Futile pursuits: chasing rainbows and rescheduling cannabis

The discussion of “rescheduling” marijuana is confused because most of the people engaged in it don’t know how the law works.

Jacob Sullum, always willing to let his ignorance be the measure of other people’s knowledge, utterly unwilling to let mere facts get in the way of libertarian ideology, and eager to please his paymasters by slagging a Democratic President, illustrates my point in his response to the latest CNN Obama interview.

Rather than reviewing the bidding about who said what, let me simply lay out the actual state of affairs.

The Controlled Substances Act is a law. It cannot be changed by administrative fiat. That law provides that any substance with abuse potential be put into one of five schedules. Schedule I is for drugs without accepted medical use. Schedules II-V are for drugs with accepted medical use but with abuse potential, with less abusable drugs placed in the lower schedules. Alcohol and tobacco, both highly abusable drugs with no accepted medical use, would be Schedule I, but they are explicitly exempted in the text of the law:

The term [controlled substance] does not include distilled spirits, wine, malt beverages, or tobacco.

“Marihuana,” by contrast, is placed by name in Schedule I. That placement tracks its treatment in the international conventions governing drug policy.

Yes, authority to reschedule cannabis lies with the Administration. If the DEA Administrator decided that the drug had “accepted medical use,” that would move it to Schedule II, making cannabis legally available by prescription. Selling it without a prescription would remain the same crime it is today. (Recall that cocaine and methamphetamine are Schedule II drugs.)

But prescriptions can only be written for FDA-approved drugs. And the FDA can’t approve “marijuana,” because “marijuana” isn’t something that can be put through clinical trials. The New Drug Application would have to be for a specific cannabis preparation, to be given in a specific dosage regimen via a specific route of administration for the treatment of a specific condition. That “new drug” could be a single molecule a combination, an herbal preparation, or an extract. In any case, it would have to have a known and reproducible chemical composition and be produced using “Good Manufacturing Practice.” Producing cannabis without FDA approval would still be the illegal manufacture of a Schedule II controlled substance.

So administrative rescheduling would not make “medical marijuana,” or any other kind, legal at the federal level. Its practical effect would be identically zero.

What’s actually needed in the way of administrative action is to get the DEA and the Public Health Service out of the way of medical research, by breaking the University of Mississippi monopoly on research cannabis and eliminating the requirement that researchers using cannabis (but no other controlled drug) have the material “granted” to them by a federal agency rather than just going out and buying it. The Obama Administration can and should be criticized for not having taken those steps.

But “rescheduling” is a red herring dragged across the trail of policy reform.

Update Tom Angell’s feelings are hurt because I was mean to poor widdle Jacob Sullum. And he insists that I mention that, if marijuana were downscheduled to Schedule III rather than Schedule II (a scheduling decision that wouldn’t make much sense, given that something more than 2 million people in the U.S. meet diagnostic criteria for cannabis abuse or dependency at any one time), marijuana sellers would be able to deduct their business expenses in calculating their federal income taxes. Since that trivial impact on the cannabis problem isn’t the same as “identically zero impact,” Angell demands that I retract.

OK. Rescheduling to the appropriate schedule would have identically zero impact, but excessive downscheduling could somewhat increase the after-tax incomes of marijuana retailers and perhaps lead to slightly lower retail cannabis prices in state-legal stores.

Comments

  1. says

    I believe the FDA could in principle approve a wide range of cannabis products without requiring anything like full cGMP, since that’s all Federal Regulations (eg 21 CFR 210,211) rather than law.

    There’s no way they are going to, nor should they, but I think they could.

  2. says

    Practical effect of zero seems highly unlikely. Even if it doesn’t legalize prescriptions or clinical trials of crude weed, it would indeed be a huge symbolic victory against fed agencies of which there are almost none. E.g. Forcing Feds to admit to accepted use and not as harmful as other S1 drugs. Seems that would be quite valuable.

    How sure are you rescheding would not reduce barriers to research at all?

      • Grumbles says

        In fact, racist laws are mostly gone. In practice, we still have a racially coded law enforcement practice. Should we not have those laws, because they don’t work yet?

      • Keith Humphreys says

        Jacob Sullum, always willing to let his ignorance be the measure of other people’s knowledge, utterly unwilling to let mere facts get in the way of libertarian ideology, and eager to please his paymasters by slagging a Democratic President

        You nail Sullum so perfectly — he is a slave to corporate masters for the ostensible sake of “freedom”. More sad than hypocritical, but certainly both.

