By now, you have probably heard about the DEA’s decision to approve the recommendation of the Department of Health and Human Services (DHHS) that cannabis be moved from Schedule 1 to Schedule 3. The internet is ablaze with industry experts, policy wonks, medical professionals, researchers and others providing their opinions on what this means for a plant that has been used around the world for thousands of years. I, myself, weighed in. If you want to read my thoughts, you can check out this blog from New Frontier Data, or listen to this podcast from Vox. And, the truth is, we just don’t know what this means. This move is historic. It is the first time in the 54 years since drug schedules were invented that we have seen the federal government budge on their opinion regarding the safety and medical value of cannabis. And while the devil is most certainly in the details, this shift once again affirms that historically, drug policy is an exercise in philosophy and not science. Birthed out of a desire for social control, these policies have always had more to do with who is using a particular substance, who stands to make money off of its use, and our moral opinions on drug use and drug users in general. So while the masses argue about Big Pharma, tax deductions and prescription cannabis, I think it is important to take a step back and talk about what rescheduling means in the larger context of the philosophy of drug prohibition and drug control.
The 1960’s were a turbulent time. Women wanted rights, people of color wanted rights, young people wanted independence from their parents. The country was divided over our involvement in Vietnam. Basically, groups that had been traditionally marginalized and stepped on were stepping up and asking for the same rights and privileges as white men of a certain age…and this made people in power a bit nervous. There was the belief that the very fabric of American society was contingent on people knowing their place and staying there. But this was being challenged, and then President Richard Nixon felt that something had to be done to curtail the movement that was electrifying the youth of the country. Knowing that he could not make it illegal to be young, or to advocate for civil or women’s rights, and knowing that controlling these populations through law enforcement intervention was the heaviest hammer he had, Nixon took a page out of the past and looked at the substances being used by those populations. In the late 1800’s opium laws were used as a way to search, detain and arrest Chinese immigrants. In the early 1900’s, marihuana laws were used in the same way against Mexican immigrants. Not being a particularly creative fellow, Nixon decided to deploy the same tactic against the groups he saw as being most threatening. And what substances did those groups use? Certainly not alcohol, the darling of American intoxication. They were using cannabis and psychedelics. While cannabis was not exactly federally illegal at this point, there was no legal pathway for growing, selling or using cannabis. States enforced laws around drug use and people certainly went to jail for cannabis, but the Feds largely stayed out of it, save for interstate trafficking and other crimes happening in conjunction with cannabis activities. This changed in 1970 with the passage of the Controlled Substances Act (CSA). The CSA introduced the concept of a “controlled substance” and that these substances should be overseen by the nation’s top law enforcement agency, the DEA. Not all controlled substances were illegal, as they include some pharmaceutical drugs as well. But, all controlled substances were believed to have a level of risk to the user that corresponded to a drug schedule. The closer to 1 the schedule, the more dangerous the federal government deemed the drug. The criteria for scheduling is: 1) medical value; 2) addiction potential and 3) safety profile. Drugs that are Schedule 1 are deemed to have no medical value, a high risk of addiction and are too dangerous to use, even under the care of a doctor. The most lenient schedule is 5, and includes drugs like cough medicine with codeine. And even though alcohol use results in a high number of deaths, injury and illness each year, it is not a controlled substance (go figure). When the CSA was developed, the idea was that science would inform the scheduling. However, when it came to cannabis (and psychedelics like mushrooms and LSD) they were placed in Schedule 1. The claim, around cannabis at least, was that Schedule 1 was a placeholder until research could be conducted on where it should actually go. To conduct this research, Nixon created a group called the National Commission on Marihuana and Drug Use (also referred to as the Shafer Commission) to study cannabis and recommend the right schedule. Nixon knew that if his plan were to work, he needed cannabis to be in the most restrictive schedule in order to promote the philosophy that society had to be protected against cannabis at all costs and that users were a huge threat to public health and safety. So, when the Shafer Commission came back and reported that not only should cannabis NOT be in Schedule 1, but that the personal use of cannabis should not be criminalized at all, Nixon was not pleased. He completely disregarded the report and kept cannabis in Schedule 1. Where it has stayed…until now.
