The Fight Over Cannabis Rescheduling: Progress, Setbacks, and the Battle Ahead

The fight over cannabis rescheduling has been marked by incremental progress, deliberate obstruction, and a legal landscape that is shifting faster than many observers realize. At the center of it all is a fundamental question: how do we determine whether a substance has "accepted medical use"?

The DEA's Rigid Five-Part Test

Since 1992, the DEA has applied a five-part test for evaluating whether a substance has accepted medical use. Published in the Federal Register, this test required: (1) the substance's chemistry must be known and reproducible, (2) adequate safety studies, (3) adequate and well-controlled studies proving efficacy, (4) qualified experts must accept the substance for medical use, and (5) scientific evidence must be widely available.

This test was designed to be nearly impossible to satisfy outside of the formal FDA approval process. For decades, it served as the DEA's primary justification for keeping cannabis - and many other substances - locked in Schedule I.

The OLC Opinion Changes Everything

In April 2024, the Department of Justice's Office of Legal Counsel issued an opinion calling the DEA's five-part test "impermissibly narrow." The OLC endorsed HHS's two-part inquiry, which asks simply: (1) is there widespread current medical use in the United States, and (2) is there credible scientific support for such use? Critically, this standard does not require FDA approval.

With 38 states plus the District of Columbia having established medical cannabis programs, the first prong is easily satisfied. The second prong is supported by extensive research, including the landmark 2017 NASEM report documenting therapeutic efficacy for chronic pain, chemotherapy-induced nausea, and multiple sclerosis spasticity.

Congressional Resistance

Not everyone in Washington is on board. Representative Andrew Clyde introduced an amendment to block rescheduling, though it was later withdrawn. Senator James Lankford introduced a bill that would preserve 280E's applicability even after rescheduling - a move that would essentially decouple the tax penalty from the scheduling framework that justifies it.

These efforts underscore the political nature of the scheduling fight. The science supports reclassification. The legal framework supports it. The primary remaining obstacle is political will.

DEA Delays and Leadership Questions

The DEA has dragged its feet on rescheduling at every stage. Terrance Cole, serving as acting administrator, has overseen a process marked by procedural delays and public silence. The agency's reluctance to act on HHS's binding recommendation raises serious questions about institutional resistance and the degree to which the DEA is operating within its statutory authority.

The battle is far from over, but the trajectory is clear. Cannabis rescheduling is a matter of when, not if. Operators who prepare now - by working with advisors who understand the legal, tax, and regulatory implications - will be best positioned when the landscape finally shifts.