        • Anonymous says

          I’m really, really sick of Keith Humphreys pretending that the campaign against drug prohibition is some sort of corporatist conspiracy. There’s tens of thousands of Americans unjustly serving jail sentences right now. Their lives are a lot more important to me than whether someone ends up making some money in a more liberalized regime. And I think that’s not even a remotely difficult question.

          • Hieronymous Bosch says

            I agree. I can appreciate that this blog is a space for discussion of various shades of moderate drug policies, but Humphreys’ near-constant aspersions of corporatism at every pro-legalization advocate are tiresome, particularly when corporatism also undergirds the war on drugs through alcohol lobbying, private prisons, mandatory drug testing/counseling, etc.

            Every single political movement of any relevance in this country features some combination of business interests alongside of grassroots political movements. Accusing someone of being a slave to corporations for holding a political position is childish, needless baiting and adds nothing.

      • TANSTAAFL says

        Yeah! symbolic policies never make any difference! Oh, except the emancipation proclamation(only freed slaves in Rebel States not under federal control)…And President Obama changing his personal opinion on Same Sex Marriage…And MLK’s “I have a dream” speech…and etc etc

        I guess in your world it is legislation put together by congressctitters that changes society not meaningless “symbolic victories” by citizens (and presidents) that influence our legislators . I can’t wait to see what social changes they plan for us next?!

  3. navarro says

    unfortunately, the only way i can see to change the way marijuana is categorized would be to revise the controlled substances act to create either a new category for marijuana itself or a new scheme of classification in general. i don’t see this happening soon.

    a question on another matter– is the shift back away from disqus commenting a more or less permanent feature or is it temporary and soon to shift back?

    • Mark Kleiman says

      Yes, Congress – not the President alone – could create a new category, by exempting cannabis from the CSA, as alcohol and tobacco already have been, and creating a new law for the most widely-used currently illegal intoxicant.

        • Mark Kleiman says

          There’s no doubt that Congress could ignore the treaties, or – better, I think – the Executive could withdraw and re-accede with a reservation for cannabis policy. My post made a simple, narrow point: the claim that the President has a magical power called “rescheduling” that could fix the cannabis-policy problem, and refuses to wield that power, is false.

  4. burnspbesq says

    Under the “later-in-time” approach to deciding Supremacy Clause issues, the United States could disregard its obligations under the Single Convention without formally withdrawing as a party, but ordinarily pissing off 180 other countries at once is a bad idea.

    • Anonymous says

      I think it’s unlikely that we would piss off any countries by disregarding the Single Convention. We’re the ones who have been pushing to lock in the War on Drugs. The rest of the world doesn’t care.

  5. Freeman says

    What’s stopping the administration from rescheduling cannabis on the basis of the finding that it does not, in fact, have a “high potential for abuse”.

    Why shouldn’t the “compared to what” rule apply here?

    Compared to everything else on schedule 1, cannabis has a ridiculously low potential for abuse. Compared to The most widely used psychoactive substance in the world (which isn’t scheduled at all), it’s abuse potential is similar, and it’s health hazards to the consumer actually lower.

    And what, pray tell, might the “practical effect” of such a ruling and rescheduling have on marijuana prohibition nation-wide in today’s rapidly-evolving political climate regarding the issue?

    You may call me a dreamer, but I’m not the only one. The times, they are a-changin’.

    • Mark Kleiman says

      No, I won’t call you a dreamer. I’ll just point out that your assertion is incorrect. Cannabis has 2+ million users meeting diagnostic criteria at any one time. That’s not a low abuse potential in my book.

      • Nonce says

        2+ million? Wow.

        Whatever the number for cannabis now, that’s *before* the likes of Philip Morris and Anheuser Busch use their product development and marketing genius to increase it. And use their law&lobby might to prevent government from getting in the way of them growing their markets, i.e., cultivating widespread and heavy use.

      • Freeman says

        And how many caffeine consumers would meet the exact same “diagnostic criteria” if applied to them?

        Yeah, I know… Big Caffeine!!! Juan Valdez and the Starbucks cartel should serve as dire warnings of what’s to come of this cannabis legalization craze currently sweeping the country. So much worse than the way cannabis is currently distributed under prohibition.

      • Barry says

        IOW, about 1% of the adult population of the USA. What percentage of the adult population of the USA are alcoholics?

