DOJ plans to reschedule marijuana as a lower-risk drug

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By Alicia Wallace, Katherine Dillinger, Kevin Liptak and Jeff Zeleny, CNN

(CNN) — The Biden administration will move Tuesday to reclassify marijuana as a lower-risk substance, a person familiar with the plans told CNN, a historic move that acknowledges the medical benefits of the long-criminalized drug and carries broad implications for cannabis-related research and the industry at large.

The US Department of Justice is expected to recommend that marijuana be rescheduled as a Schedule III controlled substance, a classification shared by prescription drugs such as ketamine and Tylenol with codeine.

“The DOJ continues to work on this rule. We have no further comment at this time,” an administration official said Tuesday.

The move was first reported Tuesday by the Associated Press.

Attorney General Merrick Garland plans to submit a draft rule to the White House Office of Management and Budget as soon as Tuesday, according to a source familiar. The standard rulemaking process is lengthy, is subject to a public comment period, and could take months to complete.

An accepted medical use

For more than 50 years, marijuana has been categorized as a Schedule I substance — drugs like heroin, bath salts and ecstasy that are considered to have no accepted medical use and a high potential for abuse — and subject to the strictest of restrictions.

The expected recommendation comes after the US Health and Human Services department, following a thorough US Food and Drug Administration review at the direction of President Joe Biden, who in 2022 sent a letter to the Justice Department supporting the reclassification to Schedule III.

Last fall, members of the FDA’s Controlled Substance Staff wrote in the documents that the agency recommended rescheduling marijuana because it meets three criteria: a lower potential for abuse than other substances on Schedules I and II; a currently accepted medical use in treatment in the US; and a risk of low or moderate physical dependence in people who abuse it. The National Institute on Drug Abuse concurred with the recommendation.

Although marijuana has a “high prevalence of non-medical use” in the US, it doesn’t seem to elicit serious outcomes, compared with drugs such as heroin, oxycodone and cocaine, the researchers said. “This is especially notable given the availability” of products that contain very high levels of Delta 9 tetrahydrocannabinol (THC), the primary active compound in cannabis.

A booming industry

Twenty-four states, two territories and DC have legalized cannabis for adult recreational use, and 38 states allow medical use of cannabis products, according to data from the National Conference of State Legislatures. Since the first adult-use cannabis sale took place in 2014 in Colorado, cannabis has blossomed into a multibillion-dollar industry that has attracted the attention of multinational companies across sectors such as alcohol, agriculture, pharmaceutical and tobacco.

Moving marijuana out of Schedule I could open more avenues for research, ease some of the more harshly punitive criminal consequences, allow cannabis businesses to bank more freely and openly, and result in firms no longer being subjected to a 40-year-old tax code that disallows credits and deductions from income generated by sales of Schedule I and II substances.

However, rescheduling marijuana will not solve that federal-state conflict, the Congressional Research Service noted in a January 16 brief. The manufacture, distribution and possession of recreational marijuana would remain illegal under federal law and possibly subject to enforcement and prosecution regardless of the state’s legality, the CRS wrote.

States with medical marijuana programs do currently have some federal protections in place via appropriations legislation that restricts the Justice Department from interfering in those programs. Schedule III status will not affect that rider, the CRS said.

The 2018 Agriculture Improvement Act, better known as the Farm Bill, defined and decontrolled hemp and hemp-derived cannabidiol and removed it from the definition of marijuana — and from regulatory control — under the Controlled Substances Act. The FDA’s scientific and medical evaluation of marijuana did not address products containing plant-derived cannabidiol, commonly known as CBD.

This story is developing and will be updated.

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CNN’s Hannah Rabinowitz, Meg Tirrell and Jacqueline Howard contributed to this report