Wednesday, February 5, 2014
A few days ago, Mark Kleimen weighed in, saying that marijuana rescheduling is essentially beside the point. Since marijuana still would not have FDA approval, Kleiman argued, growing marijuana "would still be the illegal manufacture of a Schedule II controlled substance." Although overstated (and full of odd and off-base personal attacks against Jacob Sullum), Kleiman's basic point is valid and often overlooked: rescheduling marijuana would not solve the conflict between state medical marijuana laws and the federal Controlled Substances Act. (Unlike Kleiman, I do not think rescheduling would have "zero" practical effect--it would have a significant political impact and could provide space for litigation on the legality of distributing marijuana without FDA approval, for example as an herbal supplement.)
Putting the question of what impact rescheduling might have aside, however, I just saw an update to Kleiman's post that struck me as misguided. In the update, Kleiman claims that marijuana could not be moved below Schedule II because "more than 2 million people in the U.S. meet diagnostic criteria for cannabis abuse or dependency at any one time."
Kleiman's position stems from the federal Controlled Substances Act's three scheduling criteria, one of which is a substance's relative "potential for abuse." The law provides that substances in Schedules I and II are those with a high potential for abuse. Schedule III substances have a potential for abuse less than those in Schedules I and II and so on.
The trouble is, the CSA does not define the term "potential for abuse." (In fact, the only term in the CSA's scheduling criteria that is expressly defined, is "United States.") The result--as anyone with a basic familiarity with administrative law can guess--is that the DEA has enjoyed incredibly broad discretion to interpret and define "potential for abuse" and other scheduling criteria.
And here's where Kleiman's position is not as air-tight as he seems to think it is. Currently, the DEA defines "potential for abuse" in a way that equates, roughly, to overall use rates. And if we apply this definition (as the DEA does), Kleiamn is right: marijuana's abuse potential would place it in Schedules I or II.
But there are plenty of other reasonable ways to define "potential for abuse." And the only thing stopping the DEA from adopting a different definition of "potential for abuse" is, well, the DEA. Instead of focusing on the total number of users, for example, we might define "potential for abuse" based on the percentage of users who become addicted to a substance or based on the ancillary harms that come from regular use. (Indeed, many people seem to think idea that marijuana's abuse potential is the same as heroin's is pretty ridiculous. Presumably, folks in this category think that there are other measures of abuse potential than Kleiman's/the DEAs.)
This is not to say that marijuana would necessarily end up with a lower abuse potential rating if the DEA decided to revise its definition of the term. My point is only that it could and that there are certainly reasonable definitions of "potential for abuse" in which it almost surely would. Kleiman's position that marijuana's abuse potential means it must remain in Schedule I or II misunderstands the way administrative law works and the DEA's power to interpret "potential for abuse."
I examined the DEA's definition of "potential for abuse" in some detail in this article for the Albany Government Law Review last year.