The Biden administration is considering a major shift in the federal government’s policy on marijuana.
In late August, the Department of Health and Human Services recommended that the Drug Enforcement Administration reclassify cannabis from Schedule I to Schedule III under the Controlled Substances Act. The Food and Drug Administration has also concluded that marijuana should be rescheduled, according to the Congressional Research Service.
The change would have significant implications for medical marijuana users and state medical marijuana programs, including the one in Utah. The move, though, would have fewer implications for state recreational marijuana programs and recreational marijuana users.
What is a Schedule 1 drug?
Under federal law, a Schedule I drug has no accepted medical use and a high potential for abuse. Drugs in that category include heroin, LSD, ecstasy, peyote and marijuana. Schedule III drugs, such as codeine, ketamine, anabolic steroids and testosterone, have a moderate to low potential for dependence.
Last October, President Joe Biden asked the HHS secretary and the attorney general to review how marijuana is currently scheduled under federal law. In 2016, the Food and Drug Administration and the DEA concluded that marijuana should remain a Schedule I drug.
Federal law still prohibits the possession of any amount of marijuana. Lowering the schedule would allow the use of medical cannabis but does not legalize marijuana. State-licensed cannabis businesses would still be operating in violation of federal law.
Researchers would face fewer restrictions if marijuana is rescheduled, which might lead to further studies.
Is marijuana legal in Utah?
Utah legalized medical cannabis in 2018. The first state-licensed pharmacy opened in March 2020. There are now 15 cannabis pharmacies in the state, mostly along the Wasatch Front. Eight marijuana farms supply 13 facilities that manufacture, package and label cannabis products.
Rescheduling marijuana could have a big impact on the 38 states that have medical marijuana programs, including Utah. Members of the state’s Medical Cannabis Governance Structure Working Group discussed some of the uncertainties in a meeting this week.
The move would negate a section of IRS code to allow marijuana producers to deduct the costs of selling their products on the federal taxes just like other businesses, Chris Williams, an attorney for the Utah Legislature, told the committee.
Currently, only four cannabis products have FDA approval but reclassifying marijuana would likely lead to more, he said. As more FDA-approved products move into interstate commerce, what would that mean for Utah’s seed-to-sale program?
In Utah, all cannabis sold as medicine must be grown and processed in the state. All plants and products must be tested using random samples selected by the inspectors at the independent or state-run lab. Utah is unique in that the testing labs are not tied to the companies that sell the product.
How could Utah’s medical marijuana program change?
Williams said courts are suspicious of “economic protectionism” where states pass laws favoring home-grown products. A court recently struck down an Oklahoma law requiring public utilities to burn at least 10% of Oklahoma coal.
“I don’t know what a court would do with that,” Williams said of the Utah law. “I think that would be met with some suspicion. We could always try and have that be the policy of the state, but it’s just something that we need to be aware of.”
Possibly having outside marijuana products in the state worries state regulators as well as cannabis trade associations.
Brandon Forysth, Utah Department of Agriculture and Food’s hemp and medical cannabis division director, said the state needs to push back on the possible rescheduling.
“It isn’t at all just about protecting the market in Utah. This is about public safety,” he said.
Forsyth said some states do minimal, if any, testing of the great variety of cannabis products on the market and that many are designed to appeal to children. “I would really hate to see those things come into our community in Utah,” he said.
Williams said Utah could still maintain robust testing and labeling requirements. “But if the idea becomes that we’re only going to favor Utah businesses that grow this product, that’s where I think you run into trouble,” he said.
Utah Cannabis Co-op executive director Scott Erickson said as a Schedule III drug, cannabis is “essentially going to become pills. That’s it.” The drugs would have to go through the FDA approval process and whole plant cannabis and gummies that thousands of patients use in Utah would probably go away, he said.
Erickson suggested the Legislature pass a “trigger law” that would take effect if and when the federal government reclassifies marijuana. “It’s going to take a long time for the feds to do anything,” he said. “If the state doesn’t step up and say we want to control the program, we want to maintain this medical component that that Legislature’s done a great job of handling up to the point, it’s going to be the wild west until the feds come up with something.”
Alyssa Smailes, executive director of the Utah Cannabis Association, said it might take years for the federal government to act but there’s an off chance that it could move quicker and the FDA process could be “detrimental to the entire industry and the program as we’ve created it.”
A trigger law, she said, would protect the state’s program, which is working. “It just needs time to mature, and if something like this comes through, it could just wipe it all out.”
Desiree Hennessy, executive director of the Utah Patients Coalition, said patients wonder if some of the forms of cannabis medication the group has worked for would no longer be available.
“We worked really hard to try to make this a medical program,” adding that other states with medical programs don’t hold the product standards that Utah does. “It is worrisome now when patients are expecting a certain type of medicinal product and if we’re muddying the waters and making it even harder for them ... we’re going in a totally different direction.”
When will the DEA make a decision?
The DEA will conduct its own review of the Health and Human Services recommendation, if it decides to go through with rescheduling marijuana as a Schedule III drug. The Congressional Research Service says it is unaware of any instance where the DEA has rejected an FDA recommendation to reschedule a drug.
Though Utah leaders don’t expect the decision to come quickly, others have speculated that given Biden’s interest in calling for a review, it could come as early as next year, ahead of the 2024 presidential election.