The federal rescheduling of marijuana has been a topic of conversation within the marijuana industry since President Biden’s statement requesting that the secretary of health and human services (HHS) and the attorney general (AG) “initiate the administrative process to review expeditiously how marijuana is scheduled under federal law.”[1] However, the Supreme Court’s recent decision overturning the Chevron doctrine adds an additional layer to an already complicated process. While the exact impact of Loper Bright Enterprises v. Raimondo[2] on the cannabis industry remains to be seen, this article explores the way in which it may impact the pending rescheduling.
Relevant Regulatory Scheme
Congress enacted the Controlled Substances Act (CSA) to regulate substances included in one of five schedules listed in 21 U.S.C. § 802(6). Congress arranged the schedules from most restricted (Schedule I) to least restricted (Scheduled V) based on potential for abuse, accepted use in medical treatment in the U.S., and likelihood that abuse will lead to physical or psychological dependence.[3] Congress did not determine the terms “potential for abuse” or “currently accepted medical use,” leaving their meaning to be determined by the agencies tasked with administering the CSA.
When the CSA was first enacted, Congress classified marijuana as a Schedule I drug. “This preliminary classification was based, in part, on the recommendation of the Assistant Secretary of [the Department of Health, Education, and Welfare][4] that marihuana be retained within schedule I at least until the completion of certain studies now underway.”[5] Notably, the CSA provides for the periodic updating of schedules, delegating authority to the executive branch to reclassify controlled substances. Specifically, Congress provided the AG, in consultation with the secretary of HHS, the authority to reschedule certain substances and “remove any drug or other substance from the schedules if he finds that the drug or other substance does not meet the requirements for inclusion in any schedule.”[6] In turn, the AG and secretary of HHS have delegated this power to the administrator of the Drug Enforcement Agency (DEA) and the U.S. Food & Drug Administration (FDA) respectively.[7]
Ultimately, whatever decision is made to reschedule or deschedule a controlled substance pursuant to 21 U.S.C. § 811, is subject to judicial review.[8]
The Chevron Doctrine and Loper Bright
The primary concern of this article is not the complex procedure prescribed for the rescheduling or descheduling of controlled substances, but the standard a court would apply in assessing a scheduling decision on judicial review. The CSA specifically treats the AG’s findings of fact as “conclusive” if they are “supported by substantial evidence.”[9] The Administrative Procedures Act (APA) adopts a similarly deferential standard toward agencies’ factual findings, empowering courts to overrule agencies’ actions and findings only in specific circumstances, such as when they are “arbitrary, capricious,” or “an abuse of discretion,” or if they are “unsupported by substantial evidence.”[10]
Under the Chevron doctrine, as set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,[11] agencies’ interpretation of ambiguous statutory terms would also be given deference. For purposes of rescheduling or descheduling, Chevron deference has allowed courts to defer to the DEA’s understanding of “potential for abuse” and “currently accepted medical use” as defined through prior administrative proceedings. In other words, Chevron deference would allow a court to accept the DEA’s understanding of those terms so long as it was a “permissible construction” even if the Court did not arrive at the same conclusion regarding the language.[12]
On June 28, The Supreme Court issued a decision that overturned Chevron, holding that, while courts “may [ ] seek aid from the interpretations” of agencies, they “must exercise independent judgment in determining the meaning of statutory provisions.”[13] In other words, courts will no longer defer to agencies’ interpretations of ambiguous statues, and will instead exercise their own judgment to determine the best reading of the law.[14]
What Does Bright Loper Mean for Rescheduling of Marijuana
On May 21, the DEA issued a proposed rule titled Schedules of Controlled Substances: Rescheduling of Marijuana (the proposed rule). [15] The proposed rule includes HHS’s scientific and medical determinations, which address the factors set forth in 21 U.S.C. 811(c), including relative potential for abuse and currently accepted medical use. As set forth above, neither of these terms have been defined by statute, and courts have routinely deferred to the agencies’ interpretations.
