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H.H.S. Calls For Major Retreat In Federal War On Weed

[ Posted Thursday, August 31st, 2023 – 15:12 UTC ]

Could we finally be approaching the official end to the federal "War On Weed"? That possibility now exists thanks to the Department of Health and Human Services, who just made a recommendation to the Drug Enforcement Agency. And while it is not the unconditional surrender that pro-cannabis activists have been hoping for, it certainly would be the first major retreat in this metaphorical battlefield ever. If the H.H.S. advice is adopted by the D.E.A., the federal government would scale back a position that can only be described as "Draconian," and instead adopt a position that is a whole lot closer to reality.

First, the news, as reported by Politico:

The Biden administration's Department of Health and Human Services is recommending that the Drug Enforcement Administration significantly loosen federal restrictions on marijuana but stopped short of advising that it should be entirely removed from the Controlled Substances Act.

The health agency wants the drug moved from Schedule I to Schedule III under the CSA, potentially the biggest change in federal drug policy in decades.

. . .

The HHS letter is part of the official review process initiated by President Joe Biden last October: The FDA conducts the review, which is then sent to the National Institute on Drug Abuse and HHS, after which HHS transmits a letter of recommendation to the DEA. The DEA is not required to follow HHS's recommendation.

The White House on Wednesday refused to comment on the review process.

"The administration process is an independent process led by HHS, led by the Department of Justice, and guided by evidence," White House Press Secretary Karine Jean-Pierre told reporters. "We're just not going to comment on that."

Next, the definition of some terms. The Controlled Substances Act was passed by Congress and signed into law by President Richard Nixon in 1970. John Ehrlichman, a top Nixon advisor who (would later be convicted and serve prison time for his participation in Watergate), was brutally honest about what this was all intended to do (in an interview much later in his life):

You want to know what this was really all about? The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I'm saying? We knew we couldn't make it illegal to be either against the war or black people, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.

That was their motivation, plain and simple. Which is why marijuana wound up in the top category of "dangerous controlled substances." The Controlled Substances Act divided all drugs into five categories, or "schedules." Schedule I was for the most dangerous, while Schedule V was barely more dangerous than over-the-counter drugs. Here is the actual text of the law's definitions of each schedule:

(1) Schedule I.
    (A) The drug or other substance has a high potential for abuse.
    (B) The drug or other substance has no currently accepted medical use in treatment in the United States.
    (C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.

(2) Schedule II.
    (A) The drug or other substance has a high potential for abuse.
    (B) The drug or other substance has a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions.
    (C) Abuse of the drug or other substances may lead to severe psychological or physical dependence.

(3) Schedule III.
    (A) The drug or other substance has a potential for abuse less than the drugs or other substances in schedules I and II.
    (B) The drug or other substance has a currently accepted medical use in treatment in the United States.
    (C) Abuse of the drug or other substance may lead to moderate to low physical dependence or high psychological dependence.

(4) Schedule IV.
    (A) The drug or other substance has a low potential for abuse relative to the drugs or other substances in schedule III.
    (B) The drug or other substance has a currently accepted medical use in treatment in the United States.
    (C) Abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule III.

(5) Schedule V.
    (A) The drug or other substance has a low potential for abuse relative to the drugs or other substances in schedule IV.
    (B) The drug or other substance has a currently accepted medical use in treatment in the United States.
    (C) Abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule IV.

The Nixon White House got their wish: Marijuana and heroin were deemed to be Schedule I, along with most psychedelics (LSD, DMT, MDMA or "ecstasy," mescaline, peyote, and psilocybin or "magic mushrooms").

Schedule II -- drugs that are supposed to theoretically be less dangerous than marijuana -- includes: amphetamines, barbiturates, cocaine, codeine, fentanyl, methamphetamine, morphine, opium, and a whole bunch of opium's derivatives.

Schedule III includes things like ketamine and anabolic steroids. Schedule IV has name-brand drugs: Xanax, Darvocet, Valium, Ambien, and others. That is how the classifications currently stand.

This is, quite obviously, insane. It bears no relation to reality. Marijuana is somehow more dangerous than crystal meth? Or morphine? Or fentanyl?!?

And yet, since Tricky Dick's time in office, throughout the "Just Say No" Reagan period, and (shamefully) all the way through Democratic administrations that should have known better (Bill "I Didn't Inhale" Clinton and admitted-childhood-stoner Barack Obama, I am looking in your direction), this has been the official policy of the United States government. Smoking a joint is more dangerous than fentanyl, despite there being zero recorded deaths from overdosing on weed in all of recorded human history.

Joe Biden is, shall we say, a very reluctant proponent of bringing some sanity to the current situation, where 38 states -- three-fourths of them -- have legalized marijuana for medical purposes. I'd call that "currently accepted use in treatment in the United States," personally. Almost half of the states (23 and counting, along with three U.S. territories and the District of Columbia) have outright legalized adult recreational usage.

Much like at the end of the Prohibition period, the country has moved on but the federal government remains chained to outdated laws on the books. Which is why Biden was forced to act. Biden, when he was in the Senate, was one of those "drug warrior" Democrats who wanted to prove how tough on "law and order" he was, by supporting all kinds of Draconian laws or proposals, and he's never quite gotten over it. So he reluctantly directed the rest of his administration to study the issue and make recommendations, and then promptly washed his hands of the whole matter (as is evidenced by that White House quote in the article).