Although there was no cannabis industry in 1970, there were plenty of cannabis consumers. And they were rightfully concerned about the Federal government’s philosophy on the safety of cannabis and the threat that cannabis use may pose to society. They shared the opinion of the scientists of the Shafer Commission, that personal use of cannabis should not be a crime. But, as long as cannabis was a Schedule 1 drug, the criminal sanctions against users would be wholly encouraged and justified. Again, not based on science, but the philosophy of the government concerning cannabis’ risks and lack of benefits. So, in 1970, the National Organization for the Reform of Marijuana Laws (NORML) was founded to push back against the criminalization of cannabis consumers. In addition to advocating for decriminalization at the state level, they challenged the Schedule 1 designation of cannabis by filing a petition to review the evidence used to place cannabis in Schedule 1 and determine whether it belonged there. This process was again driven by philosophy and not science. When a petition is filed to move a drug from one schedule to another, it is filed with the DEA. The DEA then decides whether to ask the DHHS to determine if there is enough scientific research to warrant a review. Schedule 1 drugs are extremely hard to research because of the beliefs around their medical value and safety. As a result, cannabis research, especially the kind that the government considers “gold standard”, randomized controlled trials (RCT) has been nearly impossible to get funded and to carry out. As a result, when a petition was filed with the DEA to reconsider the schedule 1 status of cannabis, they would refer it to the DHHS who would say, there is just not enough research to conduct the kind of review needed to determine whether cannabis should be rescheduled. Talk about a chicken or egg situation! But, this is where philosophy comes back into play. If drug policy was really about science, the DHHS would say, gee there does not seem to be adequate research to use science as a way to determine scheduling, so perhaps we should fund some research so we can make an evidence-informed decision. Instead, they adhered to the philosophy set forth by Schedule 1 that cannabis had no medical value and was extremely dangerous. This in turn continued to provide a basis for the over-criminalization of cannabis consumers, resulting in lengthy prison sentences, the disruption of families and the destruction of entire communities, mostly communities of color. Then again, wasn’t this the strategy all along?
So, what changed to break cannabis out of this cycle of philosophical drug war doom? A couple of things. First, as states began to pass medical cannabis laws, researchers and universities found themselves with more basis to apply for grants to do research. The pool of anecdotal evidence grew substantially, and doctors were asking for more formal studies to support what they were seeing in their offices. And even though the Schedule 1 status of cannabis meant that the only cannabis available to researchers was the supply provided and tightly guarded by the federal government, survey and pre-clinical studies of cannabis, as well as international studies, began to bloom. In 1993, there were 82 studies published on cannabis. In 2023, there were 3704, according to PubMed. But, as mentioned, drug policy is more grounded in philosophy than science, so it was not just the increase in research studies that finally broke through, it was the Secretary of Health and Human Services. It is this person that gives the green light to review the science on a drug to determine if there is enough evidence to recommend rescheduling, and this person who signs off on their agency’s decision regarding it. Previously, heads of the DHHS have subscribed to the philosophical stance that cannabis has no medical value and is extremely dangerous. They did not review the research to support that opinion. They did not order more research to determine whether that opinion was true, they just believed it and supported it. Then came Xavier Becerra. Becerra became the Secretary of Health and Human Services in March of 2021. Before that, he was the Attorney General for the state of California, the first state to pass a medical cannabis law, and a state that has had adult use legalization since 2017, the year Becerra took office there. When challenged on his agency’s decision to recommend rescheduling, Becerra said, “There has been a lot of science that’s been collected over the years on cannabis. We have far more information now. As you know, throughout the country, many states have moved much farther than the federal government has. Even in places like Texas, you see where action has been taken on cannabis. What we’re doing is simply reflecting what the science is showing.”
While I can understand the desire to focus on the details of what rescheduling may or may not mean, and let me be clear, it could be MONTHS before we have a sense of how this is going to play out, we should not lose the forest for the trees. The admission by the federal government that cannabis has medical value, and that it is not as dangerous as they once claimed it to be, can have the same effect on reform as making it Schedule 1 had on criminalization. States that have been on the fence about medical cannabis, like South Carolina, are already talking about how rescheduling may make them more open minded about reform. And while the DEA and FDA may still heavily guard the gate to cannabis research, access to funding and materials will get easier with time. Especially as younger people come into positions of power in those organizations and those who embraced the Schedule 1 philosophy slowly age out. Will it happen overnight? No. But it took us 54 YEARS to get to where we are right now. So, yes, let’s be cautious and YES, let’s carefully prepare comments for the upcoming public hearing about how we want the state legal cannabis industry to interact with the Feds under this new umbrella. Let’s keep pushing for de-scheduling of cannabis and the criminal justice reforms still badly needed. BUT, let’s also recognize that, in the greater world of drug policy as philosophy, this shift is a long awaited win for the good guys and gals.
