By Michael Feldenkrais, CEO of CATV
In the realm of drug policy, the potential rescheduling of marijuana by the Drug Enforcement Administration (DEA) to Schedule III of the Controlled Substances Act (CSA) is poised to instigate significant changes not only at the federal level but also trigger a cascade of legal adjustments within individual states.
Termed “trigger laws,” the majority of U.S. states have mechanisms in place that would either automatically adapt to federal rescheduling or initiate a state-level process for reclassification. This ripple effect is anticipated to influence various aspects, including politics, criminal justice, and medical marijuana regulations.
States generally fall into three categories regarding their response to federal rescheduling. In over half the states, a federal scheduling change would automatically trigger state-level rescheduling. In others, it would instigate a process requiring action by the state legislature or a designated state authority. Approximately 10 states don’t directly link their scheduling decisions to the federal status of the drug.
For instance, in Texas, the state’s trigger law mandates automatic rescheduling within 30 days if the DEA alters marijuana’s federal status, barring any objections from the Commissioner of the Department of State Health Services. This could potentially expand access to high-THC medical marijuana for Texans, who currently face restrictions on products containing more than one percent THC.
In states without automatic rescheduling processes, further action would be required at the state level, as seen in Kansas, where lawmakers have the authority to make scheduling changes based on recommendations from the Board of Pharmacy.
The potential rescheduling of marijuana at the state level is expected to have varying impacts depending on the state’s current marijuana regulations. States with established legal medical or adult-use cannabis systems are likely to see minimal changes.
In states without any legal form of marijuana, rescheduling could pave the way for limited access for medical patients, aligning the regulation of the drug with other Schedule III substances once additional FDA-approved cannabis medicines become available.
Beyond the formal legal changes, the political impact of broader state-level rescheduling is anticipated to fuel evolving conversations around cannabis among doctors, elected officials, law enforcement, and the public. The acknowledgment of medical use and lower abuse potential associated with Schedule III could reshape these discussions, influencing healthcare, government policies, and law enforcement perspectives.
This shift could also affect how law enforcement handles cannabis cases, with prosecutors and judges potentially considering marijuana’s lower schedule when processing cases, even if most marijuana crimes are volume-based rather than specific to the drug’s schedule.
Furthermore, the changes could increase pressure on governors to pardon individuals with past cannabis convictions, particularly for simple possession—a move that aligns with President Biden’s call for federal prisoners’ pardon and directive to state governors to do the same.
As the DEA reviews the federal marijuana rescheduling recommendation from the U.S. Department of Health and Human Services (HHS), opposition attempts, led by figures like Rep. Pete Sessions, seek to impede the process. Despite these challenges, the potential rescheduling of marijuana holds the promise of freeing up research opportunities and carrying substantial implications for the marijuana industry, sparking bipartisan support from congressional lawmakers who view it as a crucial step toward federal legalization.