When Sen. Kirsten Gillibrand, D-N.Y., shared a newsletter with constituents recently, she made the first item of business federal marijuana policy.
In the Feb. 3 newsletter, Gillibrand wrote that "marijuana is currently classified in the same category of drugs as heroin and a more dangerous category than fentanyl or cocaine."
Gillibrand is correct about marijuana’s federal status. That decades-old classification clashes with the drug’s widespread state-level legalization in recent years.
Four states fully outlaw marijuana for medical or recreational use: Idaho, Kansas, South Carolina and Wyoming. Seven more states allow the marijuana derivative CBD but not marijuana itself.
By contrast, every other state has fully legalized marijuana for recreational and/or medical use or removed criminal penalties for possessing small amounts of the drug.
So, why does the federal government still consider marijuana to "have no medical use" and believe it has "the highest potential for disorder and abuse"?
Marijuana as a Schedule I drug
The federal government’s schedule system stems from the Controlled Substances Act, which was enacted in 1970. The schedules run from 1 (for drugs that have the most serious risk of abuse) down to 5 (which are the least likely to be misused).
Gillibrand is correct that cocaine and fentanyl both fall within Schedule 2, which covers drugs "considered dangerous" and have "a high potential for abuse." Under federal scheduling, the legitimate medical use for cocaine is that it can be used during certain eye surgeries under controlled dosages.
Heroin, meanwhile, is considered a Schedule 1 drug, along with marijuana. Other Schedule 1 drugs include LSD and ecstasy.
Although states have increasingly passed laws to legalize marijuana for medical and recreational use, fatal poisonings from fentanyl have skyrocketed, particularly from contamination within other dangerous drugs.
PolitiFact recently rated True the statement that the United States has seen "more Americans die of fentanyl than the Iraq, Afghanistan, and Vietnam wars, combined."
Still, marijuana is more potent than it used to be, with the highest concentrations of THC, the main psychoactive ingredient, found in concentrated cannabis products. Marijuana potency has increased from 4% THC in 1995 to 17% in 2017, and at one dispensary in California, a strain of cannabis that could be smoked had 41% THC, according to KFF Health News.
What does Gillibrand support?
Gillibrand’s office told PolitiFact she supports a full descheduling of marijuana but would also consider a rescheduling to a lower level as an alternative.
Gillibrand was one of eight co-sponsors of the Marijuana Justice Act, which several Democratic senators introduced in the 2019-20 congressional session. The bill would have removed marijuana from the list of controlled substances. Her office added that moving marijuana away from Schedule 1 would enable more research, because Schedule 1 drugs are subject to greater restrictions on medical and scientific study.
Gillibrand also argues that changing marijuana’s status would help ease operations for marijuana-based businesses and unclog court dockets.
What is the outlook for federal rescheduling or descheduling?
Mason Tvert, a marijuana policy specialist with VSStrategies, a Denver-based cannabis consulting company, said the federal government has already taken limited steps toward rescheduling marijuana.
In August 2023, the federal Department of Health and Human Services recommended that the Drug Enforcement Administration reschedule cannabis from Schedule 1 to Schedule 3, though the recommendation’s full text was not released. In January, the department released a 252-page, unredacted copy of the text in response to a Freedom of Information Act request.
Schedule 3 would put marijuana on par with some dosages of codeine, as well as ketamine, anabolic steroids and testosterone.
This marked the first time in history that any federal agency had publicly acknowledged cannabis as having an accepted medical use and relatively low potential for abuse.
Even so, Jonathan Caulkins, who studies drug policy at Carnegie Mellon University, told PolitiFact he doesn’t expect rescheduling to happen soon.
If marijuana were to be rescheduled, then every distributor would have to be licensed by the Drug Enforcement Administration, Caulkins said. This would be a challenge, he said, given variations in the strains of marijuana and the lack of a "baseline" version under the law.
Tvert acknowledged that rescheduling might drag further because of this.
If DEA agreed with the recommendation, the agency would have to publish a proposed rule to reschedule cannabis. That would start a rulemaking process with as much as a 60-day public comment period.
A bigger bottleneck, he said, would come in the courts, as people request administrative hearings; clearing these could take months. All told, rescheduling could take a year or longer, and if President Joe Biden loses reelection, his successor could shelve the process.
Our ruling
Gillibrand said, "Marijuana is currently classified in the same category of drugs as heroin and a more dangerous category than fentanyl or cocaine."
Gillibrand is correct that the federal government classifies marijuana as a Schedule 1 drug, which means it is considered a greater concern than either fentanyl or cocaine, which are classified as Schedule 2 drugs.
Now that most states have legalized marijuana for medical or recreational use, federal officials are considering rescheduling marijuana to a lower category of concern. However, there is no official timeline for action.
We rate the statement True.
Our Sources
- Sen. Kirsten Gillibrand, D-N.Y., newsletter, Feb. 3, 2024
- U.S. Drug Enforcement Administration, "Drug Scheduling," accessed Feb. 19, 2024
- Charles V. Preuss, Arun Kalava and Kevin C. King, "Prescription of Controlled Substances: Benefits and Risks," April 29, 2023
- Defense Information Systems Agency, "Marijuana Legality by State," updated Feb 1, 2024
- Congress.gov, "Marijuana Justice Act," accessed Feb. 19, 2024
- PolitiFact, "Fact-checking claims about New York’s marijuana laws," Aug. 27, 2023
- Interview with Jonathan Caulkins, drug policy researcher at Carnegie Mellon University, Feb. 13, 2024
- Email interview with Mason Tvert, marijuana policy specialist with the firm VSStrategies, Feb. 15, 2024
- Email interview with Evan Lukaske, spokesman for Sen. Kirsten Gillibrand, D-N.Y., Feb. 15, 2024
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