        • Mark Kleiman says

          Yes, lots of people are dependent on caffeine: they get a headache if they miss their morning coffee. Very few of them (though more of them than are aware of it) suffer from substance abuse disorder in the sense that caffeine interferes with their lives, or that they’re aware of the problems, have tried to cut back, and failed.

          And yes, there’s probably 10-20 times as much alcohol-related SUD as there is cannabis-related SUD. That’s what happens when you legalize an addictive intoxicant and turn sales over to profit-maximizing commercial enterprises. Cannabis will never be as bad as alcohol, but “not as bad as alcohol” is a pretty damned low bar to clear.

          • Anonymous says

            I agree, to some extent, but it’s worth remembering that it’s terribly UNFAIR for marijuana users to be punished for using a substance that is much less dangerous than alcohol, simply because their substance is unpopular with bluenoses whereas alcohol is not.

            In other words, there’s a strong argument for using alcohol as a baseline even though our alcohol policy is screwed up– nobody should be in jail for using a substance less dangerous than alcohol.

          • Freeman says

            Yes, “less dangerous than alcohol” is a low bar to cross, which is why I drew a comparison to caffeine instead. (I realize that part of your reply was in response to Barry’s comment). As I mentioned above, the abuse potential of cannabis and caffeine are roughly comparable, certainly more comparable to each other than either one to alcohol.

            Care to discuss how the 2+ million cannabis number is inflated by it’s legal status? (Are those US numbers or worldwide?) Let’s consider the 750,000 annual marijuana possession arrests in the US, add in the tens of thousands more workplace drug-tests that show positive for marijuana, factor the courts’ and employers’ proclivity for offering a degree of clemency in exchange for “voluntary” commitment to drug rehab programs where one must “confess” to some sort of addictive behavior in order to progress through the program. As you often say, very few of those arrests lead to federal or state prison sentences. The bulk of them are diverted to rehab programs whether the arrestee needs it or not.

            If we could imagine caffeine in a similar legal predicament, how high do you think the number of caffeine consumers meeting the “diagnostic criteria” would be? Considering these factors, do you continue to insist that marijuana actually meets schedule 1′s “high potential for abuse” criteria?

          • Bernard King says

            When a person spends $5 + 30 minutes per day on a Starbucks latté and they make less than $100,000 per year, I would say that qualifies as “interference with their lives.”

            Imagine how much greater that interference would be if they could be arrested for possessing Starbucks containers, searched upon the untestable assertion that a police officer “smelled coffe beans,” or cut-off from student loans and job opportunities because they chose to drink coffee for a few years of their youth.

            Would “caffeine prohibition” realistically result in less people drinking caffeine? I doubt it. But I bet running “caffeine addiction treatment centers” would be a great way to get rich!

      • Allen says

        “That’s not a low abuse potential in my book.”

        You have not made the case that use is abuse. You’ve merely cited the number of people who like to use it. If you have an argument that use is abuse, I feel you need to state it to make your point.

        If we’re talking about a reason to depriving people of their liberty, I think you’d agree that that the bar for what is ‘abuse,’ in the medical sense, should be higher than that for casual and generally acceptable ‘bad habits’ such as donuts, Ho-Ho’s, and bacon cheeseburgers.

        • Mark Kleiman says

          No. That’s the number of people whose answers to the NS-DUH indicate that they meet diagnostic criteria for abuse or dependency.

          • Allen says

            A) That can be under duress. If you get busted and the options are jail or treatment, you’ll say whatever you need to say. The devil made me do it!

            B) I challenge that’s the level of ‘abuse’ that meets the requirement intended. You know where armed agents of the state come and take you away.

            Let’s be practical here. I think you know that that sort of desire for something when it is non-toxic and not physically addictive does not meet the criteria for an ‘abuse’ that requires the intervention of the law.

            The DEA does not grab people for their Big Mac attack.

            The loose ideas surrounding ‘addiction’ are frightening to me. You can tell the ignorant about the dopamine and the addictive brain responses with pot. Sounds like science. But they’re talking about changes that I may get from downhill skiing. I could be similarly jonesing for a good fresh powder run. Organizations like SAM are out, right now, intentionally confusing people. Why? Because you can force treatment and make a buck off people. Keep pot illegal–lie about what real addiction is–and the taxpayer foots the bill for rounding up ‘customers.’ It’s frightening–reminds me of witch trial tactics.

            FYI: I’m not a pot user. Don’t like it, last tried it almost 40 years ago! But I have friends and neighbors who like it. They are some of the most accomplished and energetic and positive people I know. I also know about the pain relief that many people can get–cheaply and safely when our citizens are dying from Rx opiate overdose.

