At one point earlier this year, it looked as though medical cannabis proponents would see marijuana rescheduled from Schedule I to Schedule III by the end of the year. That’s not going to happen now, thanks to a court case that has been pushed back till the end of January.
The Drug Enforcement Agency acquiesced to Health and Human Services earlier this year when they finally took up the latter’s recommendation to reschedule marijuana. The agency then came up with a proposed rule and submitted it for the required public comment period.
Under normal circumstances, a final rule is submitted shortly after public comments have closed. That is not the case this time around. Instead, there have been court challenges to the DEA’s decision-making process. We don’t know exactly what that process is, but court challenges seem to indicate that the DEA is not ready to move forward with rescheduling.
What It’s All About
The whole question of rescheduling came about a couple of years ago when President Joe Biden had a change of heart regarding marijuana criminality. He issued pardons to dozens of marijuana offenders and instructed HHS to review whether marijuana should be rescheduled. HHS agreed, sending the recommendation to the DOJ.
As a Schedule I controlled substance, marijuana is considered illicit in any form. That includes liquid THC vapes and similar products. Because marijuana is illicit, states do not have the constitutional authority to legalize medical cannabis. Instead, they have merely decriminalized it.
Meanwhile, Congress slipped through an appropriations bill rider some years ago, a rider that prevents the DOJ from investigating and prosecuting marijuana crimes in states that have decriminalized recreational and medical cannabis. All of this is necessary because marijuana is illicit.
Rescheduling to Schedule III removes the illicit status. Marijuana would become a regulated prescription medication similar to anabolic steroids, ketamine, and pregabalin. Washington could then control it the same way it does other prescription medications.
While It’s Tied Up in Court
Unfortunately, the medical cannabis industry is left in limbo while the case is tied up in court. That may not necessarily be a bad thing on its face. If and when rescheduling takes place, it is believed that a new regulatory regime will be an open door to corporate interests taking over medical cannabis.
Assuming that this is true, the rescheduling decision being tied up in court gives current industry players time to work out a strategy for defending against corporate monopolization. How successful that effort will be remains to be seen.
On a positive note, cannabis businesses currently unable to write off business expenses on their taxes would be able to start doing so following rescheduling. That is good news to companies like Salt Lake City Utah’s dispensary Beehive Farmacy. As a state-licensed pharmacy operator, Beehive operates two medical cannabis pharmacies in Salt Lake City and Brigham City.
They liken the tax benefits of rescheduling to the federal government giving them a raise. Being able to write off business expenses means a lower tax bill. And a lower tax bill means more money to put back into their businesses.
It’s Up to the Court
Whether or not marijuana is rescheduled is up to the court at this point. The DEA obviously has a decision in mind, but there are plenty of organizations who don’t trust that the decision will be a favorable one. Now it is up to the court to figure out where to go from here. Will marijuana be rescheduled? Ultimately, I think it will. It might just not happen as quickly as we thought it would.
