The Controlled Substances Act (CSA), signed into law by President Richard Nixon in 1970, is the main federal statute regulating possession and use of certain substances, such as heroin, LSD, and cocaine. The CSA has five “schedules” that rank these substances based on three main attributes: the drug’s potential for abuse, existence of a current medical use, and its potential for safe use under medical supervision. The Food and Drug Administration (“FDA”) and the Drug Enforcement Administration (DEA) make these determinations.

Schedule I is for substances that the FDA and DEA have determined to have a high potential for abuse, no currently accepted medical use, and a lack of safety for use under medical supervision. Schedule I drugs are the most tightly regulated of all five schedules. Any use, even simple possession, of any amount of a Schedule I substance is illegal and punishable under federal law. Cannabis is currently classified as a Schedule I drug in the CSA, along with heroin, peyote, and MDMA. Any possession or use of the substance, even if legal under state law, is illegal under federal law and punishable under the CSA.

There is substantial public support for marijuana’s medical use, indicated by 29 states in the country legalizing some form of medical or recreational marijuana. The CSA has not caught up to public sentiment, largely in part to the different processes between a state ballot initiative and rescheduling of a substance in the CSA. At the state level, citizens can generally make any change to the law by drafting an initiative, qualifying it the ballot, and passing it by the required vote at an election. By contrast, the CSA entails a more stringent process. Generally, in order for the DEA ad FDA to find a substance to just have medical treatment value – let alone make determinations regarding potential for abuse or potential for safe use under medical supervision – it must meet five conditions:

  1. The drug’s chemistry must be known and reproducible;
  2. There must be adequate safety studies;
  3. There must be adequate and well-controlled studies proving efficacy;
  4. The drug must be accepted by qualified experts; and
  5. The scientific evidence must be widely available.”[1]

One of the most prominent difficulties for cannabis in meeting these five conditions is that it is very difficult, if not impossible, to have two different samples of cannabis leaves with the exact same chemical makeup. This is due to the fact that it is harvested off of a natural plant. Further, different varieties of cannabis plants have different chemical makeups, creating even more variations. Therefore, under the CSA’s current structure and requirements, it is unlikely that cannabis can be rescheduled as a drug with potential medical value.

In response to this difficulty, members of Congress have introduced bills that would reschedule cannabis within the CSA. The most recent attempt at legislative rescheduling is House Resolution 2020, which would place cannabis in Schedule III (which lists drugs that have lower potential for abuse, currently accepted medical use, and low/moderate risk of dependence if abused). Possession and use of Schedule III drugs without a prescription is illegal, so rescheduling cannabis to this category would greatly restrict, if not outlaw entirely, its recreational use. H.R. 2020 was introduced by Rep. Matt Gaetz, a Florida Republican, in April 2017. Given the public sentiment overall in support of medical marijuana and a new wave of support in Congress, a legislative rescheduling may be possible, however it remains unlikely that cannabis will be rescheduled by the DEA and FDA.

[1] Jonathan P. Caulkins et al., Marijuana Legalization: What Everyone Needs to Know 84 (2d ed. 2016).

Kendall Fisher is Editor in Chief of the University of the Pacific Law Review and law student student at McGeorge School of Law in Sacramento.