By Jason Adelstone

Apr 29, 2024

After listening to the House Oversight and Accountability Committee Hearing with the Commissioner of the FDA on April 11, one conclusion was reinforced—opponents of marijuana reform are misinformed and rely on misstating facts to support their position. Those against moving marijuana into schedule III are making their voices heard, but almost universally, those voices simply do not understand what schedule III would mean. Whether it’s Kevin Sabet, Sen. Mitt Romney, or Rep. Pete Sessions, opponents of schedule III don’t have legitimate ground to stand on, so they rely on false equivalencies and dangers of other drugs to push a narrative that marijuana doesn’t belong in Schedule III.

This was summed up perfectly by Rep. Sessions (R-TX) who chided FDA Commissioner Califf for his agency’s recommendation that marijuana should be moved into schedule III, by comparing marijuana to heroin, while at the same time agreeing with Commissioner Califf that marijuana is less dangerous than heroin. This exchange highlighted that science, statutory guidelines for scheduling, and reality have no impact on arguments being made by opponents of marijuana rescheduling.

A schedule I substance has no medical efficacy in treatment and a potential for abuse greater than other schedule II-V substances. Since HHS/FDA has concluded that marijuana has a medical efficacy in treatment, it cannot be placed in schedule I. Therefore, the analysis turns on whether marijuana has a risk potential that is less than substances listed in schedule II (the analysis is not whether marijuana has any risk potential, as many opponents try to phrase it). With fentanyl and cocaine being schedule II substances, and killing thousands of people every year, this analysis should be obvious as it is supported by substantial evidence. The use of marijuana has resulted in zero deaths, and according to the National Institute on Drug Abuse, cocaine use caused roughly 24,000 deaths between 2019 and 2021, and fentanyl overdoses caused 73,654 deaths in 2022. This alone should make it clear that marijuana belongs outside of schedule II. In fact, placing marijuana in schedule II, or leaving it in schedule I, weakens the US’ focus on combating the fentanyl epidemic around the world. This reality supports a schedule III recommendation for marijuana. With marijuana being on the same schedule as fentanyl, it weakens the US’ claim that countries need to stop the flow of fentanyl. Protecting children and reducing the risk of dangerous substances, requires promoting a commonsense approach to marijuana that acknowledges its medical efficacy while placing it in a schedule that doesn’t diminish the harms of substances that are actually killing our children and devastating our communities.

A frustrating aspect of the arguments being made by opponents is that they base the need for prohibition on perceived harms to children but ignore other substances that are truly harming our youth and communities. If harm reduction was truly their focus, one would assume that they would spend their time trying to prohibit (or place on schedule I) alcohol. Alcohol—a real gateway drug, if such a thing exists—is far more dangerous to children, families, and society than marijuana (read: Marijuana is Safer: So Why Are We Driving People to Drink?) Whether or not opponents of marijuana reform will acknowledge it, marijuana belongs outside of schedule II, as the facts and their own rhetoric support.

If you’re looking for ways that you can contribute to cannabis policy reform efforts, start by reaching out to your state and federal representatives and urge them to support commonsense cannabis regulation and legalization reforms.

As a proud member of the Coalition for Cannabis Scheduling Reform and its partnership with the American Trade Association of Cannabis and Hemp (ATACH), Vicente LLP has been a leader in scheduling reform efforts. Our firm was a key contributor to the group’s comprehensive report detailing the legal and policy arguments supporting the urgent need for scheduling reform and we continue to support reform efforts, including addressing relevant international treaty obligations and criminal justice reforms.

Watch our special briefing “Cannabis Rescheduling: Implications & Next Steps