The U.S. Drug Administration will keep marijuana at its Schedule I status, denying petitions to reschedule, according to filings made Thursday with the Federal Register. Pictured: A marijuana plant. (Photo by Seth McConnell/The Denver Post)

DEA files docs, says no to rescheduling marijuana

Decisions include rejection of medical cannabis, rules on industrial hemp and expansion of cultivation for research

The U.S. Drug Enforcement Administration filed documents with the Federal Register on Thursday outlining its denial of petitions to reschedule marijuana.

The filings, which are expected to be published Friday, included the rescheduling decision, a rejection of the medical use of marijuana, statements of principles on industrial hemp, and a move to allow more entities to cultivate marijuana for research purposes.

The DEA’s denial of the petitions — which was anticipated — was rooted in the recommendations of the U.S. Food and Drug Administration and the Department of Health and Human Services, which both conducted scientific and medical evaluations and eventually determined that marijuana should remain a Schedule I substance under the Controlled Substances Act, DEA officials said.

“We are truly tethered to the science, bound by statute,” DEA spokesman Russell Baer said Thursday morning in an interview with The Cannabist. “Everything we do, everything that we’re governed by, is contained within the CSA.”

The DEA, by definition, is a law enforcement entity that enforces the provision of the act, Baer said. In this case, its determination toward marijuana was weighted heavily on how the FDA ruled, he said.

“Congress could reschedule this tomorrow,” he said.

DEA: Not a ‘big, bad wolf’

Thursday’s decision won’t change the DEA’s marijuana-related enforcement actions, he said.

The nation is in the throes of an opioid epidemic, and it is there — not cracking down on offenses such as a mother transporting CBD oil for her daughter across state lines to Nebraska — where the DEA needs to allocate its resources, Baer said, adding that the DEA is “focusing on heroin, fentanyl, meth, cocaine.”

“People should not get hung up on this idea that the DEA somehow is still a big, bad wolf,” he said. “We are not. We are engaged with the medical community. We have new strategies.

“We realize that we can’t arrest ourselves out of this problem.”

In America, 25 states, Washington, D.C., Guam and Puerto Rico, have legalized marijuana in some form. Four of those states and D.C. have legalized the recreational use of cannabis. At least six other states have marijuana-related ballot initiatives this November.

The pendulum is shifting — in both the public’s perception and the narrative of the DEA, Baer said.

“We’re really excited about some of these studies that are coming out,” he said. “They’re promising, they’re preliminary, but they’re inadequate.”

That’s part of the reason, Baer said, why the DEA moved to broaden who can grow marijuana for federally approved research purposes. Currently, the University of Mississippi has a monopoly.

A ‘retrogressive decision’

The DEA tossing a bone in the direction of research doesn’t go far enough, said Rachel Gillette, a Lafayette, Colo.-based marijuana and tax attorney with Greenspoon Marder law firm.

“I’m reading this policy, and it seems like there’s substantial red tape,” she said, “and it’s going to take years and years and years to actually achieve that intended goal, unfortunately. To me, it’s a very retrogressive decision.”

DEA, in essence, is maintaining the status quo — which not only is seemingly becoming outdated in the court of public opinion, but also growing increasingly dangerous to legal enterprises, she said. Marijuana being illegal on the federal level but legal, in some cases, on the state level has created a situation where legal cannabis businesses can’t openly bank and have to operate in all-cash, creating security and regulatory concerns, she said.

“It’s just untenable long-term,” she said. “In some ways, it really incentivizes people to not be as transparent as they should be.”

The National Conference of State Legislators cited public and regulatory safety in its resolution passed Wednesday that called for the rescheduling of marijuana to allow for open banking.

News and details of the announcement started to leak on Wednesday evening and into the night, with DEA Administrator Chuck Rosenberg telling National Public Radio that “This decision isn’t based on danger. This decision is based on whether marijuana, as determined by the FDA, is a safe and effective medicine, and it’s not.”

Under the Controlled Substances Act, marijuana is classified as a Schedule I substance, subjecting it to the tightest restrictions. Schedule I substances are considered to have no accepted medical use.

If it were to have been rescheduled as a Schedule II substance, analysts predicted that would lift some barriers to research, lead to cannabis medicines that physicians prescribe, allow the industry to import and export across state lines, and give protections to workers.

DEA denied the rescheduling, citing it has a high potential for abuse, no currently accepted medical use and it lacks accepted safety use under medical supervision, according to the filings.

“As detailed in the (Department of Health and Human Services) evaluation, the drug’s chemistry is not known and reproducible; there are no adequate safety studies; there are no adequate and well-controlled studies proving efficacy; the drug is not accepted by qualified experts; and the scientific evidence is not widely available,” Rosenberg wrote in the filings.

Gillette countered that argument, chastising the DEA’s reliance on a 1961 international convention on narcotic drugs to never reschedule marijuana lower than Schedule II as well as the regulatory barriers that exist for marijuana research.

“We’re not taking into account what we already know and what the public knows,” she said. “It’s the federal government that is its own worst enemy.”

Opening doors for more growers

The DEA did take action on modifying its cultivation requirements for federally approved marijuana research as well as commercial operations.

For nearly 50 years, Ole Miss was the only authorized grower under an arrangement with the National Institute on Drug Abuse. The historical system was designed to supply marijuana for federally funded research and not for commercial product development, according to the DEA.

“However, in recent years, there has been greater public interest in expanding marijuana-related research, particularly with regard to certain chemical constituents in the plant known as cannabinoids,” DEA officials wrote in the policy statement filed Thursday.

The new policy not only opens up the doors for new registrants to grow marijuana for federally funded research, but also for privately funded commercial endeavors, the DEA wrote.

“We want to promote research. We are for research,” Baer said. “And the more rigorous, scientific research that is done, the more we can know about the plant, the more we can provide an avenue to study its efficacy while knowing about its adverse impacts as well. And maybe formulate strategies and policies that could lead to some sort of rescheduling down the road.”

The new policy action was lauded by public officials, including the campaign for Democratic presidential nominee Hillary Clinton. Maya Harris, the senior policy adviser of Hillary for America, provided the following statement to The Cannabist:

“We applaud the steps taken today by the Obama Administration to remove research barriers that have significantly limited the scientific study of marijuana. Marijuana is already being used for medical purposes in states across the country and it has the potential for even further medical use. As Hillary Clinton has said throughout this campaign, we should make it easier to study marijuana so that we can better understand its potential benefits, as well as its side effects. As president, Hillary will build on the important steps announced today by rescheduling marijuana from a Schedule I to a Schedule II substance. She will also ensure Colorado, and other states that have enacted marijuana laws, can continue to serve as laboratories of democracy.”

Staying the course on hemp

The DEA’s filings on Thursday also included a “Statement of Principles on Industrial Hemp.” The document reaffirmed the agency’s current position on the topic, Baer said.

This story is developing and will be updated.

DEA Denial of Petition to Initiate Proceedings to Reschedule Marijuana