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Cannabis: US Department of Justice Releases Proposed Rulemaking to Reclassify Cannabis as Schedule 3 Drug

The Department of Justice opened a rule-making proceeding soliciting comments on changing the classification of marijuana under the Controlled Substances Act from a Schedule 1 to a Schedule 3 drug. It has released its proposal, but it has not yet published it in the Federal Register. Any decision regarding the reclassification of marijuana is months away.


In reaching a decision, the Secretary and the Attorney General must consider eight factors set forth in the law:  

  1. The drug’s actual or relative potential for abuse.

  2. Scientific evidence of its pharmacological effect, if known.

  3. The state of current scientific knowledge regarding the drug or other substance.

  4. Its history and current pattern of abuse.

  5. The scope, duration, and significance of abuse.

  6. What, if any, risk there is to public health.

  7. Its psychic or physiological dependence liability; and

  8. Whether the substance is an immediate precursor of a substance already controlled.


As we noted previously, the reclassification of marijuana does not mean marijuana will be legalized or deregulated. Reclassification is not the same as New York’s decision to allow recreational cannabis use.  As the DOJ stated in its notice:

“If marijuana is transferred to schedule III, the regulatory controls applicable to schedule III controlled substances would apply, as appropriate, along with existing marijuana-specific requirements and any additional controls that might be implemented, including those that might be implemented to meet U.S. treaty obligations.  The manufacture, distribution, dispensing, and possession of marijuana would also remain subject to applicable criminal prohibitions under the CSA.  21 U.S.C. 841–844.  In addition, marijuana would remain subject to applicable provisions of the FDCA.  For example, under the FDCA, a drug containing a substance within the CSA’s definition of “marijuana” would need FDA approval to be lawfully “introduce[d] or deliver[ed] for introduction into interstate commerce,” unless an IND is in effect for that drug. See 21 U.S.C. 355(a), 355(i), 331(d).  To date, although there have been INDs for drugs containing a substance within the CSA’s definition of “marijuana,” no such drugs have been approved by FDA. DOJ is seeking comment on the practical consequences of rescheduling marijuana into schedule III under the relevant statutory frameworks.”

Accordingly, if cannabis is reclassified, stations will still have significant limitations on advertising cannabis in New York. Stations are licensed by the federal government and must comply with federal cannabis laws, even if they are stricter than New York law, which has legalized recreational cannabis.  Nonetheless, it is a step in the right direction. We will follow this proceeding closely.


You can see the DOJ’s Press Release here.


You can see the DOJ’s Notice of Proposed Rulemaking here


You can see an analysis regarding the legal risks of cannabis advertising by noted communications attorney David Oxenford here.



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