What really needs to happen -- the real end of the road for the federal War On Weed -- is for marijuana to be completely descheduled. Removed from that list entirely. You'll notice that the two most common psychoactive substances used recreationally in this country are not on that list, because tobacco products and alcohol are handled by an entirely different federal agency. That's where marijuana obviously should be -- with booze and cigarettes -- and it is what I meant in my opening paragraph as what would constitute a full and unconditional governmental surrender in the War On Weed.

H.H.S. didn't go that far. But moving cannabis from Schedule I to Schedule III would indeed be a giant step forward. It would solve many of the problems that still needlessly exist for marijuana -- the fact that studying it medically is incredibly hard to do (with all sorts of hoops to jump through) as well as the financial problems businesses selling weed have to put up with. As the Politico article explains:

But because cannabis businesses are not federally legal, they are subject to a federal tax code that prohibits narcotics traffickers from taking typical tax exemptions for business expenses like salaries and benefits. That code does not apply to Schedule III, so if the DEA approved HHS' recommendation, cannabis businesses around the country would immediately be paying much less in federal taxes.

. . .

Rescheduling could also mean legislative changes on Capitol Hill, where a bill to make it easier for banks to offer financial services to the cannabis industry -- backed by Senate Majority Leader Chuck Schumer (D-N.Y.) and Sens. Steve Daines (R-Mont.) and Jeff Merkley (D-Ore.) -- has been slowly plodding toward the finish line.

Changing marijuana's federal classification would almost certainly make it easier for cannabis businesses to access banking services and raise cash even without any legislative changes.

"I don't see a need for the SAFE Banking Act if this in fact becomes the official position," said Jonathan Havens, a cannabis attorney at Saul Ewing who previously worked for the FDA. "I'm not saying that all banks will want to jump into this space, but the need for safe harbors I don't think exists like it does today."

So rescheduling wouldn't be as sweeping as descheduling, but it isn't exactly small potatoes either. It would represent not only the biggest but indeed the first step backwards (away from madness and towards sanity) for the federal government in a very long time. When Prohibition did end in the 1930s, Harry Anslinger was put at the head of the newly-created Federal Bureau of Narcotics, and he sold the concept of the federal War On Weed to the politicians of his day using pretty apocalyptic language (that will be familiar to anyone who has seen the propaganda film Reefer Madness, by the way):

Marihuana is a short cut to the insane asylum. Smoke marihuana cigarettes for a month and what was once your brain will be nothing but a storehouse of horrid specters. Hasheesh makes a murderer who kills for the love of killing out of the mildest mannered man who ever laughed at the idea that any habit could ever get him.

I would amend that first sentence to read: "Demonizing cannabis is a short cut to insane federal laws." Which we have been living under for nigh on nine decades now. And now, for the first time, one branch of the federal government is telling the branch that actually makes the decision that enough is enough and it is time to move towards reason and sanity.

We'll have to see what the D.E.A. does with this recommendation. If they refuse to act on it, by the text of the Controlled Substances Act the attorney general can unilaterally reschedule drugs. One way or another, though, this madness has to end. Marijuana is not more dangerous than fentanyl. It's just not. And it's about time federal law reflected this basic reality.

It is time for the first-ever governmental retreat in the War On Weed. It is actually long past time for this to happen.

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


12 Comments on “H.H.S. Calls For Major Retreat In Federal War On Weed”

  1. [1] 
    Elizabeth Miller wrote:

    Next up ... magic mushrooms!

    What I don't get is that I can order them online from my favourite weed shop in Vancouver but the police are shutting down little stores here in Kitchener as soon as they pop up, again and again. These store owners are doing a great job of paving the way ...

  2. [2] 
    Elizabeth Miller wrote:

    As for the entire column today ... Hear! Hear! This is just what the doctor ordered ... if you know what I mean and I'm sure that you do! :-)

  3. [3] 
    Speak2 wrote:

    Thanks for making me seem prescient.

  4. [4] 
    Speak2 wrote:

    Back in the 30's, the paper (wood products) and textile industries were much better organized and had more powerful lobbying than was true for the hemp industry.

    They provided many of Anslinger's talking points and direction. That's a big part of the history.

  5. [5] 
    Speak2 wrote:

    At the time, I said that as long as McConnell refused to give Lynch a hearing, Holder should have forced his hand.

    Every week, he should have issued some order (within his authority, of course) that the GOP would hate, beginning with descheduling.

  6. [6] 
    nypoet22 wrote:

    So who's lobbying hard against this?

  7. [7] 
    andygaus wrote:

    Well, the pharmaceutical industry. Remember, people who use cannabis sometimes find they don't need to use oxycontin anymore. Legalizing medical marijuana has been shown to reduce prescription drug use in the states where it is allowed. And Big Pharma can't patent cannabis.

  8. [8] 
    MtnCaddy wrote:


    The alcohol industry is likewise lobbying against weed, and it wouldn’t surprise me if the tobacco industry had an interest in the status quo.

    Let’s say the DEA disagrees with HHS. Older-than-dirt Joe could knock down some of his age by promising to legalize it in his second term, which would be great for turnout next year.

  9. [9] 
    Elizabeth Miller wrote:


    You should contact Joe and tell him that! The war on drugs, in general, has always been a bone of contention between the president and myself. :)

  10. [10] 
    Elizabeth Miller wrote:

    I don't think the president understands that the drug "problem" is one of demand as opposed to supply.

  11. [11] 
    MtnCaddy wrote:

    As you have a far longer relationship with Joe why don’t you whisper in his ear on behalf of us Murican stoners?

    I’m expecting Joe to continue to practice effective politics by putting Federal legalization in the party platform and to shout that fact out on every street corner. This will benefit every Democratic candidate.

  12. [12] 
    Elizabeth Miller wrote:


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