Federal Rescheduling Of Marijuana Could Lead To Cascade Of State-Level Changes

If the Drug Enforcement Administration (DEA) reschedules marijuana to Schedule III of the Controlled Substances Act (CSA), experts say the change would not only have big implications for cannabis at the federal level, but could also cause series of legal adjustments in states.

As the result of so-called “trigger laws,” most U.S. states would either automatically reschedule marijuana to follow a change in its federal status or would begin a process to reclassify the substance. The ripple effect could impact politics, criminal justice and medical marijuana, among other issues.

Broadly, states fall into one of three categories in terms of their response to federal rescheduling. In slightly more than half, a federal scheduling change automatically triggers state-level rescheduling. In others, federal rescheduling would initiate a process requiring further action by the state legislature or a controlling state authority. And about 10 states don’t directly tie their scheduling decisions to  drug’s federal status.

That’s according to Shawn Hauser, an attorney who co-chairs cannabis-focused law firm Vicente LLP’s hemp and cannabinoids department.

“The majority of states have a state scheduling procedure automatically triggered by a schedule change” at the federal level, she told Marijuana Moment. “The state is required under the state law to control the substance in accordance with state law, unless there’s an objection by the state regulatory body.”

In Texas, for example, rescheduling would happen automatically under the state’s trigger law. The commissioner of the Department of State Health Services would have 30 days after receiving notice of federal rescheduling to similarly reschedule, unless the commissioner objects.

Among other potential changes, the state-level shift could give Texans broader access to high-THC medical marijuana. Currently patients are limited to products containing no more than one percent THC.

In automatic trigger states where cannabis is currently illegal for all uses, such as Idaho, rescheduling would essentially clear a path for medical marijuana, at least in certain cases.

In states without an automatic rescheduling process, further action would be required from the state legislature or another controlling authority, Hauser said. For example, in Kansas, lawmakers have the ability to make scheduling changes with recommendations from the Board of Pharmacy.

Such state-level rescheduling efforts were on display after the Food and Drug Administration (FDA) granted approval to Epidiolex, an oral solution of CBD, in 2018. The federal government subsequently moved CBD to Schedule V of the CSA. After that, the maker of Epidiolex, then known as GW Pharmaceuticals (now Jazz Pharmaceuticals), went state-by-state to ensure states made similar scheduling changes at the state level.

Yet other states have laws specifying that action is discretionary. In Virginia, for example, state law says regulators may amend rules in order to match scheduling changes at the federal level, but no formal action is required.

As for what effects state-level rescheduling would have on residents, impacts would likely vary significantly based on how the state currently handles marijuana, Hauser said.

In states that already have legal medical or adult-use cannabis, she expects little will change.

“I think in those states it would be moot,” she said, “because those states have already chosen to regulate marijuana less restrictively than federal law, knowing that the federal government likely isn’t going to enforce and pursuant federal enforcement priorities.”

One possible shift in those states, she added, could be the initiation of interstate cannabis commerce—shipping marijuana across state lines. All three West Coast states, for example, have passed laws allowing for the possibility of cross-border trade, but Oregon and Washington’s laws first require a legal change at the federal level, which rescheduling could accomplish.

Hauser doubted that states with mature cannabis systems would roll back their laws to adhere to strict Schedule III restrictions. “I think states like Colorado and Washington and others, with mature regulatory models and a mature industry, I don’t think this will turn back the clock on them,” she said.

States without any legal form of marijuana, meanwhile, would likely see at least limited access for medical patients as the eventual result of rescheduling, with the drug regulated more akin to other Schedule III substances, such as ketamine and Tylenol with codeine, at least once additional FDA-approved cannabis medicines become available.

Beyond those formal legal changes, Hauser also expects broader state-level rescheduling to have a political impact by fuelling the changing conversation around cannabis—among doctors, elected officials, law enforcement and others.

“As we’ve seen with the way it’s federally classified,” she said, “the way it’s classified at the state level colors how doctors look at it, how government officials look at it, how police look at it, parents—everyone.”

“Schedule III means it has an acknowledgment of medical use and lower potential for abuse,” she continued. “That’s going to make it a much different conversation with doctors and in health care and in conversations with government.”

In addition to helping facilitate broader reform around medical marijuana, Hauser said that perspective could also change how law enforcement handles cannabis cases. While she noted that most marijuana crimes are based on volume and not on the drug’s specific schedule, she said prosecutors and sentencing judges might nevertheless take into consideration marijuana’s lower schedule when processing cases.

“Viewing cannabis in the lens of Schedule I, it’s shaped prosecutors and it’s shaped judges,” she said.

The changes could also put further pressure on governors to pardon people with past cannabis convictions, especially for simple possession.

“When Biden made the announcement to reschedule cannabis, he also pardoned federal prisoners—which, there are a few—and directed state governors to do the same,” Hauser said. “Much of what needs to happen at the pardon level is at the states.”

Rescheduling at the state level would provide another opportunity.

Meanwhile, as DEA reviews the federal marijuana rescheduling recommendation from the U.S. Department of Health and Human Services (HHS), some opponents have attempted to scuttle the process.

Rep. Pete Sessions (R-TX), for one, filed a legislative amendment to block the Biden administration from rescheduling cannabis. The provision would prevent federal funds from being used to “deschedule, reschedule, or reclassify marihuana” under the Controlled Substances Act.

Sessions recently led a letter urging DEA to “reject” the top federal health agency’s recommendation to reschedule marijuana and instead keep it in the most restrictive category under the CSA.

In September, two Republican senators introduced a separate bill that would strip DEA of its rescheduling power, preventing all federal agencies from rescheduling cannabis without approval from Congress.

That same month, 14 GOP lawmakers sent a letter urging DEA to reject the marijuana rescheduling recommendation.

While marijuana rescheduling would not federally legalize access through current state-level medical cannabis programs, it would free up research into the plant and have significant implications for the marijuana industry.

Congressional lawmakers across party lines have applauded the top health agency’s recommendation. Some have described it as an important “step” on the path to federal legalization. Others have claimed credit for the move, pointing to their years of advocacy around marijuana reform.

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