Notice of Proposed Rulemaking for Federal Cannabis Rescheduling Published
By Lauren Mendelsohn and Omar Figueroa
May 21, 2024
Today, the United States Department of Justice (DOJ) and the Drug Enforcement Administration (DEA) officially posted the Notice of Proposed Rulemaking (NPRM) of the intent to reclassify cannabis from Schedule I to Schedule III of the Controlled Substances Act (CSA). Public comments are being accepted through July 22, 2024. Requests for a hearing on the proposal will be accepted through June 20, 2024.
We previously discussed President Biden’s announcement of the DOJ’s rescheduling proposal here. While we believe that cannabis ought to be descheduled entirely, a move to Schedule III would still be the most significant shift in U.S. drug policy since the adoption of the CSA in 1970.
The Summary of the NPRM states:
“The Department of Justice (“DOJ”) proposes to transfer marijuana from schedule I of the Controlled Substances Act (“CSA”) to schedule III of the CSA, consistent with the view of the Department of Health and Human Services (“HHS”) that marijuana has a currently accepted medical use as well as HHS’s views about marijuana’s abuse potential and level of physical or psychological dependence. The CSA requires that such actions be made through formal rulemaking on the record after opportunity for a hearing. If the transfer to schedule III is finalized, the regulatory controls applicable to schedule III controlled substances would apply, as appropriate, along with existing marijuana-specific requirements and any additional controls that might be implemented, including those that might be implemented to meet U.S. treaty obligations. If marijuana is transferred into schedule III, the manufacture, distribution, dispensing, and possession of marijuana would remain subject to the applicable criminal prohibitions of the CSA. Any drugs containing a substance within the CSA’s definition of “marijuana” would also remain subject to the applicable prohibitions in the Federal Food, Drug, and Cosmetic Act (“FDCA”). DOJ is soliciting comments on this proposal.”
In particular, the proposal would amend Part 1308 of Title 21 of the Code of Federal Regulations (CFR), which deals with schedules of controlled substances:
“PART 1308 — SCHEDULES OF CONTROLLED SUBSTANCES
- The authority citation for 21 CFR part 1308 continues to read as follows:
Authority: 21 U.S.C. 811, 812, 871(b), 956(b), unless otherwise noted.
- Amend § 1308.11 by:
- Removing paragraphs (d)(23) and (58).
- Redesignating paragraphs (d)(24) through (57) and (59) through (104) as paragraphs (d)(23) through (102), respectively.
- Revising newly redesignated paragraph (d)(30).
The revision reads as follows:
- 1308.11
Schedule I.
* * * * *
(d) * * *
(30) Tetrahydrocannabinols—7370
(i) Meaning tetrahydrocannabinols, except as in paragraphs (d)(30)(ii) and (iii) of this section, naturally contained in a plant of the genus Cannabis (cannabis plant), as well as synthetic equivalents of the substances contained in the cannabis plant, or in the resinous extracts of such plant, or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity to those substances contained in the plant.
(ii) Tetrahydrocannabinols does not include any material, compound, mixture, or preparation that falls within the definition of hemp set forth in 7 U.S.C. 1639 o.
(iii) Tetrahydrocannabinols does not include any substance that falls within the definition of marijuana set forth in 21 U.S.C. 802(16).
* * * * *
- Amend § 1308.13 by adding paragraphs (h) through (j) to read as follows:
- 1308.13
Schedule III.
* * * * *
(h) Marijuana. Marijuana, as defined in 21 U.S.C. 802(16).
(i) Marijuana extract. Marijuana extract, meaning an extract containing one or more cannabinoids that has been derived from any plant of the genus Cannabis, containing greater than 0.3 percent delta-9-tetrahydrocannabinol on a dry weight basis, other than the separated resin (whether crude or purified) obtained from the plant.
(j) Naturally derived delta-9-tetrahydrocannabinols. (1) Meaning those delta-9-tetrahydrocannabinols, except as in paragraphs (j)(2) and (3) of this section, that are naturally contained in a plant of the genus Cannabis (cannabis plant).
(2) Naturally derived delta-9-tetrahydrocannabinols do not include any material, compound, mixture, or preparation that falls within the definition of hemp set forth in 7 U.S.C. 1639 o.
(3) Naturally derived delta-9-tetrahydrocannabinols do not include any delta-9-tetrahydrocannabinols contained in substances excluded from the definition of marijuana as set forth in 21 U.S.C. 802(16)(B)(ii).”
Instructions for how to submit a comment are included in the NPRM. Online submissions via the Federal eRulemaking portal are preferred. Note that comments will be part of the public record, so a commenter who wishes to keep certain personal identifying information (PII) confidential should submit a redacted version along with the full version that clearly identifies which PII should remain confidential.
While a move to Schedule III would bring some relief to businesses operating in the cannabis industry, mainly by removing the tax burden of Section 280(e) of the Internal Revenue Code, cannabis-related activity would still be subject to criminal provisions in the CSA applicable to Schedule III substances. Additionally, cannabis-related activity would still have to comply with the federal Food, Drug and Cosmetic Act (FDCA).
You can view the entire NPRM in PDF form below and download it here:
NOPR - Cannabis Rescheduling
Stay tuned for further updates about this proposed change to federal cannabis policy.
This information is provided as a public educational service and is not intended, nor should be construed, as legal advice. For specific questions regarding the proposed rescheduling of marijuana or other topics related to California or Federal cannabis laws, contact the Law Offices of Omar Figueroa at 707-829-0215 or info@omarfigueroa.com to schedule a confidential legal consultation.