Moving Marijuana To Schedule III Would Not Violate International Treaties, Legal Opinion Says

A group of lawyers argues in a newly released legal opinion that contrary to what the Drug Enforcement Administration (DEA) has asserted in the past, international drug treaties ought not stand in the way of moving marijuana to Schedule III of the Controlled Substances Act (CSA), as the Department of Health and Human Services (HHS) has recommended.

In fact, the opinion argues, a move to Schedule III would better uphold the country’s broader obligations under international law to regulate cannabis in a way that protects public health and safety.

“In light of the failed war on drugs, devastating impacts on communities of color, and the public health risks associated with a dangerous illicit market,” it says, “placing Marijuana in Schedule III would further the public health, safety, and welfare better than Schedule I or II could.”

The opinion, from cannabis specialists at the law firms of Porter Wright LLP and Vicente LLP, is intended largely to refute a position DEA took in a 2016 denial of an earlier marijuana rescheduling petition, in which the agency wrote that “in view of United States obligations under international drug control treaties, marijuana cannot be placed in a schedule less restrictive than schedule II.”

International drug treaties in their current form, the memo argues, provide enough flexibility for sovereign nations to craft drug policies that protect domestic health and welfare—even if that means an end to prohibition.

“The Treaties provide Parties with the flexibility to reevaluate the scheduling of substances under their respective domestic laws based on the emergence of new scientific and medical evidence,” the 11-page document says. “This flexibility in the Treaties is a core component of their application and vital to their continued relevance.”

The legal opinion was commissioned by the Coalition for Cannabis Scheduling Reform, which represents a broad spectrum of cannabis-related businesses and advocacy organizations. The group has shared it with members as well as “privately with key stakeholders in government,” co-chair Adam Goers said in a statement provided to Marijuana Moment.

“We’re releasing it publicly to debunk arguments being made by prohibitionists,” Goers said. “As the memo explains, our nation’s treaty obligations do not stand in the way of the DEA moving cannabis down to Schedule III.”

Among those who’ve raised concerns about treaty obligations blocking a move to Schedule III is Rep. Andy Harris (R-MD), who raised the issue in a letter sent to DEA Administrator Anne Milgram late last month, claiming that any reclassification that puts marijuana outside of Schedule I or Schedule II “would constitute a violation of the Single Convention,” referring to the 1961 United Nations (UN) Single Convention on Narcotic Drugs.

But as a coalition of 12 senators pointed out in a separate letter to Milgram a week earlier, the UN has since revised global cannabis scheduling policies and allowed other member states, such as Canada, to legalize and regulate marijuana without penalty. Those lawmakers urged DEA to legalize marijuana completely.

Authors of the legal opinion point to Canada and Uruguay in support of their reading that international drug treaties broadly support regulating drugs for safety, research and medical applications.

“Rescheduling Marijuana to Schedule III would better promote the Treaties’ general goal of prioritizing the health, safety, and welfare of humankind and their specific goal of advancing medical and scientific research of controlled substances,” the memo says. “Similar considerations led Uruguay and Canada to proceed with full adult-use legalization (a step far beyond HHS/FDA’s Schedule III recommendation). Neither country viewed their Treaty obligations as an obstacle to such a move, and neither has suffered repercussions from the international community as a result.”

DEA itself “has previously relied on this scheduling flexibility when it rescheduled Epidiolex, a Marijuana-based drug” that consists of purified CBD, it adds.

While DEA previously classified CBD as marijuana and thus a Schedule I controlled substance, Food and Drug Administration (FDA) approval of Epidiolex prompted the agency to reschedule the pharmaceutical to Schedule V, and the agency later descheduled it completely following passage of the 2018 Farm Bill that legalized hemp and its derivatives.

The opinion says the move “established the blueprint for placing Marijuana in Schedule III while preserving the U.S.’s ability to carry out its Treaty obligations.”

