What DEA Rule changes on Marijuana

Marijuana is illegal under federal law and is classified as a Schedule 1 drug under the Controlled Substances Act (CSA). However, 23 states and the District of Columbia have legalized its use for medicinal purposes. This difference between federal and state laws puts doctors and patients in a tough spot. If doctors want to provide medicinal Marijuana to their patients, they risk breaking federal law and possibly losing their Drug Enforcement Agency (DEA) licenses.

For example, in Massachusetts, doctors have been very slow to recommend medicinal Marijuana to patients. This hesitation is partly because DEA agents have visited doctors who work with dispensaries. These agents told the doctors they had to choose: stop working with the medical marijuana industry or risk losing their DEA license to prescribe other drugs.

Currently, doctors cannot legally prescribe Marijuana, even in states where it is legal for medicinal use, because it is a Schedule 1 drug. Prescribing it would mean helping someone acquire Marijuana, which could lead to losing their DEA license and even prison time. However, in states where medicinal Marijuana is legal, doctors can write a recommendation for it. This happens after the doctor determines and certifies that the patient has a condition that qualifies for medicinal Marijuana under state law. These conditions are usually serious, like cancer, glaucoma, multiple sclerosis, and HIV/AIDS.

This recommendation "loophole" was supported by the U.S. Court of Appeals for the Ninth Circuit in the case Conant v. Walters. The court decided that doctors discussing the benefits of medicinal Marijuana and making recommendations are protected free speech under the First Amendment. The court reasoned that doctors should not be blamed for what patients do after they leave the office. That open communication is essential for the doctor-patient relationship and proper treatment.

After a doctor writes a recommendation for medicinal Marijuana, the patient must register with their state's database to get a marijuana patient I.D. card. With this card, the patient can obtain medicinal Marijuana from a dispensary. In most states, having this I.D. card allows patients to get, possess, or grow medicinal Marijuana without breaking state law. However, it does not protect them from federal law, which overrides state law due to the supremacy clause in the Constitution. There is federal legislation pending that would protect patients in states where medicinal Marijuana is legal.

In this situation, the DEA announced that if Marijuana is moved to Schedule III, the rules for Schedule III drugs, plus any special rules for Marijuana and additional controls to meet U.S. treaty obligations, would be enforced. This means that making, selling, giving out, and having Marijuana would still be against the law under the Controlled Substances Act (CSA). Also, drugs with substances defined as "marijuana" under the CSA would still be banned under the Federal Food, Drug, and Cosmetic Act.

The major change for the cannabis industry would be that if Marijuana is moved to Schedule III, businesses dealing with Marijuana would not be affected by Internal Revenue Service Code Section 280E. This code currently stops marijuana businesses from claiming certain tax deductions on their federal tax returns.

It's important to note that changing Marijuana from Schedule I to Schedule III would not make it legal for adult recreational use. For that to happen, Marijuana would need to be completely removed from the CSA's scheduling. The announcement of the proposed rules for rescheduling Marijuana comes after the DEA's plan on April 30 to reclassify Marijuana. This plan acknowledges its medical benefits and recognizes that it has less potential for abuse compared to some of the country's most dangerous drugs. Additionally, President Biden has officially announced steps to ease marijuana regulations.