It’s Time to Rethink Drug Scheduling

“I love my work,” a gentleman behind the counter says. “I get paid by the hour to sell medicine to people.” On the wall behind him, I take stock of the inventory. There is bagged dry herb, oils and extracts, edibles of all kinds, ranging from cookies to beverages, and of course, grinders, pipes, vaporizers, bongs, and papers. I was clearly not in Kansas anymore—a figure of speech, as I am from New York. I had wandered into one of Denver’s many cannabis (marijuana) dispensaries.

Outside, the building does not look like much, but the smell of cannabis hangs in the air. It is dark, and almost looks abandoned. Its one defining feature is a neon green medical cross illuminated on the wall facing the road. At first I cannot even tell if it is open.

After checking my out-of-state driver’s license, I am free to wander. This is just one Colorado’s over 2,500 licensed marijuana businesses.

“Welcome,” comes a pleasant voice behind the counter. “Welcome to the future.”

Since the state legalized the recreational usage of cannabis in 2012, with the first retail stores opening in 2014, it has experienced a GDP growth rate higher than it had since 2005, according to the Department of Numbers, a private organization which “contextualizes public data so that individuals can form independent opinions on everyday social and economic matters.” Colorado’s real GDP in 2015 was the fourth highest in the nation. Though the unemployment rate increased slightly this past June, that was due to an increase in the number of people entering and reentering the workforce.

That may or may not have something to do with the fact that legal cannabis has spawned a billion-dollar-a-year industry which continues to grow in spite of federal prohibitions in place.

Still, not all of the effects of this burgeoning market are clear at this point. Marijuana use has increased among teens and adults since legalization, and Colorado’s prescription opioid and heroin problems have continued to grow, as they have around the country.

That said, there is more good news. According to a report from the Drug Policy Alliance, drug-related arrests are down considerably since 2010, as are charges of “with intent to distribute.” Unfortunately, racial disparities in arrests do persist.

From the report:

The total number of charges filed in court for marijuana possession, distribution, and cultivation in Colorado fell from 10,236 in 2010 to 2036 in 2014, a reduction of 80.1%…The majority of these charges in each year were for possession, which accounted for 85% of the total charges in 2010 and 94% of the charges in 2014. The percentage of total charges for distribution offenses averaged 11% for 2010 through 2013 before dropping to 1% in 2014. Thus both the number and the composition of marijuana charges have changed dramatically since Amendment 64 has been fully implemented.

In light of all the facts, one would think that the benefits of cannabinoid legalization are worth exploring. Currently marijuana is classified as Schedule I, meaning it is as prohibited as heroin. Recently, the Drug Enforcement Agency (DEA) also quietly scheduled CBD, a non-psychoactive compound found in cannabis with medical value, as a schedule I substance. Earlier this month the comment period ended for the DEA’s potential ban of kratom, another non-psychoactive substance known to have medicinal value. In all likelihood that too will end up in that category as well.

There are few things less understood by the American public than federal government’s drug scheduling system. First established in 1970 with the signing of the Controlled Substances Act (CSA) by Richard Nixon as a central part in the new “War on Drugs,” this registry essentially provides the standard framework for law enforcement and our justice system to decide how severely to punish drug offenders.

Under the law substances are organized into one of five categories, or “schedules,” based on their accepted medical applications and the potential for abuse or dependency. Schedule I substances are deemed to have the least medical value, and the highest potential for abuse or dependency, and thus carry with them high penalties for possession and distribution. Moreover, they come with high bureaucratic barriers for research—meaning reclassification is difficult at the top tier. Schedule V substances are the opposite.

On the surface, this process may sound reasonable, but as with most things, the devil is in the details.

As Grant Smith, Deputy Director of National Affairs for the Drug Policy Alliance, explained to Paste, “This process is not driven by the scientific community; it is driven by law enforcement.” For permanent scheduling, the DEA asks the Department of Health and Human Services (HHS) for a recommendation for how a drug should be scheduled. HHS, through the Food and Drug Administration, conducts a scientific and medical evaluation known as the eight-factor analysis required by the CSA:

(1) Its 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 the public health.
(7) Its psychic or physiological dependence liability.
(8) Whether the substance is an immediate precursor of a substance already controlled under this subchapter.

