Cannabis is regulated at the federal level by the Controlled Substances Act (CSA).  The first step in confronting the danger fiction is to remove cannabis from the jurisdiction of the CSA.  We need a new CSA, not in terms of legislation but in terms of interests – Cannabis, Science, and Advocacy.

The Controlled Substance Act has been misapplied by successive Administrations since its passage in the 1970s.   The legislative history of the CSA reveals that the placement of cannabis is Schedule I was originally proposed as a temporary measure pending forthcoming studies, and it was recognized then that it did not have the abuse potential for schedule I or even schedule II placement (both categories requiring a drug have the highest potential for abuse).  It’s fifty years later, there have been plenty of studies, and the best the government can come up with is another proposal for temporary placement within the CSA until more studies can be conducted.

However, the legislative history also reveals that scheduling decisions by the government should be based, in part, on consideration of their impacts.  Scheduling decisions on cannabis nave never properly recognized and addressed the impacts of prohibition on cannabis users, medical or otherwise.  Furthermore, the Legislative History also requires examination of the economic impacts of scheduling, including the overall impacts of implementing the regulations.

Nonetheless, the biggest problem with the CSA is that it was never intended or designed as a vehicle for addressing the regulatory needs of a legal cannabis market and protecting the interests and rights of cannabis consumers, let alone providing them with input into the process of policy formation to address their needs.  

The Biden Administration is preparing a formal proposal to reschedule cannabis from Schedule I to Schedule III of the Controlled Substances Act, which would provide legal access under strict conditions under federal law and provide some legal protection for some cannabis-related commers currently legal under state laws.  

The process requires the publication of a proposed rule by the Drug Enforcement Administration (DEA) in the Federal Register with the details of the scheduling. Interested persons have 30 days to file written comments, which will also be made available to the public.  Interested persons may also, withing 30 days, file a request for a hearing, which must “a written statement of position on the matters of fact and law asserted [to be addressed] in the hearing.”

The government must then review and consider all public comments before publishing a final rule.  The final rule is subject to challenge in the federal courts by stakeholders it effects, and fair consideration of public comments is in the government’s interest as they look to defend their actions in federal court.

The legislative history of the Controlled Substances Act requires consideration of the “social, economic, and ecological characteristics” of substances in determining whether they require control under its provisions.  The legislative history also indicates that the CSA is not directed on the therapeutic use of substances.  In decisions on subjecting a substance to the restrictive provisions of the CSA the government is also required to consider the economics of enforcement and the impact of criminal laws of this decision, “especially the young”. The legislative history emphasizes the need to assess the “social significance” of subjecting a substance to the prohibitions of the Controlled Substances Act.

Does therapeutic cannabis use present a risk to public health?  According to the legislative history, “if a drug creates no danger to the public health; it would be inappropriate to control the drug under this bill.”

When the Biden Administration publishes their proposal for rescheduling marijuana into Schedule III of the Controlled Substances Act, medical cannabis uses and caregivers can and should file comments on the impact of CSA restrictions of their medical care and health maintenance. 

Indeed, all stakeholders with an interest in medical cannabis should take advantage of this opportunity to comment on the inadequacies of CSA regulation of cannabis.  A full and complete public record will reveal that CSA restrictions prevent Americans from having access to cannabis for therapeutic use, and that the law requires it removal.