“This DEA concept of rescheduling and re-regulating applies with equal force to the current Marijuana rescheduling process,” it argues. “Moving Marijuana to Schedule III while simultaneously amending regulations is therefore appropriate and consistent with DEA precedent.”

DEA recently asserted that the agency has “final authority” on the rescheduling decision, though officials so far have given no indication of the current status of their review, despite urging by lawmakers.

“Clear and proactive communication is critical as this formal scheduling review moves forward,” Rep. Earl Bluemauer (D-OR) wrote to DEA’s Milgram earlier this month.

In addition to the legal opinion’s arguments that the drug treaties don’t preclude moving marijuana to Schedule III and that the lower classification actually better fits the spirit of the international agreements, it also claims member countries aren’t bound by the treaties when doing so would violate their domestic constitutional frameworks.

That aspect of international law could be particularly important with regard to existing adult-use markets already legal under U.S. state laws.

The treaties, lawyers wrote, “include exceptions when a Party is bound by constitutional limitations, and shutting down the State adult-use Marijuana markets on Treaty grounds would intrude into core police powers reserved to the States under our Constitution.”

The attorneys behind the opinion are Shane Pennington of Porter Wright and Shawn Hauser and Jason Adelstone of Vicente, with contributions from Brandon Adkins, also at Vicente.

Pennington was among the first to note comments last October by a State Department lawyer speaking to UN drug commission about obligations under the treaties.

Patt Prugh, a senior legal advisor and the primary counsel for the State Department’s Bureau of International Narcotics and Law Enforcement Affairs, told the UN’s Commission on Narcotic Drugs (CND) that the Single Convention and other global drug conventions take a “highly respectful” stance toward member states’ domestic policies that don’t have an “international dimension,” adding that states’ obligations ought to be weighed against their duties to protect human rights.

Pennington and others pointed out the comments could signal a potentially meaningful shift in the U.S. reading of global drug treaty obligations amid the administration’s rescheduling review.

In comments to Marijuana Moment, Pennington said he and colleague Matt Zorn have previously argued that “the CSA provision imposing these treaty requirements on the process is itself unconstitutional.”

Asked what recourse advocates might have if DEA were to maintain that the drug treaties continue to prohibit rescheduling lower than Schedule II, Pennington said the constitutional arguments in a worst-case scenario “would serve as the basis for challenging DEA’s decision in federal court.”

“Courts have held that to the extent that DEA can follow HHS’s scientific and medical findings without compromising treaty compliance, it must do so,” he said.

Authors also emphasized a legal distinction between a final order and a final rule when it comes to a DEA rescheduling action.

“The distinction matters because a final rule requires rulemaking—the public participation process that includes notice and comment and administrative hearings scrutinizing a proposed rule and leading ultimately to a final rule,” Pennington said.

But if DEA were to invoke its treaty obligations—regardless of what schedule it decides—the opinion says the agency could instead issue a final order, allowing the agency to sidestep the rulemaking process.

“When DEA invokes the treaties and issues a final order like it did with Epidiolex,” Pennington said, “it can do so without public participation.”

Hauser, a co-author of the opinion, told Marijuana Moment there’s still “healthy debate by various member states as to how flexible the treaties are with respect to member states’ interpreting them to be consistent with their domestic laws.”

“Most member countries do agree that the treaties do expressly allow for certain latitude on a range of issues,” she said, noting that the authors consulted with experts like John Walsh of the Washington Office on Latin America and Martin Jelsma of the Transnational Institute to craft the new memo. “What the limits are around that flexibility is something that’s debated.”

As Hauser sees it, current treaties already allow flexibility for countries to regulate drugs for certain purposes, like medicine and scientific research, instead of prohibit them outright. That should be sufficient to allow moving marijuana to Schedule III, as she believes the U.S. is already signaling on the international stage.

But she also predicted that as more member states adopt alternatives to prohibition, international treaties may eventually need adapt to better fit a post-drug-war world.

