“Without cannabis descheduling those who manufacture, distribute, possess or use marijuana as per state laws may still be prosecuted for federal violations of federal drug laws.”
By Paul Armentano, NORML
Donald Trump has recently confirmed that his government is “looking at” federally classifying cannabis, and will “make a decision over the next several weeks.”
It is the first time the president has made a public statement since he posted a message on social media last autumn endorsing the plans to reclassify cannabis as a Schedule 3 substance under federal Controlled Substances Act.
This would conclude an administrative procedure initiated in 2023 by the Biden Administration, which evaluated the plant’s efficacy and safety. It recommended that it be classified from Schedule I into Schedule III. The process was halted by an order issued in January, which came from DEA Administrative Law Judiciary John Mulrooney.
Media outlets misreported the possible effects of cannabis’ reclassification following the recent comments by President Obama. NORML has created a primer on this topic to provide more clarity.
What is the Controlled Substances Act (CSA)?
The CSA, passed by Congress in 70, classifies controlled substances into distinct regulatory categories based upon their medical utility (or absence thereof) and potential for abuse. Schedule I controlled drugs are substances with high abuse potential and no medical use. These are illegal under federal law. Schedule II to V substances are usually classified based on the abuse potential of substances with approved medical use, which is traditionally defined by FDA drug approval.
Schedule II is the classification for substances that are medically accepted but have a high potential to abuse. Schedule V substances are those that are least likely to abuse.
Are there any previous administrative efforts to reclassify Cannabis?
Yes. The White House is leading this effort for the first time.
Does reclassification of cannabis from Schedule I (as it is now) to Schedule III allow state governments to regulate cannabis legally without interference from the federal government?
Trump’s support for states’ right to pass marijuana laws is well-documented. Reclassifying marijuana from Schedule I into Schedule III doesn’t give state governments the right to set up regulations for marijuana that contradict federal laws.
This is because all substances that are classified under the CSA must adhere to federal uniform regulations. In general, state governments cannot deviate too much from federal regulations.
A state cannot, for example, decide that it will allow the sale of ketamine or cocaine over the counter (both Schedule II drugs) without violating federal law.
The state governments have significant power to regulate or prohibit the sale and use of tobacco and alcohol products. This is the reason why the regulations of each state governing these products can differ greatly. These two substances do not appear on the CSA schedule. In order to provide the state government with the same level of autonomy for state specific decisions about the regulation cannabis, it is necessary that the plant be descheduled and not rescheduled.
Those who grow, distribute, possess or use marijuana according to state law, but in violation of federal laws, could face prosecution by the federal government.
Reclassification will make marijuana a FDA approved medicine. Rescheduling cannabis to only be available on prescription will it make it illegal?
No. The federal government would acknowledge that cannabis is “currently used in medical treatment in the United States” by rescheduling. It is important to note that this recognition does not mean it has been formally approved by FDA. This approval requires a different process. Rescheduling will not require the sale of marijuana in pharmacies. This is only required when FDA has approved the substance.
Can rescheduling federal penalties be amended?
No and yes. The federal laws that are specific to possession, trafficking and/or distribution of marijuana would not change automatically by the rescheduling. The reason is that these laws, as well as the penalties they provide, are not tied directly to the cannabis schedule. Congress would have to act in order to amend these penalties.
In contrast, many federal laws penalize the possession of Schedule I drugs in general. Federal laws prohibit the possession of Schedule I substances, as well as the purchase or residence in government-subsidized housing. By moving cannabis from Schedule I to Schedule III, those who own it would be exempted from similar federal restrictions and prohibitions based on Schedule I.
Rescheduling cannabis would make clinical research easier for researchers.
Most likely not. Researchers can conduct marijuana clinical trials right away. (Some states like California have created state-sponsored cannabis clinical research programs. The process of approval for these studies is excessively onerous. Reclassifying cannabis is unlikely to make this process more efficient.
That’s because many of the impediments in place—such as requiring clinical protocols to be approved by the U.S. attorney general and requiring cannabis products to be sourced from federally licensed, not stated-licensed vendors—are not specific to other Schedule I substances. These restrictions only apply to marijuana and are codified into federal laws and regulations. To loosen the restrictions, Congress would have to explicitly amend these laws.
Does rescheduling make it mandatory for states with cannabis prohibition to instantly legalize the drug?
No. Some states do have “trigger” laws that force regulators to review cannabis’ status after a federal change.
It is important to note that federally declassifying cannabis will not force prohibition states, or even many of them, to change their law immediately, although it’s possible and likely they may eventually.
Rescheduling would it change tax policies for cannabis businesses licensed by the state?
Yes. Yes.
It is also possible that certain banks and financial organizations may be more inclined to work with these companies after rescheduling. Congress would need to make additional statutory changes (such as SAFER Banking legislation), to codify the relationships. It is also likely that larger institutions won’t provide services to cannabis businesses as long cannabis is still scheduled.
Can reclassification force health insurance providers to reimburse cannabis patients?
Some medical cannabis states already reimburse patients for the use of marijuana under certain conditions (such as when recovering from an injury at work). In some states, the courts have decided that marijuana is federally banned and patients in those states are not eligible for reimbursements. Rescheduling is not clear whether it will provide clarity for patients and their insurance companies in this regard.
Paul Armentano has been appointed as the deputy Director of You can also find out more about NORML.–the National Organization for the Reform of Marijuana Laws.