            Thank you for your response.

  6. Hieronymous Bosch says

    I don’t see an issue with the post, honestly. Obama was denying that he had the power to re-schedule cannabis. If he had made the argument you made, which is that re-scheduling cannabis wouldn’t accomplish much without also breaking the Ole Miss research monopoly, or that it would be better to accomplish it through redrafting it into the same legislative exemption provided for alcohol and tobacco, then yes, Sullum would be off base. But that’s not the argument Obama made, that’s the argument you’re making. Obama just flatly denied that he had the power to do so, which is clearly false.

    I also think that besides the symbolic aspect, there are a few other benefits that could be had; namely that the penalties for possession and trafficking for Schedule IV / V substances are extremely light (critically, Schedule V has a maximum of 1 year for a first trafficking offense, which places it under the 21 USC. 853 (a)(2) and 881(a)(7) thresholds for asset forfeiture). Thus, a drastic re-schedule would have the potential to mitigate some of the harms and perverse incentives that come from the overzealous classification of cannabis (which I believe impacts between 8-10% of federal prisoners, depending on whose figures you believe).

    Not sure what to make of the slagging about his paymasters. Sullum has always been a legalize-everything radical, and he wasn’t exactly silent about drug policy during the Bush administration either.

    • says

      Agree with Hieronymous Bosch. Rescheduling via executive action is possible, so Obama was wrong. But doesn’t actually achieve anything without further Congressional action, so critics are also wrong believing that is the crux of the problem.

      But it could have secondary effects, such as the Colorado court that upheld the firing of a medical marijuana user because of federal law. But then again, maybe not, since simple rescheduling would still not make state medical use legal.

        • TANSTAAFL says

          “Rescheduling doesn’t make anything legal.”

          It doesn’t reduce sentences/fines and reduce restrictions on research? Those matter very very much to this whole debate.

          The former I will leave because I think the moral and public health issues are well documented. The later is extremely important for policy and public health issues.

          I would argue one of the major reasons MJ has managed to remain criminalized is that it is near impossible to conduct effective research on it to objectively document its ‘harmful’ effects and potential health benefits. It is the epitome of a catch-22. “Without research proving ‘x’ this drug is illegal. If it is illegal, you cannot have access to it for research purposes”. From what I’m hearing, allowing easier access to MJ for research purposes helps pull the lynch pin out of the drug warrior’s main weapon – simply deeming (without any tangible evidence) it as addictive as heroine and has no medical benefit.

          • Allen says

            Like beer and cigarettes, it does not belong on the Schedule of Narcotics at all but can be regulated by other agencies, as those are. There is a specific criteria to land on the DEA’s Schedule of Narcotics (at any level) and cannibis does not–IMHO–fit any of those categories.

            I’d like someone to respond to my contention that because HHS/DEA has the power to alter the list that also removal of an item is also under their Congressionally granted power and responsibility. Therefore under the president’s authority.

  7. darkcycle says

    Seems to me that the President could order the Attorney General (he’s the A.G’s boss, right?) to order the DEA (the Attorney general is THEIR boss, right?) to recognize and abide by their own Judge’s 1988 ruling, provided in PDF format here: http://files.iowamedicalmarijuana.org/imm/young.pdf
    Now, will that lead to medical marijuana? I’ll answer my own question… how could it NOT? With the threat of censure and prosecution by the DEA removed from doctors, I can see them being much more willing to try a safe herbal intervention over a costly, side effect plagued pharmaceutical intervention. Not that we NEED the rescheduling to get medical marijuana, witness the many States who have already enacted it. But the biggest hurdle currently facing people who might benefit from cannabis in medical States is the difficulties they face finding doctors willing to prescribe it. The removal of that obstacle alone would be worth the effort we have put out.

    • Mark Kleiman says

      Read the original post. If the DEA rescheduled cannabis, that would not give physicians the power to prescribe it or anyone the legal right to produce it.

  8. CoffeeJunkie says

    There is some money earmarked for University of Washington and WSU from
    I-502 from Washington state.

    ” Six-tenths of one percent to the University of Washington and
    four-tenths of one percent to Washington State University for research
    on the short and long-term effects of marijuana use, to include but not
    be limited to formal and informal methods for estimating and measuring
    intoxication and impairment, and for the dissemination of such research;”

    This appears to be more drug abuse related policy, but perhaps, a small
    crack in the walls for possible medical research?

