On August 29, 2023, the Department of Health and Human Services sent a letter to the Drug Enforcement Administration (“DEA”) urging them to reclassify marijuana as a schedule III drug. The Department of Health and Human Services argued that if cannabis was reclassified as a Schedule III drug, it would officially distinguish itself with “high abuse” substances such as LSD, heroin, methaqualone, and ecstasy, and would rightfully join drugs such as acetaminophen and ketamine. On July 10, 2024 Oklahoma Senator James Langford and Texas Representative Pete Sessions sent a letter signed by 23 additional members of congress to Attorney General Merrick Garland opposing the Biden administration’s push to reclassify cannabis from a Schedule I to a Schedule III as Marijuana continues to be classified as a Schedule I drug under the Controlled Substances Act. The 25 lawmakers opposing the reclassification of marijuana argued that reasoned that the Department of Health and Human Services’ recommendation to the Drug Enforcement Agency (“DEA”) to classify cannabis as a Schedule III drug was politically motivated and was not based on any science or data.

The Controlled Substances Act considers eight factors when determining whether to remove a drug or substance from a schedule. Those factors include: (1) its actual or relative potential for abuse, (2) scientific evidence of its pharmacological effect, if known, (3) the state of current scientific knowledge regarding the drug or other substance, (4) its history and current pattern of abuse, (5) the scope, duration, and significance of abuse, (6) what, if any, risk there is to the public health, (7) its psychic or physiological dependence liability, and (8) whether the substance is an immediate precursor of a substance already controlled.

The fact that there are so many factors that must be considered before reclassifying marijuana shows the barriers that must be overcome before reclassification occurs. Reclassifying cannabis as a Schedule III drug under the Controlled Substances Act would unquestionably ease tax burdens on cannabis operators who are operating under a state license. The DEA is now responsible for coming up with a final decision after reviewing HHS’ recommendation. It remains to be seen when the DEA will make its final decision.