Drug Enforcement Administration Denies Petition to “Reschedule” Marijuana

The U.S. Drug Enforcement Administration (“DEA”) has denied a petition to initiate rulemaking proceedings to “reschedule” marijuana in the federal Controlled Substances Act (“CSA”).

Marijuana currently is a Schedule I drug under the CSA, meaning that it is a drug with a high potential for abuse with “no currently accepted medical use in treatment in the United States” and lacking in “accepted safety for use under medical supervision.” 21 U.S.C. § 812(b). By letter dated June 21, 2011, published in the Federal Register on July 8, 2011, DEA denied a petition seeking to reschedule marijuana as a Schedule III, IV or V drug to re-classify it as a drug with a lower potential for abuse and with a currently accepted medical use in treatment in the United States.


On October 9, 2002, the Coalition for Rescheduling Cannabis submitted its petition to DEA requesting that proceedings be initiated to reschedule marijuana. The petition contended that marijuana has an accepted medical use in the United States, is safe for use under medical supervision, and has an abuse potential and a dependency liability that is lower than Schedule I or II drugs.

In July 2004, DEA requested that the U.S. Department of Health and Human Services (“DHHS”) provide a scientific and medical evaluation of the available information and a scheduling recommendation for marijuana, in accordance with the provisions of 21 U.S.C. § 811(b). Under those provisions of the CSA, DHHS considered eight factors to make its scheduling recommendation: (1) marijuana’s actual or relative potential for abuse; (2) scientific evidence of its pharmacological effects, if known; (3) the state of current scientific knowledge regarding the drug or other substance; (4) its history and current pattern of abuse; (5) the scope, duration, and significance of abuse; (6) what, if any, risk is there to the public; (7) its psychic or physiologic dependence liability; and (8) whether the substance is an immediate precursor of a substance already controlled under this article.

On December 6, 2006, DHHS provided its scientific and medical evaluation entitled, “Basis for the Recommendation for Maintaining Marijuana in Schedule I of the Controlled Substances Act,” and recommended that marijuana continue to be controlled in Schedule I of the CSA.

DEA reviewed DHHS’s evaluation, along with other relevant data. It concluded that marijuana should continue to be controlled in Schedule I of the CSA due to its high potential for abuse, the fact that it currently has no accepted medical use in treatment in the United States, and the lack of accepted safety for use of marijuana under medical supervision. Some of DEA’s findings included: the widespread use of marijuana by individuals who are not following the advice of a medical practitioner is one indication of the high potential for abuse; long-term, regular use of marijuana can lead to physical dependence; no studies have scientifically assessed the safety of marijuana use for any medical condition; and there are significant respiratory, cardiovascular and mental health risks for marijuana users.

What This Means

Federal law, therefore, continues to conflict with those state laws that have decriminalized the use of “medical marijuana” in certain circumstances. These states include Alaska, Arizona, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia. The courts in several of these states, including California, Michigan, Oregon and Washington, have held that employers are not required to accommodate “medical” marijuana use by employees.

If your company would like assistance with its drug and alcohol testing program, or if you have any other questions relating to workplace substance abuse issues, please contact our Drug Testing and Substance Abuse Management practice or the Jackson Lewis attorney with whom you regularly work.