“I think that’s part of the bigger debate,” Hauser said. “Can countries proceed with legalization and compliance?”

Especially as conversations turn from medical legalization to broader adult-use—and potentially to regulation of psychedelics—international drug treaties crafted during an era of near global prohibition might need to be revisited and revised.

Are existing treaties flexible enough as they are, Hauser asked, or “is part of proceeding with legalization an opportunity and obligation to modernize what are outdated and outmoded documents that are designed to be updated?”

Regardless, the lawyers’ opinion says that for now, treaties not only allow but also support rescheduling cannabis to Schedule III.

“The DEA can clearly meet its obligations under the Treaties by controlling Marijuana in Schedule III and amending current regulations to meet Treaty reporting, quota, and other requirements,” it asserts. “If the DEA comes to a different conclusion, contradicting its own recent precedent, the decision would be unjustifiable and would lack sound scientific, medical, and legal arguments.”

Since news first leaked last August of the HHS rescheduling recommendation, advocates have worked to uncover more details about the review, including its legal and medical reasoning. Last month, facing numerous public records requests as well as at least one lawsuit over the matter, health officials finally released more than 250 pages of medical review and other related documents, symbolizing the first time the federal government has formally acknowledged the accepted medical benefits of marijuana.

It’s still unclear when DEA will act on the advice, however. In comments last week to Marijuana Moment, a Biden administration official dismissed rumors that a rescheduling decision was imminent.

Prior to last month’s release of the rescheduling-related documents, all that had been made public were a highly redacted version of the HHS rescheduling memo and a single page of the recommendation revealed last October, also heavily redacted.

Also last month, a coalition of 12 Democratic state attorneys general implored DEA to move forward with federal marijuana rescheduling, calling the policy change a “public safety imperative.”

In another letter, sent in December, 29 former U.S. attorneys called on the Biden administration to leave cannabis in Schedule I. That same month, the governors of six U.S. states—Colorado, Illinois, New York, New Jersey, Maryland and Louisiana—sent a letter to Biden calling on the administration to reschedule marijuana by the end of last year.

Meanwhile, six former DEA heads and five former White House drug czars sent a letter last October to the attorney general and current DEA administrator voicing opposition to the top federal health agency’s recommendation to reschedule marijuana. They also made a questionable claim about the relationship between drug schedules and criminal penalties in a way that could exaggerate the potential impact of the incremental reform.

Two GOP senators, including the lead Republican sponsor of a marijuana banking bill that cleared a key committee in September, also filed legislation late last year to prevent federal agencies from rescheduling cannabis without tacit approval from Congress.

And a coalition of 14 Republican congressional lawmakers separately urged DEA to “reject” the top federal health agency’s recommendation to reschedule marijuana and instead keep it in the most restrictive category under the CSA.

A recent poll found that about one-third of marijuana consumers say they would go back to the illicit market if cannabis was rescheduled and only made legally available as a Food and Drug Administration- (FDA) approved prescription drug.

Another recent survey found that President Joe Biden stands to make significant political gains if marijuana is rescheduled under his administrative directive—though Biden doesn’t directly control the final outcome.

The president has routinely touted his 2022 scheduling directive, as well as a mass pardon he granted for people who’ve committed federal marijuana possession offenses. He followed up on that action in December with a renewed and expanded pardon proclamation. The Justice Department has already begun issuing certifications for people who applied under the second round.

Over the weekend, Vice President Kamala Harris (D) cited the administration’s moves toward reforming federal marijuana laws in a new video appealing to young voters, but the video featured a map with inaccurate information about current state marijuana laws.

Harris had previously said the pardons of people for federal marijuana possession offenses were an example of how the administration is delivering for Americans, particularly young and Black voters who could be key to Biden’s reelection bid this year.

Read the full legal opinion commissioned by the Coalition for Cannabis Scheduling Reform below:

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