Biden administration begins formal rulemaking process to downgrade marijuana to less dangerous drug

WASHINGTON D.C. - The Biden administration on Thursday submitted a proposal seeking to begin the formal process of reclassifying marijuana as a less dangerous drug.

The Department of Justice (DOJ) announced that Attorney General Merrick Garland submitted the proposal to the Federal Register, with the intent of having the drug dropped to a Schedule III drug from Schedule I, as classified under the Controlled Substances Act (CSA).

Congress enacted the CSA in 1970, and ever since the act’s establishment, marijuana has been classified as a Schedule I drug.

President Biden asked the attorney general and the secretary of Health and Human Services (HHS) to conduct a review of how marijuana is scheduled under federal law on Oct. 6, 2022.

The HHS provided its recommendations to the attorney general in August 2023, who then asked for legal advice for questions about the rulemaking process, from the DOJ's Office of Legal Counsel (OLC).

After receiving all the pertinent information, Garland initiated the process to downgrade marijuana to a Schedule III drug.

Man smokes marijuana. 

Now, the controlled substance rescheduling will go through a procedure requiring the public to be notified and an opportunity for comment, along with an administrative hearing.

READ: Florida Supreme Court approves abortion, marijuana amendments for November ballot

As part of the process, the Drug Enforcement Administration (DEA) will also collect and consider information and views submitted by the public to help decide on whether the drug should be dropped to a less dangerous controlled substance.

Until a final rule is released, however, marijuana will continue to be classified as a Schedule I controlled substance.

A man smokes a marijuana joint. A new report from the FDA supports reclassifying marijuana as a lower risk drug (Photo by Christopher Furlong/Getty Images)

The planned move by the Biden administration comes during an election year.

This proposal, if passed, would recognize the medical uses of cannabis and acknowledge it has less potential for abuse than some of the nation’s most dangerous drugs.

READ: Why is marijuana illegal? How the 1933 Ybor City ax murders bolstered case to criminalize cannabis

However, it would not legalize marijuana outright for recreational use.

As the drug schedule changes — Schedule II, Schedule III, etc., so does the abuse potential — Schedule V drugs represent the least potential for abuse.

Man smokes marijuana. 

Schedule III drugs have a lower misuse potential than I and II, according to the CSA. Drugs in this category may cause physical dependence but more commonly lead to psychological dependence.

Drugs in this category also require a prescription and all CSA record-keeping requirements would apply. However, this does not mean it is legal to sell without a Medical License and a DEA registration. It is the same as filling a prescription at a pharmacy.

According to the National Conference of State Legislatures, marijuana in small amounts has been made legal for recreational use by adults in 24 states, as well as Washington, D.C., and two U.S. territories. 

Marijuana is the most commonly used federally illegal drug in the U.S., according to the Centers for Disease Control and Prevention, with an estimated 48.2 million users nationwide in 2019, which has only increased since then, with states continuing to legalize recreational and medical cannabis use.

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