WASHINGTON – A decision on whether to reclassify marijuana as a less dangerous drug in the U.S. won't come until after the November presidential election, a timeline that raises the chances it could be a potent political issue in the closely contested race.
The U.S. Drug Enforcement Administration last week set a hearing date to take comment on the proposed historic change in federal drug policy for Dec. 2.
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The hearing date means a final decision could well come in the next administration. While it's possible it could precede the end of President Joe Biden's term, issuing it before Inauguration Day “would be pretty expedited,” said cannabis lawyer Brian Vicente.
That could put a new spotlight on the presidential candidates' positions on marijuana. Vice President Kamala Harris has backed decriminalizing the drug and said it's “absurd” to have it in the DEA's Schedule I category alongside heroin and LSD. The Democratic nominee's position has shifted over the years; she once oversaw the enforcement of cannabis laws and opposed legalized recreational use for adults in California while running for attorney general in 2010.
Former President Donald Trump, the Republican nominee, signaled support for a Florida legalization measure on Saturday, following earlier comments that he increasingly agrees that people shouldn't be jailed for the drug now legal in multiple states, “whether that's a good thing or a bad thing."
During his run for president in 2016, Trump said that he backed medical marijuana and that pot should be left up to the states. But during his first term, then-Attorney General Jeff Sessions lifted an Obama-era policy that kept federal authorities from cracking down on the pot trade in states where the drug is legal.
Trump's campaign didn't immediately respond to a query about his position on rescheduling the drug.
The Justice Department proposed reclassifying it in May, saying the change would recognize marijuana’s medical uses and acknowledge it has less potential for abuse than some of the nation’s most dangerous drugs. The proposal, which would not legalize marijuana for recreational use, came after a call for review from Biden, who has called the change “monumental.”
The DEA has said it doesn’t yet have a position on whether to go through with the change, stating in a memo that it would keep weighing the issue as the federal rulemaking process plays out.
The new classification would be the most significant shift in U.S. drug policy in 50 years and could be a potent political issue, especially with younger voters. But it faces opposition from groups such as Smart Approaches to Marijuana.
Its president, Kevin Sabet, argues there isn't enough data to move cannabis to the less-dangerous Schedule III category, alongside ketamine and some anabolic steroids. The DEA's move to hold the hearing is “a huge win in our fight to have this decision guided by medical science, not politics,” he said in a statement, adding that 18 states' attorneys general are backing his opposition.
The hearing sparked some consternation among pot industry players, though little surprise about the DEA decision to hold one.
“While the result ultimately may be better, I think we’re so used to seeing delays that it’s just a little disappointing,” said Stephen Abraham, chief financial officer at The Blinc Group, supplier of cartridges and other hardware used in pot vapes. “Every time you slow down or hold resources from the legal market, it’s to the benefit of the illicit market.”
The proposal, which was signed by Attorney General Merrick Garland rather than DEA Administrator Anne Milgram, followed a recommendation from the U.S. Department of Health and Human Services.
Federal drug policy has lagged behind that of many states in recent years, with 38 having already legalized medical marijuana and 24 legalizing its recreational use.
Lawmakers from both major political parties have pushed for the change as marijuana has become increasingly decriminalized and accepted. A Gallup poll last year found 70% of adults support legalization, the highest level yet recorded by the polling firm and more than double the roughly three in 10 who backed it in 2000.
The marijuana industry has also grown quickly, and state-licensed pot companies are keen on rescheduling partly because it could enable them to take federal business-expense tax deductions that aren’t available to enterprises involved in “trafficking” any Schedule I or II drug. For some of Vicente's clients, the change would effectively reduce the tax rate from 75% to 25%.
Some legalization advocates also hope rescheduling could help persuade Congress to pass legislation aimed at opening banks’ doors to cannabis companies. Currently, the drug's legal status means many federally regulated banks are reluctant to lend to such businesses, or sometimes even provide checking or other basic services.
Rescheduling could also make it easier to research marijuana, since it’s difficult to conduct authorized clinical studies on Schedule I substances. Some medical marijuana patient advocates fear that the discussion has already become deeply politicized and that the focus on rescheduling's potential effect on the industry has shifted attention from the people who could benefit.
“It was our hope that we could finally take the next step and create the national medical cannabis program that we need," said Steph Sherer, founder and president of Americans for Safe Access. The organization advocates for putting cannabis in a drug category all its own and for creating a medical cannabis office within DHS.
The immediate effect of rescheduling on the nation’s criminal justice system, though, would likely be more muted, since federal prosecutions for simple possession have been fairly rare in recent years.
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Peltz reported from New York.