  9. Kenny says

    Mark,
    If cannabis was added to the CSA exemption list, a la tobacco and alcohol, where does this leave the drug in relation to IRC 280e?

      • navarro says

        congress can do so by enacting a revision of the controlled substances act. at this moment i don’t see the republican dominated house doing anything remotely like that.

          • says

            True, but DEA could acknowledge any number of cannabis preparations as exempt due to their having properties that reduce or eliminate their “potential for abuse”. There is an administrative procedure for doing so, and since the concept of “abuse” is infinitely malleable, no such approval could ever be credibly attacked as arbitrary or capricious, as long as all applicants are treated the same.

            Not only that, but both the FFDCA and state pharmacy laws apply the aforementioned restrictions only to “drugs”, i.e. articles intended to affect the structure or any fx of the body, which has usually been interpreted to mean that medical claims are made for the article. If cannabis or preparations thereof were sold as general-use articles without medical claims, they would not be under the jurisdiction of FDA or state pharmacy boards. Their use for medical purposes would be strictly off-label.

  10. Joe says

    OK, this is a minuscule and tedious point, but if distilled spirits have “no accepted medical use”, why does the nurse swab my arm with them before she gives me a shot? They’re in half of the liquid medicines I can buy over the counter, too.

    • says

      That’s not relevant regarding the Controlled Substances Act (federal or state ones), but it points to one little detail stated incorrectly above: Not all alcohol is exempt from controls, only wines, malt beverages, and distilled spirits. Other forms of alcohol could still be controlled administratively under the CSA.

      “Alcohol, NF” is an “official article” via its inclusion in USP-NF. It is doubtful due to the nondelegation doctrine that regs specific to such official articles could survive legal challenge, but it is extremely unlikely a case would ever arise, because a manufacturer voluntarily elects to have their product be either an official article or not, by saying so on the label.

  11. Aardvark Cheeselog says

    Personally, I’d hate to see cannabis moved to Schedule II. That would leave it in the same status as cocaine, which imho would be a terrible outcome.

  12. Bux says

    What law says that a new drug has to go through a NDA application involving a clinical trial before being approved by the FDA for commercialization? I know there is a long history (I believe going back to the 1930s) of drugs going through NDA before FDA approval, but is this policy, regulation, or law? If not law, the FDA is under the HHS which is under the President, correct? So couldn’t an exception be made? I might be missing something here, but seems like BOTH the DEA and the FDA are under the executive branch purview and only strictly limited by law, so if no law mandates NDA application with clinical trial etc. before FDA approval then this can be changed by Obama. Where am I wrong?

    • Mark Kleiman says

      The law says that a drug must be proven “safe and effective.” Yes, the FDA could completely upend itself and decide that, in the case of cannabis, it will do so by consulting a Ouija board rather than by conducting clinical trials, and that it will also ignore its rules about Good Manufacturing Practice and approve a plant rather than a specific therapeutic preparation. OR we could get the DEA and the Public Health Service out of the way and let the actual clinical research happen.

  13. Allen says

    Mark,

    I was thrown at first by you’re bringing the FDA into this. And also the claim that re-scheduling does not fix things.

    I somehow thought that Schedule V (the lowest level of DEA control) were OTC drugs or things like caffeine (not requiring a prescription.) But the reality is that things on S-V do require an Rx. And, because you can’t get a prescription on a drug that is not approved by the FDA, it follows that marijuana can not qualify for any of the lower categories. I never thought of it that way.

    What we’re struck by is the absurdity that pot would be listed with heroin as an S-1, when pot is non-toxic (can’t OD on it) and is not physically addictive. We react by saying, “Take it off S-1, it’s stupid!” but we’re not saying where to put it instead. In fact there is no other place for on the Schedule of Narcotics for pot.

    So, the change is that it should be removed entirely from the Schedule.

    Congress placed it on the schedule and made it S-1 but they are not scientists or doctors.

    How does this play? HHS to find that marijuana does not quality as a substance with a high potential of abuse. Society has generally accepted its use, as they do alcohol and caffeine and nicotine. The president orders DEA to remove pot from the Schedule of Narcotics. (As I understand it DEA is compelled to follow the HHS recommendation when adding to or changing the schedule (obviously DEA are enforcers. HHS does the medical science.)

    • says

      No, you can get prescriptions (from health care professionals) for drugs, devices, and procedures that are not licensed by FDA. In states with medical marijuana, a doctor’s recommendation of it is a prescription, regardless of anyone’s protestation that it’s not. If a doctor tells you to get exercise by walking around the block, that too is a prescription.

