Federal Marijuana Rescheduling: A Potential Catalyst for State-Level Transformations

by: Marc Tesnee

The potential rescheduling of marijuana by the Drug Enforcement Administration (DEA) has experts contemplating a chain reaction of changes that could reverberate not only at the federal level but also across individual states. This complex web of possibilities is closely tied to what is known as “trigger laws” – state regulations that respond to shifts in federal scheduling.

In most U.S. states, these trigger laws would automatically mirror any federal rescheduling of marijuana, or they would initiate a process to reclassify the substance. The impact of such a cascade of changes is broad, spanning politics, criminal justice, and medical marijuana regulations.

States can be broadly categorized into three groups based on their reactions to federal rescheduling. In slightly over half of them, a federal scheduling shift would trigger automatic state-level rescheduling. In others, the process would require further action from the state legislature or an appropriate state authority. Roughly ten states do not directly link their scheduling decisions to the federal status of the drug.

Legal expert Shawn Hauser, co-chair of the cannabis-focused law firm Vicente LLP’s hemp and cannabinoids department, shed light on this situation. She explained, “The majority of states have a state scheduling procedure automatically triggered by a schedule change at the federal level. The state is required under the state law to control the substance in accordance with state law unless there’s an objection by the state regulatory body.”

For instance, Texas would automatically reschedule if the federal law changes. The commissioner of the Department of State Health Services in Texas would have 30 days upon notification of federal rescheduling to follow suit unless there’s an objection.

Among the potential changes, Texas could experience broader access to high-THC medical marijuana if rescheduling occurs. Presently, patients in Texas are limited to products containing no more than one percent THC.

In states where cannabis is currently illegal for all purposes, like Idaho, federal rescheduling could clear the path for medical marijuana, at least in specific scenarios.

In states without an automatic rescheduling process, further action would be needed from the state legislature or another controlling authority. For instance, in Kansas, lawmakers have the authority to make scheduling changes based on recommendations from the Board of Pharmacy.

We’ve seen similar state-level rescheduling efforts in the past, notably after the FDA approved Epidiolex, an oral solution of CBD, in 2018. Subsequently, the federal government moved CBD to Schedule V of the CSA. Following that, the maker of Epidiolex, then known as GW Pharmaceuticals (now Jazz Pharmaceuticals), worked state by state to ensure similar scheduling changes at the state level.

However, some states have laws indicating that action is discretionary. In Virginia, for example, state law allows regulators to amend rules to match federal scheduling changes, but no formal action is mandated.

The impact of state-level rescheduling would likely vary significantly depending on each state’s current approach to marijuana. States with existing legal medical or adult-use cannabis programs may see minimal change. Hauser noted, “I think in those states, it would be moot because those states have already chosen to regulate marijuana less restrictively than federal law, knowing that the federal government likely isn’t going to enforce and pursue federal enforcement priorities.”

One potential change in these states could be the initiation of interstate cannabis commerce, allowing for the possibility of shipping marijuana across state lines, which is currently restricted by federal law.

Hauser believes that states with mature cannabis systems are unlikely to revert to strict Schedule III restrictions. She added, “I think states like Colorado and Washington and others, with mature regulatory models and a mature industry, I don’t think this will turn back the clock on them.”

States without any legal form of marijuana would likely see at least limited access for medical patients as a result of rescheduling, with the drug regulated more like other Schedule III substances, such as ketamine and Tylenol with codeine, particularly once additional FDA-approved cannabis medicines become available.

Beyond formal legal changes, Hauser also anticipates that broader state-level rescheduling could have a political impact by influencing the ongoing conversation around cannabis among doctors, elected officials, law enforcement, and other stakeholders.

“As we’ve seen with the way it’s federally classified,” she said, “the way it’s classified at the state level colors how doctors look at it, how government officials look at it, how police look at it, parents—everyone.”

“Schedule III means it has an acknowledgment of medical use and lower potential for abuse,” she continued. “That’s going to make it a much different conversation with doctors and in health care and in conversations with government.”

Furthermore, this perspective could also change how law enforcement handles cannabis cases, even though most marijuana-related crimes are based on volume rather than the drug’s specific schedule.

The changes could also put further pressure on governors to pardon individuals with past cannabis convictions, especially for simple possession.

“When Biden made the announcement to reschedule cannabis, he also pardoned federal prisoners—which, there are a few—and directed state governors to do the same,” Hauser said. “Much of what needs to happen at the pardon level is at the state.”

Rescheduling at the state level would provide another opportunity for these pardons.

While the DEA reviews the federal marijuana rescheduling recommendation from the U.S. Department of Health and Human Services (HHS), some opponents have attempted to thwart the process. For example, Rep. Pete Sessions (R-TX) filed a legislative amendment to block the Biden administration from rescheduling cannabis. The provision would prevent federal funds from being used to “deschedule, reschedule, or reclassify marijuana” under the Controlled Substances Act.

Sessions recently led a letter urging the 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.

In September, two Republican senators introduced a separate bill that would strip the DEA of its rescheduling power, preventing all federal agencies from rescheduling cannabis without approval from Congress.

That same month, 14 GOP lawmakers sent a letter urging the DEA to reject the marijuana rescheduling recommendation.

While marijuana rescheduling wouldn’t federally legalize access through current state-level medical cannabis programs, it would open up opportunities for research into the plant and have significant implications for the marijuana industry. Congressional lawmakers from both parties have praised the top health agency’s recommendation, considering it a vital “step” on the path to federal legalization, and some have credited their years of advocacy for the move.