David T. Courtwright teaches history at the University of North Florida, where he is presidential professor. He is writing a history of pleasure, vice, and addiction with the help of a National Endowment for the Humanities Public Scholar Grant Award.
Since 1970, when President Richard Nixon signed the Controlled Substances Act, marijuana has been a Schedule I drug. Congress placed it in the most restrictive category of psychoactive substances, those with no currently accepted medical value and a high potential for abuse or dependence. The upshot was a renewed ban on marijuana, except for highly restricted research purposes.
I say renewed because Congress first prohibited marijuana use for non-industrial purposes in 1937. The Schedule I designation ratified the status quo, with one notable exception: The 1970 CSA actually reduced federal penalties for cannabis possession, a bit of Nixon-era liberality few people recall.
The CSA also authorized the Drug Enforcement Administration, in consultation the Food and Drug Administration, to schedule, deschedule, or reschedule drugs into different categories. The most restrictive category was Schedule I (no medical use), the least restrictive Schedule V (relatively loose prescription requirements). There was nothing unusual in this, scheduling already having been adopted in the 1961 United Nations Single Convention on Narcotic Drugs and in other nations’ drug laws.
What is unusual is that marijuana’s Schedule I status is back in play. But marijuana researchers and the marijuana industry have very different aims when they call for a policy shift. Depending on whether the drug is rescheduled or descheduled completely, consumers could stand to benefit or lose.
On April 4, Chuck Rosenberg, the DEA’s acting administrator, cosigned a letter to lawmakers saying the agency “understands the widespread interest in the prompt resolution of these petitions [to reschedule marijuana] and hopes to release its determination in the first half of 2016.”
Cannabis researchers have their fingers crossed. They argue that marijuana, both the plant itself and its active components, has therapeutic potential in conditions as diverse as inflammatory bowel disease and PTSD. Moving marijuana to Schedule II or III would eliminate some (though by no means all) of the onerous federal restrictions on cannabis research.
The cannabis industry’s reaction has been less enthusiastic. It wants a recreational market, not a specialized medical market with pharmacy distribution. Its goal is descheduling, not rescheduling. Removing marijuana from the CSA (something Congress can do without FDA or DEA approval) would make pot like alcohol or tobacco. It would be subject to local, state and federal taxes and regulations, though not federal prescription requirements or prohibitions. As Chris Goldstein wrote in Freedom Leaf, congressional descheduling legislation “would allow states to regulate cannabis as they please.”
“As they please” includes taxed recreational sales without therapeutic pretext, medical marijuana so easily acquired as to be virtually legalized, and frank commercialization. (Ads promoting dispensary happy hours and discounts on bulk purchases have already run in the Seattle Times.) “As they please” evidently does not include public monopolies to limit consumption and diversion. Speaking at the 2016 Cannabis Science and Policy Summit, Aaron Smith, executive director of the National Cannabis Industry Association, said, “We don’t want state monopolies. We want to see innovation in this industry.”
Rob Kampia, executive director of the Marijuana Policy Project, agreed: “A vigorous, competitive process will produce better products for the consumer.” The cannabis industry, with a capitalization in excess of $4 billion, has embraced the free market. Its opponents, such as Smart Approaches to Marijuana, counter that unfettered legalization means another Big Tobacco.
The danger is that “better products” (mostly high-THC pot and more seductive ways to deliver it) will produce more addiction, accidents, psychoses and cognitive deficits, particularly among daily users who account for the vast majority of sales. When the core business model is phishing for phools by exploiting misinformed buyers, more research is not necessarily welcome. If rescheduling produces additional studies confirming that regular cannabis use causes abnormal brain development, memory impairment and diminished IQ, the drug would look more like lead exposure than a harmless party plant.
Of course, the same research could verify cannabis’s value in treating nausea, spasticity, loss of appetite and other ailments. But evidence of serious side effects and high potential for dependence would make it impossible for the FDA to rationalize nonprescription sale or to recommend that the DEA place cannabis (or products containing THC) in one of the CSA’s least restrictive categories.
Research into marijuana’s non-intoxicating compounds, such as cannabidiol (CBD), is another matter. Even conservative legislatures in states such as Florida have approved high-CBD, low-THC marijuana to treat pediatric epilepsy. Yet whatever PR value the industry derives from such products, they remain orphan drugs. The money is in commercializing the intoxicating strains.
Big Cannabis is not inevitable, given the growing concern over opioid- and alcohol-related deaths among downwardly mobile, working-class whites. Once burned by legal drugs, policymakers are twice cautious. But this much is certain: Should marijuana be descheduled and cut free from the CSA, it will be through congressional legislation, not scientifically informed regulatory action by the DEA. And descheduling by legislative fiat would benefit the cannabis industry, not necessarily those in medical need.
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