Hearing set to consider reclassifying marijuana as advocates look to future

For marijuana legalization advocates, a federal proposal to reclassify the drug and acknowledge its medical value can’t come soon enough.

But if reclassifcation ultimately occurs, it likely won’t happen until at least 2025.

The U.S. Drug Enforcement Administration set a Dec. 2 hearing date to take comment on what many observers feel could be a historic shift in federal drug policy.

Steph Sherer is the founder and president of Americans for Safe Access, which describes itself as the largest national member-based organization of patients, medical professionals, scientists, and concerned citizens promoting safe and legal access to cannabis for therapeutic use and research.

Sherer told Indiana Lawyer she wasn’t surprised the DEA hearing was scheduled in December, which places it almost a month after the November general election.

“I think that it was pretty clear we’re not going to get to a decision before the election,” Sherer said.

The Justice Department proposed reclassifying marijuana in May, saying the change would recognize marijuana’s medical uses and acknowledge it has less potential for abuse than some of the nation’s most dangerous drugs.

A proposed rule sent to the federal register recognizes the medical uses of cannabis and acknowledges it has less potential for abuse than some of the nation’s most dangerous drugs. The plan approved by Attorney General Merrick Garland would not legalize marijuana outright for recreational use.

The DEA has said it doesn’t yet have a position on whether to go through with the change, stating in a memo that it would keep weighing the issue as the federal rulemaking process plays out, according to the Associated Press.

The agency took more than 43,000 public comments on the proposal.

If approved, the rule would move marijuana away from its current classification as a Schedule I drug, alongside heroin and LSD. Marijuana would instead be a Schedule III substance, alongside ketamine and some anabolic steroids.

The move comes after a recommendation from the federal Health and Human Services Department, which launched a review of the drug’s status at the urging of President Joe Biden in 2022.

Andrew Bauman, a NORML lobbyist with Bauman Government Relations, said the DEA has been dragging its feet on the proposed rescheduling.

“Every other part of government is on board and they’re slow walking it,” Bauman said.

Sherer said it’s pretty clear the DEA is not happy about the HHS’ findings regarding marijuana.

For her, the discussions on a federal level about marijuana’s medical benefits will hopefully create a space where policy makers in states like Indiana—which is one of the few states left that hasn’t legalized either medical or recreational use—can feel comfortable talking about medical use and how to regulate the drug.

Candidates’ views on legalization

As state and federal elections near, medical and recreational marijuana use are becoming prominent campaign issues.

There also has been some movement in Congress to prioritize it.

In July, a U.S. Senate committee approved a spending bill with a new amendment allowing doctors at the U.S. Department of Veterans Affairs to discuss and recommend medical marijuana to patients living in legal states.

Vice President Kamala Harris has backed decriminalizing the drug and said it’s “absurd” to have it in the DEA’s Schedule I category alongside heroin and LSD, according to the Associated Press.

The Democratic nominee’s position has shifted over the years; she once oversaw the enforcement of cannabis laws and opposed legalized recreational use for adults in California while running for attorney general in 2010.

Former President Donald Trump, the Republican nominee, signaled support for a Florida legalization measure, following earlier comments that he increasingly agrees that people shouldn’t be jailed for the drug now legal in multiple states, “whether that’s a good thing or a bad thing.”

During his run for president in 2016, Trump said that he backed medical marijuana and that that the issue should be left up to the states. But during his first term, then-Attorney General Jeff Sessions lifted an Obama-era policy that kept federal authorities from cracking down on the pot trade in states where the drug is legal.

In Indiana, gubernatorial candidates have staked out different positions on legalization.

The Indianapolis Business Journal reported earlier this month that Jennifer McCormick, the Democratic candidate for governor, said she would attempt to legalize marijuana in Indiana through a stepping-stone plan guided by a regulatory body and lessons from the state’s Midwest neighbors.

Regulated medical marijuana would be made available initially under McCormick’s plan and, eventually, recreational adult use would be legalized. The speed of full legalization would be up to a newly-created commission, she said.

Under her roadmap, a body called the Indiana Cannabis Commission would be created to police and oversee the industry. McCormick said this body would guide decision-making related to permits and other regulations as well as guide the rollout.

Republican challenger Sen. Mike Braun hasn’t expressed a solid stance for or against marijuana legalization. In a March primary debate, he said he would leave that decision up to law enforcement, and said the issue was complicated by fentanyl lacing. He did leave the door open for medical marijuana.

“I hear a lot of input where that’s helpful,” he said during the debate. “I think that you need to listen and see what makes sense.”

McCormick’s plan also calls for better regulating hemp-derived THC products, which are frequently sold at Indiana’s gas stations and smoke shops.

Impact on Indiana

There are 38 states that have already legalized medical marijuana and 24 that permit its recreational use.

In November, voters in Florida, North Dakota and South Dakota will decide whether to legalize recreational marijuana for adults. It will be the third vote on the issue in both North Dakota and South Dakota, according to the Associated Press.

This year, there were 10 marijuana-related bills filed in the Indiana House and Senate.

None made it out of committee.

Bauman said if rescheduling occurs on the federal level, it represents another “arrow in our quiver” for Indiana advocates.

He said any 2025 legislative action on legalization will depend in part on who wins the governor’s race.

The next governor has the opportunity to take an aggressive tone on marijuana issues, Bauman said, adding that some sort of medical program stands a chance if it’s made a priority.

Bauman stressed that rescheduling marijuana doesn’t legalize it on a state or federal level.

He said even if the December rescheduling hearing goes well, he estimates it will at least be a couple of months before any final rule is issued.

Americans for Safe Access supports putting cannabis in a drug category all its own and for creating a medical cannabis office within DHS.

Sherer, the access group’s president, said state medical use programs were created as a safe space where states could monitor the drug, with advocates hoping it would create a pathway to a federal program.

People are conflating medical and recreational use of the drug, Sherer said, noting that regulations and access to marijuana will look different for each use.

“These two common bases want two different things from this plant,” Sherer said.

Sherer said her organization hopes to see the creation of a federal medical cannabis program and have the drug integrated into health care systems.•