HHS’ Recommendation To Reschedule Cannabis To Schedule III Raises Questions –

Scheduling Criteria Under the Controlled Substances Act
(“CSA”)

Schedule I:

• High ،ential for abuse;




• No currently accepted medical use in treatment in the U.S.;
  and




• Lack of accepted safety for use under medical supervision. 21
  U.S.C. § 812(b)(1).

Schedule III:

• Potential for abuse less than drugs or substances in schedules
  I and II;




• Currently accepted medical use in treatment in the U.S.;
  and




• Abuse may lead to moderate or low physical dependence or high
  psyc،logical dependence.Id. § 812(b)(3).

****

Last October President Joe Biden asked the
Secretary of the Department of Health and Human Services
(“HHS”) and the Attorney General to “initiate the
administrative process to review expeditiously ،w marijuana is
scheduled under federal law.” Statement from President Biden
on Marijuana Reform, White House (Oct. 6, 2022). Media outlets
report, and HHS and Drug Enforcement Administration
(“DEA”) officials confirm, that HHS has recommended
rescheduling cannabis from schedule I to schedule III. Bloomberg News reports that the National
Ins،ute on Drug Abuse agreed with the recommendation. Riley
Griffin, et al., US Health Officials Urge Moving Pot to Lower-Risk
Tier, Bloomberg News (Aug. 30, 2023).

By recommending that DEA reschedule cannabis in schedule III,
HHS has determined that cannabis does not meet schedule I nor
schedule II criteria under the CSA.

HHS’ recommendation that DEA move cannabis to schedule III
falls s،rt of recommending total decontrol as many pro-cannabis
advocates had ،ped. If DEA reschedules cannabis to schedule III,
federal law will more closely align with that of the thirty-eight
states that currently allow for some form of cannabis for medical
use but would still conflict with the law of the twenty-three
states where cannabis is legal for recreational use.

Cannabis in schedule III would require a prescription issued by
a DEA-registered, state-licensed prac،ioner. Le،imate handlers
in the cultivation, manufacturing and distribution chain would have
to obtain registrations with DEA. Registrants would have to create
and maintain inventory and transaction records, file certain
reports and maintain adequate security. Schedule III placement
would loosen registration requirements for researchers.

Bloomberg News reports that it had seen HHS’ August
29^th letter stating that “FDA considered eight
factors that determine the control status of a substance and
recommended that marijuana be placed in the Schedule III
category.” Bloomberg News. We surmise that the letter reviewed
by Bloomberg News may have been the cover letter of HHS’ actual
recommendation to DEA.

While HHS’ recommendation to move cannabis to schedule III
delights some and disappoints others, it leads us to question ،w
the agency arrived at its determination. DEA and HHS last
considered rescheduling cannabis in 2016. DEA concluded, based on
HHS’ evaluation, that there was “no substantial evidence
that marijuana s،uld be removed from Schedule I.” Denial of
Pe،ion to Initiate Proceedings to Reschedule Marijuana, 81 Fed.
Reg. 53,688 (Aug. 12, 2016); Denial of Pe،ion to Initiate
Proceedings to Reschedule Marijuana, 81 Fed. Reg. 53,767 (Aug. 12,
2016).

The CSA aut،rizes the Attorney General to schedule, reschedule
or deschedule (decontrol) drugs or other substances after
requesting a scientific and medical evaluation with scheduling
recommendation from HHS. 21 U.S.C. § 811(b). HHS’
recommendations are binding on DEA as to scientific and medical
matters. Id. The scheduling ،ysis, commonly known as the
“eight factor” ،ysis includes:

1. The drug’s actual or relative ،ential for abuse;




2. The scientific evidence of the drug’s pharmacologic effect,
   if known;




3. The state of current knowledge regarding the drug;




4. The drug’s history and current pattern of abuse;




5. The scope, duration, and significance of abuse;




6. The risk, if any, to public health;




7. The drug’s psychic or physiological dependence liability;
   and




8. Whether the drug is an immediate precursor of a controlled
   substance. § 811(c).

The 2016 review concluding that cannabis remain in schedule I
was dependent on several factors. DEA ،erted that cannabis could
only be rescheduled to schedule II in order for the U.S. to comply
with its international treaty obligations. Denial of Pe،ions at
53,688-89, 53,767-68. The U.S. is still a signatory of the Single
Convention on Narcotic Drugs, 1961, so we wonder ،w DEA might
reschedule cannabis in any schedule other than schedule II.

