A customer smokes marijuana during the grand opening of Smacked, a brand new dispensary owned by ... [+]
The Biden Administration is getting closer to rescheduling marijuana, according to The Hill, as it initiates a formal rulemaking process. This will involve public comments, an administrative hearing and a final consideration by the Drug Enforcement Administration to move marijuana from Schedule I to III. This comes on the heels of Department of Health and Human Services’ recommendation of a status change earlier this year based on a federal scientific evaluation. If enacted, the rescheduling won’t legalize marijuana. And, it will do nothing to streamline regulations around marijuana use at the state level.
Earlier this year, USA Today reported that a federal scientific review conducted by scientists at the Food and Drug Administration and the National Institute on Drug Abuse recommended that the Drug Enforcement Administration grant marijuana Schedule III status. Such drugs are considered to have medical uses and a low to moderate potential for physical and psychological dependence. Examples include acetaminophen with codeine, ketamine, anabolic steroids and testosterone.
Since 1970, marijuana has been classified as a Schedule I drug, a category that also includes LSD (lysergic acid diethylamide), Ecstasy or MDMA (methylenedioxymethamphetamine) and heroin. Schedule I substances are deemed to have no medical use and a high potential for abuse. They also carry severe criminal penalties under federal trafficking laws.
Rescheduling of marijuana means it will no longer on par with illicit substances such as heroin. The FDA and NIDA researchers suggested imposing fewer restrictions on marijuana, citing studies that show the drug is less likely to cause harm than Schedule I substances.
While the jury is still out on definitive estimates of clinical effectiveness and safety of marijuana and cannabis-derived therapeutics, they’ve been used to help treat a variety of conditions, from chronic pain and neurological disorders to nausea, depression, anxiety and sleep disturbances.
Rescheduling will allow for more federal research to examine marijuana’s medical use potential. The scientific review which lay the groundwork for rescheduling emphasized the (possible) medical usefulness of cannabis products. Here, cannabis refers to all products derived from the plant Cannabis sativa. And marijuana indicates parts of the plant that contain “substantial” amounts of tetrahydrocannabinol. The drug can be smoked or consumed in edible form.
But rescheduling marijuana is not descheduling. Those found to be in possession of marijuana in states where the drug is illegal could still face legal action. As such, the decision by the Biden Administration has no impact in states where it’s not lawfully approved for medical or recreational uses.
The drug is now legal for medicinal and recreational use in 38 and 24 states, respectively, according to the Washington Post. However, there’s still no federal oversight and an inconsistent patchwork of rules across states.
Comparing Policies In The U.S. And The Netherlands
Today, in U.S. states where medicinal and recreational use of marijuana is legal, there is far less regulation than in the Netherlands. Obviously it’s not easy to apply lessons from Dutch experience, given the difference in size of the two countries and the vast disparities in legal frameworks, both between the nations and within the U.S.—federal versus state laws, for example. Yet for several decades American legalization activists and policymakers have called attention to the Netherlands to argue for changes in policy and more leniency with respect to drug-related crimes.
Undoubtedly, the Dutch were well ahead of the curve regarding de facto decriminalization, as they began instituting these policies in the 1970s. Yet there’s a lot of misunderstanding about the Dutch rules and regulations vis-à-vis marijuana.
In the Netherlands, there is a policy of toleration (“gedoogbeleid”) regarding what are classified as “soft” drugs deemed to have low harm potential, which include cannabis. While the sale of soft drugs is technically a criminal offense, sellers and users aren’t prosecuted so long as the quantities involved are small—no more than five grams of cannabis product per customer. The same limit applies to individual possession in public or at home. Also, the stock of cannabis kept in an establishment that sells the product may not exceed 500 grams at any given point in time.
By comparison, depending on the U.S. state, individuals may purchase between 3.5 and 15 grams of cannabis concentrate at a time, with substantially higher amounts permitted in flower or bud form. In addition, there’s an extraordinarily wide range in terms of amount of cannabis that jurisdictions deem legal for a person to possess: Between 28 and 230 grams. And there don’t appear to be any official limits on inventories of marijuana in U.S.-based dispensaries.
In the Netherlands, advertising of cannabis isn’t allowed, nor are online purchases and delivery of drugs to customers.
By contrast, advertising of cannabis products in states such as Colorado, Massachusetts, Rhode Island and others is ubiquitous. It’s on highway billboards and placards pasted onto public items such as modern trash bins, sometimes featuring deliver-to-your-door services.
In the Netherlands, consumption of marijuana in public spaces has at times been a lively point of discussion and not just among critics of liberal policies toward the drug. Amsterdam Mayor Femke Halsema (member of the progressive green-left party) has told media that “marijuana tourism is a blight on the city, fostering crime and public disorder.” Tourists and residents alike can face a $110 fine for public cannabis smoking in and around Amsterdam’s red light district.
The backlash in the capital against smoking pot in public areas isn’t a new development. As far back as 2007, the city council in Amsterdam voted in favor of introducing a citywide ban on smoking marijuana in public areas.
Most U.S. states have pro forma laws on the books which prohibit consumption of marijuana in any form in public or on federal land. But judging from the omnipresent, wafting scent of weed throughout America in places where it’s been legalized, the police seem to look the other way.
Then there’s the issue of marketing of medical marijuana which in the U.S. extends beyond what is permissible in the Netherlands. In the U.S., medical marijuana businesses market their products for numerous diseases and conditions with virtually no regulatory oversight. State government-run entities, such as the Massachusetts-based Cannabis Control Commission, assert that medical marijuana is “approved” for a multitude of diseases and conditions that include glaucoma, hepatitis C, cancer, Parkinson’s and Crohn’s disease, chronic pain, multiple sclerosis and ALS. It’s unclear whether a regulatory agency is implied by use of the word “approved” on the commission’s website. Surely it isn’t the FDA, as it has not approved marijuana for any of the above-mentioned conditions.*
Also, in the U.S. the purity or potency of cannabis products is largely unregulated. The Yale School of Medicine examined the THC content of cannabis and reports that it has “changed substantially. In 1995, the average THC content in cannabis seized by the Drug Enforcement Administration was about 4%. By 2017, it had risen to 17% and continues to increase.”
The Dutch government doesn’t impose limits on THC potency either, though parliamentarians have been discussing a proposal to restrict THC levels to 15%. Further, in a pilot program that began in December of last year, the government will regulate the purity and quality of the cannabis products being grown and cultivated and then sold and consumed in a selected number of establishments. And while it’s currently formally illegal to buy large quantities of cannabis for sale, it’s obvious the stores, called “coffeeshops,” must be getting their supply from somewhere. This was the impetus for conducting the pilot. And so, in a characteristically Dutch move involving pragmatism and a heavy dose of regulation, the government is pursuing an experiment in 10 counties where coffeeshops selling pot may procure cannabis from a state-appointed producer.
The business of buying, selling and consuming marijuana in America is subject to a hodgepodge of often inconsistent regulations, which reclassifying to a Schedule III substance won’t change. Without a formal legal pathway at the federal level that would include a coherent set of rules and regulations that apply universally, rescheduling marijuana will do nothing to harmonize state rules.
*The FDA has granted marketing authorization to the therapeutic Epidiolex, which contains a purified form of cannabidiol (not marijuana), for the treatment of rare and severe forms of intractable childhood epilepsy. In addition, the FDA approved Marinol and Syndros, which contain synthetic THC, and Cesamet, which contains a synthetic substance similar to THC, nabilone. These three drugs can be used for nausea and vomiting caused by cancer chemotherapy, in addition to treatment of weight loss in patients with HIV/AIDS.