      Some states (mostly the bigger ones AFAIK) do require a professional prescription for dispensing C-5 drugs, others don’t.

      • Allen says

        Thank you for the response.

        Of course but that’s the states’ laws. I was talking about the federal Schedule of Narcotics and what is on it. Take a look at all five of the definitions and see I you see what I mean.

        http://www.justice.gov/dea/druginfo/ds.shtml

        Note that tobacco is not on the schedule. Beer is not on the schedule. The Schedule is not a list of ‘everything’ that is regulated. It is a list of things banned for any use (Schedule I) and a categorization of FDA approved medications and their level of control per their level of the potential of abuse (Schedule II-V.)

        If you look at the definitions and find a different story there–please argue your point with me.

        The problem–as I see it–is that cannabis was placed on the schedule in the first place (by Congress when they first comprised the list.) I am not aware of anything stopping the president from asking for a re-examination of the list by HHS and completely removing cannabis from the list and then having it regulated by, say, ATF to prevent the sale to minors and that sort of reasonable regulation.

  14. says

    “something more than 2 million people in the U.S. meet diagnostic criteria for cannabis abuse or dependency at any one time”

    Where does the 2 million figure come from?

    By diagnostic criteria, are you referring to the DSM-V?

    How do you differentiate between dependence and self-medication?

    Wouldn’t a more relevant figure for determining potential for abuse be the percentage of cannabis consumers who meet the criteria, as opposed to the number who meet the criteria? (Obviously the number of cannabis consumers with SUD is much lower here in Canada.) For example, if less that 5 per cent of cannabis consumers meet the criteria, then that would put cannabis on a par with many other things that people with OCD obsess over to their detriment.

    • Anonymous says

      I am not sure where Mark gets the “2 million at any one time” number and would be interested to know. He does cite the National Survey on Drug Use and Health (NSDUH), but according to that I see a higher number of 4.2 million marijuana users with abuse/dependence. You can find it for year 2011 here: http://www.samhsa.gov/data/nsduh/2k11results/nsduhresults2011.htm#Ch3.

      The designation as abuse/dependence comes from DSM-IV. The NSDUH seems to ask questions to try and put people in these categories. Basically, there are 20.6 million people that meet this designation. Of those, 14.1 million use alcohol only, 3.9 million use illicit drugs only, and 2.6 million use both. Add the 3.9 and 2.6, you get 6.5 million drug abuse/dependence users. Out of 6.5 million, there are 4.2 million marijuana users that meet the abuse/dependence designation, but some of that is overlapping with alcohol abuse/dependence. I suspect that Mark has better access to numbers (or I just don’t see it) so he has taken out the overlapping alcohol users, leaving us with 2 million.

      The NSDUH does not seem to differentiate between dependence/abuse and self-medication. However it does ask how many problem users need treatment. I don’t know if problem users = those who meet the abuse/dependence criteria, but the numbers are similar. It says 21.6 million problem users needed treatment in 2011, and of those 19.3 million didn’t get it. Of those 19.3 million, 95% didn’t feel they needed it. That makes me suspicious that the criteria being used labeled problem users or abusers/dependent has significant accuracy problems.

      • says

        One diagnostic criteria for abuse is choosing to use a drug that is illegal. Obviously, if you weren’t addicted and thus abusing the drug you wouldn’t be using it because it’s illegal. So the mere act of using a drug that is illegal shows that you are abusing the drug and you suffer from dependence. It’s the most beautiful Catch-22.

        I work at a rehabilitation center and this comes up a lot in conversation. Interestingly enough, so does legalization and around 80% of the people who work here support legalization because it would remove the greatest barrier those who need treatment perceive exists, the fear of punishment when pursuing help. When the police are the people you run from instead of to when you are in need, there is a serious problem.

  15. Flemur says

    Remind me how ending the War on Drugs is supposed to be some ‘evil capitalist conspiracy’?

    Contrast it with M. Friedman’s “The Drug War as a Socialist Enterprise”.

  16. navarro says

    i just thought of something. would it require congressional action to classify marijuana as an herbal supplement?