As explained the testimony of Douglas C. Throckmorton, M.D. Deputy Director, Regulatory Programs Center for Drug Evaluation and Research U.S. Food and Drug Administration, before the Committee on the Judiciary of the United State Senate:

This scientific evaluation involves the careful analysis of many kinds of data: 1) Data on chemical synthesis and solubility; 2) Data on drug absorption, receptor binding and metabolism; 3) Data to investigate whether animals will develop physical dependence, whether they will work to self-administer the drug; and, whether an animal can distinguish a given drug from other controlled substances. 4) Clinical studies, including the conduct of a study to assess the drug’s abuse potential; 5) Review of human adverse events (relating to the drug’s ability to cause physical dependence, alter moods, cause hallucinations, etc.) from clinical trial reports and from post-marketing experience if applicable.

Based on that analysis, HHS sends a recommendation to the DEA, which has final say of where to classify a substance. However, if HHS recommends a substance not be scheduled, that decision is binding.

Congress can also decide to add a substance to one of the schedules through legislation. But that too has its own problems. As Smith cautioned, “Generally speaking, when congress takes up a bill that will schedule a substance, it is really driven by anecdote, media hysteria around a substance, pressure groups—primarily law enforcement.”

He’s not wrong. Money is generally determinative of policy outcomes in our system today, which presents a problem from advocates of cannabis legalization. Big pharmaceutical companies are actively lobbying against them. As The Washington Post reported back in July, states with medical marijuana laws typically have lower numbers of painkiller prescriptions, which has caused concern among large drug companies.

The tanking numbers for painkiller prescriptions in medical marijuana states are likely to cause some concern among pharmaceutical companies. These companies have long been at the forefront of opposition to marijuana reform, funding research by anti-pot academics and funneling dollars to groups, such as the Community Anti-Drug Coalitions of America, that oppose marijuana legalization.

Pharmaceutical companies have also lobbied federal agencies directly to prevent the liberalization of marijuana laws. In one case, recently uncovered by the office of Sen. Kirsten Gillibrand (D-N.Y.), the Department of Health and Human Services recommended that naturally derived THC, the main psychoactive component of marijuana, be moved from Schedule 1 to Schedule 3 of the Controlled Substances Act — a less restrictive category that would acknowledge the drug’s medical use and make it easier to research and prescribe. Several months after HHS submitted its recommendation, at least one drug company that manufactures a synthetic version of THC — which would presumably have to compete with any natural derivatives — wrote to the Drug Enforcement Administration to express opposition to rescheduling natural THC, citing “the abuse potential in terms of the need to grow and cultivate substantial crops of marijuana in the United States.”

The DEA ultimately rejected the HHS recommendation without explanation.

In the 2014 election cycle, drug manufacturing companies spent $14.7 million, according to OpenSecrets. But big pharma is not the only source of opposition, though it is a strong one. OpenSecrets also reported that police unions, private prison companies, prison guard unions, and big alcohol are pouring money into the fight against legalization.

The decision to remove a substance from the schedules altogether, must also come from Congress.

The current system is quite rigid, and can lead to some interesting results. Natural substances often become Schedule I by default, and remain there because they do not have “medical value.”

In order to find medical value, the substance must go through clinical trials by either the government or private drug companies. When it comes to a substance like cannabis, which was scheduled decades ago, both potential outlets have been incredibly resistant.

“A big reason why substances like marijuana remain as schedule I or remain in the scheduling system period, has been the barriers to research,” Grant lamented. “We would argue that substances like marijuana do not belong in the scheduling system period,” Smith stated. “An honest scheduling system would include alcohol and tobacco.”

Currently, non-addictive substances like cannabis, lysergic acid diethylamide (LSD), peyote, and psylocybin (magic) mushrooms are all Schedule I, while highly addictive chemicals like cocaine, methamphetamine, oxycodone, vicodin, and fentanyl are listed as Schedule II, and Xanax and Ativan are Schedule IV.

According to Drug Sense, the United States spent roughly $15 billion in 2016 enforcing these drug prohibitions. State and local efforts thus far have totaled upwards of 25 billion. Law enforcement budgets are determined by need, so the more illegality, the higher their budget.

As the expression goes, something is rotten in the state of Denmark. The time may have arrived to rethink the schedules entirely. At the very least, the process should not include law enforcement, let alone be driven by it.

After reaching out to the DEA multiple times to understand the scientific basis for their scheduling of cannabis, LSD, magic mushrooms, and peyote in relation to cocaine and others, Paste has not heard back.

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