The federal Drug Enforcement Administration announced August 11, 2016 that it denied two petitions to reschedule marijuana under the Controlled Substances Act (CSA). In addition, DEA announced a policy change designed to foster research by expanding the number of DEA-registered marijuana manufacturers, and issued a statement of principles concerning industrial hemp.

The CSA categorizes drugs into five categories depending on the drug’s acceptable medical use and the drug’s abuse or dependency potential. Schedule I drugs are defined as drugs with no currently accepted medical use and a high potential for abuse.  Schedule I drugs are considered the most dangerous and include marijuana, heroin, LSD and Ecstasy, among others.  Schedule II drugs are defined as drugs with a high potential for abuse, with use potentially leading to severe psychological or physical dependence.  Schedule II drugs include Vicodin, OxyContin, Demerol, cocaine, and methadone, among others.

In a letter dated August 11, 2016, Chuck Rosenberg, Acting Administrator of the DEA, explained that the CSA drug schedules do not constitute an “escalating ‘danger’ scale,” but rather, scheduling is determined by specific, statutory criteria based on medical and scientific evidence. Under the CSA, the Food and Drug Administration, in consultation with the National Institute on Drug Abuse, reviews, analyzes and assesses the medical and scientific data.  The FDA and DEA then make a determination based on a full review of the relevant scientific and medical literature regarding marijuana.

Marijuana Remains a Schedule I Drug.

In response to two petitions (submitted in 2009 and 2011) that sought to downgrade marijuana from a Schedule I drug to a Schedule II drug, Acting Administrator Rosenberg stated that marijuana will remain a Schedule I drug because the research does not yet support a reclassification. More specifically, the current medical and scientific evidence demonstrates that marijuana has no currently accepted medical use in treatment in the United States.  Acting Administrator Rosenberg stressed, however, that DEA supports legitimate medical and scientific research concerning the use of marijuana and will continue to do so.  He stated:  “If the scientific understanding about marijuana changes – and it could change – then the decision could change.”  DEA’s full responses to the petitions, including the medical and scientific data and analysis that was relied on, will be published in the Federal Register on August 12, 2016.

DEA Will Accept Applications From Marijuana Manufacturers to Grow Marijuana for Researchers.

DEA also announced a policy change whereby marijuana manufacturers may apply to become registered with DEA so that they may grow and distribute marijuana for FDA-authorized research purposes. For nearly 50 years, the U.S. has relied on a single grower to produce marijuana used in federally-funded research.  Under the DEA’s new system, additional marijuana growers may apply for DEA approval to grow marijuana to supply researchers.

DEA Issues Statement of Principles on Industrial Hemp.

The U.S. Department of Agriculture, in consultation with the DEA and the FDA, announced guidelines for entities who participate in the growth and cultivation of industrial hemp under the 2014 Farm Bill which allowed for universities and state departments of agriculture to begin cultivating hemp for limited purposes. Although hemp comes from the cannabis plant – as does marijuana – it generally contains smaller amounts of the psychoactive component tetrahydrocannabinol (THC).  Industrial hemp can be used to make food, fuel, fabric, plastics, construction materials, textiles and paper, among other things. In recent years, many state legislatures have enacted laws to promote the development of industrial hemp production.  The DEA’s statement of principles is intended to clarify how federal law applies to these activities.

What This Means For Employers.

For now, the state of the law with regard to marijuana has not changed. Marijuana remains illegal under federal law, even though some states have enacted laws permitting the use of medical marijuana and recreational marijuana in certain circumstances.  Employers still are faced with deciding whether to follow federal law or to comply with state laws, particularly in those states that prohibit employment discrimination against medical marijuana users. Employers should assess the legal risks in the states in which they operate and consult with counsel to create appropriate strategies to address medical and recreational marijuana in the workplace.