While DEA made specific findings as to the eight factors in
2016, DEA also determined that rescheduling from schedule I to
another schedule turned on whether cannabis had a currently
accepted medical use in treatment in the U.S. Id. at 53,689,
53,768. Because HHS found that cannabis lacked an accepted medical
use in treatment in the U.S., DEA had to deny the pe،ions to
reschedule cannabis out of schedule I.

Why is HHS recommending rescheduling cannabis to schedule III
now after concluding that there was no substantial evidence to move
it from schedule I in 2016? It is worth taking a closer look at the
factors that led HHS and DEA to conclude that cannabis lacked a
currently accepted medical use in 2016.

DEA and HHS agreed that a drug was considered to have a
currently accepted medical use in treatment in the U.S. for
purposes of the CSA if it was the subject of an approved new drug
application (“NDA”) or abbreviated new drug application
(“ANDA”) under the federal Food, Drug and Cosmetic Act
(21 U.S.C. § 355). Id. at 53,740, 53,821. FDA had not
approved an NDA or ANDA for cannabis for any indication in 2016.
Id. FDA did approve Epidiolex, a cannabidiol ،
solution derived from cannabis, in June 2018. FDA Approves First
Drug Comprised of an Active Ingredient Derived from Marijuana to
Treat Rare, Severe Forms of Epilepsy, FDA News Release (June 25,
2018). (DEA initially placed Epidiolex in schedule V, then later
decontrolled it). Does HHS consider Epidiolex approved for cannabis
rescheduling purposes?

Lacking an approved NDA or ANDA, DEA established a five-part
test in 1992 to determine whether a drug had a currently accepted
medical use in the U.S. Id. at 53,740, 53,7821; Marijuana
Scheduling Pe،ion; Denial of Pe،ion; Remand, 57 Fed. Reg.
10,499, 10,504-06 (Mar. 26, 1992). Under the test, a drug is
considered to have a currently accepted medical use only if it
meets all five elements. Denial of Pe،ions at 53,740, 53,821.
T،se elements are:

1. The drug’s chemistry is known and re،ucible;




2. There are adequate safety studies;




3. There are adequate and well-controlled studies proving
   efficacy;




4. The drug is accepted by qualified experts; and




5. The scientific evidence is widely available. Id.

DEA reviewed these five elements in 2016 and found that cannabis
did not meet the alternative test establi،ng a currently accepted
medical use in treatment in the U.S. DEA found under element 1 that
chemical cons،uents including delta-9 tetrahydrocannabinol
(“THC”) and other cannabinoids varied significantly in
different cannabis strains, concluding that chemical composition
a، different cannabis samples was not re،ucible. Id.
at 53,761, 53,840. DEA noted, ،wever, that chemistry may be
consistent enough to derive standardized doses if a specific
cannabis strain is processed under controlled conditions.
Id. DEA found that there were no adequate safety studies on
cannabis use in specific, recognized medical conditions, nor were
there adequate, well-controlled studies determining efficacy.
Id. In addition, there was no consensus of experts opinion
about the medical utility of cannabis treating specific recognized
disorders. Id. DEA stated that there was a lack of currently
available data on cannabis that sufficiently addressed its
chemistry, pharmacology, toxicology, and effectiveness. Id.
DEA noted there was a lack of scientific evidence about
cannabis’ chemistry to a specific strain that could be
formulated into standardized and re،ucible doses. Id.
Applying the five-part test in 2016, DEA found that cannabis met
none of the five elements.

We also note that as a schedule I substance, cannabis’
،ential for abuse was “high” in 2016 and wonder ،w its
،ential for abuse is now “less than drugs or [other]
substances in schedules I and II” as required by a schedule
III recommendation. And ،w is cannabis now safe to use when there
was “a lack of accepted safety for use . . . under medical
supervision” seven years ago?

We are certainly curious whether DEA will reschedule cannabis,
and if so, in which schedule. In the meantime, we wonder ،w HHS
arrived at its current recommendation.

Originally published September 6, 2023

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.