DEA still has doubts about marijuana rescheduling, GOP lawmakers claim

Two leading congressional Republicans wrote a letter to Biden administration officials expressing concern with the marijuana rescheduling process’ “unusual” circumstances and suggesting that the U.S. Drug Enforcement Administration has similar doubts.

The recategorizing of marijuana from a Schedule 1 drug to Schedule 3 left “several unanswered questions and policy gaps,” wrote Washington state Republican Rep. Cathy McMorris Rodgers, who chairs the House Energy and Commerce Committee, and Kentucky Republican Rep. Brett Guthrie, who chairs the Subcommittee on Health.

“We support research into innovative therapies to improve patient outcomes, but we are concerned with how the normal process was circumvented to achieve a result for political purposes and we have a number of unanswered questions,” the letter, addressed to Attorney General Merrick Garland and Health Secretary Xavier Becerra, reads in part.

New rescheduling standard questioned

Among the departures from “normal” policy, the lawmakers wrote last week, was Becerra’s Department of Health and Human Services (HHS) ditching a standard used by the DEA to establish “currently accepted medical use” in favor of “its own two-part test.”

That’s the new criteria the HHS used when it informed the DEA in August 2023 that marijuana does have a medical use in the United States and should be moved to Schedule 3 of the Controlled Substances Act.

The DEA in April presented a change to federal law regarding marijuana along with a detailed legal justification.

A public comment period on the proposed change ended last week with a record amount of public input.

Nearly all of it was positive.

The Department of Justice will analyze those public comments before publishing a final rule.

DEA still doubting marijuana rescheduling?

But, as the lawmakers pointed out, “It is notable that the proposed rule states, ‘DEA has not yet made a determination as to its views of the appropriate schedule for marijuana,’ seeming to indicate that the DEA is not yet convinced of the merits of this review.”

The letter also adds that a New Drug Application has not been filed with the U.S. Food and Drug Administration “for a drug product containing botanical marijuana to treat any medical condition(s).”

As MJBizDaily first reported last summer, the HHS analyzed data submitted by states with medical marijuana programs – including conditions that cannabis was used to treat patients in state-regulated markets along with outcomes – to arrive at its determination.

The letter from the two Republicans went on to express concern that rescheduling could be used as a cover for criminal organizations to cultivate and traffic cannabis and also repeated fears about marijuana’s increased potency.

Unanswered questions

The letter ended with several questions for Garland and Becerra, including:

• When was the last time a president requested “an expedited review of a Schedule I substance through a public statement?”
• What are other examples of using the new two-factor analysis, and why wasn’t it used when evaluating other drugs recently?
• Why do other Schedule 1 drugs such as heroin still receive a “more rigorous analysis” than marijuana?
• Would the DOJ “ … enforce federal law” to make sure cannabis was “legally dispensed pursuant to a valid prescription?”
• How many “resources … from HHS and DOJ (were) dedicated to this rulemaking process?”

The letter is the latest example of Republican skepticism or opposition to marijuana rescheduling.

One of the public comments submitted to the DEA was a letter from Republican state attorneys general opposing the move.

And House Republicans tucked language that would block rescheduling into a spending bill, though such a caveat is unlikely to become law.

Chris Roberts can be reached at chris.roberts@mjbizdaily.com.