    • says

      No, it wouldn’t. But it would have no practical effect to invoke DSHEA to sell cannabis now as a dietary supplement, because nobody AFAIK is ever prosecuted under the FFDCA for selling cannabis as a “drug”. If it were not a controlled substance under fed or state law, it would be sold in interstate commerce and within states as a dietary supplement if it can satisfy the grandfathering criterion of DSHEA and comparable state laws, which is always a question of how specifically FDA or the state pharmacy board wants to construe the particulars. In other words, was “cannabis” generally used as an herb in foods in the past, or did it have to be some particular identifiable strain?

      • says

        I forgot one little provision of the US CSA which does cause consequences to flow here: An article is to be removed from controls by DEA if it may legally be sold to consumers without a prescription under the FFDCA. That should already have been the case as regarded some hemp products that DEA wanted taken off the market some years ago, but there’s nothing that says the same couldn’t be done for some dietary supplement containing psychoactive cannabis as well, provided it can be established as having been present as a dietary ingredient on or before the effective date of DSHEA. The FFDCA says no drug in interstate commerce may be dispensed without a prescription if it contains cannabis (unless the sec’y of HHS determines that drug product to not be habit-forming), but dietary supplements are not drugs, statutorily.

      • says

        I forgot one provision of the US CSA which does cause consequences to flow here: An article is to be removed from controls by DEA if it may legally be sold to consumers without a prescription under the FFDCA. That should already have been the case as regarded some hemp products that DEA wanted taken off the market some years ago, but there’s nothing that says the same couldn’t be done for some dietary supplement containing psychoactive cannabis as well, provided it can be established as having been present as a dietary ingredient on or before the effective date of DSHEA. The FFDCA says no drug in interstate commerce may be dispensed without a prescription if it contains cannabis (unless the sec’y of HHS determines that drug product to not be habit-forming), but dietary supplements are not drugs, statutorily.

  17. War Vet says

    Mark, everybody who knows the law knows that we don’t need rescheduling of marijuana for legalization. We have a multitude of laws and precedents that state otherwise.

    If we can prove alcohol companies exist and if we have proof that people get intoxicated on alcohol, then we have proof that the 1890 Sherman Anti-Trust Act would protect marijuana and protect hemp in regards to competition (thus nullifying the DEA’s role).

    The DEA giving money to David H after being warned would be grounds for dismissing the DEA during the War on Terror because of the 2008 Mumbai Terror attack. What the DEA did during the War on Terror is call treason and is technically a form of terrorism by legal definition, thus nullifying the DEA is required by Federal Law. Ignorance cannot negate punishment and even cops will arrest you for violating a law you were ignorant about.

    THC yielding marijuana is just as good at creating consumer goods as hemp is and therefore the Sherman law once again would nullify the CSA scheduling and any other marijuana laws giving precedents for the CSA, i.e. the Marijuana Tax Stamp Act. (what, no tax stamps for watermelons and potatoes? Illegal by the Sherman Law)

    Yes, go ahead and delete my post again (unless it was a mistake done by your website, which I can understand). Don’t give me the good ol’ ‘One two–one two’ when arguing against what I just said. All we need is marijuana legalization void of anything having to do with rescheduling or the FDA etc.

    Many Vets and many cancer patients have stated for the record and thus as facts that marijuana makes them happy, which makes marijuana legal as it is because I have the right to pursue happiness as do you and as does anybody else, therefore the constitution guarantees us the right to use marijuana (would you say that vets have the right to not commit suicide and many vets claim that marijuana helped them find some breathing room, therefore pot is required by Federal law to be legal? Just one example of it already meeting the required status of being legal.)

    Not everybody is entitled to the facts remember . . . as defender of this nation paid for by you and whose education paid for by you, it behooves me and my nation to study anything and everything I believe to be worthy, lest I be one who forsook my oath to defend the Constitution. If I wasn’t right, then why did you pay me? Maybe you’re prejudice against book toting military people like myself who cannot stop reading and traveling and exploring ‘the facts’, so as to be worthy of entitlement for them . . . better to go to war for facts than opinions I always say.

  18. Hieronymous Bosch says

    “if marijuana were downscheduled to Schedule III rather than Schedule II (a scheduling decision that wouldn’t make much sense, given that something more than 2 million people in the U.S. meet diagnostic criteria for cannabis abuse or dependency at any one time)”

    This is begging the question, and meaningless without context. What do the figures look like for other drugs on Schedules II and III? Furthermore, I submit that it’s a mistake to look at the mere prevalence when looking at the appropriateness of scheduling. Not all abuses or dependencies are created equal. Benzodiazepine abuse and dependency is less prevalent than marijuana, but benzodiazepine abuse is also far worse than marijuana, as benzos have physically habutiating properties resulting in withdrawal symptoms on par with DTs and opiate withdrawals (some addicts who have gone through all three would put them at the top) and also carry the risk of outright ODs such that xanax, for instance is one of the most popular methods of suicide. Given the choice between a marijuana epidemic and a benzo epidemic, anyone with an ounce of pharmacological sense would choose the former. Yet nearly all the benzodiazepines are on Schedule IV.

