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DEA Cannabis Reclassification Moves Forward

As we reported last year, the Biden administration is moving forward to reclassify cannabis from a Schedule 1 to a Schedule 3 drug under the Controlled Substances Act. There were a number of press accounts last week indicating that the U.S. Drug Enforcement Administration plans to move forward with a recommendation from the Department of Health and Human Services to reclassify cannabis from a Schedule 1 to a Schedule 3 drug. As a Schedule 1 drug, cannabis is classified in the same category as heroin and LSD. A Schedule 3 drug is defined as a drug with accepted medical use and a moderate to low potential for physical and psychological dependence. This would include products such as Tylenol with codeine, ketamine, anabolic steroids, and testosterone.

There is still a long way to go on this issue. First, the Justice Department will make its recommendation.  The proposal is then reviewed by the White House Office of Management and Budget. Then, the proposal will be sent out for public comment. Thus, it will be months before a decision is made.

What will this mean for broadcasters? Even with reclassification, cannabis remains illegal under federal law. This is not federal legalization or decriminalization. Even though medical and recreational cannabis is legal in New York, broadcasting an advertisement for a state-licensed recreational cannabis outlet still poses a risk to your federal license. The nature and scope of permissible advertising will depend in large measure on the nature and scope of the DOJ’s rules. 

From a practical standpoint, reclassifying cannabis will be a step in the right direction. For broadcasters, the risk has always been that advertising cannabis could be considered as aiding in the distribution of a controlled substance. Under the Controlled Substances Act, this means a loss of a federal benefit, i.e., your broadcast license, upon conviction. So, the risk has been based on the potential for a conviction under the federal drug laws. As a practical matter, the DOJ is more likely to prosecute those illegally selling a Schedule 1 drug, as opposed to a Schedule 3 drug. Nonetheless, even with reclassification, there is still a technical risk to your license.

To date, the FCC has not adopted any rule to either prevent or allow cannabis advertising. We do not expect it to make any pronouncements soon. Moreover, the FDA has not approved any medical cannabis use, so stations must be cautious as they approach the issue.

While this is a step in the right direction, there is a long way to go on this issue. Reclassification does not resolve the conflict between New York and federal law.

You can see an explanation of the reclassification in JD Supra here.

Another good explanation about the proposal can be found from the law firm Clark Hill here.

Noted communications attorney Greg Skall penned a good article on the issue in Inside Radio here.   



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