Clock starts now as DEA publishes marijuana rescheduling proposal

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The U.S. Drug Enforcement Administration on Tuesday published its formal proposal to reclassify marijuana as a less dangerous substance under federal law.

The appearance in the Federal Register of marijuana’s proposed shift from a Schedule 1 to a Schedule 3 controlled substance – the most significant shift in national marijuana law since 1970 – also launches a 62-day public comment period, one of the required steps in the formal federal rulemaking process.

Now accepting public comments

The Department of Justice will accept comments from the public until July 22, according to Tuesday’s notice.

Through June 20, the DOJ also will entertain requests for a public hearing before an administrative law judge, according to the notice.

If DEA Administrator Anne Milgram elects to hold such a hearing, further notice will appear in the Federal Register.

Tuesday’s notice does not indicate how long the DOJ and DEA might ponder the public comments before issuing a final rule.

Observers of the federal rulemaking process have speculated that a final rescheduling rule could appear as soon as September or October.

Marijuana rescheduling background

The ongoing process began in October 2022, when President Joe Biden issued an executive order directing Cabinet-level agencies to “expeditiously review” the “failed policy” of classifying marijuana as more dangerous than fentanyl.

In August 2023, after considering information including data about medical marijuana use submitted by states with legal cannabis programs, the Department of Health and Human Services found that “marijuana has a currently accepted use” and recommended it be reclassified as a Schedule 3 drug.

That category includes drugs such as anabolic steroids, ketamine and Tylenol with codeine.

Such drugs are available legally only with a prescription, which raises questions about how the federal government might regulate the $36 billion state-legal marijuana industry in the United States.

“If the transfer to schedule III is finalized, the regulatory controls applicable to schedule III controlled substances would apply, as appropriate, along with existing marijuana-specific requirements and any additional controls that might be implemented, including those that might be implemented to meet U.S. treaty obligations,” the DEA wrote in its Tuesday notice.

However, Schedule 3 drugs are not subject to Section 280E of the Internal Revenue Code Section, which forbids plant-touching marijuana businesses from taking certain deductions on their federal tax returns.

Other sought-after reforms, such as marijuana banking protections or allowance for plant-touching businesses to list on major U.S.-based stock exchanges, would require action from Congress.

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