  19. Mark says

    This site purports to be about facts, and yet engages in demagoguery, unproven charges of shilling, and ignores the actual facts in order to push a political agenda. What a joke.

    • War Vet says

      When an older order of things was built upon false foundations, then the new order has a logical right to be built on viable and thus tangible–stable foundations. When a new order of things is thus established, then the old morality of the old order cannot ever be known do to the fact the old foundation was not real. Did the old order have the right to dictate that 5 plus 5 equaled 17? Just because someone didn’t know that E equaled M C squared thousands of years before Einstein showed–demonstrated its basis on rational order, didn’t negate the existence that E has always equaled M C squared, even batrillions of years before Einstein connected a rational order to it for us to view. We are the facts because we are built on rational order on stable foundation (at least more stable than they were in regards to the old and thus illicit laws in regards to the CSA scheduling). Sometimes the facts have not yet been discovered, but then again, the new order of things might have had more of a grasp of the facts than the old order and if the old order has negated its logic, then it is void of any facts, other than the fact that the old order was and has always been nullified by nature and the laws governing nature.

      Talking about rescheduling and the FDA is like a dog chasing its tail . . . it gets us nowhere and is not a logical step towards legalization since we have no proof of the CSA’s validity and we have no proof the FDA can dictate or establish guidelines in regards to Cannabis . . . nature abhors an illogical old order since such an order is mere ‘poppycock’. We know for a fact that automobiles are trillions plus years old since the physical dynamics around their existence has always existed, just like the negation of the CSA’s logic has always existed because it can be proven in math and physics. Hypocrisy is illogical in nature. We are entitled to the facts because we stand on logical order void of hypocrisy in this regard (yes, we have physical proof cars are illegal in America if we have proof Marijuana was a really a legal scheduled 1 substance due to the facts that cars are dangerous etc). Law must be logical if to exist in a corporeal form resigning in nature. Why not talk about the rescheduling of slavery in America to its equivalent of a status II or III?

  20. Mookie says

    I think you’d be surprised at what the republican-controlled congress might do in regard to this issue. They have a very libertarian bent lately, and this is a major agenda item on many of their minds, as it will reduce costs in terms of enforcement, prosecution and incarceration. Assuming they wouldn’t consider it is just as wrong as not presenting it, which is exactly what the present administration is doing. If they honestly feel this is subject matter for legislation, the executive can certainly make it’s case. That they haven’t, in my opinion, is strictly to maintain the scope and size of the federal government’s control in this arena.

  21. Richard P Steeb says

    The CSA needs to be corrected thusly: Cannabis [including industrial hemp] is removed from "Schedule I" and added to the list of exempt things: "distilled spirits, wine, malt beverages, or tobacco" where it would still be the least-toxic of them all.

    Anything short of that is UNACCEPTABLE.

  22. Anonymous says

    This wasn’t one of Mark’s better posts.

    Some of what he is saying is correct. Rescheduling marijuana would not suddenly make it legal, even in its medical form as conceived by various state governments.

    On the other hand, Mark is treating statutory language and pharmaceutical traditions as constraining executive discretion in a manner that it does not. In other words, there’s no reason that the federal government couldn’t simply reschedule marijuana AND issue a blanket approval for smoke marijuana as a prescribed drug. That isn’t how the federal government generally acts with respect to other drugs, but if it did it, who could stop them? Who would have standing to sue?

    And, of course, by rescheduling marijuana, the federal government would make research into the efficacy of smoked marijuana as a medication much easier to conduct.

    In other words, yeah, it’s true, if the federal government treated marijuana like it treats a newly discovered drug, it wouldn’t do much to reschedule it, except symbolically (although symbolism is important– part of the problem here is that the DEA, Partnership for a Drug-Free America, and NDCP routinely lie and say that marijuana has no medical uses, and having the federal government admit it did would make these lies a lot harder to pull off). But there’s nothing preventing the federal government from recognizing smoked marijuana as a medicine that has been used for centuries, and just issuing a blanket approval and letting a thousand flowers bloom. And THAT sort of rescheduling could make a huge difference.

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