DEA Validates New Two-Step Test for Marijuana’s Medical Use

The Drug Enforcement Administration has never been high on the idea of marijuana reform. In the past, the federal agency has been critical of cannabis reform. It was one of the most notable holdouts when the Biden Administration expressed interest in loosening federal marijuana restrictions. The agency has consistently resisted the cannabis reform movement, claiming there is little scientific proof to suggest the drug has any medical or therapeutic value.

The tune at the DEA may be changing after the agency published its formal proposal for marijuana rescheduling in May. Officials pushed back their decision to reclassify marijuana from a Schedule I controlled substance to a Schedule III substance until after the election. Still, the agency has made strides on the cannabis reform front.

Today, the agency continues to make progress, albeit as a footnote. The DEA acknowledges the legitimacy of a new two-part test to determine a substance’s accepted medical use. What does that mean? It’s time for a medical marijuana breakdown.

Understanding the Medical Use Threshold

To understand why the DEA legitimizing a new two-part test to determine a substance’s accepted medical value, you must go back and examine how the agency has traditionally categorized illegal drugs and other substances.

There are five tiers to the federal drug classification system. Schedule I drugs, like marijuana, are illegal substances authorities have deemed to have a high potential for abuse and no accepted medical use. Schedule V drugs have a much lower potential for abuse and dependance and include drugs like Lomotil and Lyrica. To place drugs into one of the five categories, the government relies on a five-part test. In response to a court challenging in 1992, the DEA suggests that a drug has an accepted medical use only under the following conditions:

• The drug’s chemistry is known and reproducible
• There are adequate safety studies
• There are adequate and well-controlled studies proving efficacy
• The drug is accepted by qualified expert
• The scientific evidence is widely available

Cannabis plants have hundreds of unique chemical compounds. Additionally, there are numerous unique strains of cannabis plants, finding repeatable chemistry is a plant is challenging. So is finding widely available scientific evidence when marijuana has been federally illegal for decades and notoriously difficult and expensive to obtain for research purposes.

Is Rescheduling on the Horizon?

However, when the Department of Health and Human Services recommended moving marijuana from a Schedule I substance to a Schedule III substance, the agency used a new, simplified two-step analysis. This process, in addition to numerous new medical and scientific studies conducted following the legalization of medical and recreational marijuana in many states, proved to the federal agency that marijuana does indeed have some medicinal benefits.

The new approach factors in the answers to two primary questions:

• Whether there is widespread medical use by licensed providers under state regulations
• Whether there is credible scientific support for at least one medical use

Cannabis enthusiasts seem to support the new process, saying now more than ever, there is credible scientific support for the therapeutic use of cannabis. Some form of medical cannabis is also available for patients in 47 states, the District of Columbia, and three U.S. territories according to data from the U.S. Centers for Disease Control and Prevention.

Now it seems the DEA may be falling into step with other federal organizations by acknowledging the legitimacy of the two-part test used by the HHS. However, the agency isn’t acknowledging the two-part test in a loud and proud statement or declaration. Instead, the DEA quietly tucked the information into a footnote included in a notice about an unrelated move to place a pair of synthetic opioid drugs under the Schedule I drug classification system.

A Footnote in History

The footnote appears in a DEA notice concerning the synthetic benzimidazole-opioid substances N-pyrrolidine metonitazene and N-pyrrolidine protonitazene. The DEA recognized that the two-part test was sufficient to allow the agency to classify the synthetic opioids as Schedule I substances.

Why is the DEA, an agency that has been adamant about using the traditional five-part system to classify drugs, changing direction on the new two-part analysis? The answer rests in a closer look at the footnote provided in the notice. The footnote includes language that suggests the DEA acknowledges this new test. This signals that it must defer to the Department of Justice’s (DOJ) Office of Legal Counsel (OLC), which has previously found the two-part test sufficient.

The Office of Legal Counsel speaks with the authority of the entire executive branch of government. That means it can only be overruled by the attorney general or the President of the United States. Legal experts suggest the agency must accept the two-part review if only because a higher authority binds them.

Technically, the agency may not fully support the new standard. However, it is significant that, for the first time, it is acknowledging the test and understanding that higher authorities than the HHS, like the OLC also accept it.

Precedent Matters

Setting this precedent is vital because it could pave the way for more intense discussions about future drug rescheduling efforts, such as those involving psychedelics, which may help treat psychiatric disorders. The decision on whether to reschedule these drugs could be influenced by the broader acceptance of the two-step test.

The system isn’t without opposition. Many who oppose rescheduling marijuana and other drugs claim the two-part review is biased. They say it is for political purposes to prop up the cannabis reform movement. Supporters say the traditional five-part review system is antiquated.

Only one thing is sure: the DEA’s quiet recognition of the two-part review system is a crucial development in the discussion surrounding cannabis and broader drug policy in the U.S. today.

Read More Cannabutter Digest!

Find more cannabis-related news and other content at Cannabutter Digest. We are your home for all cannabis-related specialties, including news, recipes, and product reviews.