(Mark Thiessen/AP)

“I think that Congress ultimately has to do that (reclassify marijuana). This is … a topic that ultimately, I think ought to be engaged in by our nation, informed by the experiences that we see in Colorado, in Washington. There is, I think, a legitimate debate to be had on both sides of that question – where marijuana ought to be in terms of its scheduling.”

—U.S. Attorney General Eric Holder, National Press Club speech, Feb. 17, 2015

“I am concerned, however, about your comments regarding the classification of marijuana … As you know, you already have the statutory authority to reclassify marijuana.”

—Rep. Steve Cohen (D-Tenn.), letter to Holder in response, Feb. 18, 2015

Holder was asked this question at the National Press Club event about marijuana: “Under the Controlled Substances Act, the administration has the power to reclassify marijuana with no further congressional action needed. Do you think that is something that the president should consider in the next couple years?”

Legalization advocates pushed back to Holder’s answer after the event, especially after Cohen, a longtime advocate of rescheduling marijuana, sent his letter in response. Some advocates took to social media to criticize Holder for denying he has authority. They encouraged one another on Facebook and Twitter to flood Holder’s office with calls challenging his statement. They made another push asking him to reclassify marijuana, noting that President Obama has said that he does not believe marijuana is more dangerous than alcohol.

Marijuana remains a Schedule I drug under the federal Controlled Substances Act of 1970, meaning it is classified as the most harmful category of drugs, with a high potential for abuse and no currently accepted medical use. Advocates believe that if marijuana is taken out of that classification, it would clear the path for more research into the effects of marijuana and ultimately lead to legalization and regulation nationwide.

While Holder’s statement was an opinion, and something that can’t easily be fact-checked, it is important to explore it, as well as Cohen’s response. As more states look toward legalizing recreational marijuana, advocates are pushing back stronger on statements such as Holder’s. Twenty-three states have legalized medical marijuana. Alaska recently became the third state to legalize marijuana, and D.C.’s recreational marijuana law is set to take effect Feb. 26.

Can the attorney general change the drug classification of marijuana? What are underlying policy issues that lead to questions over exactly what authority he has?

The Facts

Under federal law, the attorney general can move to add, reschedule or remove drugs on his own, at the request of the health and human services secretary or in response to a public petition. But the law also requires the attorney general to gather data and scientific and medical evaluation from the HHS secretary before doing so.

Congress can pass laws to change the scheduling of drugs. Even if the attorney general does decide to move toward rescheduling, Congress can overturn his decision, experts say.

The Drug Enforcement Administration already has denied a petition to reschedule the drug, based on findings by HHS. HHS determined that marijuana has a “high potential for abuse” and “no currently accepted medical use in treatment in the United States,” leading the DEA to reject the petition in 2011. The petition was filed nearly a decade earlier, in 2002.

HHS found that there are “no adequate and well-controlled studies proving efficacy.” Further, “the known risks of marijuana use have not been shown to be outweighed by specific benefits in well-controlled clinical trials that scientifically evaluate safety and efficacy.” The FDA is now re-evaluating its stance on marijuana, but it is unclear when that review will be complete.

This is what advocates believe is the catch-22: As long as marijuana is a Schedule I drug, there are limitations to conducting the extensive clinical trials required to take it out of Schedule I.

The Schedule I classification means researchers can’t obtain federal funding to study the drug. Studies have been done and continue to take place, but they are at a smaller scale than are needed, experts say. The Food and Drug Administration needs to work with the DEA and the National Institute on Drug Abuse to follow strict research protocols to study the effects and medical uses of marijuana. The DEA has certain requirements for the research setting, and NIDA provides some grants and small amounts of research-grade marijuana for scientific study. An FDA spokesman said the agency believes more research needs to be done.

Holder has questioned whether marijuana should be in the category as other serious drugs, such as heroin, especially given the increasing use and abuse of heroin in recent years that do not compare to the effects  of marijuana.

“The attorney general was addressing the fact that the administration can’t change the classification of marijuana unless HHS or the FDA find a ‘currently accepted medical use,’” said Patrick Rodenbush, a spokesman for the Department of Justice. “The attorney general believes that a political and policy issue of this magnitude deserves input from Congress and that, absent new medical findings, congressional action is currently the best avenue for reclassification.”

The Bottom Line

Drug scheduling policies are complex, and federal rulemaking happens at a glacial pace — recall that it took nearly a decade for HHS to reject a rescheduling petition. This opens up room for statements such as  Holder’s to be taken out of context, as it was by some legalization advocates after his recent speech. While some initial reports after Holder’s speech portrayed his comment as denying that he has authority to reschedule, a closer look at his answer shows that was not exactly the case.

Both Holder’s and Cohen’s statements are based in truth. Their statements appear to be in conflict because of their differing points of view on how aggressive the administration should be to reschedule the drug. This instance underscores the gaps in federal drug scheduling policies and rulemaking that allow the attorney general and congressional members to point to each other as the agent responsible for making policy decisions on marijuana.

 

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