Since its inception in 1970, the Controlled Substances Act (CSA) has placed marijuana in a Schedule I category. Schedule I substances are considered to have a “high potential for abuse” with “no currently accepted medical use in treatment in the United States.”
The Schedule I status of marijuana means that the substance is strictly regulated by federal authorities, and its manufacture, distribution, dispersion and possession are prohibited. Most states have deviated from these federal restraints and now have laws and policies allowing for some cultivation, sale, distribution, and possession of marijuana.
On October 6, President Biden announced reform to federal marijuana policy. First, he said he would “pardon ... all prior Federal offenses of simple possession of marijuana,” and urged all governors “to do the same with regard to state offenses.” Second, he asked the Department of Justice (DOJ) and Department of Health and Human Services (HHS) to “initiate the administrative process to review expeditiously how marijuana is scheduled under federal law.” He cautioned, however, that “important limitations on trafficking, marketing, and underage sales should stay in place.”
President Biden’s announcement of federal marijuana policy reforms did not automatically change the status of marijuana as a Schedule I substance. Instead, he merely directed DOJ and HHS to begin a prompt review of its status. Congress can also alter marijuana’s status by amending the CSA but without such confines, but Congress remains stalemated when it comes to legal reform. Some Members of Congress in both major parties have questioned the Schedule I status of marijuana (promoting either removal altogether or moving it to a lower schedule), while other Members have maintained that marijuana should remain illegal (expressing concern over the negative implications of its widespread use).
The FDA and DEA’s position to date was been that marijuana continues to meet the criteria for inclusion on Schedule I. They assert that it has a high potential for abuse, has no currently accepted medical use, and lacks an acceptable level of safety for use under medical supervision. If Congress chooses to make changes, it could: (1) amend the CSA to move marijuana to a less restrictive schedule; (2) create an entirely new schedule or another category for marijuana; or (3) remove it entirely from the CSA. If marijuana remains a controlled substance under the CSA under any schedule, however, the existing conflict between the federal government and states that have legalized recreational marijuana would remain, and a detailed review of its effects will have to be made once the Schedule is announced. The creation of a new schedule solely for marijuana would allow Congress to modify the criminality of marijuana. Finally, if Congress chooses to completely remove marijuana from the CSA, it could seek to regulate and tax commercial marijuana activities. No deadline was imposed for the completion of this review.
In addition to President Biden’s announcement, congressional leaders have called for the passage of the SAFE Banking Act when Congress reconvenes in November. The SAFE Banking Act would prohibit federal banking regulators from penalizing depository institutions for providing banking services to cannabis businesses. The measure passed the House with bipartisan backing in April 2021 but has been stuck in a Senate committee ever since.
Clearly, these issues continue to progress. We will continue to monitor Federal marijuana reform efforts and will provide further updates as they develop.