The proposed rule identifies several factors that DEA and HHS have “typically weighed … in determining whether a particular drug or substance has a potential for abuse,”[16] concluding that:
as a relative finding on abuse liability, when comparing marijuana to heroin, oxycodone, hydrocodone, fentanyl, cocaine, ketamine, benzodiazepines, zolpidem, tramadol, and alcohol in various epidemiological databases that allow for some or all of these comparisons, marijuana is not typically among the substances producing the most frequent incidence of adverse outcomes or severity of substance use disorder” Similarly, in determining currently accepted medical use.[17]
Accordingly, HHS “has recommended a finding that marijuana has a potential for abuse less than the drugs or other substances in schedules I and II.”[18] The DEA, however, “believes that additional data in this area may be appropriate for consideration in assessing marijuana’s actual or relative potential for abuse.”[19]
Similarly, HHS “recommends a finding that marijuana has a CAMU,” or currently accepted medical use in the United States.[20] In making this recommendation, HHS analyzed widespread current experience with medical use in the U.S. and credible scientific support for at least one of those medical uses. However, the proposed rule notes that “[i]n the past, DEA has concluded that a substance has a CAMU under the CSA only if one of two tests is satisfied.”[21] The Department of Justice Office of Legal Counsel opined that the DEA five-part test is “impermissibly narrow” and “HHS’s two-part inquiry is sufficient to establish that a drug has CAMU.”[22]
In both instances, the AG concurred with HHS’s conclusions and, for the purposes of the initiation of the rulemaking proceedings, found “that marijuana has a potential for abuse less than the drugs or other substances in schedules I and II”[23] and “that there is a CAMU for marijuana.”[24] It is these conclusions, which rely on HHS’s disputed interpretation of what satisfies the undefined statutory requirements, that will undergo judicial review. While pre-Loper Bright, courts could have deferred to HHS’s understanding of the statutory requirements, that standard is no more.
Instead, if a final rule is promulgated and challenged, courts will undertake their own analysis of the meaning of “potential for abuse” and “currently accepted medical use.” This analysis will make the litigation wholly unlike previous challenges to federal action regarding marijuana rescheduling. In these challenges we will see the federal agencies advocating for rescheduling and the courts left without the ability to rely on the same agencies’ interpretations of the relevant law.
[1] Statement from President Biden on Marijuana Reform, The White House (October 6, 2022) https://www.whitehouse.gov/briefing-room/statements-releases/2022/10/06/statement-from-president-biden-on-marijuana-reform/.
[2] Case No. 22-451 (June 28, 2024)
[3] 21 U.S.C. § 812(b).
[4] The Department of Health, Education, and Welfare was a precursor to the modern Department of Health and Human Resources.
[5] Gonzales v. Raich, 545 U.S. 1, 14 (2005) (internal quotations omitted).
[6] Id. § 811(a); see also Gonzales
[7] 28 C.F.R. § 0.100 (2023); 6 Fed. Reg. 49337 (Sept. 2, 2021).
[8] 21 U.S.C. 877.
[9] 21 U.S.C. § 877.
[10] 5 U.S.C. § 706(2).
[11] 467 U.S. 837 (1984).
[12] See e.g., Alliance for Cannabis Therapeutics v. DEA, 15 F. 3d 1131, 1134 (D.C. Cir. 1994) (“On reviewing the Administrator’s decision, we found the eight-factor test for determining whether a drug had a ‘currently accepted medical use’ to be in the main acceptable. We noted the ambiguity of the phrase and the dearth of legislative history on point and deferred to the Administrator’s interpretation as reasonable.”) (internal quotations and citations omitted).)
[13] Loper Bright, at *16
[14] David Anthony, et al., Supreme Court Overrules Chevron Doctrine in Landmark Administrative Law Decision, Troutman Pepper Consumer Services Law Monitor (June 28, 2024) https://www.consumerfinancialserviceslawmonitor.com/2024/06/supreme-court-overrules-chevron-doctrine-in-landmark-administrative-law-decision/.
[15] Schedules of Controlled Substances: Rescheduling of Marijuana, 89 Fed. Reg. 44597 (proposed May 21, 2024) https://www.govinfo.gov/content/pkg/FR-2024-05-21/pdf/2024-11137.pdf.
[16] Id. at 44601.
[17] Id. at 44603.
[18] Id. at 44615.
[19] Id. at 44603.
[20] Id. at 44616.
[21] Id.
[22] Id. at 44617.
[23] Id. at 44616.
[24] Id. at 44619.
