Unpacking Rescheduling Facts and Myths
Last week, cannabis industry stocks and hopes soared again with rumors President Trump would reschedule cannabis by executive order. Those hopes were dashed when, instead of the big rescheduling announcement, Trump said his administration is “…looking at [rescheduling] very strongly.” With detractors inside the president’s administration and inner circle, it remains uncertain whether Trump will complete the process commenced under the Biden Administration in the near term, if at all.
Like all rescheduling fire drills to-date, the rumors sparked heated debate and the flow of misinformation about rescheduling and its potential impacts. This misinformation creates confusion among those eagerly awaiting this monumental step toward anding prohibition and the punitive taxation of state regulated cannabis businesses.
The Holon Team has unpacked some of the myths making the rounds this week.
Myth #1: The president can reschedule marijuana by executive order.
Facts: No, the president cannot unilaterally reschedule by executive order. Marijuana’s status under the Federal Controlled Substances Act (CSA) is a product of law, implemented through complex regulatory processes that may not be changed by executive order. The president can direct his administration to undertake and prioritize the rescheduling process, but he cannot make rescheduling happen with the stroke of his pen.
Myth #2: Rescheduling would make cannabis a prescription drug.
Facts: The reclassification of marijuana to schedule III would not make cannabis a prescription drug. Classification under the CSA prescribes the level of control applied to a given substance; it does not bestow a substance with prescription drug status. While both marketing and consumption methods may render cannabis a “drug” for the purposes of federal enforcement, such a designation does not make cannabis a licensed prescription drug.
Myth #3: Rescheduling would render state regulated cannabis products illegal for failure to comply with federal drug regulations.
Fact: This will come as no surprise, but state regulated cannabis products are already illegal under federal law. Rescheduling will not change that. Rescheduling would not subject these cannabis products to the compliance obligations of approved drugs, nor would rescheduling create an obligation for cannabis products to seek drug approval absent the intent to market as such.
Myth #4: Rescheduling will incite “big pharma” to wage war against the cannabis industry.
Facts: To borrow from Don Corleone in the Godfather Part I, if they wanted us dead, we would be. Presently, the pharmaceutical industry has ample resources to rain fire upon the state regulated cannabis industry if they chose to do so. Pharmaceutical industry opposition to legalizing cannabis already exists and will remain so long after rescheduling and legalization. Survival will require preparing for coexistence, including what the industry will yield to the purview of the pharmaceutical industry.
Myth #5: Rescheduling would kill efforts to end federal prohibition.
Facts: Federal cannabis legalization has taken a backseat in priority to industry’s fight for immediate relief from punitive tax and banking laws, and drug and justice reform organizations’ defense of civil rights, protection of vulnerable populations, and the preservation of laws and processes critical to our democracy.
Rescheduling would create legal inconsistencies between the treatment of marijuana and other schedule III substances, including criminal mandatory minimums, that would take acts of Congress to address. This process would create opportunities to address the issues and move closer to federal legalization.
