By Tom Angell

 

A top Obama Justice Department official says it’s time for the federal government to reschedule marijuana.

The only problem? He left office more than a year and a half ago.

“Probably the biggest frustration over time – and it comes from both what Congress does, because they have the power to do this, and what the regulatory process is through both FDA and DEA – is marijuana continuing to be a Schedule I drug,” former Deputy Attorney General James M. Cole told Marijuana Business Daily in an interview published Wednesday. “And that, I think, needs to be changed. Because there is an enormous amount of anecdotal evidence of marijuana having some sort of medical efficacy.”

Cole, who left the Justice Department in January 2015, authored three important memos on cannabis policy during his tenure, the most famous of which is the August 2013 directive instructing federal prosecutors to generally not interfere with state marijuana laws.

Cole’s old boss, former Attorney General Eric Holder, also recently endorsed reclassifying marijuana under federal law — after leaving office.

“I certainly think it ought to be rescheduled,” Holder said in an interview with PBS. “You know, we treat marijuana in the same way that we treat heroin now, and that clearly is not appropriate.”

While at the Justice Department, Holder and Cole could have taken administrative action to begin the process of moving marijuana out of its current status under Schedule I of the Controlled Substances Act — the most restrictive category, which is supposed to be reserved for drugs with no medical value.

But they didn’t.

However, the Drug Enforcement Administration (DEA) is expected to soon rule on pending rescheduling petitions. In a letter to U.S. senators earlier this year, DEA said it hoped to “release its determination in the first half of 2016.” But even though that timeline meant the ruling was expected before July 1, the agency still hasn’t announced a decision.

As Marijuana.com first reported last year, DEA has already received a recommendation from the Food and Drug Administration (FDA) about whether to reschedule cannabis, though it is unknown what that recommendation entails.

DEA’s decision could come any day now.

Moving marijuana out of Schedule I — or, removing it from the CSA altogether, like alcohol and tobacco — would have a number of effects.

Reclassification to Schedule III or lower, for example, would protect federal employees who use marijuana from a Reagan-era executive order that defines illegal drugs as Schedule I or II substances.

Additionally, only drugs under Schedules I and II are affected by the tax provision known as “280E,” which disallows state-legal businesses from deducting normal operational expenses from their federal taxes.

Because current laws and regulations prevent the Department of Health and Human Services and the Office of National Drug Control Policy from fairly evaluating Schedule I drugs, reclassification would allow the government to examine and communicate about marijuana in a way that prioritizes science instead of an outdated drug war mindset.

Rescheduling would also make scientific research easier. Douglas Throckmorton, deputy director of the FDA’s Center for Drug Evaluation and Research, testified before the Senate that marijuana’s Schedule I status means there are “additional steps” that scientists wishing to study it must take and that reclassification would expand opportunities for research.

Moving cannabis out of Schedule I would also put an end to threats that newspapers who mail publications containing marijuana advertisements are facing from the U.S. Postal Service, since the federal law that agency cites to justify its actions only applies to Schedule I drugs.

Finally, removing marijuana from Schedule I and officially recognizing that the drug has medical value would send a strong message to state lawmakers and international leaders that the federal government is beginning to address decades of mistakes on marijuana policy, and that they should too.

In the new interview with Marijuana Business Daily, Cole recounts the thought process that went into formulating the Obama administration’s response to state marijuana legalization laws. While the federal government could have sued to block the regulatory schemes that allow legal sales from going into effect, there’s nothing the administration could have done to force states to maintain criminal penalties for use and possession.

“So the conclusion was we could not force the states to abandon their legalization. Now, in essence, people are going to smoke marijuana in those states,” he said. “We also heard in our legal analysis that if you wanted to, you probably could stop the regulatory scheme because it probably could stop conduct that’s illegal under federal law. And so we said, ‘But what’s the point of that?’ Because all we’re going to do is cut off our nose to spite our face and help the drug cartels make lots of money.”

For more of Cole’s thinking on marijuana policy, listen to the interview he did with the Cannabis Economy Podcast in April. In the nearly hour-long discussion, he told host Seth Adler that marijuana legalization is a “natural progression” and recounts hearing a news report about drug cartels losing money and realizing that it was a result of the newly legal cannabis industry in the U.S.