FDA Reached ‘Flawed’ And ‘Misguided Conclusion’ To Reschedule Marijuana, GOP Congressman Tells DEA Administrator

A Republican congressman who has long opposed marijuana reform is telling the Drug Enforcement Administration (DEA) that the Food and Drug Administration (FDA) came to a “misguided conclusion” to recommend rescheduling cannabis— challenging the health agency’s scientific standards and imploring DEA to dismiss them as it prepares to make a final determination.

In a letter sent to DEA Administrator Anne Milgram on Wednesday, Rep. Andy Harris (R-MD) also said the agency should “abide by our nation’s international treaty obligations” that he says prohibit the U.S. from moving cannabis to Schedule III of the Controlled Substances Act (CSA), as the U.S. Department of Health and Human Services (HHS) has recommended.

“The treaty established widely agreed upon methods of drug control that are still used today,” Harris said, adding that any reclassification that puts marijuana outside of Schedule I or Schedule II “would constitute a violation of the Single Convention.”

DEA has previously rejected rescheduling petitions on the basis of those decades-old treaties, but as a coalition of 12 senators recently pointed out in a separate letter to Milgram this week, the United Nations (UN) has since revised global cannabis scheduling policies, while allowing other member states such as Canada to enact complete legalization without penalization.

“In addition to considering international treaty obligations, I urge you to consider that HHS’ justification for making its recommendation to reschedule marijuana was flawed in many respects,” the congressman said in the letter.

He wrote that “FDA ignored several important factors when considering marijuana’s potential for abuse and harm to public health,” arguing that the agency “did not sufficiently examine the effect of daily marijuana use, a key indicator of addiction,” and it also “failed to consider the public health damage caused by traffic fatalities due to individuals driving under the influence of marijuana.”

“The FDA also failed to compare marijuana’s potential for abuse to many other Schedule I drugs, instead opting to hand-select drugs that appear more harmful,” he said, questioning why the agency made comparisons to the Schedule I drug heroin, but not LSD or ecstasy, for example.

“The FDA mischaracterized the data on marijuana’s harms,” Harris said in the letter, first noted by Fox News Radio’. “The lack of rigor in the studies used by the FDA is concerning and led to a misguided conclusion.”

NEW: @RepAndyHarrisMD alleges the FDA’s scheduling review for marijuana contained a “lack of rigor in the studies used.”

Rep. Harris explains why he believes the FDA made up a new two-factor test to determine marijuana’s “currently accepted medical use.” pic.twitter.com/yKjn716yPr

— Ryan Schmelz (@RyanSchmelzFOX) January 31, 2024

In addition to outlining his bifurcated argument against incremental rescheduling—which would not legalize marijuana or federally sanction state-regulated cannabis markets—Harris also demanded that DEA answer a series of related questions by February 16.

He asked Milgram to explain DEA’s current legal interpretation of international treaty obligations as it concerns marijuana, how the agency is procedurally approaching its scheduling review, whether it considers certain studies on cannabis appropriate to account for in its assessment and how it is weighing issues such as marijuana use by pregnant women and the risk of impaired driving in its review.

The congressman’s position isn’t surprising, as he’s developed a firm reputation as an opponent of marijuana reform throughout his tenure. For example, he’s sponsored and defended a longstanding appropriations rider that has blocked Washington, D.C. from implementing a system of regulated cannabis sales, despite voters approving a legalization initiative at the local ballot in 2014.

The letter to DEA also came as Harris joined two other prohibitionist lawmakers, Rep. Pete Sessions (R-TX) and Sen. Pete Ricketts (R-NE), in introducing a concurrent resolution that raises concerns about high potency THC products and calls on federal agencies to research the potential harms.

But the letter is the latest example of how lawmakers on both sides of the cannabis debate are seeking to influence DEA amid expectations about a potentially imminent scheduling decision.

For example, a separate letter sent to Milgram on Monday—led by Sens. Elizabeth Warren (D-MA) and John Fetterman (D-PA), along with Senate Majority Leader Chuck Schumer (D-NY) and other champions of marijuana reform—urged DEA to go further than rescheduling by fully removing cannabis from the CSA.

Doing so would present a “rare opportunity to shape the new cannabis industry from the ground up, designing a federal regulatory system untainted by the corporate capture that has influenced alcohol and tobacco regulations, and advancing federal cannabis reforms that acknowledge and repair the harms of cannabis criminalization,” they said.

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Meanwhile, HHS Secretary Xavier Becerra said last month that his agency has “communicated” its “position” on marijuana rescheduling to DEA and has continued to offer additional information to assist with the final determination.

DEA has steadfastly maintained it has “final authority” over the matter and can make any scheduling determination that it sees fit.

“DEA has the final authority to schedule, reschedule, or deschedule a drug under the Controlled Substances Act, after considering the relevant statutory and regulatory criteria and HHS’s scientific and medical evaluation,” the agency said in a letter to lawmakers last month. “DEA is now conducting its review.”

The statement came in response to an earlier letter from 31 bipartisan lawmakers, led by Rep. Earl Blumenauer (D-OR), that urged the agency to consider the “merits” of legalization as it carried out its review.

Prior to HHS releasing a trove of documents concerning its cannabis recommendation, 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 in December, 29 former U.S. attorneys called on the Biden administration to leave cannabis in Schedule I.

Also that 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 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.

Signatories include DEA and Office of National Drug Control Policy heads under multiple administrations led by presidents of both major parties.

In October, Advocates and lawmakers who support cannabis reform marked the one-year anniversary of Biden’s mass marijuana pardon and scheduling directive by calling on him to do more—including by expanding the scope of relief that his pardon had and by expressly supporting federal legalization.

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.

A coalition of 14 Republican congressional lawmakers, meanwhile, 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. Of course, 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 last month with a renewed and expanded pardon proclamation. The Justice Department has already begun issuing certifications for people who applied under the second round.

Read Harris’s letter to the DEA administrator on marijuana scheduling concerns below: 

GOP Lawmakers Team Up With Marijuana Prohibitionists On Resolution Calling For Research Into High Potency THC Products