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Marijuana could be reclassified as a Schedule III drug, opening the doors for research and tax breaks nationwide. However, that decision is in the hands of the federal agency that spearheaded the “War on Drugs.”
The Federal Drug Enforcement Agency will hold a hearing before an administrative law judge on Dec. 2, as it decides if it will reschedule cannabis from Schedule I to Schedule III, almost one month after the presidential election.
Schedule I substances are heavily controlled and can never be sold or used under federal law. There are five schedules; Schedule I is the most controlled, Schedule V is the least.
Under the Controlled Substances Act (CSA), a federal law signed by President Richard M. Nixon in 1971, marijuana is considered on the same level as MDMA, heroin and LSD — and worse than cocaine, methamphetamines and codeine.
The hearing is in response to the May 21 U.S. Department of Justice proposal. This is almost two years after President Joe Biden ordered U.S. Attorney General Merrick Garland and Secretary of Health and Human Services Xavier Becerra to launch a scientific investigation into how marijuana is scheduled under federal law.
Oregon’s 3rd congressional district Rep. Earl Blumenauer says the CSA did nothing to limit reckless behavior and was subject to pernicious enforcement. “The failed war on drugs inflicted incalculable harm, particularly on young Black Americans, but people of color generally,” he says. “It made no sense. It wasn’t fair. It was nonsensical and unenforceable.”
Blumenauer says Oregon fixed this problem half a century ago when it decided to decriminalize marijuana in 1973, two years after the CSA was signed into law. “We developed a very clear record that prohibition of cannabis served no useful purpose,” he says.
A longtime advocate for cannabis reform, Blumenauer voted in favor of the Marijuana Opportunity Reinvestment and Expungement Act in 2022. The MORE Act was reintroduced on the House floor in 2023; however, no vote was held.
If passed, it would immediately decriminalize and deschedule marijuana, expunging all related possession and dealing convictions in the process.
Rescheduling weed from Schedule I to III would be a step forward, Blumenauer says.
However, attorney Scott Beckstead, a cannabis law and animal rights lecturer in law at Willamette University, says it won’t be the “catch-all” people are expecting it to be.
“Rescheduling to Schedule III certainly doesn’t address any of those social justice concerns,” he says. “And from a business standpoint, about the best that can be said is that if it’s rescheduled to Schedule III, then we no longer have the IRS rule 280E that would apply.”
IRS Rule 280E prohibits any Schedule I substance from being written off in taxes, unlike any other business.
“This industry already suffers from really tight profit margins. They can’t even write off their normal business expenses like every other business can,” Beckstead says.
If it were rescheduled, Rule 280E would no longer apply.
“The industry certainly will become more profitable, from the standpoint of not having to carry that heavy, heavy tax burden,” Beckstead says. “That’s the most immediate and palpable benefit from rescheduling to Schedule III.”
Even still, cannabis would be subject to the Federal Food, Drug and Cosmetic Act of 1938 that restricts its access to interstate commerce. “Rescheduling is a poor substitute for comprehensive federal reform that legalizes cannabis, and that can only be done with an act of Congress,” he says.
While Blumenauer is certain rescheduling will happen, Beckstead says there is a great deal of administrative uncertainty, especially given that it is an election year.
“If Donald Trump were to win the election, and if he were to appoint another anti-cannabis zealot like Jeff Sessions as attorney general, that could move cannabis back to Schedule I.”
To comment on or watch the Dec. 2 DEA rescheduling hearing before an administrative judge, register online at FederalRegister.gov.
“}]] Marijuana could be reclassified as a Schedule III drug, opening the doors for research and tax breaks nationwide. However, that decision is in the hands of the federal agency that spearheaded the “… Read More