absolutely prohibited, and those in II through V being allowed for limited uses. The lower the schedule number, the more tightly the FDA controls the substance.

For example, the substances listed in Schedule I have the following properties: high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety. Those listed in Schedule V, on the other hand, are characterized by a 'low potential for abuse' compared to drugs listed in the other schedules. They are recognized to have accepted medical uses in the United States. It is also noted that 'abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule IV.

The word "abuse" is never explicitly defined in the statute. ("On the Right to Get High," p. 14.)

The federal criminalization of drugs, via the criteria the FDA [Food and Drug Administration] uses to put drugs into different schedules, is illegitimate on scientific and philosophical grounds. The most contemporary developments in the study of drug use and drug addiction undermine the legitimacy of the FDA scheme (as embodied in the Controlled Substances Act of 1970); these developments suggest that addiction to a drug is a result, not a cause, of the psychological difficulties a person may be experiencing while using the drug(s). What is known about drugs suggests that the way a drug is experienced, including whether someone has an addictive relationship with a drug, depends on the "set" or "one's internal environment and personality characteristics," and "setting" and/or "the external social and physical environment."(Richard G. Schlaadt and Peter T. Shannon, Drugs: "Use, Misuse, and Abuse," Fourth Addition, Prentice-Hall, Inc., 1994, p. 4.)

Therefore, it is far more than the pharmacological properties of a drug - and those properties' impact on the neurochemistry of an individual - that are responsible for the way a drug is experienced. The FDA scheme ignores "set" and "setting;" it magnifies the role of the drug's pharmacological properties to the drug experience and conflates physical and psychological addiction. The FDA scheme is illegitimate, and through its use in controlling drugs, violates the right animating the spirit of the Constitution and our laws: to stimulate, control, and manipulate one's own brain and body. ("On the Right to Get High," Harvard Law School Electronic library.)

Recent developments in addiction theory only further undermine the scientific underpinnings of the Controlled Substances Act. Addiction is not passed down; trauma is. Abusing drugs can be a way of coping with trauma. As I wrote in "Just Dope, A Leading Attorney's Personal Journey Inside the War on Drugs," (North Atlantic/Penguin Books, 2022), "Epigenetic changes do not change the DNA that transmits genetic information; what they do is change the structures around the DNA so that this genetic information is read differently." (p. 27.)

"According to the tenets of epigenetics, traumatic experiences can affect the way your genes are expressed, turning off some genes and turning on others. Not only do these epigenetic changes affect the person who directly experienced that trauma; the changes also affect their children and their children's children. Also, I think they help one deal with high-stress environments in a way that reflects the upside of what may be a genetic modification caused by the trauma.

Parents who survived the Holocaust likely passed on more than PTSD to their children. In studies of the way that depression is passed down through the family tree, male mice who suffered extreme stress in infancy fathered female mice with "depression-like behavior."(Lance Dodes, "The Heart of Addiction," (New York: HarperCollins, 2002), 69.) "Even if the mouse mothers were stable and nurturing, and the traumatized fathers contributed nothing to child care, the mouse daughters showed signs of depression. This trait persisted for two generations, passing on to the mouse grandchildren."

Also even where substances are physically addicting like opiates and unlike cannabis, that fact does not mean that someone will become addicted to that substance. The most famous study on this is the Vietnam study wherein under 5% of Vietnam vets who returned to the States who had been using heroin in Vietnam continued to do so after. (Lee N. Robins, Darlene H. Davis, and David N. Nurco, "How Permanent Was Vietnam Drug Addiction?" American Journal of Public Health 64, suppl. 12 (1974): 38-43.)

In addition to undermining the validity of the CSA, the newest scientific research in epigenetic trauma should inform our federal policy in at least two major ways: 1) the federal government should decriminalize all drugs and pave the way for federally funded long term rehabilitation centers that focus on harm reduction and do not require sobriety; and 2) focus on garnering support for reparations and creating other federal programs that will allow people who have suffered because of the trauma the government has created. This includes the slavery of African Americans, Native Americans, and Japanese Americans, as well as the lynching and mistreatment of thousands of Asians Americans in Northern California and the Pacific Northwest. Additionally, we should address ongoing issues like mass incarceration of African Americans and Hispanics. These actions can begin to heal those people, and in doing so, create a society that values the lives of other humans, something that our mass shooting plague has shown is sorely missing from today's world.

#1362

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