Last week, the Department of Health and Human Services (HHS) revealed the rationale for its August 2023 recommendation that the Drug Enforcement Administration (DEA) move marijuana from Schedule I to Schedule III of the Controlled Substances Act. The decision contradicted previous positions, indicating that marijuana’s classification has always been a political question rather than a legal or scientific matter. On October 7, 2022, President Joe Biden instructed HHS and Attorney General Merrick Garland to “initiate the administrative process to review expeditiously how marijuana is scheduled under federal law” in response to the conflicting classification of marijuana and other drugs.
The DEA has long maintained that a substance can have a “currently accepted medical use” only if it is approved by the FDA. In contrast, the HHS uses a two-part test to determine if a drug has a “currently accepted medical use.” It involves whether there is widespread medical use of marijuana in the United States and whether there is credible scientific support for its use in treating certain medical conditions. HHS ultimately recommended moving marijuana to a lower schedule based on this reinterpretation of the criteria for Schedule I.
HHS recognizes that marijuana has some potential for abuse but draws a distinction between use and abuse even in that context, stating that the risks to public health posed by marijuana are low compared to other drugs of abuse. The conclusion is based on an evaluation of various epidemiological data.
Overall, the HHS recommendation was not based on new scientific evidence but a reinterpretation of the criteria for Schedule I, indicating that the decision was more driven by political considerations rather than legal or scientific ones.