According to a report from Bloomberg News, the U.S. Department of Health and Human Services (HHS) is officially recommending to the U.S. Drug Enforcement Agency (DEA) that marijuana be moved from Schedule I to Schedule III under federal law. The move follows a directive issued by President Biden last year that Secretary of Health and Human Services Xavier Becerra “initiate the administrative process to review expeditiously how marijuana is scheduled under federal law.”

Although many in the industry consider the move to be long overdue, the development represents a watershed moment in the history of cannabis in the last century.

The Mechanics and Next Steps

Schedule I substances are considered to have a high abuse potential with no accepted medical benefit. Schedule III substances, on the other hand, have “a moderate to low potential for physical and psychological dependence.”  Current Schedule III substances include benzphetamine, phendimetrazine, ketamine, and anabolic steroids.

The next step is for DEA to determine whether to re-schedule marijuana. Although HHS’s recommendation would be binding on DEA as to “scientific and medical matters,” the decision to reschedule rests with DEA.  Rescheduling marijuana will require the DEA to undertake the potentially-lengthy formal rulemaking process required by the Administrative Procedures Act, including notice and comment of the proposed rule before it can be finalized, and the process can be subject to court challenges. 

The Implications of Rescheduling

The potential change would be enormously consequential. From alleviating the enormous tax burdens cannabis businesses face under Section 280E of the Internal Revenue Code and prompting additional federal guidance on how banks and other financial institutions can work with cannabis companies to the potential for costly FDA compliance for medical cannabis operators, we anticipate quite the journey ahead as DEA evaluates HHS’s recommendation and proceeds with the expected administrative rulemaking process under the Administrative Procedures Act.

Cannabis stocks immediately rallied on the news while industry observers turned their eyes to DEA – and an even more momentous step for the cannabis industry.

Let’s be clear: The rescheduling of marijuana is far from a foregone conclusion. DEA has never been a friend to the marijuana industry. But to be equally clear: This is huge.

The news has received mixed reactions from industry folks and politicians. Many applaud the HHS recommendation, but several industry groups, while recognizing it’s a good step forward, insist that de-scheduling and regulating like alcohol is the only way to go. But more in-depth analysis may be the place for that. 

We’ll be watching and invite you to stay tuned in the coming days for a more in-depth analysis.

 

Photo of Whitt Steineker Whitt Steineker

As co-chair of Bradley’s Cannabis Industry team, Whitt represents clients in a wide range of cannabis issues. In addition to providing a full suite of legal services to cannabis companies, Whitt and the Cannabis Industry team advise non-cannabis clients – from banks to…

As co-chair of Bradley’s Cannabis Industry team, Whitt represents clients in a wide range of cannabis issues. In addition to providing a full suite of legal services to cannabis companies, Whitt and the Cannabis Industry team advise non-cannabis clients – from banks to commercial real estate companies to insurance companies and high net worth individuals – on best practices for interacting with cannabis companies.

Whitt is one of the leading voices in the cannabis bar – recognized as a “Go-To Thought Leader” by the National Law Review. He has presented on cannabis issues at conferences around the country.  His work has been featured in the National Law JournalLaw360, and the Westlaw Journal. And he has been quoted in an array of legal and mainstream publications from Law360 and Super Lawyers to the Atlanta Journal-Constitution and the Associated Press.

Photo of James W. Wright Jr. James W. Wright Jr.

Jay Wright is a partner in the firm’s Banking and Financial Services and Litigation practice groups. Jay has earned his Accredited Mortgage Professional (AMP) designation through the Mortgage Bankers Association (MBA), and is one of a small number of lawyers who have achieved…

Jay Wright is a partner in the firm’s Banking and Financial Services and Litigation practice groups. Jay has earned his Accredited Mortgage Professional (AMP) designation through the Mortgage Bankers Association (MBA), and is one of a small number of lawyers who have achieved this status.

Jay’s practice focuses on financial services litigation and regulation, and he is actively involved in lawsuits and disputes across the country representing companies involved in a wide array of state and federal law claims. His representation includes general defense of various claims against financial institutions, mortgage companies, and other commercial entities. Many of these claims involve allegations of wrongful foreclosure proceedings or violations of the Truth in Lending Act (TILA), the Real Estate Settlement Procedures Act (RESPA), and Federal Housing Administration (FHA) regulations, as well as various deceptive trade practices claims under state law.

Photo of J. Hunter Robinson J. Hunter Robinson

Hunter Robinson represents clients in commercial litigation and compliance matters across the country. His cannabis practice focuses on solving problems for cannabis companies and their vendors. Hunter has worked alongside other members of Bradley’s Cannabis Industry team to help hemp and medical cannabis…

Hunter Robinson represents clients in commercial litigation and compliance matters across the country. His cannabis practice focuses on solving problems for cannabis companies and their vendors. Hunter has worked alongside other members of Bradley’s Cannabis Industry team to help hemp and medical cannabis companies obtain licenses, structure business entities, raise capital, negotiate contracts with suppliers and distributors, and maintain compliance with the ever-shifting state and federal laws that govern their operations. Hunter also advises financial institutions regarding the complex laws governing the provision of financial services to cannabis companies, including the Bank Secrecy Act (BSA) and related Anti-Money Laundering (AML) statutes and regulations.

Photo of Slates C. Veazey Slates C. Veazey

Slates is a member of Bradley’s Cannabis Industry team, advising clients on a variety of cannabis issues and in a wide range of sectors. From individuals and entities interested in participating in the new Mississippi medical cannabis program to non-plant-touching companies impacted by…

Slates is a member of Bradley’s Cannabis Industry team, advising clients on a variety of cannabis issues and in a wide range of sectors. From individuals and entities interested in participating in the new Mississippi medical cannabis program to non-plant-touching companies impacted by that emerging market, Slates and his partners provide the full suite of services that Bradley offers to its many other clients — but with a specific understanding of the ever-changing cannabis industry. His work has been featured in The National Law Journal, JD Supra, and the Cannabis Business Executive. Slates also has been quoted by the Mississippi Business Journal and Mississippi Today regarding Mississippi’s medical cannabis program.