I'd like to thank two of my brilliant friends Matt Zorn and Adrian Snead for help with this post.

Compared to legalization, rescheduling is a less-ambitious approach to marijuana reform. Not all rescheduling is created equal, however. When it comes to marijuana research, whether rescheduling will result in meaningful reform depends on whether marijuana is moved to Schedule II or instead to Schedules III-V.

The Biden Administration has expressed public support for the mildest form of rescheduling--moving marijuana from Schedule I to Schedule II. According to his Press Secretary, Jen Psaki, President Biden

supports ... rescheduling cannabis as a Schedule II drug so researchers can study its positive and negative impacts and, at the federal level, he supports decriminalizing marijuana use and automatically expunging any prior criminal records .... He also supports legalizing medicinal marijuana so that's his point of view on the issue.

That quotation embodies an oft-repeated canard about rescheduling: that moving marijuana to Schedule II would somehow facilitate marijuana research. In fact, however, moving marijuana to Schedule II would do next to nothing to address the obstacles obstructing marijuana research in this country. Put simply, President Biden's proposal to move marijuana to Schedule II is little more than a gussied-up way to preserve an intolerable status quo.

The Real (and Tiny) Difference Between Schedules I and II

Let’s start with the basics. As Kyle Jaeger at Marijuana Moment points out, the idea that moving cannabis from Schedule I to Schedule II would facilitate the release of “people incarcerated in federal prisons over non-violent marijuana offenses” has no basis in law or fact.

As the table below (which we've lifted from two pages of Vodra, The Controlled Substances Act, 2 Drug Enforcement 2 (1975)) illustrates, there isn't much difference between Schedules I and II under the CSA:

Across the board, Schedules I and II are identical with one notable exception: “dispensing limits.” The essential difference between Schedules I and II is that, in most cases, physicians can prescribe Schedule II drugs. Not so with Schedule I drugs, which are restricted to research.

Leafing through the CSA, one sees why this is so: Schedules I and II are often grouped together. Take Section 823 of the CSA, which groups Schedules I and II together for purposes of approving manufacturing and distribution applications. While the CSA divides drugs into five schedules, there is a higher level “Group A” and “Group B” paradigm, with Schedules I and II comprising the former group and Schedules III through V comprising the latter. The stricter restrictions apply to “Group A” substances, while far looser restrictions apply to “Group B.”

This is our thesis. Moving marijuana from the more restrictive Group A category (Schedule I) to the slightly less restrictive Group A category (Schedule II) doesn't remove the regulatory obstacles obstructing marijuana research in this country. Moving marijuana from Group A to the most restrictive Group B category (Schedule III), however, would be a game changer.

The NIDA Monopoly and the Regulatory Catch-22

Before we explain why Schedule II doesn't solve the marijuana research problem, it's important to understand what that problem really is--that Scientists doing clinical research are forced to study the substance pictured below:

Most samples of government marijuana Scottsdale Research Institute received for its clinical trials contained extraneous plant material like sticks and seeds; others had mold. This is the research drug supplied to all clinical researchers in the U.S. That is the "marijuana" they must use to demonstrate marijuana's safety and efficacy. It is junk.

Why this is the case turns on specific language in the statute we flagged above, 21 U.S.C. § 823(a):

(a) Manufacturers of controlled substances in schedule I or II
The Attorney General shall register an applicant to manufacture controlled substances in schedule I or II if he determines that such registration is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971. In determining the public interest, the following factors shall be considered…

Compare that language to the corresponding provision for “Group B”:

(d) Manufacturers of controlled substances in schedule III, IV, or V
The Attorney General shall register an applicant to manufacture controlled substances in Schedule III, IV, or V, unless he determines that the issuance of such registration is inconsistent with the public interest. In determining the public interest, the following factors shall be considered …

The difference is the italicized bit above--registrations to manufacture Schedule I or Schedule II substances must be consistent with United States obligations under international treaties.

Enter the Single Convention on Narcotic Drugs of 1961. The Single Convention is a drug control treaty or convention in effect since May 1, 1971. Per Section 823(a), DEA cannot approve the manufacture of cannabis outside the bounds of this treaty. And it is this treaty (not any provision of U.S. law other than Section 823(a) of the CSA) that contains the draconian restrictions that gave rise to the NIDA monopoly.

Specifically, Article 28 of the Single Convention entitled “Control of Cannabis” requires countries (like the US) to impose the same system of controls for cannabis that applies to opium, spelled out in Article 23. Article 23, in turn, creates a bureaucratic nightmare that requires a single government agency to carry out the functions of providing the supply of cannabis available for research.

We'll continue this story--and bust more marijuana myths--in future posts. Please stay tuned and spread the word.

The President Thinks Moving Marijuana to Schedule II Will Help Research. He's Wrong.
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