On the DEA’s Decision to Not Reschedule & Open Up Research

By Sam Méndez, Executive Director of the Cannabis Law and Policy Project

At a month old, the news has already long been out. In a press release on August 11 the U.S Drug Enforcement Agency (DEA) declined requests to reschedule marijuana under the Controlled Substances Act, along with opening up an important avenue to further marijuana research. The decision to not reschedule is no surprise to me, as I had predicted this back in April. The DEA has had a singular stance on this issue for 45 some-odd years, and just because there’s been reform at the state level and a change in public sentiment towards the substances does not mean the federal government will be so quick to reform its laws. A mere 9 months ago DEA Chief Chuck Rosenberg called the idea of marijuana being considered medicine a “joke,” so predicting a lack of policy reform wasn’t too difficult.

Image in public domain

Image in public domain

That’s not to say they’re right. They are certainly wrong on this issue, and that’s shown by good science that there are medicinal uses for marijuana (see e.g. Sources cited by the Drug Policy Alliance, page 7). Rosenberg explained the DEA’s decision that there is no currently accepted medical use for marijuana was “rooted in science,” which is simply untrue. Even mainstream medical organizations such as the American Academy of Pediatrics (while still opposing legalization) is in favor of rescheduling marijuana to Schedule II.

And yet prominent experts John Hudak (Brookings Institution) Mark Kleiman (NYU) both argue that the DEA’s other decision, to allow entities other than the University of Mississippi (currently the only one) to apply to produce and distribute cannabis for research purposes, was more important than the decision not to reschedule. Hudak explains, “[R]escheduling to the category most widely expected, Schedule II, would have made marginal changes to the certification and security rules governing researchers seeking to conduct federally-approved studies using marijuana. Schedule II status would have very little, if any, impact for the broader cannabis community.” I’m not sure the latter point is true, as rescheduling would have not only been a significant cultural and symbolic move, but also an important legal one if the Food & Drug Administration began regulating cannabis. This would affect state regulations for one, if not immediately, and I believe it could have far greater implications if pharmaceutical companies began entering the cannabis industry.

That said, Hudak’s central point that the Schedules under the Controlled Substances Act are widely misunderstood is quite accurate. His point also stands that the DEA’s ending of Ole Miss’ monopoly is more important is a good one as well. It’s certainly the more overlooked point. But what does this actually mean?

Until now, the University of Mississippi has had the sole license to produce and distribute cannabis to researchers with the applicable. As the DEA itself explains,

“DEA announced a policy change designed to foster research by expanding the number of DEA- registered marijuana manufacturers. This change should provide researchers with a more varied and robust supply of marijuana. At present, there is only one entity authorized to produce marijuana to supply researchers in the United States: the University of Mississippi, operating under a contract with NIDA. Consistent with the CSA and U.S. treaty obligations, DEA’s new policy will allow additional entities to apply to become registered with DEA so that they may grow and distribute marijuana for FDA-authorized research purposes.”

The rules are explained in more detail in the Federal Register, and the application process is already online as well.

So why is it more important? Because up until now cannabis policy and science has been caught in a catch-22: the DEA states there is no medicinal value to cannabis and thus restricts potential research, the very research which could show medicinal value. Also, as I explained to Mic, the cannabis produced by U Miss is known by many to be sub-par, sort of like judging all alcohol based on studying Bud Light. There are very few varietals cultivated at U Miss, and the products they do have are far from representative of what is actually consumed around the country. By allowing other entities to produce the plant, there will be both a greater amount and greater varieties of product available (and perhaps, as a result, more researchers applying for schedule I licenses).

Does UW plan to be one of those entities? I can’t speak for all of UW, but I hope so. You can expect the CLPP to be working internally to see if that is possible. In fact, the CLPP is also working to implement a state-level cannabis research license program (see SB 6177) that will grant researchers a license to produce and study cannabis. Up until now all cannabis licenses exist within the commercial space, leaving out researchers who would benefit from state laws allowing them to work. The DEA’s decisions make the need for this program all the more clear, but that’s for another blog post.

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